Dismissed

Anita Prasad v. the State of Jharkhand through the Secretary Human Resources Development Department

Jharkhand HC4 Oct 2021LPA/81/2021

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed appeals against termination of a contractual employee and refusal to grant revised pay. The Court held that contract holders have no right to continue employment if the underlying scheme closes, and natural justice duties do not arise where facts are undisputed and no change in outcome is possible.

What did the court decide?

The appeals against termination and refusal of revised pay were dismissed, upholding the Single Judge's order.

Anita Prasad Vs the State of Jharkhand… — Public Procurement and Tenders | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 76 of 2021

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Anita Prasad, aged about 44 years, wife of Subhash Prasad, resident of Sector 6A, Quarter No.3274, Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro

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.................. Appellant

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Versus

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The State of Jharkhand, through the Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi, Project Building, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi

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The Director, Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi, Project Building, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi

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Jharkhand Education Project Council, through its Director, having its office at J.S.C.A. Stadium Road, Sector-3, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi

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Deputy Commissioner, Bokaro, P.O. Bokaro, P.S. Bokaro, District Bokaro.

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District Superintendent of Education, Bokaro, having its office at Jharkhand Education Project, Bokaro Campus, Middle School, S.B.S., Chas (in the back of Baibhav Hotel), P.O. Chas, P.S. Chas, District Bokaro.

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Additional District Programme Officer, Bokaro, having its office at Jharkhand Education Project, Bokaro Campus, Middle School, S.B.S., Chas (in the back of Baibhav Hotel), P.O. Chas, P.S. Chas, District Bokaro ......... Respondents

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with

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Anita Prasad, aged about 44 years, wife of Subhash Prasad, resident of Sector 6A, Quarter No.3274/6, Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro …. Appellant

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Versus

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The State of Jharkhand, through the Secretary, Human

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LPA. No. 76/2021 with LPA No. 81/2021

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Resources Development Department, Government of Jharkhand, Ranchi, MDI Building, Dhurwa, P.O. Dhurwa, P.S. Jagnnathpur, District Ranchi, PIN 834 004.

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The Director, Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi MDI Building, Dhurwa, P.O. Dhurwa, P.S. Jagnnathpur, District Ranchi, PIN 834 004.

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The Director, Jharkhand Education Project Council, having its office at Shyamali Colony, Doranda, P.O. & P.S. Doranda, District Ranchi, PIN 834 002.

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District Education Officer-cum-District Project Officer, Sarva Shiksha Abhiyan, Bokaro, P.O and P.S., Bokaro, District Bokaro

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District Superintendent of Education, Bokaro, P.O. and P.S. Bokaro, District Bokaro

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

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-----For the Appellants : Mr. Sumeet Gadodia, Advocate Mr. Ritesh Kumar Gupta, Advocate For the JEPC : Mr. Krishna Murari, Advocate [in both cases) For the State : Mr. Munna Lal Yadav, S.C. (L&C)-III [in L.P.A. No. 76 of 2021] Mr. Sreenu Garapati, S.C.-III Mr. Bhaskar Trivedi, A.C. to S.C.-III [in L.P.A. No. 81 of 2021] ------

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Oral Judgment

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04 / Dated : 04.10.2021

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1. Both the appeals i.e. L.P.A. No. 76 of 2021 and L.P.A. No. 81 of 2021 are inter connected since fate of L.P.A. No. 81 of 2021, which pertains to issuance of direction upon the respondent authorities for grant of revised pay scale with effect from 07.09.2012 in view of memo no. 1836 dated 07.09.2012 [W.P.(S)No.5870 of 2016], will depend upon the outcome of L.P.A. No. 76 of 2021 which arises out of the order passed by the learned Single Judge in W.P.(S) No.2430 of

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LPA. No. 76/2021 with LPA No. 81/2021

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2018 which has been preferred for challenging the order of termination. If the order of termination will be held to be illegal by setting aside the order passed by the learned Single Judge the writ petitioner will be entitled to get the benefits of revised pay scale which is subject matter of L.P.A. No. 81 of 2021 (arises out of order passed in W.P.(S) No.5870 of 2016) hence, both the appeals are being heard together and disposed of by a common order with the consent of the learned counsel appearing for the parties.

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L.P.A. No. 76 of 2021

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2. The instant intra-court appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 06.01.2021 passed by the learned Single Judge of this Court in W.P.(S) No.2430 of 2018 whereby and whereunder the learned Single Judge while dismissing the writ petition has refused to interfere with the order of termination.

