Dismissed

Hitesh Kalita v. the State of Assam and 2 Ors.

Gauhati HC3 Nov 2022WP(C)/5447/2021

Case brief

AI extract

What is this about?

In a writ petition seeking reinstatement after discontinuation of a contractual post as State Project Manager, the Gauhati High Court held that since the contract had automatically expired, the petition for judicial review was not maintainable.

What did the court decide?

The prayer for direction to reinstate the petitioner and prevent discharge from post was dismissed as infructuous due to the expiry of the contractual period.

Hitesh Kalita Vs the State of Assam and 2 Ors. — Labour and Industrial Disputes | Gauhati HC (2022)

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GAHC010161972021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/5447/2018

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Hitesh Kalita S/o- Bhupen Ch. Kalita, R/o- Bora Gaon, H/No.-10, P.S. Gorchuk, District - Kamrup (M), Assam, PIN – 781035. ……………… Petitioner

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Versus -

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The State of Assam Represented by the Commissioner and Secretary, Urban Development Department, Assam, Janata Bhavan, Dispur, Guwahati-06

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The Joint Secretary to the Government of Assam Urban Development Department, Assam, Janata Bhavan, Dispur, Guwahati -06, Assam.

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Assam State Urban Livelihood Mission Society [Day-NULM] Represented by State Mission Director, Having its office at Dr. R.P. Road Opposite Ganesh Mandir, Ganeshguri, Dispur, Guwahati – 781006.

……………….Respondents

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Advocates :

Petitioner : Mr. R.P. Sharma, Senior Advocate. Mr. D. Doley, Advocate. Respondents : Mr. T.C. Chutia, Additional Senior Government Advocate

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Date of Hearing & Judgment & Order : 03.11.2022

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [ORAL]

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Assailment is made in this writ petition, instituted under Article 226 of the Constitution of India, to an order of discontinuation of service of the petitioner with the respondent Assam State Urban Livelihoods Mission Society [DAYNULM], Assam [‘ASULMS [DAY-NULM], Assam’, for short]. The order of discontinuation of service was passed by the State Mission Director, ASULMS [DAY-NULM], Assam. By this writ petition, the petitioner has inter alia sought direction in the nature of Mandamus to the respondent authorities, more particularly, the respondent no. 3 i.e. the State Mission Director, ASULMS [DAYNULM], Assam not to discharge the petitioner from his post of State Project Manager [Administration, HR & Capacity Building] [herein after referred to as ‘the State Project Manager’, for short] and for a direction to reinstate him in service.

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2 . In response to an Advertisement dated 24.10.2019, published by the ASULMS [DAY-NULM], Assam, inviting applications for filling up a number of vacant posts including that of the State Project Manager, the petitioner submitted his candidature for the post of State Project Manager. After a

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selection process, the petitioner was offered engagement for the post of State Project Manager which he had accepted. After acceptance of the engagement, a ‘Contract Agreement for Engagement of Staff under ASULMS [DAY-NULM], Assam’ [‘Contract Agreement’, for short] was executed on 05.02.2020 between the ASULMS [DAY-NULM], Assam, represented by the State Mission Director, ASULMS [DAY-NULM], Assam, on one hand and the petitioner on the other hand. The petitioner continued to discharge the duties of State Project Manager since thereafter. As per the Contract Agreement, the agreement was to lapse automatically on 04.02.2021. By a letter dated 01.02.2021, the Joint Secretary to the Government of Assam, Urban Development Department, the Mission Director, ASULMS [DAY-NULM], Assam was requested to depute the petitioner to the Urban Development Department with immediate effect for pursuing certain urgent pending matters of ASULMS [DAY-NULM], Assam in the Finance Department and also certain other related works. A Notice was served thereafter on 09.03.2021 upon the petitioner by the State Mission Director, ASULMS [DAY-NULM], Assam, whereby, explanation was called for from the petitioner as to why his service should be continued post - 04.02.2021. Mention was made in the Notice about the petitioner’s unauthorized absence in the office with effect from 04.02.2021 to 15.02.2021 and for another period from 18.02.2021 onwards. Mention was also made in the Notice about the lapse of the Contract Agreement of engagement on and from 04.02.2021. On receipt of the Notice dated 09.03.2021, the petitioner furnished his written explanation on 10.03.2021 highlighting the aspects as to why he could not remain present in the office during the periods indicated in the Notice dated 09.03.2021. The primary reason shown in the written explanation by the petitioner was his health related difficulties. Thereafter, the State Mission Director, ASULMS [DAY-NULM],

