Jharkhand High Court
Md. Shahid Hasan vs The State Of Jharkhand Through ... on 25 November, 2020
Equivalent citations: AIRONLINE 2020 JHA 1109, 2021 (1) AJR 159
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5227 of 2019
Md. Shahid Hasan, aged about 31 years, son of Umar Ansari, resident of
Nawatoli, Daltonganj, P.O. and P.S. Daltonganj, District Palamau at
Daltonganj (Jharkhand)
...... Petitioner
Versus
1. The State of Jharkhand through Principal Secretary, Urban Development
and Housing Department, Ranchi
2. Joint Secretary, Urban Development and Housing Department, Government
of Jharkhand, Ranchi
3. Under Secretary to the Government, Urban Development and Housing
Department, Government of Jharkhand, Ranchi
4. The Director, Directorate of Urban, Administration, Urban Development
and Housing Department, Ranchi
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Indrajit Sinha, Advocate For the Respondent-State :Mr. Ravi Kerketta, A.C. to AAG-IV 03/Dated: 25/11/2020 Heard, Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. Ravi Kerketta, learned counsel for the respondent-State.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. Petitioner has preferred this writ petition for quashing of the order dated 05.02.2019 contained in Annexure-13 whereby the appointment of the petitioner on contract basis has not been extended.
4. Learned counsel for the petitioner submits that the petitioner was appointed on contract basis on the post of City Manager under Urban Local Bodies in view of resolution of Department of Urban Development, Government of Jharkhand dated 22.02.2010. The petitioner appeared in 2 written test on 13.09.2015 for appointment on contract basis to the post of City Manager and accordingly, he was declared successful and the letter dated 16.09.2015 was issued under the signature of the Joint Secretary, Urban Development and Housing Department, Government of Jharkhand. The consolidated salary was fixed as Rs. 43,296/- per month. The petitioner submitted his joining to the post of City Manager and he was given posting in Ranchi Municipal Corporation. The petitioner was sent for training. Vide memo dated 10.11.2016, the petitioner was transferred from Ranchi Municipal Corporation to the post of Urban Manager, Nagar Untari, Nagar Panchayat, Garhwa. Vide office order dated 16.12.2016 the petitioner was informed that he has been relieved automatically from the date of issuance of letter i.e. 16.12.2016. The petitioner joined to the post of Urban Manager, Nagar Untari, Nagar Panchayat, Garhwa in view of office order dated 16.12.2016. By letter dated 29.06.2017, all Municipal Bodies of Jharkhand were directed to submit performance appraisal report of City Managers working on contract basis by 10th July, 2017. By letter dated 01.08.2017, the Executive Officer, Nagar Untari sent performance appraisal report of the petitioner to the Assistant Director, Directorate of Urban Administration, Ranchi mentioning overall assessment Grade-A. Further, again appraisal report was called on the prescribed format. By letter dated 13.07.2018, the Executive Officer, Nagar Panchayat, Nagar Untari sent performance appraisal report of the petitioner showing his performance as 'Outstanding." Other persons' services have been extended but the petitioner has been left out. Aggrieved with this, the petitioner has preferred this writ petition.
5. Mr. Indrajit Sinha, learned counsel for the petitioner assailed the impugned order on the ground that this is completely arbitrary action on the part of the State. Referring to para 19 of the writ petition, learned counsel for the petitioner submits that appraisal report of other employees which were 3 also sent, their services were extended but the petitioner has been left out. He further submits that pursuant to some complaint, an enquiry was conducted by the government officials where in it has been said that the allegation has not been proved. He further submits that appraisal report of the petitioner was outstanding inspite of that his service has not been extended. He submits that in the contractual employment also, the High Court can interfere with the impugned action if the action is arbitrary on the part of the respondent-State. To buttress, his judgment he relied on judgement in the case of "Shrilekha Vidyarthi (Kumari) v. State of U.P." reported in (1991) 1 SCC 212 in which it has been held as under:-
"13. The learned Additional Advocate General contended that clause (3) of para 7.06 says that the appointment of a District Government Counsel is only professional engagement terminable at will on either side and not appointment to a post under the government; and the government has the power to terminate the appointment at any time 'without assigning any cause'. He contended that this power to terminate the appointment at any time without assigning any cause and the clear statement that the appointment is only professional engagement terminable at will on either side is sufficient to indicate that the relationship is the same as that of a private client and his counsel. In our opinion, this provision has to be read not in isolation, but in the context in which it appears and along with the connected provisions, already referred to. The expression 'professional engagement' is used therein to distinguish it from 'appointment to a post under the government' in the strict sense. This, however, does not necessarily mean that a person who is not a government servant holding a post under the government does not hold any public office and the engagement is purely private with no public element attaching to it. This part of clause (3) of para 7.06 means only this and no more. The other part of clause (3) which enables the government to terminate the appointment 'at any time without assigning any cause' can also not be considered in the manner suggested by the learned Additional Advocate General. The expression 'at any time' merely means that the termination may be made even during the subsistence of the term of appointment and 'without assigning any cause' means without communicating any cause to the appointee whose appointment is terminated. However, 'without assigning any cause' is not to be equated with 'without existence of any cause'. It 4 merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India1 that the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non- communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. Clause (3) of para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character; and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. The construction, suggested on behalf of the State of U.P. of this provision, if accepted, would amount to conceding arbitrary power of termination to the government, which by itself is sufficient to reject the contention and thereby save it from any attack to its validity.
