1 2025:CGHC:3969 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 5170 of 2022 1. Reena Salam D/o Sukkuram Salam Aged About 28 Years Presently Working As Staff Nurse And Posted At Primary Health Centre Kohkameta, Block- Orchha, District- Narayanpur, R/o Village Kochwahi, Post Bakulwahi, Block Narayanpur,, District : Narayanpur, Chhattisgarh. 2. Rajbati Idto D/o Lt. Chaituram Idto, Aged About 28 Years Presently Working As Staff Nurse And Posted At Primary Health Centre Gupra, Block- Orchha, District- Narayanpur, R/o Villagekachchapal, Tehsil Orchha,, District : Narayanpur, Chhattisgarh. 3. Smt. Uma Patel W/o Harishankar Patel Aged About 37 Years Presently Working As Staff Nurse And Posted At Primary Health Centre Kutul, Block- Orchha, District- Narayanpur, R/o Village Dhaudaik, Tehsil Narayanpur,, District : Narayanpur, Chhattisgarh. Digitally signed by RAGHVENDRA JAT 2 4. Smt. Mukeshwari Dhruw W/o Virendra Kumar Dhruw Aged About 31 Years Presently Working As Staff Nurse And Posted At Primary Health Centre Chhotedongar, Block- Narayanpur, District- Narayanpur, R/o Village Makha, Post- Binjali Block Narayanpur,, District : Narayanpur, Chhattisgarh. 5. Ku. Supriya Jha D/o Rajendra Jha Aged About 30 Years Presently Working As Staff Nurse And Posted At Primary Health Centre Chhotedongar, Block- Narayanpur, District- Narayanpur, R/o Village Makha, Post- Binjali Block Narayanpur, Tehsil Narayanpur,, District : Narayanpur, Chhattisgarh. 6. Ku. Kanchan D/o Shri Mohan Aged About 27 Years Presently Working As Staff Nurse And Posted At Primary Health Centre Dhanora, Block- Narayanpur, District- Narayanpur, R/o Village Makha, Post- Binjali Block Narayanpur,, District : Narayanpur, Chhattisgarh. 7. Ramshila Potai D/o Ghadhwaram Potai Aged About 30 Years Presently Working As Staff Nurse And Posted At Primary Health Centre Handawada, Block- Orchha, District- Narayanpur, R/o Village Remawand, Post Remawand Block Narayanpur,, District : Narayanpur, Chhattisgarh. 8. Smt. Anjani Banjare W/o Uday Bhanu Singh Banjare Aged About 37 Years Presently Working As Staff Nurse (Nrc) And Posted At Primary Health Centre Chhotedongar, Block- Narayanpur, 3 District- Hospital, District Narayanpur, R/o G-3, Collectorate Colony, Behind Zila Panchayat, Block- Narayanpur,, District : Narayanpur, Chhattisgarh. 9. Santi Gota D/o Llakma Gota Aged About 29 Years Presently Working As Staff Nurse(Ncr) And Posted At Community Health Centre Orchha, Block- Orchha, District Narayanpur, R/o Village Jatlur, Block Orchha,, District : Narayanpur, Chhattisgarh --- Petitioner(s) versus 1. The State Of Chhattisgarh Through The Principal Secretary, Department Of Health And Family Welfare, Mahanadi Bhawan, Mantralaya, New Raipur,, District : Raipur, Chhattisgarh. 2. The Mission Director, National Health Mission Raipur,, District : Raipur, Chhattisgarh. 3. The Direcotor, Health Services, Directorate Health Services, Atal Nagar,, District : Raipur, Chhattisgarh. 4. The Collecotr, Narayanpur,, District : Narayanpur, Chhattisgarh. 5. The Chief Medical And Health Officer (Cmho), Narayapur,, District : Narayanpur, Chhattisgarh. 6. The Deputy Collector, Narayapur,, District : Narayanpur, Chhattisgarh --- Respondent(s) 4 WPS No. 1986 of 2023 • Ku. Supriya Jha D/o Rajendra Jha Aged About 31 Years Posted As Staff Nurse In Primary Health Centre Dhaudai, Block - Narayanpur, District - Narayanpur, R/o Village - Dhaudai, Post, Dhaudai, Block - Narayanpur, District - Narayanpur, Chhattisgarh ---Petitioner(s) Versus 1. The State Of Chhattisgarh Through The Principal Secretary, Department Of Health And Family Welfare, Mahanadi Bhawan, Mantralay, New Raipur (Chhattisgarh). 2. The Mission Director National Health Mission Raipur, District - Raipur (Chhattisgarh). 3. The Director Health Services, Directorate Health Services, Atal Nagar, Raipur (Chhattisgarh). 4. The Collector Narayanpur, District - Narayanpur (Chhattisgarh). 