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Assam issued an Order dated 11.03.2021 whereby the petitioner was made aware of that his services with the ASULMS [DAY-NULM], Assam stood discontinued with effect from 05.02.2021. Dissatisfied with the manner in which his services had been discontinued by the respondent authorities, the petitioner has approached this Court by this writ petition.

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3 . I have heard Mr. R.P. Sharma, learned Senior Counsel assisted by Mr. D. Doley, learned counsel for the petitioner and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for all the respondents.

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4 . Mr. Sharma, learned Senior Counsel for the petitioner has submitted that the petitioner came to be engaged as the State Project Manager after a due selection process. It has been submitted by him that until 01.02.2021, there were no complaints whatsoever regarding the services rendered by the petitioner in the ASULMS [DAY-NULM], Assam as the State Project Manager. When the letter dated 01.02.2021 was received from the Urban Development Department at the end of ASULMS [DAY-NULM], Assam, the petitioner was undergoing some health related issues. By referring to the prescriptions annexed to the writ petition as Annexure-4, Mr. Sharma has submitted that the petitioner was having medication for various health related issues including anxiety disorder and sleeping disorder and for those health related issues, he was given medical advice to undertake rest. He has canvassed that the matter of sickness of the petitioner was immediately informed to the State Mission Director, ASULMS [DAY-NULM], Assam and medical leave was sought for but that aspect of the matter was not duly considered and the petitioner was served the Notice dated 09.03.2021 wherein allegation was made about wilful

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misconduct and negligence of duties. The petitioner had adequately explained in his written explanation as to why he had to remain absent from duties for the periods, mentioned in the Notice dated 09.03.2021. Since the reasons for his absence were due to his health condition, it was not open for the respondent authorities to take harsh measures by the Order dated 11.03.2021. It is his submission that the action taken by the Order dated 11.03.2021 was clearly punitive in nature. That the release of the petitioner from the post of State Project Manager was punitive is substantiated from the statements made by the respondent no. 3 in his counter affidavit. Mr. Sharma has relied upon the decision of the Hon’ble Supreme Court of India in K. Ragupathi vs. State of Uttar Pradesh and others, reported in [2022] 6 SCC 346, to portray that the petitioner’s case is similarly situated to the petitioner in K. Ragupathi [supra]. Though the engagement of the petitioner as State Project Manager was made on the basis of a contract, but for all intents and purposes, the petitioner’s engagement should be treated as a regular one as such engagement was preceded by a due selection process and there is still need for a State Project Manager in ASULMS [DAY-NULM], Assam. He has contended that in the fact situation obtaining in the case of the petitioner, the relief sought for in the writ petition deserves to be allowed.

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5 . Per contra, Mr. Chutia, learned Additional Senior Government Advocate, Assam has contended that the engagement of the petitioner was purely a contractual one. A look at the Advertisement dated 24.10.2019 and the Contract Agreement for engagement, executed on 05.02.2020, would make it evidently clear that the petitioner’s engagement was to lapse on 04.02.2021. There was discretion on the part of the employer, ASULMS [DAY-NULM], Assam

