Decided on August 17,2010



Dinakaran, J. - (1.) THE petitioner was employed as an X-Ray Assistant Technician in various capacities in the District Government Hospital, Namchi, of course with break in service as hereunder: "(i) Substitute X-Ray Assistant Technician from 5.4.85 Vide Office Order No.11/M, dated 4.4.85. (ii) On daily wages from 04.06.1986 vide O.O. No. 473/M, dated 01.07.1986. (iii) On ad hoc basis from 16.7.88 vide O.O. No. 636/M, dated 16.7.88. (iv) On contract basis from 17.10.88 vide O.O. No. 2013/M, dated 20.1.89. (v) On ad hoc from 17.10.89 vide O.O. No. 98/M, dated 16.10.89. (vi) On contract basis from 20.10.89 vide O.O. No. 982/M, dated 16.10.92. (vii) On contract basis from 24.9.90 vide O.O. No. 202/M, dated 3.7.92. (viii) On contract basis from 21.9.92 vide O.O. No. 691/M, dated 13.10.92. (ix) On contract basis from 21.1.93 vide O.O. No. 556/M, dated 7.12.93. (x) On contract basis from 21.3.94 vide O.O. No. 190/M, dated 5.7.94. (xi) On contract basis from 1.4.95 vide O.O. No. 134/M, dated 21.7.95. (xii) On contract basis from 1.11.96 95 vide O.O. No. 143/M, dated 31.8.97. (xiii) On contract basis from 1.4.98 95 vide O.O. No. 305/M, dated 13.8.98 (xiv) On contract basis from 1.4.99 95 vide O.O. No. 314/H &FW dated 3.8.99." 1.2 THE last appointment of the petitioner, as an X-Ray Technician on a consolidated pay of Rs.6280/- in the Health Care and Family Welfare Department, was on contract basis, as per the proceedings dated 03.08.1998, which reads as follows:- " GOVERNMENT OF SIKKIM DEPARTMENT OF HEALTH CARE & FAMILY WELFARE GANGTOK No. 314/HC,HS & FW Dated: 3/08/98 To Mr. A.K. Jha 23, Rakhal Das, Banerjee Road, P.O. Berhampore, District: Murshidabad. SUB: OFFER LETTER FOR CONTRACT APPOINTMENT. THE Government of Sikkim is pleased to offer you employment as X-Ray Technician in the Health & Family Welfare Department for the period of one year on contract w.e.f. 1.04.1999 to 31.03.2000. 1. You will be paid a consolidated pay of Rs.6280/- per month.
(2.) THIS offer is subject to the terms and conditions of contract employment as per the advertisement calling for applications dated ________and the conditions and terms in the Agreement of appointment to be entered into. If you accept this offer, you are requested to report to the undersigned on the next immediate working day in his office and comply with the formalities of signing the agreement, but not later than 27.7.99 failing which this offer will stand cancelled. You are likely to be posted at District Hospital, Namchi in South Sikkim.
(3.) THE department will give you a posting order after the agreement is concluded. Sd/- DEPUTY SECRETARY (ADM.) DEPARTMENT OF HEALTH & F.W. GOVERNMENT OF SIKKIM " 1.3 Pursuant to the said proceedings dated 03.08.1998, the petitioner entered into an agreement with the Health Care & Family Welfare Department, Government of Sikkim, the relevant portion of the said agreement reads as under: - " GOVERNMENT OF SIKKIM DEPT. OF HEALTH & FAMILY WELFARE GANGTOK AGREEMENT OF APPOINTMENT This agreement of appointment entered on this 27th day of July 1999 between: THE Government of Sikkim, known as the employer on the first part: And Shri Ashis Kr. Jha, son of Shri Neelamta Jha aged 39 years, residing at Berhampore, Murshidabad (hereinafter called the employee) of the second part as follows: 1. ..... 2. ...... 3(a) THE employment shall be on contract and purely temporary for the period from 1.4.1999 to 31.03.2000. (b) ...... (c) ...... (d) ...... (e) THE employment will automatically come to and end on 31-3-2000. (f) THE employee has no right to continue in employment after the expiry of his/her term of employment. He may apply for a fresh appointment in which case a fresh agreement will be entered into by the parties, after following the procedure for recruitment by interview or written test or both. (g) No employee under contract service shall be entitled for regularisation in the post as of right." (emphasis supplied) 2. Undisputedly, the petitioner had not chosen to challenge the said offer letter dated 03.08.1998 for contract appointment and Clauses 3 (a), (e), (f) and (g) of the Agreement of Appointment entered thereunder on 27.07.1999. 