Jammu & Kashmir High Court
Damni Rajrah vs Union Territory Of Jammu & Kashmir on 10 March, 2025
S. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on:- 10.02.2025
Pronounced on:- 10.03.2025
Case:- WP(C) No. 1151/2023
CM No. 2683/2023
c/w
CCP(S) No. 169/2023
1. Damni Rajrah, age 26 years, D/o Sh. Dilip Kumar
R/o Chak Desa Singh, Kathua
2. Anju Devi, age 37 years, D/o Sh. Balwant Singh,
R/o Vill. Ramkote, Billawar, District Jammu
3. Gohar Nazir, Age 24 years, D/o Sh. Nazir Ahmed,
R/o Raj Nagar, Budal, District Rajouri
4. Tayib Ali Khan, Age 25 years, S/o Mohd Khakan,
R/o Sakhi Maidan, Mendhar, Poonch
5. Priya Sharma, Age 28 years, D/o Sh. Chaman Lal,
R/o Lamen, Sunderbani,
6. Archana Bandral, Age 24 years, D/o Sh. Rakesh Kumar,
R/o Manyal Brahmana, Tehsil Marh, Jammu.
7. Sabia Naz, Age 25 years, D/o Mohd. Latief,
R/o Bhata Dhurian, Poonch
8. Neha Sharma, age 25 years, D/o Sh. Raj Kumar,
R/o W.No. 3, Khamba Jahanger, Nowshera
9. Anil Kumar, age 29 years, S/o Sh. Devi Chand,
R/o Kathil Ganju, Ramnagar
10. Tahira Begu, age 26 years, D/o Sh. Maqbool Hussain,
R/o Dayala, Kakakote, Rajouri
(Plus 140 others) .....Petitioner(s)
Through: Mr. S S Ahmed, Advocate
Mr. Sheikh Najeeb, Advocate
Vs
1. Union Territory of Jammu & Kashmir
Through its Secretary to the Government of J&K, Health
and Medical Education Department,Civil Secretariat,
Jammu.
2. The Principal, Government Medical College, Jammu, ..... Respondent(s)
Through: Mr. Raman Sharma, AAG
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
PRAYER
01. Through the medium of the instant petition preferred under Article 226 of
the Constitution of India, the petitioners seek the following reliefs:
2 WP(C) No.1151/2023
(a) “Writ of Certiorari quashing endorsement No.
GMC/23/DRDO/1237 DATED 19.04.2023 made by
respondent no.2 on the communication No. ME-
Gztd/198/2022 dated 13.04.2023 issued by the respondent
no.1 whereby the petitioners who are working on the
contractual basis have been disengaged.
(b) Writ of Mandamus commanding the respondents to allow the
petitioner to continue their services on contractual basis till
may 2024, as per Government order no.398-JK (HME) of
2021 dated 18.05.2021 owning to their commendable
performance during Covid-19 Pandemic and their
requirement by respondent no.2 as recommended to the
respondent no.1 by her on various occasions and
commanding the respondent to release the salary of the
petitioners w.e.f January to April 2023 as the petitioners have
uninterruptedly performed their duties during the said Covid-
19 period”.
02. Before proceeding further in the matter and to clinch the controversy in
question, it is apposite to give brief resume of the facts, which, in nutshell,
are summarized as under:-
FACTUAL MATRIX OF THE CASE:
03. The case of the petitioners is that in terms of Government Order No. 398-
JK (HME) of 2021 dated 18.05.2021, sanction was accorded to the
establishment of a 500 bedded temporary Covid Hospitals one each at
Jammu and Srinagar, in collaboration with Defence Research and
Development Organization (DRDO), Ministry of Defence, Government of
India and accordingly 1366 posts across various categories were created to
facilitate the operation of these hospitals. The said order also stipulated that
the administrative control of these hospitals would lie with the Principals of
the Government Medical Colleges of Jammu and Srinagar. Furthermore,
the posts were established for a period of three years, and initially for a
period of one year which included posts of physicians anesthetists,
pediatricians and medical officers, technical staff and paramedical staff .