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3. The brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated read hereunder as:-

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The State of Jharkhand has consented for launching of a scheme floated by the Government of India in the name and style of Sarva Shiksha Abhiyan in order to universalize elementary education by community ownership of the school system. The State of Jharkhand has constituted a Nodal Agency in the name and style of Jharkhand Education Project Council as an implementing agency for Sarva Shiksha Abhiyan. Sarva Shiksha Abhiyan contains a programme known as National Programme of education of girls at elementary level for education of under privileged/disadvantage girls from Class-I to VIII. Under the aforesaid programme District Gender Coordinator

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LPA. No. 76/2021 with LPA No. 81/2021

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is to be appointed and as such the Jharkhand Education Project Council by virtue of issuing a letter as contained in memo no.2725 dated 15.03.2005 has instructed the Deputy Commissioners of various districts to initiate the process for appointment of District Gender Coordinator, accordingly, the State Project Director has been informed vide letter no. JEPC/188 dated 03.05.2005 to all the concerned officers of the JEPC at the district level to conclude the appointment process of District Gender Coordinator by 15.05.2005 so that the programme can be implemented. The petitioner along with others has participated in the process of appointment and she had been appointed to work as District Gender Coordinator on honorarium basis, post being purely contractual in nature. The appointment of District Gender Coordinator was taken by the Deputy Commissioner with the approval and concurrence of the District Working Committee vide its decision dated 12.06.2006. The petitioner had started working as District Gender Coordinator in the district of Bokaro and subsequently the contract was extended for two years by considering the fact that her work was satisfactory and her appointment on contract basis, has been approved by the District Working Committee, subject to approval by the Jharkhand Education Project Council. The appointment of the writ petitioner, subsequently, was approved by the Jharkhand Education Project Council vide letter dated 15.01.2009. The writ petitioner has continued to work but has been denied the benefit of increment of pay by 50% with effect from 01.04.2012, as also, the benefit of revision to that effect has not been extended in favour of the writ petitioner which laid the writ petitioner to prefer a writ petition being W.P.(S) No. 5870

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LPA. No. 76/2021 with LPA No. 81/2021

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of 2016 and during its pendency, the writ petitioner has received a letter dated 11.04.2018 by which she was terminated from the service. Based upon the decision taken by the District Executive Committee, Sarva Shiksha Abhiyan, Bokaro in its meeting held on 09.04.2018 on the ground that the writ petitioner was appointed during the period when the Jharkhand Education Project Council has banned any appointment and by suppressing such facts the petitioner was appointed. Further on the ground that the National Programme of the education for girls at elementary level has closed in the financial year 2013-14 and that the post of District Gender Coordinator, Bokaro was not approved at the district level and therefore, at present there is no post of District Gender Coordinator, however, a decision was taken to pay all the dues of the petitioner from the date of her joining.

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Thus, the writ petitioner has approached this Court by filing W.P.(S) No.2430 of 2018 assailing the decision of the authority by which she was terminated from the service.

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L.P.A. No. 81 of 2018

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The writ petition being W.P.(S) No. 5870 of 2016 has been preferred before this Court for a direction upon the respondents to quash the decision of the authority of deduction from the salary/pay from October, 2012 to December, 2012 and the entire arrears of salary.

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The learned Single Judge has dismissed the writ petition being W.P.(S) No. 2430 of 2018 declining to interfere with the order of termination as also in consequence thereof the writ petition being W.P.(S) No. 5870 of 2016 has also been dismissed against which the present intra-court appeal has been filed.

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LPA. No. 76/2021 with LPA No. 81/2021

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4. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner by assailing the order passed by the learned Single Judge submits that the order impugned is not sustainable in the eyes of law as even though the writ petitioner was appointed on contract basis, she cannot be terminated from service under the garb of discontinuation of the scheme as, according to him, this scheme is still operative and others are also continuing as District Gender Coordinator and as such terminating the petitioner from service is nothing but a case of discrimination and the said aspect of the matter has not been appreciated by the learned Single Judge.

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He further submits that the finding recorded by the learned Single Judge to the effect that the writ petitioner was not holding the post civil in nature directly under the control of the State Government is also not proper since even though the writ petitioner was appointed on contract basis but she will be said to be in service of the State Government and therefore, nature of her duty is of holding the civil post under the State Government. Since the writ petitioner was terminated from service leaving apart other co-contractual engagees and the post of District Gender Coordinator is coming under the direct control of the State Government, this aspect of the matter has not been considered by the learned Single Judge therefore, the order impugned is not sustainable in the eyes of law so also the order passed by the administrative authority terminating the writ petitioner from the services.

