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IN THE (THE HIGH COURT OF , NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND )

WRIT PETITION (CIVIL) NO. 259 of 2011

Petitioners :

1. Sri Jatin Boruah, S/o- Late Golap Boruah, Village- Kacharigaon, P.O. & P.S.- , Dist.- Sontipur (Assam).

2. Sri Mukul Gogoi, S/o- Sri Tulan Gogoi, Village- Sechasatra, P.O. & P.S.- , Dist.- Sonitpur (Assam).

3. Sri Sunil Pathak, S/o- Sri R.B. Pathak, Village- Tourist Lodge Complex, (), P.O. & P.S.- Tezpur, Dist.- Sonitpur (Assam).

4. Sri Prasanta Neog, S/o- Late Umakanta Neog, Village- Bebejia, P.O.- Sohal , Dist.- Sonitpur (Assam).

5. Sri Pradip Rabha, S/o- Sri Moniram Rabha, Village- Mongoldoi Gaon (PWD Colony), P.O. & P.S.- Mongoldoi, Dist- Darrang (Assam).

6. Sri Sourav Jyoti Tamuli, S/o- Sri Dulal Tamuli, Village- Dhaning Gorkakharia Gaon, P.O.- Haflodihing, P.S.- Gourisagar, Dist.- (Assam).

7. Ms. Mallika Kachari, D/o- Sri Narayan Kachari, Village- Andherijuli, P.O.- Rani, Dist.- Karmup (Assam).

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By Advocates :

Mr.A.K. Hussain, Mr. B.Hussain, Mr. A.S. Ahmed.

Respondents :

1. State of Assam, Represented by its Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare Department, , -6.

2. Managing Director, National Rural Health Mission, Assam, Sixmile, Guwahati.

3. Joint Director of Health Services, Sonitpur, Tezpur, Assam.

4. Deputy Commissioner Cum Chairman, District Health Society, Sonitpur, Near Tezpur College, Sonitpur, Tezpur, Assam.

5. District Programme Manager, National Rural Health Mission, Sonitpur, Tezpur, Assam.

6. Manager, Dirring Tea Estate, P.O.- Pavoi, P.S.- Balisang, Dist.- Sontipur (Assam).

7. Manger, Kacharigaon Tea Estate, P.O.- , Dist.- Sonitpur (Assam).

8. Manager, Durrung Tea Estate, P.O.- Bindukuri, Dist- Sontipur, (Assam).

9. Manager, Hirajuli Tea Estate, P.O.- , Dist.- Sontipur (Assam).

10. Manager Arun Tea Estate, P.O.- Dhekiajuli, Dist.- Sontipur (Assam).

11. Manager, Shyamguri Tea Estate, P.O.- Dhekiajuli, Dist.- Sontipur (Assam).

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12. Manager, Narayanpur Tea Estate, P.O.- Dhekiajuli, Dist.- Sonitpur (Assam).

By Advocates :

Ms. A.Verma, SC, Health, Mr. K.Agarwal,

WRIT PETITION (CIVIL) NO. 2274 of 2011

Petitioner :

Sri Gunajit , Son of Prabhat Kalita, Vill.: Haribhanga, P.O.- Haribhanga, P.S.- Tihu, Dist.: Nalbari (Assam).

By Advocates :

Mr. A.K.Hussain, Mr. B.Hussain, Mr. A.S. Ahmed.

Respondents :

1. The State of Assam represented by its Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare Department, Dispur, Guwahati- 06.

2. Managing Director, National Rural Health Mission, Assam, Sixmile, Guwahati.

3. Joint Director of Health Service, Sonitpur, Tezpur, Assam.

4. Deputy Commissioner cum Chairman, District Health Society, Sonitpur near Tezpur College, Sonitpur, Tezpur, Assam.

5. District Programme Manager, National Rural Health Mission, Sonitpur, Tezpur, Assam.

6. Manager, Singri Tea Estate, P.O.- Dhekiajuli, P.S.- Dhekiajuli, Dist.:- Sonitpur, Assam.

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By Advocates :

Ms. A.Verma, SC, Health. Mr. K.Agarwal,

B E F O R E THE HON’BLE MR. JUSTICE UJJAL BHUYAN.

Date of hearing : 30-04-2012

Date of Judgment : 22-08-2012.

J U D G M E N T AND O R D E R(CAV)

Facts and reliefs sought for being identical, W.P.(C) No.259/2011 and W.P.(C) No.2274/2011 were heard together and are being disposed off by this common order.

2. The petitioners in both the writ petitions were selected for appointment as Laboratory Technician pursuant to the advertisement dated

24-06-2010 and were given appointment orders, posting them in different Tea

Estates, the managers of which have been arrayed as respondents 6 to 12 in

W.P.(C) No.259/2011 and respondent No.6 in W.P.(C) No.2274/2011.