04. Further case of the petitioners is that the respondent No. 2 vide
3 WP(C) No.1151/2023
Government Order No. 398-JK(HME) of 2021 dated 18-05-2021 issued
advertisement notices for filling up of posts of Medical Officers,
Pharmacist, Lab Technician, X-Ray Technician, Junior Staff Nurse etc. in
the newly created 500 bedded Covid Hospitals, the same were to be filled
up for a period of one year extendable upto maximum of three years (one
year at a time and further extension subject to good performance and
conduct).
05. It is the specific case of the petitioners that they responded to the
aforementioned advertisement notices and eventually came to be selected
as Junior Staff Nurses, Pharmacists, Nursing Supervisors, Lab Technicians,
X-Ray Technicians and Medical Officers and pursuant to their selection,
the petitioners were engaged and started performing their duties against the
posts on which they were engaged.
06. The learned counsel for the petitioners further submits that the respondent
No. 1 issued Government Order No. 107-JK(HME) of 2022 dated 02-03-
2022, whereby it was ordered that all the doctors deployed in the temporary
Covid Hospitals in Jammu/Kashmir were repatriated to their original place
of posting as the said order was issued keeping in view the decline of
Covid-19 cases in UT of J&K and in the same order, it was further
mentioned that the Principals of the Government Medical Colleges
Srinagar/Jammu shall review the requirement of continuance or otherwise
of all the contractual staff so that further course of action is taken,
accordingly.
07. According to the petitioners, respondent No. 2 issued a Communication
No. GMC/2022/470 dated 29.08.2022 to respondent No. 1 requesting for
4 WP(C) No.1151/2023
the extension of the contractual doctors, paramedics by another one year as
the extension was already being granted in favour of the staff engaged in
Covid Hospital Srinagar. In response to which, respondent No. 1 vide
Communication No. ME/Gztd/198/2022 dated 03-10-2022 granted
extension to the staff till 31.12.2022 i.e. for a period of six months only
which was not in consonance with Govt. Order No. 398 dated 18.05.2021
as the said Government order clearly provided that the tenure shall be
extended for a period of one year at a time and for a period of three years in
total.
ARGUMENTS ON BEHALF O THE PETITIONERS:
08. The learned counsel for the petitioners has argued that services of the
petitioners were not only confined to Covid Hospitals but were deployed
across all associated hospitals wherever there was a staff shortage. This
deployment was necessitated by the scarcity of personnel and the lack of
trained or skilled staff in these hospitals. It is further submitted that the
respondent No. 2, recognizing the pressing shortage of staff at the GMC
and its associated hospitals, took a decision to extend the tenure of the
petitioners. This decision was made following a comprehensive review of
the petitioners’ exemplary service during the COVID-19 Pandemic, where
they demonstrated remarkable skill and dedication in managing COVID-19
cases
09. Additionally, the petitioners possessed specialized training and expertise
essential for the effective management of COVID-19 patients, further
justifying the need for their continued presence. It is also pertinent to note
that this decision was taken after a meeting of the Superintendents of all
5 WP(C) No.1151/2023
associated hospitals, where the extension of the petitioners’ tenure for a
period of one and a half years was deemed necessary in light of the critical
staff shortages. Therefore, the petitioners assert that the decision to grant an
extension of their tenure was both reasonable and justified, considering the
exceptional circumstances.
10. It has been further argued that on 22.12.2022 respondent no.2, sent a
detailed communication to respondent No.1, wherein the requirement of the
petitioners was highlighted. It was pointed out that the existing staff at the
Government Medical College and its associated hospitals does not meet the
Indian Public Health Standards norms, resulting in a shortage of staff.
Additionally, it was informed that services from the petitioners in the
Maternity Hospital in Gandhi Nagar, Jammu and in New Emergency
GMCH, Jammu were being utilized. Thus, a request was made by
respondent no.2 for extension of the tenure for the current staff by one and
a half years, until May 2021, to ensure continued patient care. The
communication issued by respondent No. 2 remained unanswered,
however, on 13.04.2023, respondent No. 1 sent a Communication No.
