Dismissed

Renuka Tiwary v. the State of Jharkhand through the Chief Secretary

Jharkhand HC24 Sept 2021LPA/126/2021

Case brief

AI extract

What is this about?

The Division Bench dismissed an intra-court appeal challenging the dismissal of a writ petition seeking extension of a contractual appointment. The court held that a contractual employee cannot claim extension of tenure as a legal right, especially when the contract terms allow for discretion and investigations into irregularities are ongoing.

What did the court decide?

The court found no reason to interfere with the impugned order rejecting the claim for extension of contractual engagement.

Renuka Tiwary Vs the State of Jharkhand through the… — Service and Employment | Jharkhand HC (2021)

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[1]

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No.126 of 2021

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Renuka Tiwary, aged 52 years, daughter of Late Sarabjet Tiwary, resident of New Area Morabadi, near Police T.O.P., P.O. Morabadi, P.S. Bariyatu, District Ranchi (Jharkhand).

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… … Petitioner/Appellant

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Versus

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The State of Jharkhand, through the Chief Secretary, having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.

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Principal Secretary, Health & Family Welfare Department, Government of Jharkhand, having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.

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National AIDS Control Organization, Ministry of Health and Family Welfare, Government of India, through its Director, having office at 9^th Floor, Chandralok Building, 36, Janpath, P.O. & P.S. Janpath, District New Delhi.

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Jharkhand State Aids Control Society, Health & Family Welfare Department, Government of Jharkhand, having its office at Sadar Hospital Campus, Purulia Road, P.O. G.P.O., P.S. Sadar, Town & District Ranchi (Jharkhand).

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Project Director, Jharkhand State Aids Control Society, Health & Family Welfare Department, Government of Jharkhand, having its office at Sadar Hospital Campus, Purulia Road, P.O. G.P.O., P.S. Sadar, Town & District Ranchi (Jharkhand).

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…… Respondents/Respondents

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------- CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Vipul Poddar, Advocate For the Respondents : Mrs. Darshana Poddar Mishra, AAG-I Mr. Jitendra Tripathi, Advocate

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ORAL JUDGMENT 04 / Dated 24^th September, 2021

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With consent of the parties, hearing of the matter has been done through video conferencing. They have no complaint whatsoever about any audio and video quality.

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[2]

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The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 19.01.2021 passed by learned Single Judge of this Court in W.P.(S) No.780 of 2019 whereby and whereunder the writ petition has been dismissed by declining to interfere with the reasoned order dated 21.01.2019 by which the claim of the writ-petitioner/appellant for acceptance of her joining has been rejected.

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The brief facts of the lis which is required to be enumerated read as hereunder:

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The writ-petitioner/appellant had participated for consideration of her candidature to be appointed to the post of Joint Director (IEC), Jharkhand State AIDS Control Society on contract basis in terms of advertisement issued under the signature of Under Secretary (Administration), Ministry of Health and Family Welfare, Government of India. The writ-petitioner/appellant had applied for the said post considering herself to have the essential qualification. The writpetitioner/appellant was called for interview vide order letter dated 28.04.2008 issued from the National AIDS Control Organization, Ministry of Health and Family Welfare to appear before the Interview Board at Chhatisgarh State AIDS Control Society, Raipur on 06.05.2008. The writ-petitioner/appellant on being declared successful, was appointed on the post of Joint Director (IEC) Jharkhand State AIDS Control Society vide letter dated 04.08.2008 on contractual basis for monthly remuneration of Rs.30,000/-.

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The writ-petitioner/appellant had entered into a contract as per which the initial engagement was for the period of one year subject to its extension. As per the agreement/contract dated 08.08.2008 the writ-

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[3]

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petitioner/appellant joined on the said post and started discharging her duties and after completion of one year, the contract of the service of the writ-petitioner/appellant was renewed for two years by the agreement dated 03.07.2009. However, prior to coming to the service, the writpetitioner/appellant was working as Consultant (Civil Society Mainstreaming) on contract basis vide letter dated 25.01.2008 pursuant to the advertisement published in the newspaper dated 14.12.2007 and subsequently she was working additionally as Joint Director (IEC) but she was terminated vide letter dated 04.09.2009.