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in the Contract Agreement itself to decide upon continuation or noncontinuation of the contractual arrangement between the parties. By referring to the records, he has submitted that the Competent Authority considered the entire matter by asking for explanation from the petitioner by the Notice dated 09.03.2021 to decide upon the issue of renewal or non-renewal of the Contract Agreement. It is his submission that the matter of non-renewal, which is within the exclusive domain and jurisdiction of the employer, cannot be gone into by the Court when the arrangement between the parties was purely contractual one. He has contended that since the contractual arrangement had already lapsed on 04.02.2021, there cannot be any extension thereafter. It is his further submission that since there was lapse of the Contract Agreement, there is no necessity to go into the question about the nature of termination. In support of his submissions, he has referred to the decisions in Gridco Limited and another vs. Sadananda Doloi and others, reported in [2011] 15 SCC 16; State of Madhya Pradesh and others vs. Sandhya Tomar and Another, reported in [2013] 11 SCC 357; Ajoy Kumar Haloi vs. State of Assam and others, reported in [2014] 5 GLR 560; and Yogesh Mahajan vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences, reported in [2018] 3 SCC 218.

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6 . I have given due consideration to the submissions of the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. I have also gone through the records, produced by Mr. Chutia before the Court.

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7 . Before any deliberation on the respective submissions of the learned counsel, it appears apposite to look into the process whereby the petitioner

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came to be engaged as the State Project Manager in the ASULMS [DAY-NULM], Assam to find out the true nature of engagement of the petitioner. The ASULMS [DAY-NULM], Assam published the Advertisement dated 24.10.2019 inviting applications for filling up a number of vacant posts. The Advertisement stated that applications were invited for contractual engagement at the State Mission Management Unit [SMMU] and City Mission Management Unit [CMMU] under the Deendayal Antyodaya Yojana-National Urban Livelihoods Mission [DAYNULM], Assam implemented by the Assam State Urban Livelihoods Mission Society [ASULMS]. One of the posts so advertised for contractual engagement, was the State Project Manager [Administration, HR & Capacity Building]. The details for the said post in the said advertisement reads as under :

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Sl.	Name of Project	No. of	Age Limit	Qualification/Eligibility	Monthly
No.		Vacancies			Remuneration [in Rs.]
1	State Project	1	30 years	Academic Qualification :	60,000/-
	Manager- Admin, HR & Capacity Building		to 45 years	1] 2 years full time Post Graduate Diploma in Management / MBA with specialization in Human Resource Management.
				OR
				2] 2 years Full Time Masters in any other relevant discipline.
				Work Experience : I. Minimum 5 years relevant experience in staff recruitment, training and capacity building work with state level projects. II. Previous work experience in managing projects from Social Sector ispreferable.

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8 . The Advertisement also contained the general terms and conditions

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and important instructions which the candidates were requested to read carefully before submitting their applications. The general terms and conditions specified that the engagement would be purely on temporary and contractual basis. It further mentioned that initially the engagement might be for a period of 12 months or as decided by the State Mission Director and based on the performance and requirement of the Mission, the contract might further be extended. It further mentioned that the shortlisted candidates would have to appear in a selection process.

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9 . There is no dispute between the parties that the petitioner was selected for the post of State Project Manager after a selection process undertaken by the respondent authorities pursuant to the Advertisement dated 24.10.2019.

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10 . After his selection, the Contract Agreement titled ‘Contractual Agreement for Engagement of Staff under ASULMS [DAY-NULM], Assam’ was executed between the respondent no. 3 and the petitioner on 05.02.2020. The Contract Agreement contained a clause to the effect that the agreement would automatically lapse on 04.02.2021, irrespective of the date of joining of the employee at the SMMU. It was made clear that the engagement would not entitle the employee to claim for any permanent job either in the Government or in the Mission and the agreement was purely temporary and contractual only. A termination clause was included in the Contract Agreement to the effect that the employer may terminate the agreement at any time if it finds that the services rendered by the employee are unsatisfactory or if there is any breach of the terms of the agreement. It further provided that the decision of the State