ME/Gztd/198/2022 to respondent No. 2, asserting that due to the closure of
DRDO Hospitals in Jammu and Srinagar, there was no justification for
extending the tenure of staff engaged in these hospitals beyond 31.12.2022.
Consequently, respondent No. 2 conveyed this decision to all Heads of
Departments, Administrators, and Medical Superintendents, instructing that
the staff engaged on a contractual basis for DRDO be deemed disengaged.
GROUNDS PLEADED BY PETITIONERS:-
11. The petitioners feeling aggrieved of the impugned endorsement dated
6 WP(C) No.1151/2023
19.04.2023 issued by respondents 1and 2, whereby the services of the
petitioners have been disengaged, they have challenged the validity of the
aforesaid impugned endorsement inter alia on the following grounds:
“i) That at the very outset the petitioners submit that they were engaged on
contractual basis in terms of Government Order dated 18.05.2021 and
as per the said Government Order the posts created were to be filled up
for a period of one year which may be extended for another two years
(one year at a time) by a Committee of which the respondent No.2 was
nominated as Chairperson. It was also laid down in the said
Government Order dated 18.05.2021 that the Administrative Control of
these Hospitals shall lie respectively with the Principals of GMC,
Jammu and GMC, Srinagar.
Further, the respondent No.1 while issuing Government Order No.
107-JK(HME) of 2022 dated 02.03.2022 has authorized the respondent
No.2 to review the requirement of continuance or otherwise of the
contractual staff and the respondent No.2 on number of occasions
brought to the knowledge of respondent No.1 regarding the dire need
of requirement of staff in GMC and Associated Hospitals but the
respondent No.1 did not even consider the request the respondent No.2
that too without citing any reason and with the disengagement of the
petitioners, the functioning of Maternity Hospital, Gandhi Nagar,
Jammu has come to a grinding half and the said hospital is literally at
the verge of closure due to inadequate staff.
ii) That the Hon’ble Court may kindly appreciate that after the closing of
the Covid Hospital, Jammu, the respondent No.2 is utilizing the
services of the petitioners at 40% scarcity of staff and the petitioners
have worked with Zealand honesty to provide better patient care in the
time of turmoil but with one stroke of pen, their services were
disengaged by the respondent No.2 that too without citing any reason
or providing them opportunity of being heard. The Hon’ble Court may
kindly appreciate that as per Government Order dated 18.05.2021, the
petitioners were engaged initially for one year but their services were
extendable upto 03 years as per requirement and the domain of
requirement was to be looked into by respondent No.2 being the Head
of the Hospitals and the dire need of petitioners was reported by the
respondent No.2 to the respondent No.1 but despite that no heed was
paid to such requests and instead the respondent No.1 kind of
reprimanded the respondent No.2 for availing the services of the
petitioners. Furthermore, the respondent No.1 misplaced himself at the
time of granting extension to the petitioners for a period of six months
only when the Government Order dated 18.05.2021 clearly
contemplated that the extension shall be for a period of one year at a
time meaning thereby for a period of one year at least. Not only this,
the petitioners have worked till 19.04.2023 and the salary w.e.f
January 2023 to 19.04.2023 has not been paid to the petitioners till
date by respondent No.2.
iii) That the Hon’ble Court may also appreciate that it was provided in the
Government Order dated 18.05.2021 that the contractual appointees
shall have to furnish an affidavit to the extent that they will not claim
regular appointment at any future date on the strength of contractual
appointment and the same was furnished by the petitioners and as a
matter of fact the petitioners are not claiming any regularization of
their services. It was also provided in the Government Order dated
18.05.2021 that the contractual appointment shall be terminable on one
month’s notice from either side or on payment of one month’s salary in
7 WP(C) No.1151/2023
lieu of notice by appointing authority and the appointment shall be
terminable without notice by the appointing authority only when the
posts are filled up on regular basis by it and no where it was provided
in the Government Order that the contractual appointees shall be
disengaged on the closure of Covid Hospital and if such was intention
of the Government that the contractual appointees have to be
disengaged on the closure of Covid Hospital then the cause of
terminating the contractual appointee on filling up of post by regular
candidate would have not been incorporated in the Government Order.
