Disposed

Ram Narayan Prasad and Ors. v. The State Of Bihar and Ors.

Patna HC22 Aug 2012CWJC/14075/2012

Case brief

AI extract

What is this about?

Petitioners challenging rejection of contract renewal as Health Managers/Accountants claimed arbitrariness and discrimination. Court held Article 14 protection applies to contractual appointees. Rejected petition due to lack of specific evidence regarding discrimination. Directed respondents to consider performance representations within 3 months.

What did the court decide?

Application dismissed. Respondents directed to consider performance representations within 3 months.

Ram Narayan Prasad and Ors. Vs The State Of Bihar and… — Service and Employment | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14075 of 2012

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====================================================== 1. Ram Narayan Prasad S/O Sri Jalal Thakur West Mahabir Nagar, 70 Feet Bye Pass, P.S. Beur, Patna- 2 2. Sunil Kumar S/O Ram Vinay Ray Road No. 3, Road No. 10, Gardanibagh, P.S. Gardanibagh, Patna 3. Anwar Durani S/O Shan Chanwar Azad Road, Mohanane Lane, Muzaffarpur 4. Binod Kumar Yadav S/O Banke Ray Gurmiya East Tola, Hazipur 5. Basant Kumar Singh S/O Sri Ram Vinayak Singh Noor Nagar, Chapra, Sarai, (P.S. Jalalpur) 6. Arun Kumar S/O Kapildeo Shahu Vill. + P.O. Lawrkala, P.S. Baniyapur, Saran 7. Sushil Kumar Singh S/O Sachidanand Singh Vill.- Mane, P.O. Daudpur, Saran 8. Amaresh Kumar S/O Mr. Ranjeet Singh Hemnagar, Chapra, Saran 9. Vinay Kumar Sahi S/O Late Badrinaraya Shahi Vill. + P.O. Chakna, ViaSaraiya, P.S. Saraiya, Distt.- Muzaffarpur 10. Arbind Kumar S/O Bimalchand Prasad Gudri Bazar Chawni, Saran 11. Ameet Kumar S/O Lamakhya Prasad Bihar Watch Camp., Salempur, Chapra 12. Anil Kumar Singh S/O Rameshwar Prasad Company Bag Colony, East Bhagwan Bazar, Chapra 13. Anil Kumar Late Manindra Verma Manjhi Soutt Tola, P.O. Manjhi, Saran 14. Kamlesh Kumar S/O Ram Autar Pandit Vill. + P.O. Ekma, Saran, Bihar 15. Sudhir Kumar S/O Shivnath Singh Rampur, Khakibaba Ke Tola, P.O. Mahamadpur, Garkha, Saran 16. Md. Aslam S/O Rahanuddin Miyan At- Agauthar Sundar, P.O. Agauthar Nada, P.S. Isuapur, Saran, Chapra 17. Santosh Kumar Gupta S/O Narendra Prasad Gupta Bagwanbazar, Main Road, Chapra .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Secretary-Cum-Executive Director, State Health Society, Saran 3. The District Magistrate-Cum-Chairman, District Health Society, Saran 4. The Civil Surgeon-Cum-Secretary, District Health Society, Saran

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.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajendra Pd. Singh, Sr. Adv. Mr. Mukesh Kumar Singh, Adv. Mr. Onkar Kumar, Adv. For the Respondent/s : Mr. Prasoon Sinha, GA 2 Mr. Prabhat Kumar, A.C. to G.A.2 Mr. K.Sinha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA

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Patna High Court CWJC No.14075 of 2012 (2) dt.22-08-2012

ORAL ORDER

2 22-08-2012

Heard learned counsel for the petitioners, the State and for the State Health Society.

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The petitioners are stated to have been appointed as Health Managers and Accountants in the District Health Society. They are aggrieved by the order dated 19.7.2012 declining to renew their contracts. Fresh advertisement is stated to have been notified on 25.7.2012 as a result of nonrenewal of the contract.

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Learned counsel for the petitioners submitted that though they may have been appointed on contract, they have a right to continue so long as the project subsists. There have been no adverse reports against their performance. In fact, their performance is better than some of the persons whose contracts have been renewed. Clause-4 of the instruction dated 13.1.2009 provides that where work was satisfactory, the contract may be renewed. The respondents cannot behave arbitrarily by refusing renewal of contract, only on the ground that the appointment was contractual. The situation becomes worse when discrimination is alleged. The petitioners have continued since March, 2007 and shall suddenly be left without a source of livelihood for no justification. There can be no justification for replacing one contractual appointee by another.