5. The Chief Medical And Health Officer (Cmho) Narayanpur, District - Narayanpur (Chhattisgarh). 6. The Deputy Collector Narayanpur, District - Narayanpur (Chhattigarh) --- Respondent(s) WPS No. 1885 of 2023 • Smt. Neha Giri W/o Dr. Prashant Giri Aged About 32 Years Posted As Social Worker In District Hospital Campus 5 Narayanpur, District - Narayanpur, R/o Near Office Of Senior Agriculture Development Officer, Tehsil - Narayanpur, District - Narayanpur Chhattisgarh. ---Petitioner(s) Versus 1. The State Of Chhattisgarh Through The Principal Secretary, Department Of Health And Family Welfare, Mahanadi Bhawan, Mantralaya New Raipur, Chhattisgarh. 2. The Mission Director National Health Mission Raipur, District - Raipur Chhattisgarh. 3. The Director Health Services, Directorate Health Services, Atal Nagar, Raipur Chhattisgarh. 4. The Collector Narayanpur, District - Narayanpur Chhattisgarh. 5. The Chief Medical And Health Officer (Cmho) Narayanpur, District - Narayanpur Chhattisgarh. 6. The Deputy Collector Narayanpur, District - Narayanpur Chhattisgarh. --- Respondent(s) WPS No. 1950 of 2023 • Ku. Kiran Kuchlam D/o Chaitam Kachlam Aged About 27 Years Posted As A.N.M. Rural Health Organizer - Female (R H O) In Up Swasthya- Kendra Farasgaon, Narayanpur, R/o Village Garanji, 6 Post-Gadbengal, Narayanpur, District : Narayanpur, Chhattisgarh. ---Petitioner(s) Versus 1. The State Of Chhattisgarh National Health Mission Raipur. 2. The Mission Director National Health Mission Raipur, District : Raipur, Chhattisgarh. 3. The Director Health Services, Directorate Health Services, Atal Nagar, Raipur, Chhattisgarh. 4. The Collector Narayanpur, District : Narayanpur, Chhattisgarh. 5. The Chief Medical And Health Officer (C M H O) Narayanpur, District : Narayanpur, Chhattisgarh. 6. The Deputy Collector Narayanpur, District : Narayanpur, Chhattisgarh --- Respondent(s) WPS No. 5325 of 2022 1. Sita Markam W/o Somaru Markam Aged About 34 Years Presently Working As Rural Health Organizer - Female (Rho) And Posted At Up Swasthya - Kendra Tadopal, Block Narayanpur, District Narayanpur, R/o Vilage Hikpad, Post Bakulwahi, Block Narayanpur, District Narayanpur, Chhattisgarh. 7 2. Smt. Nirmala D/o Bhagirathi, W/o Devchand Taram, Aged About 32 Years Working As Rural Health Organizer -Female (Rho) And Posted At Up Swasthya Kendra Brahebeda, Block-Narayanpur, Distric Tnarayanpur, R/o Ramkrishna Mission Ashram District Narayanpur, Chhattisgarh. 3. Smt. Nandini Choudhary, W/o Harakla Choudhary, Aged About 43 Years Presently Posted As Rural Health Organizer-Female (Rho) And Posted At Up Swasthya Kendra Dandvan, R/o Village And Post Orchha, Tehsil Orchha, District Narayanpur, Chhattisgarh. 4. Savitri Nayak W/o Aejendra Nayak, Aged About 41 Years Presently Posted As Rural Health Organizer-Female (Rho) And Posted At Up Swasthya Kendra Halamimunjmeta, R/o Village And Post Kumharpara, Narayanpur, District Narayanpur, Chhattisgarh. 5. Sunita Usendi, D/o Sukhdeo Usendi, Aged About 25 Years Presently Posted As Rural Health Organizer-Female (Rho) And Posted At Up Swasthya Kendra Orchha, R/o Village And Post Parasbeda, Tehsil Orchha, District Narayanpur, Chhattisgarh. 6. Ku. Somari Verda, D/o Late Dageram Aged About 29 Years Presently Posted As Rural Health Organizer-Female (Rho) And Posted At Community Health Centre Orchha (Rbsk Team-A) R/o 8 Near Mahila Iti, Banglapara, Narayanpur, District Narayanpur, Chhattisgarh. 7. Ku. Kiran Kuchlam, D/o Chaitam Kachlam, Aged About 26 Years Presently Posted As Rural Health Organizer-Female (Rho) And Posted At Up Swasthya Kendra Farasgaon R/o Village Garanji Post Gadbengal, Narayanpur, District Narayanpur, Chhattisgarh. 8. Sombati Verda D/o Gongaram Verda, Aged About 27 Years Presently Posted As Rural Health Organizer Female (Rho) And Posted At Up Swashya Kendra Korenda, R/o Village And Post Banglapara, Narayanpur,district Narayanpur, Chhattisgarh. 