The Hon’ble Court may kindly appreciate that even the advertisement
notices issued by the respondent No.2 provided that the tenure of the
petitioners was extendable upto three years subject to good
performance and conduct of the petitioners have remained exemplary
and the respondent No.2 have certified the exemplary services of the
petitioners in number of communications addressed to the respondent
No.1.
It is submitted that the petitioners have worked till 24.04.2023 in
GMC and Associated Hospitals and on 24.04.2023 the respondent No.2
informed the petitioners that they have been disengaged on 19.04.2023
and the said statement of the respondent No.2 came as big jolt to the
petitioners who were legitimately expecting to complete the tenure of 03
years and not only this nothing was said by the respondent No.2
regarding the unpaid salary of the petitioners w.e.f 01.01.2023 to
24.04.2023. The action of respondents is illegal/arbitrary and in
violation of Principles of Natural Justice more particularly the terms
and conditions of Government Order dated 18.05.2021, as such, the
same is required to be quashed and directions may kindly be issued to
the respondents 1 and 2 to allow the petitioners to work till May 2021
and also pay to the petitioners salary w.e.f 01.01.2023.”
ARGUMENTS ON BEHALF OF RESPONDENTS:-
12. Per Contra, reply has been filed by the respondents, wherein it is pleaded
that the petitioners were initially engaged for a fixed term of one year
which was subsequently extended till 31.12.2022. The petitioners’ tenure
expired on 31.12.2022 and thereafter, no further extension of their services
was granted. Therefore, the impugned communication does not provide any
new cause of action for the petitioners. The petitioners cannot unilaterally
impose their services upon the answering respondents, as such, the action
would not only constitute a breach of the terms of the contract but also
contravene the very purpose for which they were engaged. Furthermore, the
petitioners had given an undertaking wherein they have expressly agreed
not to claim regular appointment in the future based on their contractual
engagement.
8 WP(C) No.1151/2023
13. Learned counsel for the respondents Mr. Raman Sharma, learned AAG has
further argued that the extension was contingent upon certain requirements,
however, due to decline in Covid-19 cases, these requirements were no
longer applicable. Moreover, it was emphasized that the one-year extension
is the maximum allowed and cannot be interpreted as a mandatory duration,
especially when no such requirement exists. Additionally, the petitioners
have accepted the six-month extension without objection and cannot now,
after the expiration of that period, claim that an extension for a full year
should be granted.
14. It has been further argued that since the petitioners were engaged on
temporary basis for COVID hospitals only, even if at all any part of their
services were used in any other associated hospital, same has been done
unauthorizedly without any permission from the Administrative
Department. Thus, unauthorized utilization cannot confer any right upon
them. Also, it has been argued that the regular posts have already been
filled up from the candidates recommended by the JKPSC/SSB, therefore
the respondents have sufficient staff to manage the existing hospitals.
15. The learned counsel for the respondents argued that, based on the facts and
circumstances presented, no legal right or entitlement has accrued to the
petitioners that would warrant judicial intervention. Consequently, the
petitioners are not entitled to the relief sought, as no valid grounds exist
upon which the relief can be granted.
16. Mr. Raman Sharma, learned AAG, in support of his arguments, has also
relied upon a judgment dated 12.12.2023 passed by a Coordinate Bench of
this Court in WP(C) No. 1015/2023, involving similar issue and prays that
9 WP(C) No.1151/2023since the instant petition is squarely covered by the aforesaid judgment, the
same also deserves dismissal.
