Mrs. Poonam Agarwal v. Government of NCT and Ors

J U D G M E N T

¶1By way of this petition under Article 226 of the Constitution, the petitioner assails an order dated 28.06.2018, by which the respondents decided not to renew her contract for the post of District Program Manager ["DPM"], National Health Mission. She also seeks reinstatement in the said post with all consequential benefits.

¶2The petitioner was first appointed on 28.01.2014 as DPM in the Integrated District Health Society ["IDHS"], South-East District, Saket, which is the district level implementation arm of the National Health Mission. On 29.11.2016, she was transferred to IDHS Shahdara, at her request.

¶3The terms and conditions of engagement, issued to the petitioner on

13.02.2014, include the following: "1. The contractual engagement is upto 31.12.2014 as per policy of NRHM / DSHM subject to quarterly review of performance against the parameters approved by the society and recommendations of the

reviewing officer. xxxx

xxxx

xxxx

¶10The society reserves the right to terminate the contract to the post without assigning any reason after giving one month's advance notice. Similarly, you shall have to give a Notice of one month before you may decide to resign from the post or deposit one month's remuneration in lieu of the same."1

¶4The petitioner was regularly appraised, and was granted ten renewals of her contract, for varying lengths of time. Her last renewal was for the period April 2018 to June 2018.

¶5The petitioner is aggrieved by non-renewal of her contract thereafter, pursuant to a meeting of the Executive Committee, IDHS Shahdara, held on 27.06.2018. It is the petitioner's principal contention that she was given an adverse performance appraisal for the last contractual period, only because she had informed the respondents on

20.06.2018, that she was six months pregnant. As a renewal of her contract would have entitled her to maternity benefits in terms of Maternity Benefits Act, 1961 ["the Act"], she alleges that the adverse performance appraisal was actuated by malafide, in order to deny the benefit of the said statutory protections.

¶6The contention has been denied by the respondents, who claim that the petitioner had been issued warnings in the past also, but her failure to show adequate improvement resulted in an "Average" grading for her final contractual service, which disentitled her to further renewal. It is specifically submitted that the petitioner had availed of maternity leave from January 2016 to May 2016, in connection with birth of her first child, and that the respondents have no reason to deny her similar benefits

1 Emphasis supplied.

for her second child.

¶7The performance appraisals of the petitioner and certain warning letters issued by the respondents have been placed on record. I have also heard Mr. Sunil Singh Parihar, learned counsel for the petitioner, and Ms. Latika Choudhury, learned counsel for the respondents.

¶8It may be noted at the outset that the petitioner's employment was admittedly contractual. However, the terms and conditions of employment provided for renewal, subject to satisfactory performance. The methodology for consideration of renewal of contract was decided by the Governing Body of IDHS Shahdara, at a meeting held on 28.02.2017. The minutes of the said meeting have also been placed on record with the respondent's counter affidavit. The relevant decision was as follows: "Regarding extension of contract of staff working on the strength of IDHS (Shahdara District), it was informed that communication has been received from State Programme Officer (SPO) Delhi State Health Mission (DSHM) vide office order no. F1-18/20I7-Estt./I/2840/2017: dated 15/02/2017 that process of renewal of contract from 01/04/2017 to 31/03/2018 may be initiated for existing contractual engagement for financial year 2017-18. It was further apprised that work & conduct report of various staff working on the strength of IDHS (Shahdara District) has been received. Members took note of this and all the members along with chairman unanimously decided that contract of staff working on the strength of IDHS (Shahdara District) may be renewed from 01/04/2017 to 31/03/2018, subject to satisfactory work & conduct, keeping in view office order received from Delhi State Health Mission (DSHM) vide office order no. F1-18/2017-Estt./I/2840/2017: dated 15/02/017. It was also recommended by members that contract of those staff whose work & conduct reported as Average and Good may be renewed for three months with issuance of warning notice to improve work and conduct. A report on improvement or otherwise work and conduct be sought in May 2017 to decide on further action."2

2 Emphasis supplied.

¶9It appears from the above, that the basis for the decision with regard to renewal of the contractual employee was that the contracts would be renewed for one year, subject to an appraisal of "Outstanding/Very Good". For an appraisal of "Good/Satisfactory/Average", the renewal was to be done for a period of three months, with a warning for improvement of performance.