3. According to the petitioner, his case is similar to that of Buddha Lama, who was working as a Compounder in Namthang Primary Health Centre on contract basis from 1982 and subsequently got regularised by the respondents. He further contends that the Honourable Chief Minister by the proceeding dated 14.01.1997 recommended for regularisation of the petitioner's service as a special case. Pursuant to the said recommendation, the Joint Director, Health and Family Welfare Department, South District, Namchi on 13.02.1997 observed as follows: "Mr. Ashish Kumar Jha has been working as X- ray Technician for more than 10 years at Namchi Hospital. So far he has been working satisfactorily. THE request made by the applicant for regularisation of service may be considered sympathetically as we still require his service. Sd/- Joint Director Health & Family Welfare Deptt. South District, Namchi." 4. It may not be out of place to point out that the last appointment of the petitioner on contract basis, vide "Offer letter for Contract Appointment" dated 03.08.1998 by the Department of Health & Family Welfare, Government of Sikkim, and the agreement dated 27.07.1999 entered there under whereby the petitioner was appointed for the period 01.04.1999 to 31.03.2000, was subsequent to the proceedings of the Honourable Chief Minister, Joint Secretary and Joint Director, as referred to above. 4.2 Based on the said proceedings of the Joint Director, Health Care & Family Welfare Department, South District, Namchi, the petitioner seeks regularisation of his service as X- Ray Technician, and pray for the following reliefs: - "(i) For direction to the concerned respondents to regularise the service of the petitioner as a regular employee to the post of X-Ray Technician with effect from 05.04.1985 in pursuance of order of approval dated 14.01.1997 (Annexure ? 8) by Honourable Chief Minister, Government of Sikkim and order of recommendation dated 13.02.1997 (Annexure ? 9) issued by the Joint Secretary, Health and Family Welfare Department, Government of Sikkim, South District Namchi and also taking into account the regularisation of one Mr. Buddha Lama to the post of Compounder, Namthang P.H.C. who also worked on the contract service from 1982 by following the principle laid down by Honourable Supreme Court of India in Gujarat Agricultural University case reported in AIR 2001 SCW 507. (ii) For direction to the concerned respondents to pay arrears of due salaries from 05.04.1985, after deduction which has already paid earlier during course of his service, in the pay scale of X-Ray Technician from 05.04.1985 like a regular employee of X-Ray Technician by following well settled principle laid down by Honourable Supreme Court of India in Gujarat Agricultural University case reported in AIR 2001 SCW 507. (iii) For direction to the concerned respondents to pay interest @ 18% over the due amount of arrears of salaries from 05.04.1985 on the basis of law as well as in equity on the well settled principles laid down by Honourable Supreme Court of India in Food Corporation of India and another ? versus ? M/s SEIL Ltd. And others reported in 2008 (2) JLJR (SC) 141. (iv) For direction to the concerned Respondents to grant all other consequential relief/reliefs for which the petitioner would be entitled for in the facts and circumstances of this case setforth in the writ petition as well as existing Laws, Regulation, Rule, Resolution, Notification and Act in the State of Sikkim and other laws." 5. Heard Mr. Sudesh Joshi, learned counsel appearing on behalf of the petitioner and also Mr. J.B. Pradhan, learned Additional Advocate General appearing on behalf of the State. Learned counsel appearing for the petitioner fairly conceded that the law laid by the apex Court in Gujarat Agricultural University vs. Rathod Labhu Bechar reported in AIR 2001 SCW 507 (Equivalent to (2001) 3 SCC 574), stands overruled by the apex Court in Secretary, State of Karnataka and others vs. Umadevi (3) and others reported in (2006) 4 SCC 1. 6.2 However, the learned counsel seeks sympathetic approach in the matter as in the case of Buddha Lama and also in the light of the Order dated 14.01.1997 passed by the Honourable Chief Minister as laid down by the petitioner. ;

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