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Mission Director, ASULMS [DAY-NULM], Assam as to whether the services rendered by the employee in terms of the Contract Agreement are satisfactory or whether there has been any breach of the terms of the Contract Agreement shall be final and binding on the employee. The Contract Agreement also contained a clause that it would be open to either party to terminate the agreement by giving a 30 days’ notice to the other party in writing or by paying one month’s remuneration in advance in lieu of notice thereof. If the employer has to terminate the agreement at any time due to misconduct, misreporting or negligence in duty by the second party, then the employer will not be liable to pay 30 days’ remuneration to the employer in advance in lieu of the above mentioned notice. The contract also contained a clause whereby the employee had to accept that there should be no claim for extension of the agreement and any such extension shall be at the sole discretion of the employer.

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11 . Having regard to the general terms and conditions of the Advertisement dated 24.10.2019 and the Contract Agreement dated 05.02.2020, there is no iota of doubt left that the engagement of the petitioner was clearly a contractual engagement. The contractual engagement was to expire on 04.02.2021 automatically by lapse of time.

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12 . It was few days prior to the expiry of the contractual period, the service of the petitioner was sought for by the Urban Development Department by a letter dated 01.02.2021 for attending certain matters of the ASULMS [DAYNULM], Assam in the Finance Department and also some other works. From the averments made in the writ petition, it is noticed that the petitioner had claimed sickness and indisposition on and from 02.02.2021 and for such reasons, he

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could not join in his deployed place. Thus, from the statement of the petitioner itself it is evident that the petitioner was aware of the fact that he was to attend duties as the State Project Manager, ASULMS [DAY-NULM], Assam in the Urban Development Department. The petitioner has averred that he had immediately informed about his sickness to the respondent no. 3 and sought for medical leave. The petitioner in his written explanation, submitted on 10.03.2021, had stated that he attended the office on 16.02.2021 and 17.02.2021. He did not dispute the fact that he did not attend the duties from 02.02.2021 to 15.02.2021 and the petitioner had explained the reason for such absence as his health problems of severe back pain for which he had to be under medication and had to take periodic treatment. The said position has been seriously disputed by the respondent no. 3 by contending that no leave application was ever received from the petitioner for his period of absence from 02.02.2021 to 15.02.2021. The petitioner was asked to provide explanation by the notice dated 09.03.2021 as to why he was found continuously absent from office duties w.e.f. 02.02.2021 to 15.02.2021 and w.e.f. 18.02.2021 to 08.03.2021. The notice further mentioned that though the petitioner signed attendance register on 16.02.2021 and 17.02.2021, he did not choose to meet the respondent no. 3 on those two dates. It is the contention of the respondent authorities, more particularly, the respondent no. 3 that there was unauthorized absence on the part of the petitioner. In order to corroborate about the factum of petitioner’s absence, the respondent no. 3 in his counter affidavit has annexed the copies of the relevant attendance sheet.

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13 . The respondent no. 3 has averred that when contract agreement of staff lapses on a particular date, the same is not renewed at times due to

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factors like delayed appraisal, etc. which are formalities. In such cases, the contracts are renewed on a later date with retrospective effect from the date on which the agreement had lapsed and letter of non-renewal, etc. is not served to the employees as was in the case of the petitioner. It has been averred that in the case of the petitioner, the term of agreement was not renewed due to factors like unauthorized absence, etc. which is clearly substantiated by the clauses in ‘the Contract Agreement for Engagement of Staff under ASULMS [DAY-NULM, Assam]’ [‘the Contract Agreement’ for short].

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14 . For ready reference, the contents of the order dated 11.03.2021 whereby, the discontinuation of the contractual service of the petitioner with the ASULMS [DAY-NULM] Assam came into effect are extracted herein below :

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“Sub : Discontinuation of Contractual Service with ASULMS w.e.f. 5^th Feb, 2021

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Ref : 1. This Office Letter No. – ASULMS[SMMU]/HR-19/29/2017/5137-5138 dtd.

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9^th March, 2021.

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Your reply dated 10.03.2021 received by email.

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Contractual Agreement dated 5^th Feb, 2020.