¶10The petitioner's claims must be assessed in the light of this appraisal mechanism. The relevant factual context based on the available record is summarized in the following table: Date Event

28.01.2014 The petitioner was appointed for the period until

31.12.2014, subject to quarterly performance review.

March 2014 to October 2014 Appraisal: "Very Good" [Between 61% to 74%]

Recommended for contract renewal by Reporting Officer and Reviewing Officer.

01.01.2015 to

31.10.2015 Renewal of contract.

Appraisal: "Good" [Between 50% to 60%]

Reporting Officer remarked that the petitioner possesses good technical skills, but needs improvement in punctuality, discipline and attitude towards colleagues.

Reviewing Officer recommended renewal for three months, but observed that the petitioner's conduct will be watched in future.

27.11.2015 Complaint regarding petitioner's poor performance and conduct was sent to the State Program Officer.

January 2016 to May 2016 The petitioner was on maternity leave. April 2016 to June 2016 Renewal Of Contract.

Appraisal: "Very good" [Between 61% to 74%]

Petitioner accepted lack of punctuality due to personal circumstances, including young child.

Reporting Officer and Reviewing Officer recommended renewal of contact while advising petitioner to be more punctual in future.

June 2016 to November 2016 Renewal of contract.

Appraisal: "Good" [Between 50% to 60%]

Reporting Officer and Reviewing Officer recommended renewal with remarks about punctuality.

29.11.2016 Petitioner transferred to IDHS Shahdara, at her own request. November 2016 to December 2016 Renewal of contract.

Appraisals: "Very Good" [Between 61% to 74%]

Positive remarks by Reporting Officer and Reviewing Officer, renewal recommended. January 2017 to March 2017 Renewal of contract.

Appraisal: "Very Good" [Between 61% to 74%]

Renewal recommended with positive remarks by Reporting Officer and Reviewing Officer.

April 2017 to June 2017 Renewal of contract.

Appraisal: "Good" [Between 50% to 60%]

Reporting Officer and Reviewing Officer remarked that the petitioner is hard working but needs improvement.

31.03.2017 "Warning Notice" issued.

Renewal granted for three months, subject to review of performance.

28.06.2017 Memo issued to the petitioner for being late frequently in May and June 2017.

July 2017 to September 2017 Renewal of contract.

Appraisal: "Good" - 59.12% [Between 50% to 60%]

Recommended for three months' renewal, Reporting officer stated that performance has been satisfactory, but needs more observation.

06.07.2017,

01.08.2017,

08.08.2017 and

16.08.2017 Memos issued to the petitioner for coming late on several occasions between July-August 2017, and taking leaves despite not having a sufficient leave balance between April-August 2017. October 2017 to December 2017 Renewal of Contract.

Appraisal: "Good" - 56.5% [Between 50 to 60%]

Reporting Officers remarks were as follows:

"The working has been found to be very good. She is honest and dedicated worker."

Remarks of the Reviewing Officer were as follows: "Good. Officer is improving. May be renewed for three months from 01/01/2018 to 31/03/2018. As per marks given by reporting officer 56.5, the work and conduct is to be considered good."

January 2018 to March 2018 It is the admitted position that the petitioner's contract was renewed for this period, although the appraisal for this period is not on record.

28.03.2018 Warning notice states that the petitioner's contract has been renewed from April 2018 to June 2018, and her performance will be reviewed in May 2018.

April 2018 to June 2018 Renewal of Contract. Appraisal: "Average" - 48.2% [Between 41% to 50%]

Petitioner's self-appraisal mentions that she is six months pregnant.

Reporting Officer remarked as follows: "Attitude & Behaviour is indifferent and not cordial with fellow workers. The officer has not improved despite being given warning letter in the last appraisal. Deliberation may be made before renewal."

The Reviewing Officer remarks were as follows: "As the performance report of the officer has been below the benchmark during last year, and has not improved despite warning issued in the last renewal

letter. Officer is lacking in sincerity & dedication towards duties. Contract may not be renewed further."