LEGAL ANALYSIS:-
17. Heard learned counsel for the parties at length and perused the record.
18. The principle that “Contractual employment does not give rise to a vested
right to continue”, is grounded in the understanding that once a contract of
employment has been mutually agreed upon by both the parties, without
any objection and reservation, it is not within the jurisdiction of the Court
to compel the employer to maintain the contract or alter the terms or status
of the employment in any manner. It is important to distinguish between
the legality of termination and the automatic continuation of contractual
employment. While a worker may have the right to challenge the
termination if it is in violation of statutory protections, but there is no
automatic right to employment continuation simply because the individual
was employed under a contract. Thus, the Court’s role is limited to
ensuring that the termination of the contract is done in accordance with the
law and the terms of the contract, but it cannot compel the employer to
extend the contractual relationship, once it has come to an end provided
that the termination/ disengagement is lawful and does not violate any legal
provision. The Hon’ble Supreme Court has consistently held that unless the
contract specifically provides for continuity or renewal of the employment,
the termination of the contract or the non-renewal of a fixed term contract
does not automatically entitle the employee to continue in employment.
19. In case of contractual employment, the employee’s right to continue in
employment is based solely on the terms and conditions of the contract.
10 WP(C) No.1151/2023
Contractual employment does not create a “right to permanent
employment” unless explicitly stated in the contract or by law. This means
that the appointee does not acquire any inherent or automatic right to
remain employed beyond the agreed term of the contract. The absence of
vested rights is particularly relevant when dealing with fixed-term
contracts, where the nature of employment is temporary. The employee’s
right to continue working beyond the contract period is contingent on the
employer’s willingness to extend or renew the contract, and such a decision
lies within the discretion of the employer.
20. The Hon’ble Supreme Court has consistently held in catena of judgments
that unless the contract specifically provides for continuity or renewal of
the employment, the termination of the contract or the non-renewal of a
fixed term contract does not automatically entitle the employee to continue
in employment.
21. The Hon’ble Supreme Court has made several observations in key cases,
affirming that contractual employees do not acquire vested rights to
permanency, similar preposition was discussed in case tilted State Of
Maharashtra And Others v. Anita And Another 2016 SCC 8 (293)
wherein the Apex Court has observed as follows;
“15. The above terms of the agreement further reiterate the stand of the
State that the appointments were purely contractual and that the
respondents shall not be entitled to claim any right or interest of
permanent service in the Government. The appointments of the
respondents were made initially for eleven months but were renewed
twice and after serving the maximum contractual period, the services of
the respondents came to an end and the Government initiated a fresh
process of selection. The conditions of the respondents’ engagement are
governed by the terms of agreement. After having accepted the
contractual appointment, the respondents are estopped from challenging
the terms of their appointment. Furthermore, the respondents are not
precluded from applying for the said posts afresh subject to the
satisfaction of other eligibility criteria.”
11 WP(C) No.1151/2023
“16. The High Court did not keep in view the various clauses in the
Government Resolutions dated 21-8-2006 and 15-9-2006 and also the
terms of the agreement entered into by the respondents with the
Government. Creation of posts was only for administrative purposes for
sanction of the amount towards expenditure incurred but merely because
the posts were created, they cannot be held to be permanent in nature.
When the Government has taken a policy decision to fill up 471 posts of
Legal Advisors, Law Officers and Law Instructors on contractual basis,
the Tribunal and the High Court ought not to have interfered with the
policy decision to hold that the appointments are permanent in nature.”
22. The Hon’ble Apex Court in case titled Yogesh Mahajan v. Professor R.C.
Deka reported as (2018) 3SCC 218, the status of the contractual
appointment and employment has been discussed as in Paras 6,7 and 8 of
the judgment as under:
“6. It is settled law that no contract employee has a right to have his or her
contract renewed from time to time. That being so, we are in agreement with
the Central Administrative Tribunal and the High Court that the petitioner
was unable to show any statutory or other right to have his contract
extended beyond 30-6-2010. At best, the petitioner could claim that the
authorities concerned should consider extending his contract. We find that
in fact due consideration was given to this and in spite of a favourable
recommendation having been made, the All India Institute of Medical
Sciences did not find it appropriate or necessary to continue with his
services on a contractual basis. We do not find any arbitrariness in the view
taken by the authorities concerned and therefore reject this contention of the
petitioner.”