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HR Policy Manual of Assam State Urban Livelihoods Mission Society

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Perused your reply dated 10.03.2021 which was found unsatisfactory.

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And consequent upon automatic lapse of Contractual Agreement on dated 04.02.2021, Midnight, this office wishes to inform you that your services as State Project Manager [HR, Admin and Capacity Building], is no longer required by Assam State Urban Livelihoods Mission Society [ASULMS], DAYNULM, Assam.

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You are requested to settle outstanding dues if any within 30 days from issue of this letter. This issue with the approval of Competent Authority.”

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15 . Two reasons are cited in the afore-stated Order dated 11.03.2021. Firstly, the employer i.e. the State Mission Director, ASULMS [DAY-NULM], Assam found the reply of the petitioner, submitted on 10.03.2021, unsatisfactory; and secondly, consequent upon automatic lapse of the period stated in the Contract Agreement dated 05.02.2020, the office of the ASULMS [DAY-NULM], Assam no longer required the services of the petitioner as the State Project Manager [Administration, HR & Capacity Building]. The petitioner was requested to settle outstanding dues, if any, within 30 days from issue of the said order dated 11.03.2021. The respondent no. 3 in his counter affidavit has stated that the contract period of the petitioner was w.e.f. 05.02.2020 to 04.02.2021 and the petitioner had been paid up to 04.02.2021. The said position has not been traversed by the petitioner in his affidavit-in-reply in any specific manner.

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16 . The records produced before the Court contains a Minute of an Emergency Meeting held at the office of the State Mission Director, ASULMS [DAY-NULM], Assam on 08.03.2021, which was convened to discuss about the Contract Agreement executed with the petitioner and regarding his continuous absence from office, etc. From the Minutes of the Meeting, it transpires that the respondent no. 3 apprised the members attending the Emergency Meeting about various issues related to the petitioner which included matters like nonattending the assignment related to the urgent pending matters of ASULMS [DAY-NULM], Assam in the Finance Department and other works in pursuance to the letter dated 01.02.2021 of the Urban Development Department; about involvement of the petitioner in political activities; his subscribing signature in the attendance sheet on 16.02.2021 and 17.02.2021 and leaving the office

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suddenly; expiry of the one year contractual period on 04.02.2021; and lodgment of an FIR against the petitioner in a Police Station. After the above issues were apprised to the members, the members opined that a Show cause notice be served to the petitioner and thereafter, a decision of non-renewal of agreement be taken with the approval from the Competent Authority. It was pursuant to the above opinion expressed by the members in the Meeting, as reflected from the Minutes thereto, the Notice dated 09.03.2021 came to be served upon the petitioner asking for his explanation as to why his services should be continued post - 04.02.2021. After receipt of the written explanation dated 10.03.2021 from the end of the petitioner, the Order dated 11.03.2021 came to be issued under the hand of the respondent no. 3. It bears repetition to mention that the reasons cited by the employer therein for non-renewal of the contractual engagement beyond 04.02.2021 were two-fold, firstly, the reply was found unsatisfactory and secondly, there was expiry of the contractual period provided in the Contract Agreement dated 05.02.2020.

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17 . In K. Ragupathi [supra], the appellant pursuant to his application in response to an advertisement, came to be selected for the post of Senior Scientific Officer in the respondent University after undergoing a selection process. The respondent University appointed him on contractual basis vide an order dated 03.08.2011 indicating the contractual period as 2 [two] years. Subsequently, the appellant’s service tenure was extended for another period of 1 [one] year by the respondent University by an order dated 07.08.2013. Vide a communication dated 12.08.2014, the appellant was informed that the period of his contractual appointment had expired on 11.08.2014. The Hon’ble Supreme Court of India in K. Ragupathi [supra] has found that the appellant K.