27.06.2018 Minutes of meeting of Executive Committee, IDHS Shahdara, noted that work and conduct of the petitioner had not improved, and she was therefore downgraded to "Average" grade. The committee was apprised that her contract had been renewed repeatedly for three months at a time due to performance appraisal. It was noted that she lacks basic knowledge for management and day to day working, does not have cordial relations with other officials and displays lack of sincerity, dedication and interest. The Executive Committee therefore decided not to renew her contract.

28.06.2018 Impugned Office Order directing non-renewal of the petitioner's contract.

02.07.2018 &

03.07.2018 Petitioner's representations to various authorities.

08.08.2018 Respondent's response reiterated that the petitioner's performance was found unsatisfactory.

¶11The following significant observations are borne out by the above narration: a) The petitioner's appraisal for the period November 2016 to December 2016, and January 2017 to March 2017, were both assessed as "Very Good". The minutes of the meeting of IDHS Shahdara, dated 28.02.2017, therefore required her to be granted a one-year extension. For reasons which are not apparent on record, the petitioner however was granted an extension only for three months, i.e. April 2017 to June 2017, and a warning letter was

issued directing to improve her performance. b) Between June 2017 and August 2017 also, she was issued several memos with regard to leaves and lack of punctuality. c) However, her appraisal for the subsequent period from [October 2017 to December 2017] records positive remarks of the Reporting Officer and Reviewing Officer, with regard to the quality of her work, her honesty, and her dedication, including the fact that her performance was "improving". Nonetheless, on the basis of her numerical grading of 56.5%, she was granted renewal only for three months. d) Unfortunately, the appraisal for next quarter [January 2018 to March 2018] is not on record, but her contract was renewed, albeit with another warning letter.

¶12This brings us to the last appraisal for the period from April 2018 to June 2018. It may first be noted that, even in the appraisal for the said period, the petitioner's grading was marked as "Average" which, according to the minutes of the meeting dated 28.02.2017, should have entitled her to further renewal for three months, with issuance of a warning letter to improve work and conduct.

¶13Ms. Chaudhary, however, submits that the aforesaid procedure for renewal was not mandatory, and relies upon a guideline for "Pointwise Scoring and Overall Grading" to submit that the power to renew an employee's contract is discretionary. The said guideline, which is annexed to every performance appraisal proforma, is intended to assist the Reporting and Reviewing Officers in conducting the assessment. In particular, Ms. Choudhury refers to Clause 7 of the said guideline, which

reads as follows: "7. Recommendations:- The Controlling Officer is requested to recommend renewal of the employee whose overall grading are Outstanding, Very Good and Good. If grading is average or unsatisfactory and Controlling Officer is convinced that the reasons for poor performance are beyond the control of the concerned employee (Highlighted in the bottlenecks/constraints by the employee) he can recommend for renewal of contract or otherwise giving justification. If the overall grading is 'Average' and "Unsatisfactory' and there were no constraints then reporting officer will communicate to the employee for improving the performance in writing and employee may again be reviewed after sometime or may not recommend for renewal of contract."3 Ms. Chaudhary therefore submits that the appraiser has the discretion to either recommend or not recommend renewal of an employee's contract where the overall grading was "Average".

¶14Having regard to the aforesaid, at the highest, the guidelines gave the appraiser a choice, as to whether an employee graded "Average" should or should not be renewed. IDHS Shahdara, however, by minutes of meeting dated 28.02.2017, framed its policy regarding renewal of contracts, and decided that the contract of staff whose work and conduct were reported as "Average" or "Good" would be renewed for a period of three months, with the issuance of a warning notice. This demonstrates that IDHS Shahdara adopted a policy, consistent with the said guideline, directing a limited renewal with caution for staff with "Average" or "Good" performance.

¶15In view of the above, I am of the view that the impugned decision not to renew her contract is inconsistent with the respondent's appraisal policy. It is pertinent to note that the impugned decision dated 27.06.2018,

3 Emphasis supplied.

makes no reference to the minutes of the meeting dated 28.02.2017, which clearly framed the IDHS Shahdara's policy for renewal of contracts in cases of "Average" or "Good" grading, indicating that the decision was made without regard to the IDHS Shahdara's own established procedure and policy.

