Chodhury Noore Asman vs The State Of West Bengal & Ors
2022 Latest Caselaw 8502 Cal

            IN THE HIGH COURT AT CALCUTTA
                     Civil Appellate Jurisdiction
                            (Appellate Side)
                         F.M.A. 739 OF 2019

                        Chodhury Noore Asman

                                   Vs.

                    The State of West Bengal & Ors.

Before: The Hon'ble Justice Arijit Banerjee
                      &
           The Hon'ble Justice Apurba Sinha Ray

For the Appellant          : Mr. Sardar Amjad Ali, Ld. Sr. Adv.
                             Mr. Samirul Sardar, Adv.
                             Mr. Masum Ali Sardar, Adv.
                             Mr. Md. Abdul Alim, Adv.
                             Ms. Sucharita Ray, Adv.

For the State              : Mr. Rezaul Hossain, Adv.

Heard on                   : 18.05.2022,      27.06.2022,     26.09.2022,
                             31.10.2022,      04.11.2022,     07.11.2022,
                             24.11.2022

CAV On                     : 24.11.2022


Judgment On                : 20.12.2022

Arijit Banerjee, J. :-


1.

A judgement and order dated August 9, 2018, whereby the appellant's

writ petition being W.P. 6294(W) of 2008 was dismissed, is under challenge

in this appeal.

2. The appellant approached the learned Single Judge contending that

she had been engaged as a 'Sahayika' in the third post of Paikpara

Seikhpara Sishu Siksha Kendra (in short 'the said SSK') under Nalhati-I

Panchayet Samity for the period of 2002-03. Her engagement was initially

for a period of one year. Her contract of service was extended from time to

time till the year 2004-05. She received honorarium for the said period

against service rendered. The service contract was not renewed after that.

She complained of breach of the principles of natural justice. She said that

she was never informed that her contract will not be renewed nor was she

given a hearing by the authorities before they decided to discontinue her

service.

3. It appears that previously the appellant had approached this Court by

filing W.P. No. 26556(W) of 2006. In that writ petition her grievance was

while discontinuing her service, the said SSK had renewed the service

contract of another lady by the name of Muktara Begum in the 4th post of

Sahayika. She complained that her representation made to the District

Magistrate of Birbhum had not been considered.

4. By an order dated September 21, 2007, the said writ petition was

disposed of by directing the District Magistrate, Birbhum "to take into

account the grounds made out by the petitioner for his (sic) consideration

and after giving him (sic) an opportunity of hearing including such other

affected parties pass a reasoned order communicating the same to the

petitioner within a period of a fortnight from the date of communication of

this order."

5. Pursuant to the said order, the District Magistrate, Birbhum, heard

the appellant herein as also a representative of the management of the said

SSK. The District Magistrate held that the decision of the Managing

Committee of the SSK not to renew the service contract could not be termed

as illegal or improper. Regarding the appellant's prayer that she should be

given appointment against vacant post of Sahayika in the year 2006-07, the

District Magistrate held that since the appellant was no more a Sahayika,

she would have to go through the proper process, i.e., she would have to

apply against advertisement and go through a proper selection process.

6. The said order of the District Magistrate was challenged by the

appellant before the learned Single Judge in the present round of litigation.

7. By the judgment and order impugned in this appeal, the writ petition

was dismissed. The material portion of the said order reads as follows:-

"The writ-petitioner was a contractual employee that was

renewable at the exclusive discretion of the Gram Panchayat

concerned. Hence the writ-petitioner cannot claim any right

beyond a period of one year. The renewal of the writ-petitioner's

contract until the year 2005 was purely at the discretion of the

Gram Panchayat concerned.

There are other reasons indicated in the order impugned passed by

the District Magistrate, Birbhum on January 11, 2008.

The writ petitioner was found to be irregular in attendance,

insincere and found to be always quarrelling with the other

'Sahayikas'. This was affecting the quality of education in the

Kendra. It is further recorded in the said impugned order that the

SSK was running with four 'Sahayikas' despite having only 86

enrolled learners. The number of 'Sahayikas' was subsequently

directed to be reduced in terms of the rules of the Government.

Even then for the purpose of consideration of the petitioner's case,

over that of the fourth 'Sahayika', the writ petitioner's conduct

ought to have been appropriate. Given the conduct of the writ-

petitioner, as indicated in the impugned order, she could not have

claimed any right of renewal over and above the four 'Sahayika'.

I find absolutely no infirmity in the impugned order. The same is

comprehensive and with sound reasons.

Hence, the writ-petition being WP 6294(W) of 2008 is hereby

dismissed. No order as to costs."

8. Hence this appeal.

9. Appearing for the appellant, Sardar Amjad Ali, learned Senior

Advocate drew our attention to the concerned service contract which was in

Bengali language, the relevant clauses whereof read as follows:-

"1) f¡CLf¡s¡ ­pMf¡s¡ ¢nö ¢nr¡ ­L¾cÊ f¢lQ¡me¡ p¢j¢a nË£ja£/nË£ ­Q±d¤l£ e§­l Bpj¡e

­L Ae¢dL HL hR­ll SeÉ f¡CLf¡s¡ ­pMf¡s¡ ¢nö ¢nr¡ ­L­¾cÊl fWe f¡Wela

¢nö­cl nr¡ c¡­el SeÉ ¢nr¡ pq¡¢uL¡/pq¡uL ¢qp¡­h L¡S Ll¡l c¡¢uaÆ AfÑZ L¢l­mez

1. The managing Committee of Paikpara, Sheikhpara Child

Education Center appoints Chowdhury Noore Asman as Sikha

Shahayika of the Child Education Centre for a period not more

than one year of the Child Education Centre.

5) ¢nö ¢nr¡ ­L­¾cÊ f¢lQ¡me¡ p¢j¢a ¢nr¡ NWe f¡Wela ¢nö­cl ¢nr¡ pZÄå£u ­k

L¡S pq¡¢uL¡/pq¡uL AfÑZ Ll­he, ­p¢V ¢a¢e ¢eù¡l p¢qa f¡me L¢l­hez

5. She should perform her duties with sincerity in assisting the

students in their education at pursuit.

7) ¢nr¡ ­L­¾cÊl fWe f¡W­el ¢e¢cø pj­u ¢a¢e ¢he¡ Ae¤j¢a­a Ae¤f¢ÙÛa b¡L­a

f¡l­he e¡ Hhw I pj­u AeÉ ­L¡e ­Q±d¤l£, hÉhp¡ h¡ ­fn¡u ¢ek¤š² q­he e¡z

7. She will not remain absent or engaged in any other service

business or profession without the permission of the Managing

Committee.

9) HC Q¥¢š² 2003 p¡­ml ­j j¡­pl 2 a¡¢l­M hmhv q­h Hhw Hl ­ju¡c 2004

p¡­ml H¢fËm j¡­pl 30 (¢œn) a¡¢lM fkÑ¿¹ b¡L­hz

9. The agreement will be operative from 2nd May 2003 and

continue up to 30th April, 2004.

10) HC Q¥¢š²f­œ h¢ZÑa naÑ...¢m p­aÆJ f¡CLf¡s¡ ­pM f¡s¡ ¢nö ¢nr¡ f¢lQ¡me¡

p¢j¢a nË£j¢a/nË£ ­Q±d¤l£ e§­l Bpj¡e ­L HL j¡­pl fËÙ¢¹¥ al pju ¢c­u Abh¡ IC pj­ul

f¢lhÑ­a HL j¡­pl p¡eÈ¡¢eL ¢c­u HC Q¥¢š²fœ h¡¢am Ll­a f¡­lez nË£j¢a/nË£ ­Q±d¤l£

e§­l Bpj¡e J f¢lQ¡me p¢j¢a­L fœ¡L¡­l HL j¡­pl pju ¢c­u Abh¡ HL j¡­pl

p¡eÈ¡¢e­Ll AbÑ ­glv ¢c­u fcaÉ¡N Ll­a f¡­lez

10. This agreement may be terminated by the Managing Committee

of Centre by giving her one months' notice or payment for a month.

Similarly she also can resign from her post either by giving one

month's notice or by surrendering on month's salary.

11) k¢c f¢lQ¡me¡ p¢j¢a ­c­Me ­k a¡l BQlZ I ¢nö ¢nr¡ ­L­¾cÊl E­Ÿ­nÉ J

ü¡­bÑl f¢lf¿Û£, ¢h­noax ¢eeÈ h¢ZÑa BQ¡l BQlZ...­m ­L¡e HL¢V h¡ HL¡¢dL k¢c a¡l

­r­œ fË­k¡SÉ qu ­pC ­r­œ f¢lQ¡me p¢j¢a pw¢nÔø ¢nr¡ pq¡¢uL¡/pq¡uL­L a¡l f­r

hš²hÉ ­fn Ll¡l HL¢V p¤¤­k¡N ­c­hz Hhw HC hš²­hÉl Efl ¢eiÑl HC Q¥¢š² h¡¢am

Ll¡ q­hz

11.1 j¡cL¡p¢š² h¡ ­L¡e r¢aLl ­en¡l AiÉ¡pz

11.2 ¢he¡ Ae¤j¢a­a L¡­S Ae¤f¢ÙÛaz

11.3 eÉÙ¹ c¡¢uaÆ ¢ehÑ¡­q Ah­qm¡ J N¡¢gm¢az

11.4 f¢lQ¡me p¢j¢al ¢h¢dpeÈa B­cn J ¢e­cÑn Aj¡eÉ Ll¡z

11.5 aq¢hm aRl¦f h¡ ¢nr¡ ­L­¾cÊl p¡jNË£ AfqlZ Ll¡ h¡ CµR¡L«ai¡­h eø

Ll¡z

11.6 ¢nr¡ ­L­¾cÊ ¢euj Aj¡eÉ Ll¡z

11.7 HC Q¥¢š²f­œl naÑ...¢m Aj¡eÉ Ll¡z

11. In the event the Managing Committee observes that her

conduct is not appropriate or any of the conditions here-in after

referred, is applicable in her case, the Managing Committee shall

be entitled to cancel the appointment by giving her an opportunity

to place defence.

i) Be addicted to any kind of drug or any kind of injuries

addictions.

ii) Remain absent on duty without permission.

iii) Negligence is the discharge of duties.

iv) Disobedience of the orders of the Managing Committee.

v) Defalcation of fund on stealing of any property of the

Centre, or deliberately damaging such properties.

vi) Violation of the Centre's discipline.

vii) Disobeying any conditions of the agreement."

10. Learned Senior Counsel submitted that the service conditions

specifically envisage that if the management of the SSK decides to terminate

the service contract of the appellant, they would have to afford an

opportunity of hearing to the appellant. This is a basic requirement of the

principles of natural justice. However, no such opportunity of hearing was

offered to the appellant.

11. Learned Counsel further submitted that had the performance of the

appellant not been good, her service contract would not have been renewed

from time to time. Hence, there was no reason for the Managing Committee

to discontinue with her service. He submitted that it is grossly irregular and

indicative of nepotism that her service in the post of 3rd Sahayika was

dispensed with but the service of Muktara Begum in the post of 4th Sahayika

was continued. He submitted that if it was the case that the said SSK did

not require four Sahayikas, logically speaking and in all fairness, the service

of Muktara Begum in the post of 4th Sahayika should have been

discontinued and the service contract of the appellant should have been

renewed.

12. Learned Counsel relied on the following decisions of the Hon'ble

Supreme Court: Smt. Maneka Gandhi v. Union of India and Anr.

Reported at AIR 1978 SC 597 and State of Maharashtra v. Veerappa R.

Saboji & Anr. Reported at AIR 1980 SC 42. Maneka Gandhi's case was

relied upon for the proposition that even where there is no specific provision

in a statute or rules made thereunder for showing cause against action

proposed to be taken against an individual, which was likely to affect the

rights of that individual, the duty to give reasonable opportunity to be heard

will be implied from the nature of the function to be performed by the

authority which has the power to take punitive or damaging action. The

decision in the case of State of Maharashtra was relied upon for the

proposition that when termination of service of a Government servant is not

a termination simplicitor but attaches stigma to such person, he cannot be

dismissed without complying with the provisions of Article 311(2) of the

Constitution the material portion whereof reads as follows:- "No such person

as aforesaid shall be dismissed or removed or reduced in rank except after

an enquiry in which he has been informed of the charges against him and

given a reasonable opportunity of being heard in respect of those charges."

13. Appearing for the State, Mr. Hossain, learned Advocate, submitted

that the engagement of the appellant as Sahayika was purely contractual,

subject to renewal annually at the sole discretion of the management of the

SSK. Secondly, the appellant's service was not terminated. The appellant's

service contract came to an end upon expiry of the 2004-2005 period. The

contract was not renewed.

14. Learned Counsel submitted that the Managing Committee of the SSK

had the power to evaluate the appellant's performance and if not found

satisfactory, had the right not to renew her service contract. This is exactly

what was done in the present case.

15. Learned Counsel finally submitted that by Memorandum No. 2217-

PN/O/I/O-1/2003 (Policy) dated April 23, 2010 issued by the department of

Panchayats and Rural Development, Government of West Bengal, a new

procedure for engagement of Sahayikas and new service conditions have

been introduced. Accordingly, it is not possible to simply absorb the

appellant in any vacant post of Sahayika in the SSK or elsewhere.

16. In reply learned Senior Counsel for the appellant drew our attention to

a sentence in the District Magistrate's order dated January 11, 2008 which

was challenged before the learned Single Judge. The said sentence reads

thus;- "later on another meeting was held on 05/06/05 by the said

Managing Committee where a decision for terminating the contract was

taken." Learned Counsel submitted that this was therefore a case of

termination of the service contract without observing the principles of

natural justice.

17. We have given our anxious consideration to the rival contentions of

the parties.

18. The service of the appellant was purely contractual in nature. Her

initial appointment was for one year. Her service contract was renewable

entirely at the discretion of the SSK. Initially her service contract was

renewed till the year 2005 and thereafter the Managing Committee of the

SSK decided not to further renew her service contract. She had no vested

right to have the contract of service renewed. Upon her approaching this

Court in the previous round of litigation, the concerned District Magistrate

was directed by this Court to look into the matter and pass a reasoned

order. The District Magistrate heard the concerned parties including the

appellant and passed a reasoned order dated January 11, 2008. Hence, the

grievance of the appointment that she was not given an opportunity of

hearing is baseless. As directed by this Court, the District Magistrate gave a

full hearing to the appellant. There is no infraction of the principles of law

laid down in the two decisions relied upon by learned Counsel for the

appellant as referred to above.

19. The appellant's further contention was that opportunity of hearing

should have been given to her by the management of the SSK prior to

terminating her service. She relies on Clause 11 of the Contract of service

which has been extracted above. This argument of the appellant is

misconceived. Clause 11 contemplates premature termination of the service

contract or premature cancellation of appointment on one or more of the

grounds enumerated in that clause. Clause 11 will not be germane in the

facts of the present case. The appellant's service contract came to an end by

efflux of time and not by premature termination. Upon the expiry of the

contract period, the management of the SSK resolved not to renew the

appellant's service contract since the management did not find her service to

be satisfactory. The management was perfectly within its right to do so. No

opportunity of hearing was required to be given to the appellant before the

management resolved not to renew the appellant's service contract, either

under the terms of the contract of service or otherwise. Learned Counsel for

the State rightly submitted that the Managing Committee of the concerned

SSK was empowered and competent to assess the performance of the

appellant and if not satisfied therewith, the Managing Committee could

refuse to renew her service contract.

20. As regards the allegation of nepotism, we are not impressed with the

same. It was an administrative decision of the Managing Committee of the

concerned SSK not to renew the service contract of the appellant but to

renew the service contract of Muktara Begum who held the post of the 4th

Sahayika. It appears from the order of the District Magistrate that such

decision was taken on the basis of the quality of performance of the said 2

Sahayikas. Nothing has been produced to show that the appellant was

victimised or Muktara Begum was shown undue favour. The writ Court

would be extremely slow to interfere with such a decision of a Managing

Committee. It has not been demonstrated that the decision of the Managing

Committee of the concerned SSK was arbitrary or mala fide or perverse in

any sense.

21. The order of the District Magistrate was under challenge before the

learned Single Judge. The learned Judge found no infirmity in the said

order. We also do not find any illegality or procedural impropriety in the

order of the District Magistrate. It is a speaking order containing cogent

reasons. The order was passed observing the rules of natural justice. The

writ Court while examining the legality of an administrative order in exercise

of jurisdiction under Article 226 of the Constitution is concerned not so

much with the merits of the decision but with the manner in which the

decision has been arrived at. The Court would be concerned with the

decision making process. It would not act as an Appellate Court. In our

considered view, in the present case, none of the grounds for judicial review

of the District Magistrate's order was available to the appellant/writ

petitioner. The learned Judge rightly refused to interfere. We affirm the order

of the learned Judge assailed in this appeal.

22. The appeal fails and is dismissed without any order as to costs.

23. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

I agree.

(Apurba Sinha Ray, J.)                                   (Arijit Banerjee, J.)