3. The grievance of the petitioners is that they have not been allowed to join in their respective places of posting by the Tea Estate

Managers. Aggrieved, they have filed the above two writ petitions for appropriate directions.

4. The District Health Society, Sonitpur under the National Rural

Health Mission (NRHM) issued an advertisement on 24-06-2010 inviting applications for engagement on contractual basis amongst others for the post of Laboratory Technician. The total number of posts of Laboratory Technician

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advertised was twenty and it was stated that the appointees would be placed at Tea Estate Hospitals and Public Health Centres (PHC). Being eligible, the

petitioners applied for the said post and also appeared in the interview on 01-

07-2010. Thereafter, the District Health Society, Sonitpur issued separate

appointment letters to the petitioners on 29-09-2010. By the said appointment

letters, the petitioners were posted at the different Tea Estate Hospitals in

Sonitpur district and were asked to report to the Joint Director of Health

Services, Sonitpur for signing the contractual agreements and other formalities.

5. Though the petitioners reported before the Joint Director of

Health Services, , they were asked to go to their respective

Tea Estates where they were appointed. But as stated above, when they went to their respective Tea Estates, they were not allowed to join by the Estate managers. Though the District Health Society wrote to the Estate managers to allow the petitioners to join, the same had no impact on the Estate managers.

Representations submitted by the petitioners did not yield any result, compelling the petitioners to approach this Court.

6. The NRHM (respondent No.2) in their affidavit dated 10-05-2011 stated that a Memorandum of Understanding (MOU) was entered into between the District Health Society, Sonitpur district and the management of each of the Tea Estates who were willing to implement the Public Private

Partnership (PPP) Scheme. Respondents 6 to 12 in W.P.(C) No.259/2011 and respondent No.6 in W.P.(C) No.2274/2011 were signatories to such MOUs.

According to the MOUs, the member Tea Estates were entitled to receive

Rs.10,00,000/- (rupees ten lakhs) only per annum to be provided by the

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NRHM for the fulfillment of the objectives of the PPP Scheme. It is stated that

pursuant to the MOUs, the respondent estates had already received

Rs.10,00,000/- each. It was further agreed upon between the District Health

Society and the Tea Estates that the salary of the newly appointed medical

and paramedical staff would be borne by the NRHM. The respondent No.2 has

stated that the Tea Estate managements had shown various reasons

expressing their inability to accommodate the selected Laboratory Technicians

which have been found to be untenable. However, it has been stated that the

District Health Society was trying to resolve the matter and in this connection,

negotiation was going on with the Tea Estates with the hope that the

deadlock could be broken very soon.

7. The managers of the Tea Estates in their separate but identical

affidavits have taken the stand that the Tea Estate Hospitals do not have

facilities for laboratory investigation. The Tea Estates were not consulted by

the District Health Society while issuing the advertisement and also while

making the appointments. While admitting that the respondent Tea Estates

were in partnership with the NRHM under the PPP Scheme, they have

contended that they were kept totally in the dark in the process of selection

and appointment of the petitioners. They have stated that because of various difficulties faced by the Tea Estates in accommodating their staff, the petitioners were not allowed to join. They have also contended that it is the prerogative of the garden management as employeer to make assessment of any additional man power requirement for better health care in the Tea Estate

Hospitals and thereafter make appointments, if necessary, which cannot be compromised by accommodating the persons selected and appointed by the

District Health Society unilaterally behind their back.

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8. Heard Mr. A.K.Hussain, learned Counsel for the petitioners. Also heard Ms. A.Verma, learned Standing Counsel, Health Department and Mr. K.

Agarwal, learned Counsel for respondent the Tea Estates.

9. Learned Counsel for the petitioners submits that the petitioners were selected and appointed following a due selection process and there is no objection from any quarter regarding the merit of their selection. If there are any differences between the NRHM authorities and the Tea Estates, those should be sorted out by the two and the petitioners should not be made to suffer. Contending that there is no good ground in not allowing the petitioners to join in their respective places of posting, Learned Counsel for the petitioners therefore prays for necessary direction to the respondents to allow the petitioners to join.

10. Learned Standing Counsel for the Health Department while supporting the claim of the petitioners, has argued that the stand of the respondent Tea Estates is most unreasonable. According to her, the Tea

Estates had taken the benefits under the MOUs including financial assistance and therefore they cannot now turn around and restrain the petitioners from joining their respective places of posting. Such action would be in violation of the MOUs, she submits.

11. Mr. K. Agarwal, learned Counsel for the respondent Tea Estates referring to the various clauses of the MOUs and the statements made in the counter affidavits filed by the respondent Tea Estates, submits that the NRHM authority cannot impose their appointees unilaterally on the Tea Estates. He also submits that the MOUs between the District Health Society and the Tea

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Estates no longer subsist and, therefore, there is now no contract between the

District Health Society and the Tea Estates.