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The aforesaid order of termination was challenged by the writpetitioner/appellant before this Court by filing a writ petition being W.P.(S) No.4399 of 2009 wherein the order of termination was quashed with a direction upon the respondents to allow the writpetitioner/appellant to discharge her duty on the post of Joint Director (IEC) and to consider to pay the arrear of salary of the writpetitioner/appellant. The said order was challenged before this Court in intra-court appeal being L.P.A. No.37 of 2017 which was disposed of vide order dated 25.07.2018 with an observation that the State can always take a decision about the payment of arrears and remuneration for the period of contract. Extension of contract is the prerogative of one of the parties to the contract. There cannot be a compulsory extension of contract, otherwise the very spirit of Section 13 of the Indian Contract Act, 1872 will be violated patently. This aspect of the matter shall be kept in mind while deciding the claim of the writ-petitioner/appellant as per the direction given by the learned Single Judge dated 30.09.2016 passed in W.P.(S) No.4399 of 2009. Thereafter, the respondents have

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[4]

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passed a reasoned order on 21.01.2019 whereby and whereunder the case of the writ-petitioner/appellant has not been accepted and the application for extension of joining was rejected which was challenged before this Court by filing writ petition being W.P.(S) No.780 of 2019. The learned Single Judge has refused to interfere with the impugned order by dismissing the writ petition which is the subject matter of the instant intra-court appeal.

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Mr. Vipul Poddar, learned counsel for the writ-petitioner/appellant has submitted that the learned Single Judge has committed gross error in passing the impugned order without taking into consideration the fact that the reasoned order passed by the authority was not well considered because the claim of the writ-petitioner/appellant was rejected on three grounds and one of the grounds is about fixed tenure which is not maintainable in view of the fact that in the appraisal form of the writpetitioner/appellant, two years extension has been recommended. Further a finding recorded by the administrative authority in the impugned order so far as it relates to the educational qualification the same has also not properly been considered because the writ-petitioner/appellant is having the required eligibility since she was having Bachelor of Journalism and Mass Communication from Ranchi University and a certificate to that effect has been issued by the Registrar, Ranchi University which is equivalent to one year P.G. Diploma in Mass Communication for employment purpose. So far as the third ground of rejection of the case is concerned which is with regard to the audit report, the ground has been agitated that the writ-petitioner/appellant was having no role for any financial movement which would be evident from the memorandum

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[5]

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of association and rules and regulation but that aspect of the matter has also not been considered.

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Per contra, Mrs. Darshana Poddar Mishra, learned AAG-I appearing for the State of Jharkhand has submitted that there is no error in the impugned order in view of the fact that the learned Single Judge has appreciated the finding recorded by the administrative authority in the impugned order dated 21.01.2021. Further, the leaned Single Judge has mainly considered the fact about accrued right for extension of contract and taking into consideration the fact that the extension of the contractual employee depends upon the discretion of the employer and when material irregularities has been found to have committed by the writ-petitioner/appellant by the concerned respondent authority and if in such circumstances further extension in the contractual employment has not been given the same cannot be demanded by way of right by invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India, therefore, the order passed by the learned Single Judge may not be interfered with.

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We have heard the learned counsel for the parties, perused the documents available on record and the finding recorded in the impugned order. This Court, before scrutinizing the impugned order to test the legality and propriety, deems it fit and proper to refer certain undisputed facts in this case as per the pleading on behalf of the parties.

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The writ-petitioner/appellant was appointed on contract basis in terms of the advertisement issued by the Ministry of Health and Family Welfare, National AIDS Control Organization, Government of India. The advertisement has been annexed as Annexure-1 wherefrom it is

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[6]

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evident that the appointment was to be made purely on contractual basis. The writ-petitioner/appellant had appeared for consideration of her candidature in terms of the aforesaid advertisement as under Annexure-1 in which she has been declared to be successful, and thereafter, she has been appointed but before such appointment an agreement was entered in between the writ-petitioner/appellant and the concerned competent authority as would appear from Annexure-3 annexed to the writ petition wherefrom it is evident under the caption heading “Duration of Agreement” which came into effect on the 08^th day of August 2008. The contract shall be for one year extendable every year upto the period of NACP-II.

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Under the caption heading “Performance of Duties and Standards of Conduct”, it has been stipulated that in the performance of his/her duties under this agreement, the signatory shall be exclusively responsible to JSACS and neither seek nor accept instruction from any authority, external agency, unless otherwise specified in terms of reference. The signatory shall not engage in any activity that is incompatible with the purposes/principles or the proper discharge of his/her duties for JSCAS. He/She shall avoid any interaction with the press and in particular any kind of public pronouncement, which may adversely reflect on his integrity, independence and impartibility, which are required in his/her relationship with JSCAS.