9. Kishanbati Bhandari D/o Farshuram Bhandari Aged About 31 Years Presently Posted As Rural Health Organizer Femal (Rho) And Posted At Up Swashya Kendra Badejambhari, R/o Village Bedejambhari, Narayanpur, District Narayanpur, Chhattisgarh. ---Petitioner(s) Versus 1. The State Of Chhattisgarh Through The Principal Secretary, Department Of Health And Family Welfare, Mahanadi Bhawan, Mantralay, New Raipur, Chhattisgarh. 2. The Mission Director, National Health Mission Raipur, District Raipur Chhattisgarh. 3. The Director, Health Services, Directorate Health Services, Atal Nagar, Raipur Chhattisgarh. 9 4. The Collector, Narayanpur, District Narayanpur Chhattisgarh. 5. The Chief Medical And Health Ofifcer (Cmho), Narayanpur, District Narayanpur Chhattisgarh. 6. The Deputy Collector, Narayanpur, District Narayanpur Chhattisgarh. --- Respondent(s) WPS No. 5242 of 2022 • Smt. Neha Giri W/o Dr. Prashant Giri Aged About 31 Years Presently Working As Social Worker And Posted At District Hospital Campus Narayanpur, District Narayanpur, R/o Near Office Of Senior Agriculture Development Officer, Tehsil Narayanpur, District Narayanpur (C.G.) ---Petitioner(s) Versus 1. The State Of Chhattisgarh National Health Mission Raipur, District Raipur (C.G.). 2. The Mission Director National Health Mission Raipur, District Raipur (C.G.). 3. The Director Health Services, Directorate Health Services, Atal Nagar, Raipur (C.G.). 4. The Collector Narayanpur, District Narayanpur (C.G.). 5. The Chief Medical And Health Officer (Cmho) Narayanpur, District Narayanpur Chhattisgarh. 10 6. The Deputy Collector Narayanpur, District Narayanpur Chhattisgarh. --- Respondent(s) For Petitioner(s) : Mr. Aman Upadhyay, Advocate. For Respondent(s)/State : Mr. Ajit Singh, G.A. For Respondent No. 2 : Mr. C. Jayant K. Rao, Advocate. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 22/01/2025 1. The question of law and facts being identical and similar in these bunch of writ petitions, they have been clubbed together, heard together and are being disposed of by this common order. 2. Brief facts of the case, are that, the petitioners who was working on the post of Social Worker Medical Staff, ANM and Staff Nurses and posted at the District Hospital Narayanpur, District Narayanpur. The respondent No. 5 had issued an advertisement dated 30.07.2019 whereby inviting applications for walk-in- interview for selection and recruitment on the post of Social Worker along with other medical posts on Contractual Basis. By virtue of the said advertisement, the petitioner appeared alongwith required documents on 13.08.2019 for the walk-in- 11 interview at Mahila Bahuddeshiya Swasthya Karyakarta Prashishan Kendra Narayanpur and the selection committee evaluated the documents of the petitioner. On 23.08.2019 in the official website of the CMHO Narayanpur, the merit list of selected candidates were issued and uploaded wherein the petitioner was duly selected. Thereafter, the petitioner received call letters issued on the part of the respondent CMHO, Narayanpur directing the petitioner to join the respective place of posting within a period of 15 days and also prescribing the other terms and conditions of service. By virtue of the call letter the petitioner joined services as social worker and since then the petitioner was working as Social Worker. On the basis of Annual Work Based Assessment of the petitioner their services were extended from 01st April 2020 to 31st March 2021 in terms of the para 02 of the advertisement dated 30.07.2019. Again on the basis of Annual Work Based Assessment of the petitioner their services were extended from 01st April, 2021 to 31st March, 2022. In this manner, again on the basis of Annual Work Based Assessment of the petitioner their services were extended from 01st April, 2022 to 31st March, 2023. In the meanwhile in a daily news-paper a news leveling certain allegations relating to corruption in the selection process 2019 was published. Thereafter, political