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15. A brief reference to some decisions of this Court, in which the character of engagement of a Government Counsel was considered, may be made. In Mahadeo v. Shantibhai it was held that a lawyer engaged by the Railway Administration during the continuance of the engagement was holding an 'office of profit'. The engagement of the Railway counsel was similar to that of the Government Counsel in the present case. It was pointed out that by 'office' is meant the right and duty to exercise an employment or a position of authority and trust to which certain duties are attached; and such an engagement satisfied that test. Even though the decision was rendered in the context of disqualification under the Election Law by holding an 'office of profit', yet it is useful for appreciating the nature of such an engagement or appointment of a counsel by the government. In Mundrika Prasad Singh v. State of Bihar the nature of appointment of Government Pleaders came up for consideration and it was said that the office of a Government Pleader, as defined in Section 2(7) of the Code of Civil Procedure, 1908, is a public office. Krishna Iyer, J., in that decision, also pointed out that the (SCC 5 p. 707, para 16) "governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself". In that decision, an earlier Madras decision was quoted with approval, wherein, it was clearly held that the duties of the Government Pleader are of a public nature and that the office of a Government Pleader is a public office. The relevant extract is as under : (SCC pp. 706-07, para 15) "... A Government Pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami4 and regard the view there, expressed about a Government Pleader's office, as broadly correct even in the Bihar set up.
... the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible."
Similarly, in Mukul Dalal v. Union of India5, it was held that (SCC pp. 149 & 152, para 6 & 9) "the office of the Public Prosecutor is a public one" and "the primacy given to the Public Prosecutor under the Scheme of the Code (CrPC) has a social purpose".
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24. The State cannot be attributed the split personality of Dr Jekyll and Mr Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the 6 State which must invariably be in pubic interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity. ........................................................................................................................
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See Ramana Dayaram Shetty v. International Airport Authority of India and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir). In Col. A.S. Sangwan v. Union of India while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose. ....................................................................................................................
36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always.
37. Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of 7 India indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey, Law of the Constitution, 10th edn., Introduction, cx). 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlich, 'when it has freed man from the unlimited discretion of some ruler.... Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it is classic terms in the Case of John Wilkes, 'means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful'."
48. In our view, bringing the State activity in contractual matters also within the purview of judicial review is inevitable and is a logical corollary to the stage already reached in the decisions of this Court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two recent decisions in Dwarkadas Marfatia and Sons and Mahabir Auto Stores also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English decisions. It is in consonance with our commitment to openness which implies scrutiny of every State action to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power."
6. Per contra, Mr. Ravi Kerketta, learned counsel for the respondent-State 8 submits that this is not a case of termination rather this is a case of not extending the contractual service. He submits that as per Clause-1 of the contract agreement, the petitioner was appointed for a period of 3 years with an initial probation of six months. The said probation also includes 3 years. The petitioner was directed to join Nagar Untari, Nagar Panchayat, Garhwa but he has not joined immediately. He submits that the petitioner has not obeyed the order and in view of Annexure-7, he has been automatically relieved. Thereafter, he joined Nagar Untari, Nagar Panchayat, Garhwa. He submits that the judgment relied by the learned counsel for the petitioner is not applicable in the facts and circumstances of the present case as in that case the Hon'ble Supreme Court considered this aspect of the matter that employee has been terminated and in the case in hand by way of efflux of time agreement has expired and no extension is there.