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The tenure of the contract had further been extended by way of another agreement executed on 03.07.2009 for a period of two years. While the writ-petitioner/appellant was discharging her duties as such, the services was terminated vide order dated 04.09.2009 which was

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[7]

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challenged by her in W.P.(S) No.4399 of 2009 in which the impugned order was quashed with a direction upon the respondents to allow the writ-petitioner/appellant to discharge her duties on the post of Joint Director (IEC) and to consider to pay the arrear of salary of the writpetitioner/appellant. But, the order passed by the learned Single Judge was challenged in intra-court appeal being L.P.A. No.37 of 2017 by the respondent-State of Jharkhand which was disposed of vide order dated 25.07.2018 in terms of paragraph-6, the said paragraph is being reproduced hereinbelow:

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“ 6. In view of the aforesaid direction, it appears that the State can always take a decision about the payment of arrears and remuneration for the period of contract. Extension of contract is the prerogative of one of the parties to the contract. There cannot be a compulsory extension of contract, otherwise the very spirit of Section 13 of the Indian Contract Act, 1872 will be violated patently. This aspect of the matter shall be kept in mind while deciding the claim of respondent no.1 (original petitioner), as per the direction given by the learned single Judge dated 30^th September, .2016 in W.P.(S) No.4399 of 2009. This decision will be taken by the respondent authorities as early as possible, preferably within a period of four months from the date of receipt of a copy of this order.”

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The respondents thereafter had considered the case of the writpetitioner/appellant and had passed a reasoned order on 21.01.2019 whereby and whereunder her case has not been accepted and application for acceptance of joining was rejected which was challenged in W.P.(S) No.780 of 2019. Thus, it is evident from the factual aspect based upon the material available on record, more particularly, the advertisement and the agreement that the appointment is purely on contract basis depending upon its extension for the fixed tenure. The writ-petitioner/appellant while working was terminated and the Division Bench of this Court had

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[8]

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passed an order basis upon which the case of the writpetitioner/appellant has been considered in which her claim was rejected.

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The learned counsel for the writ-petitioner/appellant has raised the question about non-consideration of the fact to the effect regarding the eligibility criteria, audit report, and the non-renewal of the period of contract without any valid reason. The foremost question is, even accepting that the writ-petitioner/appellant was having the eligibility criteria but can the writ-petitioner/appellant be said to have any legal vested right for seeking claim for extension of her contractual engagement. This Court, on the basis of the terms of contract has found that the period of tenure was initially for one year and subsequently, the service of the writ-petitioner/appellant was extended for a further period of two years and while discharging her duties as such, some serious irregularities of engagement of her kith and kin in the service including financial irregularities has been surfaced as would be evident from the reasoned order dated 21.01.2019. If the said allegation of the writpetitioner/appellant which would evident from the reasoned order that the enquiry pertaining to engagement of her relative is still in progress and the financial irregularities has been surfaced in the audit report, can in such situation the writ-petitioner/appellant claim extension of her contractual engagement. The answer of this Court would be in negative because of the settled position of law that the contractual engagee cannot claim, as a matter of right, for extension of contract rather the contractual engagement depends upon the terms and conditions of the agreement. Herein, when one of the terms and conditions if to the effect that the period of tenure will be extendable initially for one year and

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[9]

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subsequently it was extended for a period of two years which does not suggest that the writ-petitioner/appellant will claim as a matter of right the extension of her contract.

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The learned Single Judge has considered this aspect of the matter and has also placed reliance upon the judgment rendered in State of Madhya Pradesh and Ors. vs. Sandhya Tomar and Anr., (2013) 11 SCC 357 whrein it has been held in paragraph-9 that when a person is not appointment 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 such an eventuality, there can be no reason with respect to why the terms and conditions incorporated in the appointment letter should not be enforced against such an employee.

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This Court is of the view that the finding recorded by the learned Single Judge regarding non-accrual of any legal vested right for extension of contractual appointment cannot be faulted with, therefore, this Court finds no reason to interfere with the impugned order. Accordingly, the instant appeal fails and stands dismissed.

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(Dr. Ravi Ranjan, C.J.)

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(Sujit Narayan Prasad, J.)

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Saurabh/

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N.A.F.R.

Renuka Tiwary v. the State of Jharkhand through the Chief Secretary

Case brief

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Renuka Tiwary v. the State of Jharkhand through the Chief Secretary

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