12. The submissions made have been considered.

13. Considering the subject matter of the writ petitions, an

endeavour was made for amicable settlement of the matter. Considering the

fact that the petitioners despite their selection could not join their respective

assignments and also considering the fact that there was no objection from

any quarter regarding the merit of their selection, the Court by order dated

03-11-2011 directed the Mission Direction, NRHM to hold a meeting with the

Tea Estate managers within fifteen days and thereafter to apprise the Court

about the outcome of such deliberation. Though the Court granted further

time to resolve the impasse, nothing fruitful emerged. Finally, the Court in the

order dated 29-03-2012 observed that there was no possibility of such

settlement. After hearing the matter at some length, the Court sought for the following information from the learned Standing Counsel, which was considered necessary for adjudication of the case:-

“(1) As to whether the MOUs signed between the District Health Society and the respective Tea Estates still subsist or not ?

(2) Whether any fresh MOU has been entered into between the said two parties ?

(3) What is the present status of the contract between the District Health Society and the respective Tea Estates under the Public Private Partnership Scheme ?

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(4) The present status of all the selected candidates pursuant to the advertisement in question dated 24-06- 2010.

(5) Whether any Tea Estate other than the respondent Tea Estates are part of the Public Private Partnership Scheme and whether any appointment of Laboratory Technician has been made in such Tea Estate ?

(6) Whether the management of the respective Tea Estates were taken into confidence during the recruitment process ?”

14. In the course of the hearing, learned Standing Counsel, Health

Department informed the Court that the MOUs signed between the District

Health Society and the respective Tea Estates had all expired and that no fresh MOUs have been signed between the two parties. It was informed that for the financial year 2011-2012 money had been released to the Tea Estate

Hospitals under the PPP Scheme. It was also informed that no Laboratory

Technician had joined the concerned Tea Estates under the PPP Scheme pursuant to the advertisement dated 24-06-2010. Further information placed before the Court was that there are other Tea Estates under the PPP Scheme but appointment of Laboratory Technicians in those Tea Estates have been made by the management of the respective Tea Estates. It was however admitted that the management of the respondent Tea Estates were not involved in the recruitment process of Laboratory Technician.

15. Before proceeding further, it will be useful to refer to the advertisement dated 24-06-2010, which is quoted hereunder:-

“ OFFICE OF THE DISTRICT HEALTH SOCIETY SONITPUR

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NATIONAL RURAL HEALTH MISSION, NEAR TEZPUR COLLEGE, TEZPUR, SONITPUR ASSAM-784001

Phone 03712-232086 [email protected] ADVERTISEMENT Applications in the prescribed format are invited for engagement on contractual basis for the following posts to be placed in various places under National Rural Health Mission (NRHM). The applicants shall have no claims in future for absorption in any Govt. Jobs. The applicants are to appear for an interview for which no TA/DA shall be paid. The undersigned reserves the right to reject any or all application without assigning any reasons thereof: 1. Name of the post : Medical Officer (MO) No. of Post: 20 (to be placed at TE Hospital and PHC). Eligibility and Qualification : Qualified MBBS registered practitioner, preferably with minimum 2 years experience is required for various hospitals under the District of Sonitpur. Fixed remuneration: Rs.25,000/- pm for posting at PHC and Rs.28,000/- pm for Tea Garden Hospital.

2. Name of the post: Staff Nurse No. of Post: 20 (to be placed at TE Hospital) Eligibility and Qualification: B.Sc. Nursing / Midwifery General Nursing / Certificates (including senior & junior certificates) Diploma or Degree in Nursing issued by Institution registered with Staff Nurse Registration Council under Indian Council Act, 1947. Fixed remuneration : Rs.7,000/-pm

3. Name of the post: Ausiliary Nurse Midwifery (ANM) No. of Post: 10 (to be placed at TE Hospital) Eligibility and Qualification: Auxiliary Nurse Medwifery. Certificates (including senior & junior certificates) Diploma or Degree in Nursing issued by institution registered with Staff Nurse Registration Council under Indian Nursing Council Act, 1947.

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Fixed remuneration: Rs.5,000/- pm

4. Name of the post: Laboratory Technician No. of Post; 20 (to be placed at TE Hospital and PHC). Eligibility and Qualification: The candidate should have passed Laboratory Technician’s certificate course from Medical College for Assam or Govt. recognized institutions. Fixed remuneration: Rs.7,000/- pm

5. Name of the post: Pharmacist No. of post: 4 (to be placed at TE Hospital and PHC). Eligibility and Qualification: The candidate should have passed Diploma course from Medical College of Assam or equivalent and must have registered under Assam Pharmacy Council. Must have basic knowledge of computer (MS Office, Tally etc.) Fixed remuneration: Rs.7,000/- pm.