parties started to highlight the news and due 12 to media and political pressure, an enquiry was conducted by the Deputy Collector, District-Narayanpur and the report dated 04.02.2022 was submitted to the Collector, District Narayanpur stating therein that irregularity regarding appointment process was found. It is pertinent to mention that the impugned report is based on assumptions and not a single material fact is supporting the report. The respondent No. 5 also conducted an enquiry on the subject matter and in its report dated 05.04.2022 wherein he has, point to point clarified and submitted that there was no irregularity or corruption in the said appointment process of 2019 and everything was done strictly as per the terms of advertisement. The respondent No. 2 without considering the subject matter as well as the enquiry reports, but under the media and political pressure, issued the impugned order dated 22.07.2022 arbitrarily whereby directing the respondent No. 5 to cancel the appointment process of 2019 immediately. The petitioners along with other similar situated persons appointed under the advertisement dated 30.07.2019 has challenged the inquiry report of the Deputy Collector, Narayanpur dated 04.02.2022 and also the order dated 22.07.2022 issued by the respondent No. 2 thereby directing to the respondent No. 5 to cancel the appointment process of 2019 under the National Health Mission Narayanpur, by way of writ petitions. The petition 13 preferred by the petitioner was registered as WPS No. 5242/2022 and the petitions preferred by other persons were registered as WPS No. 5170/2022 (preferred by the Staff Nurses), WPS No. 5325/2022 (preferred by the RHO including Ku. Kiran Kuchlam), WPS No. 5235/2022 (Somaru Potai Physiotherapist), WPS No. 5355/2022 (St. Rajeshwari Patley- Block Data Manager), WPS No. 5357/2022 (Ku. Sunidhi Sharma Audiologist), WPS No. 5359/2022 (Tillu Singh - Data Entry Operator). All the petitions came up for hearing on 29.07.2022 before this Hon'ble Court and considering the sensitivity of the case, the Hon'ble Court directed for personal appearance of the inquiry officer i.e. the Deputy Collector, District Narayanpur of the report dated 04.02.2022 along with affidavit on the next date of hearing. In the meanwhile the respondent/State filed its reply mentioning therein that certain communications were made between the Office of Respondent No. 4 and Respondent No. 2 (ANNEXURE P/10 dated 01.08.2022) and resultantly, the impugned order dated 22.07.2022 has been modified by the respondent No. 2 vide letter dated 03.08.2022 (ANNEXURE P/2) whereby it is directed that only such candidates against whom the report discloses negative findings (that bonus mark was given to them on experience certificate issued by non-government organizations) will be removed from their respective posts, whereas other 14 candidates be permitted to continue working. 3. It is respectfully submitted that against the following 7 candidates the enquiry report discloses negative findings:- 1. Supriya Jha- Staff Nurse. (Petitioner No. 5 in WPS No. 5170/2022) 2. Ku. Kiran Kuchlam-A.N.M. (Rural Health Organizer) (Petitioner No. 7 in WPS No. 5325/2022) 3. Smt. Neha Giri- Social Worker (Petitioner in WPS No. 5242/2022) 4. Smt. Anjali Banjare- Staff Nurse (Petitioner No. 8 in WPS No. 5170/2022) 5. Priti Chandak- Clinical Psychologist 6. Devrat Kumar Jain- Psychiatrist 7. Ku. Reena Dewangan A.N.M. (Rural Health Organizer) It is further respectfully submitted that the candidates named Priti Chandak, Devrat Kumar Jain, Smt. Anjali Banjare and Reena Dewangan voluntary discontinued their services under the National Health Mission Narayanpur. The matter came up for hearing on 17.08.2022 and this Hon'ble Court by observing the order dated 03.08.2022 disposed of the petitions of successful candidates and remaining petitions of Supriya Jha, Kiran Kuchlam and Neha Giri was kept pending with oral