“7. We are also in agreement with the view expressed by the Central
Administrative Tribunal and the High Court that the petitioner is not
entitled to the benefit of the decision of this Court in Umadevi (3) (2006) 4
SCC 1. There is nothing on record to indicate that the appointment of the
petitioner on a contractual basis or on an ad hoc basis was made in
accordance with any regular procedure or by following the necessary rules.
That being so, no right accrues in favour of the petitioner for regularisation
of his services. The decision in Umadevi (3) (2006) 4 SCC 1 does not
advance the case of the petitioner.”
“8.Insofar as the final submission of the petitioner to the effect that some
persons were appointed as Technical Assistant (ENT) in May 2016 is
concerned, we are of the view that the events of 2016 cannot relate back to
the events of 2010 when a decision was taken by the All India Institute of
Medical Sciences not to extend the contract of the petitioner. The situation
appears to have changed over the last six years and the petitioner cannot
take any advantage of the changed situation. There is no material on record
to indicate what caused the change in circumstances, and merely because
there was a change in circumstances, does not mean that the petitioner is
entitled to any benefit. On the other hand, it might have been more
appropriate for the petitioner to have participated in the walk-in interview
so that he could also be considered for appointment as Technical Assistant
(ENT), but he chose not to do so.
12 WP(C) No.1151/2023
23. In view of the aforesaid enunciation of the law, this Court is of the view
that the appointment of the petitioners was solely on contractual basis,
specifically made in response to the urgent needs arising from the COVID-
19 Pandemic. This temporary engagement was part of the establishment of
a temporary COVID hospital, which was set up to address the immediate
health crisis caused by the pandemic. Given the exceptional nature of the
emergency, the petitioners’ services were deemed essential, and their
employment was extended for a fixed term to support the hospital’s
operations. Initially, the petitioners were hired on contractual basis for a
specified period, with an extension of an additional six months granted to
ensure continuity of service during the critical phase of the pandemic.
However, as the situation with COVID-19 improved and the immediate
health crisis subsided, the temporary COVID hospitals, which were
originally set up by the Government, were closed. As part of this process,
the permanent staff members were reinstated to their regular positions,
while the services of the contractual staff, including the petitioners, were
discontinued as their initial engagement was for a period of one year which
was extended for further six months and the same was concluded on
31.12.2022.
CONCLUSION
24. This Court is of the considered opinion that once the Government has
decided to close down the temporary hospitals, established in view of
emergency related to Covid-19 pandemic, where the petitioners were
contractually engaged, the respondents cannot be asked to continue their
services as contractual employees without any work or their need.
13 WP(C) No.1151/2023
25. For the foregoing reasons, the instant petition is dismissed to the extent of the
relief prayed for continuation of the petitioners for a period of three years is
concerned, as the petitioners have no unfettered right of continuance being
contractual employees engaged for a specific purpose/period to address the
health crises caused by Covid-19 Pandemic. As a necessary corollary,
challenge thrown by the petitioners to impugned endorsement dated
19.04.2023 made by respondent No.2 to the communication dated 13.04.2023
issued by respondent No.1, whereby the petitioners were disengaged, also
fails, being devoid of any merit. Accordingly, the writ petition which is
devoid of any merit deserves dismissal and the same is dismissed along with
all connected applications.
26. Interim direction, if any, shall stand vacated.
27. Insofar as the relief pertaining to release of the wages of the petitioners for the
period they have worked is concerned, the respondents, as such, are directed
to release the same in favour of the petitioners provided they have worked and
if there is no other legal impediment.
CCP(S) No. 169/2023
28. Since the detailed order has been passed in the main petition, whereby the writ
petition stands dismissed, nothing survives in the present contempt petition for
further adjudication. Accordingly, the proceedings in the instant contempt
petition stand closed. Rule, if any, shall also stand discharged.
(WASIM SADIQ NARGAL)
JUDGE
JAMMU
10.03.2025
Vijay
Whether the order is speaking: Yes/No
Vijay Kumar Whether the order is reportable: Yes/No
2025.03.10 18:55
I attest to the accuracy and
integrity of this document
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