The Gauhati High Court dismissed a writ petition challenging the termination of the petitioner's engagement as a Legal Consultant and the subsequent appointment of another individual by the Directorate of Technical Education, Nagaland.
The writ petition challenging the termination order was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC020003572018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH
Case No. : WP(C) 196/2018
1:THO-O SHUPAO
R/O THEMEZIE COLONY, KOHIMA
VERSUS
1:THE STATE OF NAGALAND AND 4 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF N/L, KOHIMA
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF N/L DEPT. OF HIGHER AND TECHNICAL EDUCATION N/L DEPT. OF HIGHER AND TECHNICAL EDUCATION N/L KOHIMA
3:THE DIRECTOR DIRECTORATE OF TECHNICAL EDUCATION N/L DIRECTORATE OF TECHNICAL EDUCATION N/L KOHIMA 4:THE UNDER SECRETARY TO THE GOVT. OF N/L. DEPT. OF HIGHER AND TECHNICAL EDUCAITON N/L DEPT. OF HIGHER AND EDUCATION N/L KOHIMA
5:TAYONGCHUBA DIRECTORATE OF TECHNICAL EDUCATION
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N/L KOHIM
Advocate
For the Petitioner : A. Zho
| : Akin |
|---|
| : Atsu |
| : Joram |
| : Bisto |
| : Sehopi |
| : Grace |
| Advocates |
Advocate for the State Respondents : K. Angami, Government Advocate
Date of hearing and judgment : 14.11.2019
BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER (ORAL)
Heard Mr. Akin Risom, learned counsel for the petitioner. Also heard Mr. K. Angami, learned Government Advocate for the respondent Nos. 1 to 4.
None has appeared for the respondent No. 5 though as per office note dated 12.03.2019, service of notice on respondent No. 5 was duly effected.
Page No.# 3/11 an order dated 09.07.2018, whereby, engagement of the petitioner as Legal Consultant in the Directorate of Technical Education, Nagaland was terminated with immediate effect.
Page No.# 4/11 by the respondent No. 5 seeking his engagement also as Legal Consultant in the Directorate of Technical Education, Nagaland, to the Commissioner & Secretary to the Government of Nagaland, Department of Higher and Technical Education, Nagaland on 11.06.2019 seeking approval. When by the impugned orders, both dated 09.07.2018, the Director of Technical Education, Nagaland engaged the respondent No. 5 as Legal Consultant for the Directorate of Technical Education, Nagaland by terminating the engagement of the petitioner as such Legal Consultant the petitioner has preferred this writ petition before this Court assailing the said 2 (two) impugned orders.
Page No.# 5/11 cannot be replaced by another ad-hoc/temporary employee and he must be replaced only by a regularly selected employee and in support, has cited the decision of the Hon’ble Supreme Court in the State of Haryana & Ors. vs. Piara Singh & Ors., reported in (1995) 4 SCC 118. He has also referred to a judgment and order dated 24.08.2016 passed by this Court in a writ petition, WP(C) No. 97(K)/2015. Referring to the stand taken by the State respondents in its affidavit, Mr. Akin has submitted that when the order of termination had indicated that in view of the engagement of the respondent No. 5, the engagement of the petitioner was terminated it was not open for the State respondents to take a different stand in that the engagement of the petitioner was terminated due to the expiry of the term of engagement. His further submission is that the Government must defend its action on the basis of the order that it had passed but it had taken a different stand in the affidavit filed subsequently in the writ petition. In support of his said submission, he has placed reliance in the decision of the Hon’ble Supreme Court in Dipak Babaria and another vs. State of Gujarat and others, reported in (2014) 3 SCC 502. Mr. Akin has further submitted that the engagement of the respondent No. 5 was at the behest of the concerned Minister, which is reflected from the communication dated 11.06.2018. 5. Per contra, Mr. K. Angami, learned Government Advocate has submitted that by the time the impugned orders were passed on 09.07.2018, the term of engagement of the petitioner had already expired on 19.06.2018. At the time of passing the impugned order ter-
Page No.# 6/11 minating the engagement of the petitioner, there was no subsisting contract existing between the petitioner and the Directorate of Technical Education, Nagaland. He further submits that by no stretch, the petitioner can be termed as an employee in the establishment of the Directorate of Technical Education, Nagaland. By the nomenclature itself, it is clear that the petitioner was engaged as a Legal Consultant and thus, his role was that of a consultant only. From the initial order of engagement or subsequent orders of extension, it is very much clear, he submits, that there was no employer-employee relation between the petitioner and the Directorate at any point of time. He further places reliance in the decision of the Hon’ble Supreme Court in State of U.P. and others vs. U.P. State Law Officers Association and Ors., reported in (1994) 2 SCC 204.
Page No.# 7/11 without any service of notice. Any term contract like a contract of engagement of the present nature entered for a specific period of time, lapses on the expiry of the period for engagement. After expiry of such period of engagement, it cannot be said that there is subsistence of the contract.