7. On perusal of agreement which has been brought on record by way of counter-affidavit particularly, Clause-3, it transpires that the contract was for 3 years. However, in Clause-3 there has been mentioned that in case of termination one month notice is required to be given but in the present case by way of efflux of time renewal has not been done. It is an admitted position that after transfer of the petitioner from Ranchi Municipal Corporation to Nagar Untari, Nagar Panchayat, Garhwa, petitioner has not joined and after office order dated 16.12.2016 contained in Annexure-7, the petitioner joined at Nagar Untari, Nagar Panchayat, Garhwa. The petitioner is having alternative remedy if the petitioner has been appointed on contractual basis. In this regard reference may be made to case of "Oriental Insurance Co. Ltd. Vs. T. Mohammed Raisuli Hassan"
reported in (1993) 1 SCC 553. Paragraph nos. 4 and 5 of the said judgment are quoted hereinbelow:-
"4.Admittedly, there was no statutory rule requiring one month's notice for termination by the appellant of the service of the respondent. It is only the term of appointment order, which stipulated for one month's notice or one month's salary in lieu thereof by either side to 9 bring an end to the service of the respondent, which is made the basis for claiming invalidation of termination. That term contained in clause 10 of the appointment order reads:
"10. This appointment is liable to be terminated at any time by giving one month's notice, in writing, on either side, or a month's salary in lieu of notice, without assigning any reason. Breach of this condition, will entitle the company to recover from you one month's salary in lieu of notice."
5. When the above term in the clause relating to the condition of service of the respondent with the appellant is seen as a whole, there is nothing to indicate or suggest, even remotely, that non-service of one month's notice as a condition precedent for termination of the respondent's service would result in vitiation or invalidation of termination, if effected. On the contrary, the second part of the term contained in the clause, "breach of this condition, will entitle the company to recover from you one month's salary in lieu of notice" makes it obvious that the same would be the consequence if there was a breach of condition on the part of the company in the matter of service of one month's notice before termination of the respondent's service. Hence, we are constrained to hold that the non-service of one month's notice in writing by the appellant to the respondent before terminating the latter's service did not invalidate or vitiate such termination. From this, it follows that courts below had misread the said clause, by which either party was required to serve notice for putting an end to service of the respondent and 6 consequently committed an apparent error in taking the view that non-service of one month's prior notice to the respondent had vitiated the termination of his service."
8. It is well-settled provision of law that in the event that person is not appointed on regular basis and if his service is not governed by any statutory rules, he shall be bound by the terms and conditions that have been incorporated in his appointment letter. In this case, petitioner was appointed on the contract basis owing to that he cannot claim for the said post. The petitioner was not holding civil post. In view of termination of service, master- servant relationship ceased rendering the provision of the Act. In this regard reference may be made to the case of " Union of India V. Deep Chand Pandey" reported in (1992) 4 SCC 432 in which the Hon'ble Supreme Court 10 has held as under:
"6. The present respondents are claiming the right to continue in the employment of the Union of India as before, with additional claim of temporary status and it is, therefore, idle to suggest that such a claim is not covered by the Act. The necessary conclusion, therefore, is, that the remedy of the respondents was before the Tribunal and not the High Court. We, accordingly, hold that the High Court did not have the jurisdiction to entertain the claim of the respondents. Consequently the impugned judgment is set 10 aside, the writ petition before the High Court is dismissed and these appeals are allowed, but without costs."
9. It is well-settled provision of law that no contract employee has right to renew his contract from time to time. The Hon'ble Supreme Court in the case of "Shrilekha Vidyarthi " (supra), the judgment relied by learned counsel for the petitioner was considering the termination of a District Government Counsel and interpreted the professional engagement and in view of the arbitrary termination that order was passed. In the case in hand by efflux of time contract of service came to an end.
10. In view of the cumulative effect of the above discussions, the Court comes to the conclusion that no positive order can be issued in the writ jurisdiction. Accordingly, the writ petition is dismissed. However, the petitioner is at liberty to avail alternative remedy by way of filing appropriate petition before the appropriate forum.
(Sanjay Kumar Dwivedi, J.) Satyarthi/