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5. Per contra, Mr. Krishna Murari learned counsel appearing for the respondent Jharkhand Education Project Council submits that

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LPA. No. 76/2021 with LPA No. 81/2021

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there is no error either in the order passed by the administrative authority or by the learned Single Judge, since, according to him the writ petitioner cannot claim as a matter of right, her continuation in service since she knows the nature of her appointment which is purely on contract basis depending upon the terms and conditions of the appointment and therefore, the writ petitioner is having no legal vested right to claim continuation of service and in view thereof the instant letters patent appeal is also not maintainable.

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He further refuted the argument advanced on behalf of the learned counsel for the petitioner which has been made to the effect that this scheme itself has not been rescinded in the financial year 2013-14 but according to him the scheme has been rescinded and once the scheme has been rescinded the writ petitioner cannot claim for continuation of her engagement on contract basis to the said post.

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Learned Single Judge after taking into consideration this aspect of the matter is correct in refusing to interfere with the impugned order which requires no interference.

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6. We have heard learned counsel for the parties, perused the documents available on record as also the findings recorded by the learned Single Judge.

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7. Before proceeding to examine the legality and propriety of the impugned order, we deem it fit and proper to consider the decision of the competent administrative authority for appointment of District Gender Coordinator which has been decided to be engaged purely on the contract basis depending upon the terms and conditions of the contract. The authorities have taken decision to come up with an

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LPA. No. 76/2021 with LPA No. 81/2021

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advertisement and accordingly, an advertisement has been issued for such appointment on contract basis. The writ petitioner had appeared, participated in the process of selection and accordingly, she was appointed on contract basis, to that effect, an order has been issued as would appear from Annexure-4 wherefrom it is evident that the writ petitioner has been appointed on the basis of the decision of the District Executive Committee dated 30.08.2008 under certain terms and conditions which are;-

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(i) the appointment is based on contract and purely adhoc in nature;

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(ii) the extension of the contract period and its closure will ultimately depend upon the decision of the District Executive Committee;

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(iii) before expiry of the period of contract, if the scheme itself ends or close the contract will stand rescinded;

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(iv) the service condition of the contractual employee will depend upon the fixed service condition of the Jharkhand Education Project Council;

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xx xx xx xx

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(v) the services can be terminated even before closure of the contract if the services is not found to be satisfactory by giving one month notice in advance.

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8. The services of the writ petitioner has been terminated vide order dated 11.04.2018 on the ground that the National Programme of education of girls at elementary level has been closed from the financial year 2013-14. The post of District Gender Coordinator is not

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¶67

LPA. No. 76/2021 with LPA No. 81/2021

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sanctioned by the State Executive. At present the post of District Gender Coordinator is also not sanctioned at the district level and therefore, unanimous decision has been taken for terminating the services of the writ petitioner after making payment of the honorarium on the period for which she has performed her duty. Thus, it is evident from the documents appended to the writ petition that the appointment to the post of District Gender Coordinator is purely on contract and on honorarium basis.

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9. The services of the writ petitioner has been terminated on the ground that the scheme pertaining to National Programme of education of girls at elementary level has been closed from the financial year 2013-14. The post of District Gender Coordinator has also not been sanctioned by the State Executive Committee as also the post of District Gender Coordinator has not been sanctioned at the district level.

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10. The writ petitioner being aggrieved with the order of termination has approached to this Court by filing a writ petition under Article 226 of the Constitution of India but the learned Single Judge has refused to interfere with the same on the following grounds:

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(i) There is no violation of principles of natural justice and even accepting that there is violation of principles of natural justice the grounds which have been stipulated in the order of termination cannot be disputed by the writ petitioner since the scheme itself has been rescinded from the financial year 2013-14 and the post has not been approved either by the State Committee or by the District

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LPA. No. 76/2021 with LPA No. 81/2021

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Committee at the district level and in such circumstances, even if the matter would be remitted for providing an opportunity of hearing to the writ petitioner since there is no chance of change in the factual aspect since the writ petitioner is not in a position to rebut the grounds stipulated in the order of termination, therefore, it will be nothing but a futile exercise and empty formality.

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(ii) The services of the writ petitioner was not governed by any

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statutory rule and it was purely on contract and as such was required to be governed by the appointment letter which is contained at Annexure-4.

