1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4399 of 2009 Renuka Tiwary, D/o Late Sarabjet Tiwary, R/o New Area Morabadi, Near Police, T.O.P., P.S. Bariyatu, District-Ranchi. .... Petitioner Versus 1. The State of Jharkhand.
2. The Chief Secretary Jharkhand, Project Bhawan, Dhurwa, Ranchi.
3. The Secretary the Department of Health & Family Welfare, Govt. of Jharkhand, Ranchi.
4. The Project Director, The Jharkhand AIDS Control Society, Sadar Hospital Campus, Purulia Road, Ranchi.
5. Neetin Madan Kulkarni, S/o Not Known, Project Director, The Jharkhand AIDS Control Society, Sadar Hospital Campus, Purulia Road, Ranchi.
6. Mr. Shivendu, S/o not known, The Secretary, the department of Health & Family Welfare, Govt. of Jharkhand, Project Bhawan, Ranchi.
7. National Aids Control Organisation, Ministry of Health & Family Welfare, through under Secretary, Govt. of India, 9th Floor, Chanderlok Building, 36 Janpath, New Delhi, 110001. .... Respondents --- CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK --- For the Petitioner : Mr. Premchand Tripathi, Sr. Advocate For the Respondents : Mr. Rakesh Kr. Sahi, J.C to A.A.G ----- CAV on 06/05/2016 Pronounced on 30/09/2016 Per Pramath Patnaik, J.
In the accompanied writ application, the petitioner has prayed for quashing the letter of termination dated 04.09.2009 (Annexure-7) and for the 2 direction to the respondents not to terminate the petitioner from the post of Joint Director (IEC) in Jharkhand AIDS Control Society.
2. The factual matrix, as delineated in the writ application in nutshell is that the petitioner was appointed on contractual basis with the approval of the Director, Jharkhand AIDS Control Society, by the Ministry of Health & Family welfare, Union of India after following due process of selection. As per the terms and conditions, the appointment of the petitioner on contractual basis is to be renewed after performance appraisal on completion of one year as evident from Annexure-3 to the writ application. On the basis of appointment, the petitioner has been asked to enter into agreement on 8 th August, 2008 on the post of Joint Director (IEC) with the respondent no.4 at the monthly emolument of Rs.30,000/- per month as per Annexure-4 to the writ application. The appointment of the petitioner has been renewed for another two years on 3rd July, 2009 as evident from Annexure-5 to the writ application. But to the utter surprise and consternation, the services of the petitioner has been terminated vide order dated 04.09.2009 vide Annexure-7 to the writ application. Which is contrary to the guidelines of NACO, Government of India.
3. Learned senior counsel for the petitioner has strenuously urged that the action of the respondents in terminating the petitioner services on contractual basis is illegal under Article 14, 16 and 21 of the Constitution of India. Learned senior counsel further submits that the impugned order of termination vide Annexure-7 is an ex-parte order which was passed without affording any opportunity to the petitioner and the principle of natural justice has been given a complete go bye thereby rendering the impugned order nugatory and non-est in the eye of law. Learned counsel for the petitioner 3 during course of hearing has brought the attention of the Court to the order passed in W.P.(S) No.4785 of 2009 the order dated 24.11.2014 in the case of Maryada Purushottam Vs. State of Jharkhand and Others and submits that the case of the petitioner is squarely covered by the said decision and the writ petition be disposed of in the light of W.P.(S) No.4785 of 2009 and the decision in the case of Raj Kumar Singh Vs. Ranchi Regional Development Authority, Ranchi, through its Vice-Chairman & Ors. reported in 2008 (1) JCR265(Jhr).
4. As against the submission of learned senior counsel for the petitioner, learned counsel for the State- J.C to A.A.G has reiterated the submissions made in the counter-affidavit. Learned counsel for the respondents by referring to the counter-affidavit dated 15.10.2009 has submitted that 12 years' minimum experience is required for the post but the petitioner has only two years' experience as a Health Reporter and said to have worked in Dainik Hindustan, having three years' experience as a Fellow Researcher (INWATT, Ranchi) and 3 years' experience as a Associate Researcher (Prena Bharati, Mahupur) etc. and therefore, she has no minimum experience of 12 years' in the field of Health, Poverty Elevation, Gender Sector. It has further been submitted that the first agreement of the petitioner has been signed by the petitioner and Jharkhand State AIDS Control Society, Jharkhand, Ranchi on 08.08.2008 for a period of one year which was to expire on 07.08.2009 but before the expiry of the agreement, the second agreement was executed on 03.07.2009 without approval of the appropriate authority i.e. the National AIDS Control Organisation (NACO) and more so, the Non Judicial Stamp Paper of Rs.10/- on which the new agreement has been signed, is issued by Mrs. Preeti Sinha, Stamp Vender vide Sl. No.3229 dated 01.08.2009. It shows 4 that the renewal of the agreement is clearly back dated. Apart from several financial irregularities committed by the petitioner, she has also used her influence to manage her relative's appointment in NRHM Programme which is under Scrutiny and without any appraisal of her performance, the honorarium of the petitioner has been enhanced from Rs.30,000/- to Rs.35,000 per month.