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Ragupathi’s appointment was in terms of the provisions contained in ‘the Uttar Pradesh Gautam Buddha University Act, 2002’. The statutory provisions made it obligatory on the University to initially appoint employees on contractual basis and those employees, though technically appointed on contract, get all benefits and allowances as per the Rules applicable. For permanency in tenure, their terms and conditions of appointment were identical to those of any regularly appointed candidates and the employees, though initially appointed on contractual basis, can be appointed only against a vacant post. Even as per the University, though the appointment was shown to be a contractual basis but for all purposes, it was on a regular basis. It is in such context, the Hon’ble Supreme Court of India has observed that though the appointment of the appellant was purportedly contractual, for all purposes, it was on regular basis. Thereafter, it has gone to observe that the discontinuation of the services of the appellant therein was pursuant to allegation made against him by the Dean of the University and thereafter, the appellant’s services could not have been terminated without following the principles of natural justice.

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18 . The decision in K. Ragupathi [supra] cannot be made applicable to the case of the petitioner in hand as there is distinction in the background facts. In K. Ragupathi [supra], though the appointment of the appellant was purportedly contractual, for all purposes, it was found to be made on regular basis and in terms of the statutory provision contained in ‘the Uttar Pradesh Gautam Buddha University Act, 2002’ whereby it was made obligatory on the part of the University to initially appoint employees only on contractual basis. On the other hand, there is no material brought on record in the case in hand to show that the post of State Project Manager in the ASULMS [DAY-NULM], Assam is of

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permanent nature and it is obligatory on the part of the employer to initially appoint the selected candidates on contractual basis.

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19 . At this stage, it is apposite to refer to the decision of the Hon’ble Supreme Court of India in Gridco Limited and another vs. Sadananda Doloi and others, reported in [2011] 15 SCC 16. The respondent therein came to be appointed against the post of Senior General Manager : HR Policy, Job Evaluation, Appraisal, Remuneration in the appellant company, the Grid Corporation of Orissa Ltd. [‘GRIDCO’, for short], a company wholly owned by the Government of Orissa, pursuant to a selection process undertaken after publication of an advertisement dated 28.05.1996. The appointment of the respondent was on contract basis initially for a period of 3 [three] years subject to renewal on the basis of his performance. The tenure of appointment of the respondent was extended subsequently from time to time and by an order dated 19.02.2001, the appointment of the respondent was terminated with three months’ salary in lieu of notice. Two issues came to be considered by the Hon’ble Supreme Court of India in the said case which were as under :

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“[1] What was the true nature of the appointment of the respondent ? In particular, was the appointment regular or simply contractual in nature ? and

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[2] If the appointment was contractual, was the termination thereof vitiated by any legal infirmity to call for interference under Article 226 of the Constitution ?”

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19.1 . It has been observed that there was no uncertainty or ambiguity in the appointment of the petitioner as he was appointed to a post and the same was a tenure appointment and the nature of appointment made by the appellant GRIDCO was contractual. Having regard to the terms and conditions of the

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appointment, the Hon’ble Supreme Court of India has observed that in a case of contractual appointment, the question of the unequal bargaining power of the parties does not have any relevance or role to play. In so far as the second question is concerned, the Hon’ble Supreme Court of India has observed as under :

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“22.This question has to be answered in two distinct parts. The first part relates to the aspect whether the order passed by the appellantCorporation is amenable to judicial review and if so what is the scope of such review. The second part of the question is whether on the standards of judicial review applicable to it, the order of termination is seen to be suffering from any legal infirmity.

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It is true that judicial review of matters that fall in the realm of contracts is also available before the superior courts, but the scope of any such review is not all pervasive. It does not extend to the Court substituting its own view for that taken by the decision-making authority. Judicial review and resultant interference is permissible where the action of the authority is mala fide, arbitrary, irrational, disproportionate or unreasonable but impermissible if the petitioner's challenge is based only on the ground that the view taken by the authority may be less reasonable than what is a possible alternative. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it is with the decision-making process unless of course the decision itself is so perverse or irrational or in such outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses.”