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11. There is no dispute in the settled position of law that the appointment made on contract basis does not confer any legal vested right for continuation of the contractual engagee. It is for the reason that the condition of the service of the contractual employee totally depends upon the terms and conditions of the offer of appointment, as has been held by Hon’ble Apex Court in State of Madhya Pradesh & Ors v. Sandhya Tomar & Anr., [(2013) 11 SCC 357] at paragraph no. 9 which read as under:

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“9. There can be no dispute with respect to the settled legal proposition that in the event that a person is not appointed on a 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. (Vide State of Punjab v. Surinder Kumar) 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. In the instant case, Respondent 1 was temporarily appointed in a project and thus, she had at no point of time, been

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LPA. No. 76/2021 with LPA No. 81/2021

¶81

appointed on a regular basis, owing to which, she cannot claim any lien with respect to the said post."

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The Hon’ble Apex Court in Vidyavardhaka Sangha and another Vs. Y. D. Deshpande and others [(2006)12 SCC 482] has held at para-4 as hereunder:

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"4. It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said posts for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employee or on contract basis. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation etc."

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12. It is further settled position of law that the appointment made on contractual basis since governed on the basis of the terms and conditions of the offer of appointment or the contract within (agreement) and since there is no applicability of any service rule /code and hence, the service code/rule will not be applicable governing the field so far as the contractual appointment is concerned.

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LPA. No. 76/2021 with LPA No. 81/2021

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13. The admitted fact herein is that the writ petitioner was appointed on contract basis and she was also continuing but subsequently her services were terminated on the ground that the scheme, i.e. National Programme of education of girls at elementary level has been closed from the financial year 2013-14. The post of District Gender Coordinator was not sanctioned by the State Committee or the District Committee or both at district level.

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14. The writ petitioner has taken a ground that before issuance of the order of termination the principles of natural justice has not been followed since no show cause notice has been issued to him. There is no dispute about the fact that principle of natural justice is the Cardinal principle to be followed but it is also settled that there is no straight jacket formula to follow the principles of natural justice, rather, the principles of natural justice is to be followed depending upon the facts and circumstances of each and every case. It is also settled that the principle of natural justice is required to be followed to provide an opportunity of hearing in the case of disputed fact but if the fact is not in dispute there is no requirement to follow the principles of natural justice and even in such circumstances the principle of natural justice if directed to be followed it will be nothing but an empty formality and futile exercise. It is for the reason that when there is no chance of change in the factual aspect and in such circumstances if the show cause notice would be issued to the person concerned who is not in a position to rebut the factual aspect based upon which the adverse decision is going to be taken against him there is no requirement to follow the principles of natural justice. The

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LPA. No. 76/2021 with LPA No. 81/2021

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principle of natural justice is only required to be followed where the fact is in dispute. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Escorts Farms Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P. & others,

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(2004) 4 SCC 281 at paragraph no.64 has held as follows:

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“64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.”

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In the case of Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others , [(2015) 8

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SCC 519 ] wherein their Lordships have held at paragraph-39 which is being reproduced hereinbelow :

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“39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded

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LPA. No. 76/2021 with LPA No. 81/2021

¶99

on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason- perhaps because the evidence against the individual is thought to be utterly compelling-it is felt that a fair hearing “would make no difference”-meaning that a hearing would not change the ultimate conclusion reached by the decision-maker- then no legal duty to supply a hearing arises. ………….”

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15. In the given facts of this case, as would appear from the impugned order, the post of District Gender Coordinator was under the scheme of Sarva Shiksha Abhiyan which itself has been closed from the financial year 2013-14. It has further been stipulated in the order of termination that the post is not sanctioned by the State Coordinator or District Coordinator at the district level. The writ petitioner has nowhere pleaded in the writ petition that the scheme of 2013-14 has not been closed or the post is approved either by the State Committee or the District Committee at the district level. Meaning thereby, the ground on which the order of termination has been issued has not been rebutted by the writ petitioner and in such circumstances the principle of natural justice if directed to be followed by remitting the matter to the concerned authority, it will be nothing but futile exercise and empty formality as has been held by Hon’ble Apex Court in Dharampal Satyapal Ltd. (supra). The learned Single Judge has also considered this aspect of the matter and arrived at the conclusion on the given facts of this case that there is no requirement to follow the principles of natural justice taking into consideration the reason of termination which cannot be disputed considering the fact that the scheme itself has been closed and the post has not been sanctioned

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LPA. No. 76/2021 with LPA No. 81/2021

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either by the State Committee or by the District Committee at district level. However, learned counsel for the petitioner before this Court has submitted that this scheme has not been closed rather other persons are continuing in service but who are the other persons regarding them there is no specific pleadings in the writ petition save and except mere statement that other persons are continuing. It is settled position of law that the writ proceeding being a summary proceeding cannot be decided on the basis of bald statement rather it is incumbent upon the parties to come to the court by making a specific statement and in absence of any such specific statement no writ can be issued by the High Court sitting under Article 226 of the Constitution of India and therefore, we are not impressed with such argument and hence, the same is rejected.