¶16The petitioner's specific allegation is that the appraisal for April 2018 to June 2018 was malafide, and motivated by the desire to deny her the benefit of maternity leave. To examine the correctness of this assertion, particularly in the context of the observations recorded above, I have compared the numerical scores awarded to her in the impugned appraisal [for the period October 2017 to December 2017], with the last appraisal on record, which was for the period April 2018 to June 2018. These appraisals are filled by the Reporting Authority and the Reviewing Authority, and are reproduced in the following comparative table:

Part II-A: Filled by the Reviewing Officer

Sr. No. Activity Assessment Tool Score

For the period October 2017 to December 2017 Score

For the period April 2018 to June 2018 Date of submission of DHAP to DPO for approval through proper channel. More than 1 week Delayed by week On date N.A. % of meetings conducted against planned. 50% or less 51-69% 70% & above % of funds disbursed against sanctioned to all the stake 50% or less 51-69% 70% & above

holders % of physical achievement against planned activity. 50% or less 51-69% 70% & above % of funds utilized in procurement against planned

% of FMR monthly report submitted by 5th of every month. 50% or less 51-69% 70% & above NA % of Monthly disbursal of remuneration to IDHS Employees by 5th of every month. 60% or less 61-80% More than 80% Ability to manage DPMU staff

Knowledge of society (IDHS) bye laws

Ability to liaise with all stake holders

2/14 Communication skills for all correspondence and preparation of minutes of meetings Organised or attended

2/15

Total Score on Performance

Part II-B: Filled by the Reporting Officer

For the period October 2017 to December 20176 For the period April 2018 to June 2018

Reporting Authority (Assessment Scale 1 to 5) Reporting Authority (Assessment Reviewing Authority (Assessment

4 As per the original record, the entry was initially written as "2", which stands struck off and corrected as "1". For the sake of completeness, it has been reflected herein as "2/1". 5 Ibid. 6 The Reviewing Authority did not fill this section.

Scale 1 to 5) Scale 1to 5)

i) Punctuality & discipline

ii) Attitude/behavior towards a) patients/public

b) Seniors

c) Colleagues

d) Subordinate

iii) Ability to coordinate and work in a team

iv) Reliability/sense of responsibility

v) Communication Skills

vi)Accuracy and quality of output

vii) Ability to meet deadline 4/17

viii) Knowledge level in the area of work 4/18

ix) Level of technical skill in the area of wofk

3.5

x) Knowledge level of govt. rules & procedures related in general and in the area of work.

xi) No. of times & days [illegible]authorised leave availed None

xii) Any advisory/memo given to the employee during existing contract period. If yes, copy may be attached. None Score on 'Personal Attributed'

56.5

¶17It may be noticed therefrom that the scores awarded to the petitioner against virtually all parameters have been reduced. Significantly, these includes personal/functional attributes such as knowledge level, technical skill, communication skills, etc. While it is possible that a person's performance may dip over time, the reduction in her scores even on such parameters, lends credence to the allegation that the impugned appraisal was tailor-made to ensure that she misses the

7 As per the original record, both the figures "4" and "1" appear in the said entry. The same has been reproduced herein as "4 / 1" for the sake of completeness.

grading of "Good". Her total numerical score was 48.2%, which is only marginally short of the grading of 50%, which would have entitled her to a "Good" appraisal.

¶18Equally important are the remarks given by the Reviewing Officer for the period April 2018 to June 2018, which referred to the petitioner's performance having been "below the benchmark during the last year and that she had not improved". His remarks bear the date 25.06.2018. This is entirely inconsistent with the Reviewing Officer's remarks recorded for the period October 2017 to December 2017, i.e. within the prior period of one year. The very same Reviewing Officer commented in that performance appraisal that the petitioner was a good officer, and was improving, and recommended three months' renewal. This change in the stand of the Reviewing Officer is also unexplained.

¶19It is pertinent to note that, in the rejoinder9, the petitioner has also alleged that her grading of "Good" in the appraisal of October 2017 to December 2017 is based on an erroneous calculation. It may be noted that the grading of "Good" has been given in view of her score being taken as

56.5%, which was the total of her score in part II-B [Assessment of personal/functional attributes]. However, the overall numerical grading was to be calculated by giving weightage, both to part II-A [Total score on performance] (70%) and part II-B [Assessment of personal/functional attributes] (30%). Having scored 31/33 in part II-A and 56.5/70 in part II-B, the petitioner's contention that her score should have been above 75% therefore appears to be correct. If so, she would have been entitled to a

8 Ibid. 9 Paragraph 4.

one-year extension even in January 2018.