Page No.# 8/11 authority, not in accordance with the statutory mandate under the provisions of Gujarat Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958. It is held therein that acting in a manner in breach of statutory provisions, after being dictated by the Minister, is a breach of the mandate of the statute and it was in that context it was reiterated that public orders, publicly made, in exercise of a statutory authority cannot be considered in the light of explanation subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. In respect of the matter of engagement of Legal Consultant in the Directorate there was no question of exercise of any power under any statute as the same was purely a matter of contract. It is a well settled proposition of law that a contract which in its nature determinable or dependent on volition of the parties, is not specifically enforceable. Even when the contractual relationship between the parties are that of an employer and an employee, reinstatement is not permissible because specific performance of such a contract cannot be ordered. Where the relationship is purely governed by contract with no element of statutory governance, such contract of service will not be specifically enforceable. The subject matter involved in U.P. State Law Officers Association and others (supra) is a matter regarding engagement of lawyers by the Government and the public bodies to conduct work on their behalf and their subsequent removal from such engagement. It is in that context, the relationship between the lawyer and his client has been discussed and it is held that the client
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engages a lawyer for rendering services for personal reasons and is at liberty to leave him also, for the same reasons. A client is under no obligation to give reasons for withdrawing his brief from the lawyer. The lawyer, in turn, is also not an agent of his client but is only a spokesman. The role of a lawyer is, in essence, in the nature of an advisor to his client and he is also referred to as a counsel. The State respondents in their affidavit have categorically averred that with the nature of engagement of the petitioner being contractual, there was no question of violation of principles of natural justice. When the term of contract with the petitioner itself had expired, the State respondents cannot be compelled to extend the period of his engagement as it was under no such obligation. Further, the engagement of respondent No. 5 as its Legal Consultant, subsequent to the period of expiry of the contract with the petitioner, cannot be questioned by the petitioner in a writ petition under Article 226 of the Constitution of India. The State respondents in its affidavit have categorically asserted that the Legal Consultant appointed is a professional practitioner engaged to do specific works involving legal issues which fact is also reflected from the communication dated 11.06.2018. From the said averment, it is evident that the respondent No. 5 who is a practicing advocate, has been engaged as a Legal Consultant to assist, to guide and to help the Directorate in dealing with various legal issues of the Directorate, with no restriction in his private practice as a lawyer. The nature of contract as a Legal Consutant in the case in hand, did not alter the relationship from one of professional en-
Page No.# 10/11 gagement to that of employment and the Legal Consultant was and is not on the full-time rolls of the Directorate. From the said fact, it is very much evident that the role of Legal Consultant is not a full-time assignment. The decision of this Court rendered in WP(C) No. 97(K)/2015 (C. Thangpong vs. Commissioner & Secretary, Department of Veterinary & Animal Husbandry, Nagaland and others) is in respect of a chowkidar appointed on contingency basis fixed pay and his replacement and the same cannot also be of any assistance to the case of the petitioner and the full-time appointment of chowkidar cannot be equated with the part-time engagement of Legal Consultant. The petitioner has failed to establish that he has an enforceable right to enforce the term of the contract of his engagement as Legal Consultant, after expiry of the term of contract. Thus, it is not open for him to mount any challenge in respect of engagement of respondent No. 5 as Legal Consultant. Therefore, any further dilation on that aspect appears unnecessary, more so, when the term of contract of 1(one) year of the respondent No.5 as Legal Consultant by order dated 09.07.2018 had also been expired, with the subsequent contract, if any, offered to the respondent No.5 subsequently, not being brought on record.
Page No.# 11/11 Technical Education, Nagaland in respect of purported termination of the petitioner from the engagement of Legal Consultant in the Directorate of Technical Education, Nagaland and the engagement of the respondent No. 5 as a Legal Consultant in the Directorate of Technical Education, Nagaland. Having found this writ petition bereft of any merit, the same is dismissed. There shall, however, be no order as to cost.
Sd/- JUDGE
Comparing Assistant
2 issues framed by the court
Whether a legal consultant engaged on a contractual basis can claim a right to protection against replacement upon expiry of the term.
Whether the termination of a contractual engagement with a legal consultant and subsequent appointment of another constitutes legal interference.
Colour shows how this judgement treated each authority
State of Haryana & Ors. vs. Piara Singh & Ors.Distinguished¶27
State of Haryana & Ors. vs. Piara Singh & Ors., reported in (1995) 4 SCC 118 · Who else cites this
C. Thangpong vs. Commissioner & Secretary, Department of Veterinary & Animal Husbandry, NagalandDistinguished¶37
WP(C) No. 97(K)/2015
Dipak Babaria and another vs. State of Gujarat and othersDistinguished¶33
Dipak Babaria and another vs. State of Gujarat and others, reported in (2014) 3 SCC 502 · Who else cites this
State of U.P. and others vs. U.P. State Law Officers Association and Ors.Relied on¶29
State of U.P. and others vs. U.P. State Law Officers Association and Ors., reported in (1994) 2 SCC 204 · Who else cites this
Tho-O Shupao
The State of Nagaland
Manish Choudhury
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