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16. The second finding recorded by the learned Single Judge is that the service condition of the contractual engagement depends upon the terms and conditions of the offer of appointment. We have considered the offer of appointment/appointment letter wherefrom we have gathered that the appointment was purely temporary and on contract basis. The appointees were to be paid honorarium. There is other condition also that the appointment can be terminated without assigning any reason but after giving one month’s notice in advance. Therefore, according to our considered view, when the offer of appointment contains a condition regarding nature of appointment which is contractual in nature based upon the payment on honorarium basis, the case of the writ petitioner will be governed by the terms and conditions of the offer of appointment since the same has been

¶105

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LPA. No. 76/2021 with LPA No. 81/2021

¶107

accepted by the writ petitioner and once accepted it is not open to the writ petitioner to question the terms and conditions of such appointment. However, at this juncture, learned counsel for the petitioner submits that the appointment of the writ petitioner is coterminous with the scheme and since the scheme is still continuing, therefore, the termination is bad in the eyes of law and to buttress his arguments he has relied upon clause 3 of the offer of appointment as appended at Annexure-4. But, we after going through such condition, have found that it cannot be said to be coterminous to the appointment of the writ petitioner as it stipulates that during the subsistence period of contract if the scheme will be closed the appointment of the employee will also be closed. Meaning thereby, the appointment of the writ petitioner is coterminous with the scheme in a case where the scheme has been closed during subsistence period of the contract.

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17. This Court after taking into consideration the nature of appointment and the terms and conditions stipulated in the offer of appointment which is purely on contract basis is of the view that on such terms and conditions the writ petitioner cannot claim as a matter of right of continuation on contract that too when the scheme itself has been closed in the financial year 2013-14. Therefore, we after considering the order passed by the learned Single Judge are of the view that each and every aspect of the matter, as has been discussed by us hereinabove, has been taken into consideration by the learned Single Judge based upon which the impugned order of termination has

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LPA. No. 76/2021 with LPA No. 81/2021

¶111

been refused to be interfered with and, as such, we also find no reason to interfere with the same.

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18. For the reason aforesaid, L.P.A. No. 76 of 2021 is dismissed. 19. So far as the reliefs sought for in LPA No. 81 of 2021 which pertains to issuance of direction for payment of revised pay scale to be paid in favour of the petitioner with effect from 07.09.2012 is concerned it will depend upon the decision as contained in letter dated 07.09.2012 (Annexures-6 to the writ petition) wherein it has been disclosed by the Principal Secretary, Human Resources Department, Government of Jharkhand that 50% increment is meant for the persons who were working on the management head of Sarva Shiksha Abhiyan. However, the said amount was paid to the petitioner for three months which has been recovered by the management of JEPC by virtue of impugned order dated 07.09.2012 and three months’ recovery has been made by the respondents. The learned Single Judge has refused to pass any direction on the same since the recovery order was not under challenge in the writ petition and as such no direction has been issued. So far as it relates to the decision of the State authorities as contained in letter dated 07.09.2012 by assigning the reason that the recovery was not under challenge, no relief has been extended to the writ petitioner on that count.

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20. We after considering the aforesaid admitted fact and taking into consideration the findings recorded by the learned Single Judge to the effect that the recovery order was not under challenge in the writ petition in W.P. (S) No. 5870 of 2016 which is the reason shown by

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LPA. No. 76/2021 with LPA No. 81/2021

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the learned Single Judge in dismissing the writ petition, as such, we find no reason to disagree with the same.

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21. Accordingly, the instant appeal (L.P.A. No. 81 of 2021) fails

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and is dismissed.

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(Dr. Ravi Ranjan, C.J . )

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(Sujit Narayan Prasad, J.)

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V.K. A.F.R.

Anita Prasad v. the State of Jharkhand through the Secretary Human Resources Development Department

Case brief

What is this about?

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Anita Prasad v. the State of Jharkhand through the Secretary Human Resources Development Department

Case brief

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What the court decided

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