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19.2 . The Hon’ble Court in Gridco Limited [supra] considered the cases in Shrilekha Vidyarthi vs. State of Uttar Pradesh, reported in [1991] 1 SCC 212; Parshotam Lal Dhingra vs. Union of India, reported in AIR 1958 SC 36; Central

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Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly, reported in [1986] 3 SCC 156; and a host of other decisions and has thereafter observed as follows :

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“28. Recognizing the difference between public and private law activities of the State, this Court reasoned that unlike private individuals, the State while exercising its powers and discharging its functions, acts for public good and in public interest. Consequently every State action has an impact on the public interest which would in turn bring in the minimal requirements of public law obligations in the discharge of such functions. The Court declared that to the extent, the challenge to State action is made on the ground of being arbitrary, unfair and unreasonable hence offensive to Article 14 of the Constitution, judicial review is permissible. The fact that the dispute fell within the domain of contractual obligations did not, declared this Court, relieve the State of its obligation to comply with the basic requirements of Article 14.

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A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review.

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A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality

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that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.

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Applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations governing the service conditions of the employees of the Corporation, make it clear that officers in the category above E-9 had to be appointed only on contractual basis.

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It is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three months' notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter.

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We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual

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appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise.”

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20 . The principle that can be culled out from Gridco Limited [supra] is that the Court while exercising the power of judicial review can examine the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality vitiating the action. There is a caveat in that the judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over a decision of the employer. The Court cannot sit in the position of the employer to decide whether a more reasonable decision or course of action could have been undertaken in the circumstances. It has been further held that the renewal of the contract of employment is dependent upon the perception of the employer as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rest entirely on the discretion of the employer. It has been reminded that the contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise.

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21 . In Ajoy Kumar Haloi vs. State of Assam and others, reported in [2014] 5 GLR 560, the petitioner was appointed to the post of Block Programme Manager under the National Rural Health Mission [NRHM] by the employer on contractual basis for a period of 6 [six] months from the date of joining the post and a contract was accordingly executed. After expiry of the contract period no other order was passed for the extension of the contract period till the time the writ petition was filed by the petitioner but the petitioner continued to discharge his duties and responsibilities. By an order dated 25.01.2011, the employer terminated the services of the petitioner purportedly in accordance with Clause

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8 and Clause 9 of the contract without giving him an opportunity of hearing. The Court considered the principles in respect of contractual appointment and a catena of decisions including Gridco Limited [supra]. The Court considered the aspect that the contractual engagement of the petitioner had come to an end already by the time the order of termination was passed and has observed as under :

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“11. In the light of the facts as unfolded above, irrespective of the question as to whether the termination of the services of the petitioner is illegal or not, the core question to be determined now is whether the writ petition is overtaken by time and has, ipso facto, becomes infructuous? After all, this Court cannot extend the period of engagement of the petitioner : the legitimate function of the respondent no. 2 cannot be usurped by this Court. If the period of his contractual engagement were still operative now, the power of judicial review could have been exercised by this Court to examine the legality or otherwise of the termination of his engagement, but that is no longer possible in view of the expiry of contractual engagement on or about 01.11.2010, which was not extended thereafter. If there was breach of contract in the termination of the services of the petitioner, it may give rise to a cause of action for damages/compensation, for which the remedy available is civil suit and not a writ petition.”

¶100

22 . Reverting back to the facts of the case, it is evident that the term of contractual engagement of the petitioner ended on 04.02.2021 by virtue of the terms and conditions contained in the Contract Agreement dated 05.02.2020. Thus, the contractual engagement of the petitioner is not operative as on date. Therefore, there is no necessity to examine the legality or otherwise of the termination of his engagement under the power of judicial review. The decision in Ajoy Kumar Haloi [supra] has referred to another decision of the Hon’ble Supreme Court of India in Uttar Pradesh State Textile Corporation Ltd. vs.