directions to State counsel to submit affidavit and the state counsel undertook 15 that during the pendency of the petitions, the petitioners will not be removed from their respective posts. The respondent/State submitted the affidavit on 13.09.2022 (ANNEXURE P12) but in support of the affidavit no documents were submitted. On 17.08.2022 the petitioners submitted additional affidavit (ANNEXURE P/13) and on 16.09.2022 the matter came up for hearing before this Hon'ble Court and the matter was adjourned for next date i.e. 26.09.2022 and till date no further hearing has been taken place. On 03.03.2023 the CMHO, District Narayanpur has removed the petitioner from the post of Social Worker on the basis of the directions made in the communication dated 03.08.2022. 4. Learned counsel for the petitioner submits that petitioners were removed during pendency of their earlier petitions before this Hon'ble Court and, therefore, the respondents have acted in a most arbitrary manner to dismiss the petitioners from their respective posts and did not wait for the final adjudication of the petitions. He further submits that the removal of the petitioner is bad and interference of this Hon'ble Court is required. He further submits that the impugned order dated 03.03.2023 whereby the petitioners have been dismissed from their respective posts is stigmatic one as the petitioners were never found guilty of any misconduct while the dispute is only in respect of giving marks for 16 experience certificate of private medical institution to the petitioners by the selection committee. He further submits that the petitioners will face evil consequences as they have now been barred from future employment under the services of government. He further submits that the Hon'ble Supreme Court in matter of Swati Priyadarshini v. State of Madhya Pradesh (Civil Appeal No. 9758 of 2024, Judgment dated 22 August 2024) has ruled that serves as protective measure for employees that their right are not violated through the use of seemingly neutral or non-stigmatic language on termination orders. He further submits that the judgment also places a responsibility on an employer to be transparent and fair in their actions as any hidden intentions or unjust reasons behind a termination can be challenged in Court. He further submits that it is clear from the enquiry report dated 03.07.2021 that there is no dispute or allegations regarding educational qualification of the petitioners and each petitioner duly possess all the requisite educational qualification for their respective posts. He further submits that no allegation of corruption was levelled against the petitioners, but allegations were made against one Udaybhan Singh Banjare District- Prabandhak Prashikshan, NHM who is not the member of selection committee. He further submits that it is also evident that the enquiry was not initiated by the respondents on its own 17 but it was commenced under pressure of political parties who demanded for cancellation of entire appointment process. He further submits that the petitioners worked and served during the pandemic of COVID-19 which was totally ignored while passing the impugned orders and dismissing the petitioners from their respective posts. Since the impugned order is stigmatic against the petitioners, they have been denied to be given experience certificates and therefore the impugned order imposes civil consequences. The CMHO Narayanpur has given individual explanation in its reply ANNEX. P/7 regarding the illegality found in the Enquiry Report dated 03.07.2021 which were ignored while passing the impugned order of removal of the petitioners. The CMHO, Narayanpur has also admitted in ANNEXURE P/7 about relaxation was given by the selection committee to the candidates under clause 20 of the advertisement under the directions of the Collector, Narayanpur and therefore the terms and conditions of the advertisement were