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Learned counsel for the respondents submitted that

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Patna High Court CWJC No.14075 of 2012 (2) dt.22-08-2012

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the appointments were contractual in nature initially for two years and subsequently renewed for three years. The renewal of the contract is dependent on satisfactory performance of duties. Reliance is placed on an order in C.W.J.C. No.19260/11 to contend that a contractual appointee is not a government servant and therefore the writ application is not maintainable. If the petitioners have any dispute, they can invoke Clause-17 of the contractual agreement for arbitration.

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Even if the appointments be contractual in nature, but made by the State or an agency of the State, the writ jurisdiction can be invoked if questions with regard to the applicability of Articles-14 and 21 of the Constitution are sought to be raised. It cannot be held as an absolute proposition that no writ petition shall lie at the behest of a person appointed on contract by the State or its agency. That the contours and parameters for challenge may be restricted vis-à-vis a government servant, is an entirely different matter.

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The Court is not persuaded to accept the submission made from the letter dated 13.1.2009 that the petitioners have a right to continue so long as the scheme exists or till the allocation of funds is not stopped. The very same clause itself states that normally appointment was to be for three years. If the scheme was closed or allotment stopped before three years, it could be terminated before the expiry of

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Patna High Court CWJC No.14075 of 2012 (2) dt.22-08-2012

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the contract. The petitioners were appointed on contract basis as Health Managers and Accountants respectively on 21.3.2007 and 9.5.2007 respectively. The initial duration of the contract was for two years. Clause-9 of the contract stated that their services shall stand terminated at the expiry of the contract period. Termination of the contract after expiry of the period has no correlation to the arbitration clause which may appropriately apply to a termination during the subsistence of the contract.

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The petitioners accepted the contract appointment along with the conditions and duration of the same voluntarily. On 13.1.2009 came the policy decision that if performance was satisfactory, the contract may be renewed for three years. The contract of the petitioners thus came to be renewed on 2.7.2009. The contention that it was not a renewal of the contract as no fresh agreement was executed does not appeal to the Court. The language of the order is explicit that it has been decided to re-engage the petitioners consequent to the approval granted. It was but a renewal of the contract on the same terms and conditions.

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But even if the appointment is contractual in nature at the stage of renewal, the respondents are obliged to act in a non-discriminatory manner and not arbitrarily. There can be no two opinions that subject to satisfactory performance of duties, there has to be some rationale or justification for not

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Patna High Court CWJC No.14075 of 2012 (2) dt.22-08-2012

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renewing the contract. But this subjective flexibility has to be granted to the respondents keeping in mind the contractual in nature of the appointment. If the appointment of Accountants has been renewed on 19.7.2012, it cannot lead to a conclusion for discrimination and arbitrariness vis-à-vis Health Managers, who form a separate category. If the services of Health Managers and Accountants have both been renewed, there has to be some element of differentiation to the subjective satisfaction of the respondents for renewing the contracts of some and not renewing the contract of others. So long as there is some reason for the subjective satisfaction, the Court cannot go into the sufficiency of the reason. But, if those whose contracts have been renewed are below par than those whose contracts have not been renewed or the two stand at par, unless there be valid and rational justification for not renewing the contracts of those similarly or better situated, elements of arbitrariness and discrimination may arise for consideration.

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A contractual appointee may have a weak right, but he does not stand denuded of the protection under Article-14 of the Constitution.

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The allegations for discrimination and arbitrariness with regard to those whose contracts have been renewed on 19.7.2012 are not adequate and leaves the Court dissatisfied. Those whose contracts have been renewed have also not been

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Patna High Court CWJC No.14075 of 2012 (2) dt.22-08-2012

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impleaded as party respondents. If the petitioners represent and demonstrate that their performance has been better or at least at par with those whose contracts have been renewed, surely, the respondents have an obligation to consider their representation under Article-14 of the Constitution within a maximum period of three months from the date of receipt/production of such application along with a copy of this order.

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If it is a case for renewal of the contract and not entering into a fresh contract, the issue of age may not be very relevant unless the respondents so opine in the nature of the duties to be performed. Any challenge for maximum age prescribed, as applicable to those seeking renewal claiming to form a separate class had to be specific in pleadings. In absence of necessary specific pleading the question of law is left open for consideration in an appropriate case.

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The application stands disposed.

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(Navin Sinha, J)

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K.C.jha/-

Ram Narayan Prasad and Ors. v. The State Of Bihar and Ors.

Case brief

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Ram Narayan Prasad and Ors. v. The State Of Bihar and Ors.

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