¶20While making the above observations, the Court also bears in mind that the scope of judicial review in matters challenging performance appraisals is relatively limited. It may therefore be emphasised that, even accepting the petitioner's performance for the period from April 2018 to June 2018 was rightly considered as "Average", she would have been entitled to a three-month renewal, i.e. for the period from July 2018 to September 2018.

¶21The judgment of the Supreme Court in Dr. Kavita Yadav v. Secretary, Ministry of Health and Family Welfare Department & Ors.10 makes it clear that contractual employee is also entitled to maternity benefits, even if the maternity benefit period, in fact, exceeds the original period of her contract. The Supreme Court adopted a beneficial interpretation of the Act and specifically referred to Section 27 of the Act thereof, which gives the Act, overriding effect over any award, agreement or contract of service.

¶22Applying these principles to the facts of this case, the petitioner was entitled to renewal of her contract for the period from July 2018 to September 2018, i.e. extension of contract until 30.09.2018. She has placed on record certain medical documents which show that she was admitted to hospital and gave birth to her second child on 22.08.2018, during the period for which her contract should have been extended. She would thus have been entitled to the benefits conferred by the Act, which includes six months' maternity leave. Assuming that she would have proceeded on maternity leave from 22.08.2018, her maternity leave would

have lapsed on 21.02.2019. She is therefore entitled to be paid her contractual emoluments for this period.

¶23Mr. Parihar submitted that the Court should grant an order of reinstatement in favour of the petitioner. Having considered this request, I do not think that such an order would be appropriate at this stage, seven years after she last worked in the respondent-Society. Further, renewals of contract were subject to performance appraisal. It cannot be said with any degree of certainty that the petitioner's performance would have entitled her to renewal of her contract at all stages for the past seven years. However, in view of the finding arrived at above, particularly that the impugned decision not to renew the petitioner's contract was in the teeth of the respondent's policy, the appropriate order is, in my view, that the petitioner be compensated for the benefit which she lost, as also for delayed payment by an award of interest.

¶24Such an order also commends to me, as an appropriate moulding of the relief, in exercise of the powers vested in the writ court. The judgments of the Supreme Court in Pasupuleti Venkateswarlu v. Motor and General Traders11, Gaiv Dinshaw Irani v. Tehmtan Irani12 and J. Ganapatha v. N. Selvarajalou Chetty Trust13 have held that the Courts would be justified in moulding the relief in accordance with changed circumstances for shortening litigation, or doing complete justice, when relief which may have been justified at the commencement of the litigation, would become inappropriate due to changed circumstances.

10 2023 SCC OnLine SC 1067. 11 (1975) 1 SCC 770. 12 (2014) 8 SCC 294. 13 2025 SCC OnLine SC 633.

¶25The writ petition is, therefore, disposed of with the direction that the petitioner's contract will be deemed to have been renewed with effect from 01.07.2018, and that she will be treated as having availed of maternity leave from 22.08.2018 to 21.02.2019. The amount payable to the petitioner on this basis be computed by the respondent and remitted to her, alongwith interest at rate of 6% per annum, with effect from

22.02.2019 until the date of payment.

¶26Mr. Parihar made a without prejudice statement on 22.08.2018 that with regard to the petitioner's remuneration, and that she be given liberty to apply for the same post in the event of a future vacancy being notified. Ms. Choudhury was unable to accede to such a request, but it is, in my view, merited. In the event of a future vacancy for the same post, it is directed that the petitioner will also be at liberty to apply and will be considered on her own merit, if she is otherwise eligible.

¶27The writ petition stands disposed of in these terms.

PRATEEK JALAN, J SEPTEMBER 26, 2025 PV/Ainesh/

* IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 26.09.2025 + MRS. POONAM AGARWAL .....Petitioner Through: Mr. Sunil Singh Parihar and Mr. Ankit Dwivedi, Advocates. versus GOVERNMENT OF NCT AND ORS. .....Respondents Through: Ms. Latika Choudhury, Advocate. CORAM: HON'BLE MR. JUSTICE PRATEEK JALAN