District Health Society, Sonitpur will conduct a walk-in interview for the following post under NRHM on contractual basis. Candidates are required to appear before the Selection Committee on July 1st 2010 from 11AM onwards at the office of the Jt. Director Health Services, Sonitpur, with original testimonials and two passport size photographs.

(Persons already engaged under NRHM are not eligible. Retired ANM/GNMs are encouraged to apply). Deputy Commissioner cum Chairman, DHS, Sonitpur.”

16. Thus from a close perusal of the advertisement, it is quite

evident that there was no mention therein that the appointees would be

posted at particular Tea Estate Hospitals. All that was stated was that the

appointees against the twenty posts of Laboratory Technician would be placed

at Tea Estate Hospital and PHC.

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17. But in the appointment letters of the petitioners, it was indicated

that their postings were at particular Tea Estate Hospital. The appointment

letter of the petitioner No.1 in Writ Petition (C) No.259/2011 is extracted

hereunder as a sample copy for ready reference:-

“OFFICE OF THE DISTRICT HEALTH SOCIETY SONITPUR CUM DISTRICT PROGRAMME MANAGEMENT UNIT, NATIONAL RURAL HEALTH MISSION, NEAR TEZPUR COLLEGE, TEZPUR, SONITPUR, ASSAM-784001 Phone-03712 232086 [email protected] No.DHS/NRHM/S/DHS/10-11/2130 Date:- 29-09-2010

To, Jatin Baruah S/o- late Gopal Baruah Vill.- Kacharigaon, P.O.- Sootea Pin- 784175, Sonitpur.

Sub:- Selection for the post of contractual Lab. Tech under NRHM, PPP, Assam. In pursuance of the interview held on 1st July 2010 you have been selected for the post of contractual Lab. Tech under NRHM PPP at Diring Tea garden Hospital in Sonitpur District. Please report to the Joint Director of Health Services cum Member Sec. District Health Society Sonitpur District for signing contractual agreement and other formalities within 7 days. Yours faithfully Sd/- illegible District Programme Manager NRHM, Sonitpur

Memo: DHS/NRHM/S/DHS/10-11/ Date:29-09-2010 Copy to :-

1. MD, NRHM, Assam.

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2. Deputy Commissioner, Sonitpur. 3. Joint Director of Health Services, Sonitpur. 4. Additional CM & HO, Sonitpur. 5. SDM & HO B.Chariali Block PHC. 6. Manager Diring T.E. 7. Person concern ______

District Programme Manager NRHM, Sonitpur” 18. Under the PPP Scheme of the NRHM, MOUs were signed

between the District Health Society, Sonitpur district and the respondent Tea

Estates. The purpose of the PPP Scheme is to strengthen the existing primary

health care facilities in the Tea Estate Hospitals as well as to extend the health

care services to non entitled cases from within the resident population of the

Estate. These MOUs were signed in the year 2009 and 2010 and were valid

for one year subject to renewal from time to time. Clause 6.9 of the

agreements provided that the tea garden management would appoint

contractual staff in the hospital as per mutually agreed terms and conditions.

Clause 4 provided that in the event of dispute, the Deputy Commissioner would be the final arbitrator.

19. If the respondent Tea Estates do not acknowledge the selection and appointment of the petitioners on the ground that it was carried out by the District Health Society unilaterally behind the back of the respondent Tea

Estates whereas the MOUs provide that such appointment should be made by the Estate management, it is an issue between the NRHM authorities and the respondent Tea Estates, which can be resolved by way of negotiation or arbitration, the Deputy Commissioner being the final arbitrator. Or the NRHM authorities can take resort to such legal action they think appropriate against

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the respondent Tea Estates for alleged breach of contractual obligation. But in the process, the petitioners should not be made to suffer for no-fault of theirs.

The petitioners had appeared in the interview pursuant to the advertisement whereafter they were selected and appointed. As already noticed, there is no dispute as to the merit of their selection. Further, the advertisement did not mention the names of the Tea Estates in respect of which the recruitment process was undertaken. All that it said was that there were twenty posts of

Laboratory Technician and that the appointees would be placed at Tea Estate

Hospitals and PHCs. Since the recruitment process was carried out by the

District Health Society, Sonitpur district on behalf of NRHM, it is the duty and responsibility of the District Health Society to ensure that the petitioners who were selected in such recruitment process and appointed can join in other Tea

Estates under the PPP scheme or in the PHCs under its jurisdiction.

20. Accordingly, in view of the discussions made above, it is hereby ordered that the NRHM authorities, including the District Health Society,

Sonitpur district shall provide alternative places of posting as Laboratory

Technician to the petitioners either in different Tea Estate Hospitals or in

Public Health Centres (PHCs) within a period of one month from the date of receipt of a certified copy of this order.

21. Both the writ petitions are accordingly disposed off.

22. No cost.

JUDGE kotoki

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