followed in the appointment process which is just and proper. The CMHO, Narayanpur has further admitted in ANNEXURE P/7 that each and every candidate who has participated in the appointment process was given marks for their experience of private medical institution. He further submits that the Hon'ble Supreme Court in matter of Miss Shainda Hasan v. State of U.P & Ors. 18 (Reported in 1990 SCC (3) 48) that in absence of any statutory rules providing power of relaxation, the advertisement must indicate that Selection Committee/Appointing Authority has power of relaxation. In present case the advertisement in its clause 20 specifically conferred power on the Selection Committee of relaxation in the rules. Therefore, it would be just and proper to allow the petitions by setting aside the impugned enquiry report 04.02.2022 as well as impugned Orders dated 03.08.2022 and 03.03.2023 and to direct respondent Nos. 2 and 5 to reinstate the petitioners on their respective posts within stipulated time. 5. On the other hand, learned counsel for the respondents opposes the same. 6. I have heard learned counsel for the parties and perused the material available on record. 7. The Hon'ble Supreme Court in the matter of Swati Priyadarshini vs. State of Madhya Pradesh and Others reported in 2024 SCC OnLine SC 2139 decided on 22.08.2024, in which the ratio laid down by the Hon'ble Supreme Court is to the fact that even if for contractual appointment, if any stigmatic order is to be passed, it is to be passed after holding proper enquiry and after giving due opportunity of hearing to the concerned delinquent/employee. 8. The view taken by the Hon'ble Supreme Court in the matter of 19 Swati Priyadarshini (supra) goes to show that before passing any stigmatic order for removal of any employee from service, a departmental enquiry is required to be done, which has not been done in this case. In para 34 of the said judgment, the Hon'ble Supreme Court has held as under:- "34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v. Union of India, 1957 SCC OnLine SC 5: "28. The position may, therefore be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India ((1953) 1 SCC 420 1953 SCR 655). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh ((1954) 1 SCC 572 (1955) 1 SCR 26). In either of the two abovementioned cases the termination of the service did not carry with it the 20 penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India, [58 Bom LR 673: AIR 1956 Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has. by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, 21 inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss. of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere. fact that the 22 servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests 23 mentioned. above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." 9. In view of Swati Priyadarshini vs. State of Madhya Pradesh and others case the impugned order is liable to be quashed. 10. Further considering that since there is provision for relaxation and the only ground for non consideration of their candidatures or cancellation of their appointment is that they have not obtained certificate from Government Hospital whereas they are having certificate of Private Hospital. Since the respondents have given relaxation point which is available in the advertisement itself as such, I am of the opinion while giving relaxation to the 24 petitioner they are required to be taken into service and on the ground that they are not having experience certificate from Government Hospital is required to be relaxed. The petitioners are having experience certificate of Private Hospital which is well and good as such the respondents authorities can pass orders for appointment/ reinstatement while taking recourse of relaxation clause. 11. Accordingly, all the writ petitions are allowed. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat