Prashant Shukla vs State Of U.P. And 3 Others
2021 Latest Caselaw 11299 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R.
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 218 of 2021
 

 
Appellant :- Prashant Shukla
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Surendra Prasad Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Vikas Budhwar,J.

1. Heard Sri Surendra Prasad Sharma, learned counsel for the petitioner-appellant and learned Standing Counsel for the State-respondents.

Brief facts of the case

2. This special appeal has been filed challenging the order dated 9.8.2021 passed by learned Single Judge in Writ -A No.6652 of 2021 which is reproduced below:-

"Heard Sri Rahul Agarwal, learned counsel for the petitioner and Sri Birendra Pratap Singh, learned Standing Counsel for the State respondents.

The contractual engagement of the petitioner has been brought to an end by the respondents. Quite apart from the reasons which have been taken into consideration, the principal question which arises is whether the Court should consider the grant of a prerogative writ consequent to the contractual appointment of the petitioner having been brought to an end. The Court in this regard bears in mind the principles enunciated by a Division Bench of the Court in Rajesh Bhardwaj Vs. Union of India [2019 (2) ADJ 830]. Undisputedly, the Court cannot by way of a writ command the respondents to either renew or perpetuate the contractual engagement of the petitioner. In any case and since it is not governed by any statutory rules or regulations, the Court cannot issue a declaration invalidating the termination or direct reinstatement.

Consequently, the writ petition fails and is dismissed."

3. The petitioner had filed the aforesaid Writ -A No. 6652 of 2021 challenging the order dated 6.5.2021. The operative portion of the impugned order in the writ petition is reproduced below:-

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4. It would be relevant to mention that the petitioner voluntarily and with eyes wide open entered into an agreement dated 31.3.2020 for his engagement on honorarium basis @ Rs.11,200/- per month for the specific period of 2.3.2020 to 31.8.2020 (six months) or till continuation of the scheme, whichever is earlier. The agreement came to an end on 31.8.2020. Thereafter, on account of no necessity of engagement for work, the petitioner-appellant was not further engaged.

5. Consequently, the petitioner filed Writ -A No.1936 of 2021 (Prashant Shukla Vs. State of U.P. & six others) which was disposed of by order dated 18.3.2021 observing that "without expressing any opinion on the merits of the issue the concerned respondent is directed to look into the grievance of the petitioner and redress the same strictly in accordance with law."

6. Pursuant to the aforesaid order passed by learned Single Judge, the representation of the petitioner was decided by the impugned order dated 6.5.2021 passed by the Chief Development Officer, Kannuaj declining to extend the contractual engagement of the petitioner or to reengage him.

7. In the order dated 6.5.2021 it has also been observed that neither post of Computer Operator has been created by the State Government at the District Level for work under Mahatma Gandhi National Rural Employment Guarantee Scheme (MNREGA) scheme nor the petitioner-appellant was employed through lawful selection process.

8. The aforesaid order dated 6.5.2021 was challenged by the petitioner-appellant in Writ-A No.6652 of 2021 which has been dismissed by the abovequoted impugned order passed by learned Single Judge dated 9.8.2021 observing that "the Court cannot by way of a writ command the respondents to either renew or perpetuate the contractual engagement of the petitioner. In any case and since it is not governed by any statutory rules or regulations, the Court cannot issue a declaration invalidating the termination or direct reinstatement."

Aggrieved with this order the petitioner-appellant has filed the present special appeal.

Submissions

9. Learned counsel for the petitioner-appellant submits that the impugned order has been passed by the learned Single Judge merely on the basis of the law laid down by a Division Bench in Rajesh Bhardwaj Vs. Union of India and others 2019(2) ADJ 830 whereas the contrary view has been taken by two different Division Benches in Special Appeal No.104 of 2021 (Prem Chandra Gupta Vs. State of U.P. and 4 others) decided on 14.6.2021 and Jagbhan Vs. State of U.P. and 5 others in Special Appeal Defective No.250 of 2021 decided on 14.6.2021.

10. Learned counsel for the petitioner-appellant has further urged that the judgment in the csae of Rajesh Bhardwaj (Supra) is liable to be referred to Larger Bench as it runs counter to the view taken by two different coordinate Bench in the case of Jagbhan (Supra) and Prem Chandra Gupta (Supra).

Learned Standing Counsel supports the impugned judgement.

Finding

11. We have carefully considered the submissions of the learned counsel for the parties.

12. It is admitted case of the petitioner that he was engaged for the period from 2.3.2020 to 31.8.2020 on honorarium basis as Computer Operator under a written agreement dated 31.3.2020 which he entered voluntarily and with eyes wide open. On expiry of the period of agreement, his contractual engagement came to an end. Neither any statutory provision nor any judgement could be placed by learned counsel for the petitioner before us, which may indicate that in absence of legally protected or judicially enforceable subsisting right, the petitioner-appellant has a right to ask for a mandamus from the writ court to the authorities to compel them to renew the contract or to extend the period of engagement by entering into a fresh agreement.

13. The judgment relied by learned counsel for the petitioner-appellant in the case of Jagbhan (Supra) has no bearing on the facts of the present case. The facts in the case of Jagbhan (Supra) are different inasmuch as in the case the services of the petitioner were terminated by an order on the basis of an enquiry report dated 25.9.2020 without affording any opportunity of hearing to him. When the said order of termination was challenged, the learned Single Judge passed the order dismissing the writ petition, which is reproduced below:-

"Heard learned counsel for the parties.

This petition at the behest of a contractual employee aggrieved by an order of termination would not be maintainable in light of the decision of the Division Bench in Rajesh Bhardwaj Vs. Union of India and Others [2019 (2) ADJ 830]. It is accordingly dismissed as such."

The facts of the case of Prem Chandra Gupta (Supra) relied by learned counsel for the petitioner are also similar to the facts of the case of Jagbhan (Supra).

The order of learned Single Judge, which was challenged in Special Appeal in the case of Prem Chandra Gupta (Supra), is reproduced below:-

"Heard learned counsel for the petitioner and the learned Standing Counsel.

The Court finds no ground to entertain this petition directed against an order of termination of the contractual engagement of the petitioner bearing in mind the judgment rendered by the Division Bench of the Court in Rajesh Bhardwaj Vs. Union of India and Others [2019 (2) ADJ 830]. The writ petition is accordingly dismissed as not maintainable"

14. Thus, the orders of learned Single Judge, which were challenged in the case of Jagbhan (Supra) and Prem Chandra Gupta (Supra) arose from an ex parte order of termination of services on the basis of an ex parte enquiry report and the orders of the learned Single Judge were not on merit of the case, but it was simply observed that the writ petition is not maintainable in the light of the law laid down in the case of Rajesh Bhardwaj (Supra).

The facts of the present case are entirely different as the petitioner-appellant herein entered into a contract voluntarily and with eyes wide open for his engagement for a fixed period from 2.3.2020 to 31.8.2020 and on expiry of the period of agreement, his agreement was not renewed and he was not re-engaged.

15. Sufficient reasons have been disclosed in the order dated 6.5.2021 passed by Chief Development Officer, Kannauj for not extending the engagement of the petitioner-appellant.

16. The writ petition of the petitioner-appellant herein was dismissed by the learned Single Judge not by merely referring to the law laid down in the case of Rajesh Bhardwaj (Supra) but it was also held that the Court cannot by way of a writ command the respondents to either renew or perpetuate the contractual engagement of the petitioner. In any case and since it is not governed by any statutory rules or regulations, the Court cannot issue a declaration invalidating the termination or direct reinstatement.

17. The petitioner-appellant had filed the aforesaid Writ-A No.6652 of 2021 praying for (a) to quash the order dated 6.5.2021 and (b) to issue a writ order or direction in the nature of mandamus directing the respondents to execute the agreement reinstating the petitioner as Computer Operator for MANREGA works in District Kannauj. We find that the order dated 6.5.2021 does not suffer from any manifest error of law and as such a writ of certiorari cannot be issued.

18. The Apex Court in the case of Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava JT 1992 (4) S.C.489 had the occasion to consider the right of a contractual employee for re-engagement and held as under:-

"4. The respondent was first appointed in the appellant- Institute as a Research Executive on a consolidated fixed compensation of Rs. 1,250 per month on contract basis for aperiod of three months. It was specifically stated in the order that it was purely on ad hoc basis, liable for termination without any notice on either side.

5. By an order dated 18th of July, 1988 the appointment of respondent was exended for a further period of three months with effect from 2nd August, 1988 on the same terms and conditions. Here again, it requires to be noted that the appointment was purely on ad hoc basis. On 28th of January, 1989 a fresh Office Order was made appointing the respondent as Training Executive on a contract basis for a period of three months. The consolidated pay was fixed at Rs.1,500 per month. Here also, the appointment was purely on ad hoc basis and terminable without notice by either side. On 20th June, 1989 she was appointed on a newly created post of Executive carrying a pay scale of Rs. 770-1600. This appointment was also on ad hoc basis for a period of six months and it was terminable by one month's notice on either side. on 5th January, 1990 another ad hoc appointment was made for a period of three months. Though by efflux of time the appointment came to an end on 21st of March, 1990 yet she was continued beyond the prescribed period.

6. On 13th July, 1990 she submitted a resignation letter. This letter of resignation was forwarded to the Director of the Institute who accepted the same by an order dated 31st July, 1990.

7. Notwithstanding the acceptance of resignation, on 25th of August, 1990, the respondent made a further request that her services might be continued for some more time in the appellant-institute. On this request, the respondent was appointed on a contractual basis as a Training Executive on a consolidated compensation of Rs.2,400 per month. On this occasion also, the appointment was purely on a ad hoc basis terminable without notice.

8. On 3rd of January, 1991 a Committee of the Institute went into the question of abolition of redundant posts. The report was submitted by the Committee to the effect that several posts including the posts of Training Supervisors and Research Executive had become redundant. Therefore, the committee recommended their abolition. Accepting the report of the committee on 14th January, 1991 five posts were abolished including the post of Training Supervisors and Research Executive with effect from the last training programme of the current financial year.

9. Since the appointment of the respondent was coming to an end at the end of February 1991 she preferred W.P. 1041 of 1991."

17.For our part, we do not think it is necessary to decide the question as to who has the power to abolish the post of Training Executive; whether under Rule 16(viii), the Director or under Rule 11, the Board since we propose to limit the controversy to the terms of appointment.

18.The order dated 1.9.90 reads as follow :

         "1-168D/1132                        1.9.90
 
                            OFFICE ORDER
 
With effect from the date of joining Smt. Pushpa Rani Srivastava is appointed a consolidated fixed pay of Rs. 2400 per month on contract basis for a period of six months in the Institute. 
 
The appointment of Smt. Srivastava is purely on ad hoc basis and is terminable without any notice. 
 
sd/- 
 
(K.K.N. SINGH) DIRECTOR" 
 
(19) The following are clear from the above order : 
 
(i) The respondent was appointed on a contractual basis. 
 
(ii) The post was to carry a consolidated pay of Rs.2400 per month. 
 
(iii) The duration of appointment was six months from the date of the respondent joining charge. 
 
(iv) It is purely on ad hoc basis. 
 
(v) It is terminable without any notice.
 

20. Because the six months' period was coming to an end on 28th February, 1991, she preferred the Writ petition a few days before and prayed for mandamus which was granted by the learned Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on `ad hoc' basis for more than a year whether she is entitled to regularisation? The answer should be in the negative.

23.	In the instant case, there is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end. 				(Emphasis supplied by us)
 
19.	Further in the case of Secretary, State Of Karnataka and others vs Umadevi And Others (2006) 4 SCC 1, the Hon'ble Supreme Court has held as under:-
 

"When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."

20. It is also settled law that a writ of mandamus can be issued if a petitioner is able to establish that he has legally protected and judicially enforceable subsisting right. The petitioner has completely failed to demonstrate that he has any statutory or legal right to compel the respondents to execute an agreement for his re-engagement or further engagement as Computer Operator for MANREGA in District Kannauj.

21. In Director of Settlement, A.P. Vs. M.R. Apparao (2002) 4 SCC 638 (para 17) Hon'ble Supreme Court considered the High Court's power for issuance of mandamus and held as under :-

"17. Coming to the third question, which is more important from the point of consideration of High Court's power for issuance of mandamus, it appears that the constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression 'for any other purpose'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along recognised lines and subject to certain self-imposed limitations. The expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Court must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior Courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition.{Kalyan Singh vs. State of U.P., AIR 1962 SC 1183}. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. When the aforesaid principle are applied to the case in hand, the so-called right of the respondents, depending upon the conclusion that the amendment Act is constitutionally invalid and, therefore, the right to get interim payment will continue till the final decision of the Board of Revenue cannot be sustained when the Supreme Court itself has upheld the constitutional validity of the amendment Act in Venkatagiri's case (2002) 4 SCC 660 on 6.2.1986 in Civil Appeal Nos. 398 & 1385 of 1972 and further declared in the said appeal that interim payments are payable till determination is made by the Director under Section 39(1). The High Court in exercise of power of issuance of mandamus could not have said anything contrary to that on the ground that the earlier judgment in favour of the respondents became final, not being challenged. The impugned mandamus issued by the Division Bench of the Andhra Pradesh High Court in the teeth of the declaration made by the Supreme Court as to the constitutionality of the amendment Act would be an exercise of power and jurisdiction when the respondents did not have the subsisting legally enforceable right under the very Act itself. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court committed serious error in issuing the mandamus in question for enforcement of the so-called right which never subsisted on the date, the Court issued the mandamus in view of the decision of this Court in Venkatagiri's case. In our view, therefore, the said conclusion of the High Court must be held to be erroneous."

22. A Division Bench of this Court in which one of us (Justice Surya Prakash Kesarwani) is one of the member, had considered the power of the High Court for issuance of high prerogative writ for enforcement of fundamental rights, and held as under:-

"18. It is settled law that writ of mandamus can be issued if the petitioner has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. Similar view has also been taken by Hon'ble Supreme Court in Kalyan Singh vs. State of U.P.13. Applying the principles of issuance of writ of mandamus on the facts of the present case, we find that the petitioners have no legal right for protection on the facts of the present case inasmuch as such the protection as being asked, may amount to protection against commission of offence under Section 494/495 I.P.C. It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutory provision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus."

Therefore, the learned Single Judge has not committed any error of law in dismissing the writ petition by refusing to issue mandamus as prayed for.

23. It is also well settled law that this Court in exercise of its extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India has no power to re-write contract or to compel the State to enter into an agreement.

24. For all the reasons aforestated, we do not find any merit in this special appeal. Consequently, the Special Appeal is dismissed.

Order Date :- 10.11.2021

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