5. A supplementary counter-affidavit has been filed on 28.10.2009, wherein it has been submitted that the petitioner joined on the post of J.D. (IEC) in Jharkhand State Aids Control Society (JSACS) on 07.08.2008 and she resigned from the post of consultant (Civil Societies mainstreaming) on 09.08.2008. She served as Consultant (Civil Societies mainstreaming) in JSACS from 25.01.2008 to 08.08.2008. In the above said circumstances the letter submitted by the petitioner regarding renewal of contract of JD (IEC) is false and misleading as per the recommendation letter of NACO for appointment of the petitioner in JSACS on the post of JD (IEC)it intimated that the contract can only be renewed with the approval of NACO after performance appraisal on completion of one year. Learned counsel for the State has also referred to supplementary counter-affidavit filed by respondent nos.3 and 4 dated 26.07.2011 wherein it has been submitted that prior to expiry of contract dated 08.08.2008 against contract service agreement has been done on 03.07.2009. The contract service agreement with petitioner was terminated not only on the ground of back dating in the agreement. The contract service agreement with petitioner was terminated vide memo dated 04.09.2009 vide Annexure-C to the supplementary counter-affidavit. It has further been submitted that the other persons, the requisite qualification and experience in the interest of programme which are working and some 5 contractual staffs whose qualification and experience were not as per the norms the contract was terminated after obtaining approval of Chairman- cum-Secretary JSACS and therefore the contract services was terminated because lack of requisite degree and experience and qualification.
6. Having heard, learned counsel for the respective parties and on bestowing my anxious consideration to the documents on records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons stated hereinbelow:- (I) Admittedly, the petitioner was appointed on the post of Joint Director (IEC) for a period of one year by virtue of agreement dated 08.08.2008 and from impugned order dated 04.09.2009, it is apparent no such opportunity has been given as contemplated in the terms and conditions of the agreement. (II) So far as the contention of the State-respondents that since it is contractual appointment hence there is no requirement to follow principle of natural justice is not acceptable as per the facts of the present case. When the State acts unfairly and unreasonably in its contractual, constitutional or statutory obligation, it acts contrary to the constitutional guarantee found in Article 14 of the Constitution. In this regard the judgment of the Hon’ble Apex Court in the case of ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and Others reported in (2004) 3 SCC553at para 23 and para 53 has held as follows :
“23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an 6 obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India……..”
53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution……” Further, in the case of Karnataka State Forest Industries Corporation Vs. Indian Rocks reported in (2009) 1 SCC150same ratio was reiterated wherein it was held as follows: “38.Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable.” Even in the matter of contractual appointment, if the order is stigmatic then an opportunity of hearing is ought to be given by respondents authorities to the petitioner. (III) The admitted position is that the petitioner was appointed on contract basis in the year 2008 and subsequently the services of the petitioner has been dispensed with and the sudden termination of the petitioner has visited with civil consequences. It is well established that any action of the State or its instrumentality must be fair, bona fide and equitable and the petitioner cannot be put to suffer any civil consequence without complying with the principles of natural justice and without 7 giving any prior notice and opportunity of hearing before issuing the impugned order of termination. Therefore, the impugned order is vitiated on account of violation of the principles of natural justice and is non est and the same is liable to be quashed. Since in the mean time, almost 7 years elapsed and the contract period by now would have been over. The petitioner was not allowed to work and discharge her duties and, therefore, since the contract period is over, she will not be reinstated, which she was getting for the said contract for the said period. But the petitioner is entitled for the fixed remuneration which she was getting for the said period and view of this Court gets fortified by the decision reported in 2006 (1) JCR85(Jhr) in the case of Mazharul Haque and others Vs. State of Jharkhand and Others.
7. In view of the aforesaid reasons stated in the foregoing paragraphs, the impugned order of termination dated 04.09.2009 is quashed and the respondents are directed to consider the case of petitioner for payment of arrears of remunerations for the period of contract in the light of decision reported in 2008 (1) JCR265(Jhr) in the case of Raj Kumar Singh Vs. Ranchi Regional Development Authority, Ranchi, through its Vice-Chairman & Ors. and W.P.(S) No.4785 of 2009 vide order dated 24.11.2014 in the case of Maryada Purushottam Vs. State of Jharkhand and Others within a period of two months from the date of receipt/production of copy of this order.
8. Writ petition is disposed of accordingly.
9. As the main writ application is disposed of consequently, I.A. No.2409 of 2015 also stands disposed of. (Pramath Patnaik, J.) RKM/- N.A.F.R.