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Page No.# 21/23

¶102

Suresh Kumar, reported in [2011] 15 SCC 180. The ground for termination of the respondent therein, who was a fixed tenure appointee was unauthorized absence. As per the appointment order, the fixed pay tenure of appointment was for a period of 3 [three] years which came to an end on 06.09.1990. The services of the respondent was terminated by an order dated 26.04.1989 on the ground that he was in the habit of remaining absent for long period of time without prior approval. When the termination order was challenged before the Uttar Pradesh Public Services Tribunal, the Tribunal held that the order impugned was stigmatic as it referred to continued absence of the respondent over a long period of time and the same was not found sustainable. The High Court dismissed the writ petition preferred against the order of the Tribunal. When the matter was carried to the Hon’ble Supreme Court of India in a civil appeal, the Hon’ble Supreme Court of India has observed as under :

¶103

“4. The learned counsel for the appellant has raised primarily two arguments before us. He has contended that the reference to the unauthorized absence of the respondent could not in any manner be said to be stigmatic and that the finding to the contrary was unsustainable. Alternatively he has contended that the respondent had joined the post on the 7th September, 1987 for a period of three years which would have come to an end on the 6th September, 1990 and as such the direction for reinstatement could not have been granted to him. It has been pleaded that as a consequence of the order of the Tribunal and of the High Court, the respondent has been put back into service.

¶104

The learned counsel for the respondent has however supported the judgments of the Tribunal and the High Court.

¶105

In the facts of the case we need not examine the effect of the order dated 26th April 1989 whereby the services of the respondent had been terminated as being stigmatic or not as we are of the opinion that in the light of the fact that appointment itself was for a fixed period of three years which would have come to

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Page No.# 22/23

¶107

an end on the 6th September, 1990, no relief beyond that period could have been given to the respondent by the Tribunal or the High Court. We accordingly feel that these orders need to be modified to the extent that the appellant shall be deemed to be in service up to the 6th September, 1990 and not thereafter.”

¶108

23 . Following the above observation of the Hon’ble Supreme Court of India, this Court in Ajoy Kumar Haloi [supra] has found that the writ petition to be not maintainable for becoming infructuous and was therefore dismissed.

¶109

24 . In the light of the discussions made above regarding the facts and circumstances obtaining in the case in hand and in view of the principles laid down in the decisions cited above, this Court is of the considered view that since by the time the services of the petitioner came to be discontinued by the Order dated 11.03.2021, the period of contractual appointment of the petitioner entered into by the Contract Agreement dated 05.02.2020 had already come to an end on 04.02.2021. From the records of the proceedings, the decision to terminate the services of the petitioner was preceded by a decision of the Screening Committee of the ASULMS [DAY-NULM], Assam taken in its Emergency Meeting held on 08.03.2021 to call for an explanation from the petitioner as to why the services of the petitioner should or should not be renewed. It was further decided that the decision for renewal or non-renewal would be taken only after receipt of an explanation from the petitioner. The said decision was followed by the Notice dated 09.03.2021 issued to the petitioner whereby the petitioner was asked to provide explanation about his unauthorized absence, etc. so as to take a decision about the renewal or otherwise of the contractual appointment of the petitioner as the State Project Manager for the period after 04.02.2021. When the explanation provided by the petitioner was

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Page No.# 23/23

¶111

found unsatisfactory and as the tenure of contract period of appointment had already expired on 04.02.2021, the decision not to renew the contract was taken. As a result of non-renewal of the contractual appointment of the petitioner, the natural consequence would be the discontinuation of the contractual service of the petitioner which had been made effective by the order dated 11.03.2021.

¶112

25 . In such fact situation obtaining in the case, this Court has found that the kinds of relief, sought for by the petitioner in this writ petition, cannot be granted. As a corollary, the writ petition is found to be not merited and the same is accordingly, dismissed. There shall, however, be no order as to cost.

¶113

JUDGE

¶114

Comparing Assistant

Hitesh Kalita v. the State of Assam and 2 Ors.

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Hitesh Kalita v. the State of Assam and 2 Ors.

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