Madhya Pradesh High Court
Vikram Sharma vs The State Of Madhya Pradesh on 22 August, 2023
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 22 nd OF AUGUST, 2023
WRIT PETITION No. 16892 of 2022
BETWEEN:-
1. VIKRAM SHARMA, S/O SHRI R.K. SHARMA, AGED
ABOUT 37 YEARS, OCCUPATION: JOBLESS, R/O
104, A.P. PARK AVENUE, BHOPAL (MADHYA
PRADESH)
2. RITESH AGARAWAL, S/O SHRI M.C. AGRAWAL,
AGED ABOUT 42 YEARS, OCCUPATION: JOBLESS,
R / O E-7 MINAL APARTMENT, PANJABI BAG,
RAISEN ROAD, BHOPAL (MADHYA PRADESH)
3. VAIBHAV GUPTA, S/O SHRI D.K. GUPTA, AGED
ABOUT 33 YEARS, OCCUPATION: JOBLESS, R/O
111, OM SHIV NAGAR, LALGHATI BHOPAL
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI VIVEKANAND AWASTHY - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH THE
PRINCIPAL SECRETARY, GENERAL
ADMINISTRATION DEPARTMENT, MANTRALAY,
BHOPAL (MADHYA PRADESH)
2. PRINCIPAL SECRETARY, DEPARTMENT OF
SCIENCE AND TECHNOLOGY, STATE OF MADHYA
PR A D ES H , MANTRALAY, BHOPAL (MADHYA
PRADESH)
3. MADHYA PRAADESH STATE POLICY AND
PLANNING COMMISSION, THROUGH THE
ADMINISTRATIVE OFFICER, C- WING, FIRST
FLOOR, VINDHYACHAL BHAWAN, BHOPAL
(MADHYA PRADESH)
4. MADHAYA PRADESH AGENCY FOR PROMOTION
OF INFORMATION TECHNOLOGY, THROUGH ITS
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 8/25/2023
5:23:37 PM
2
CHIEF EXECUTIVE OFFICER, STATE IT CENTRE,
47-A, ARERA HILLS, BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANKIT AGRAWAL - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard on I.A. No.13849 of 2022 and I.A. No.5892 of 2023 - applications
for amendment in the petition.
2. For the reasons stated in the applications, same are allowed.
3. This petition has been filed challenging the inaction on the part of the
respondents whereby they are not extending the contract period of the
petitioners and subsequently by way of amendment challenging the issuance of
an advertisement dated 09.04.2023 (Annexure P/6) making replacement of
petitioners by another set of contractual employees.
4. The case of the petitioners is that the petitioner No.1 was appointed as
Executive Project Management, Department Level (EPSD 01) Level 3, on
28.09.2016, the petitioner No.2 was appointed as Consultant, Project
Management Unit (District Level) on 06.07.2016 while petitioner No.3 was
appointed as Executive, project Management on 03.05.2016, in pursuance to the
advertisement issued by the respondents on contract basis. The work of the
petitioners were excellent throughout and considering the same, the period of
contract was extended from 2017-2019. On 02.03.2019 the contract period of
the petitioners was extended till March, 2020 and again extended till May, 2020
and thereafter till July, 2020. The petitioners have performed their duties with
utmost dedication and to the satisfaction of all concerned, but despite of the
same, their contract period have not been extended by the authorities after July,
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Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 8/25/2023
5:23:37 PM
2020. They have made several representations to the respondents-authorities
and have personally approached them during July, 2020 to November, 2021 and
requested them to extend the period of contract, but the same was not done.
On one hand, the respondents have not extended the period of contract of the
petitioners and on the other hand they have issued an advertisement inviting
applications for appointment on contract basis. It is their case that the action of
the respondents is being done just to replace the petitioners by other contract
employees.
5. It is argued that in terms of the settled legal propositions of law by the
Hon'ble Supreme Court and High Courts in large number of cases that the
contract employee cannot be replaced by another set of contract employee.
Learned counsel for the petitioners has placed reliance upon the judgment
passed by the Hon'ble Supreme Court in the case of Manish Gupta and
another v. President Jan Bhagidari Samiti and others: Civil Appeals
No.3084 & 3088 of 2022 (Arising out of SLP (Civil) No.12946-12950 of 2017
decided on 21.04.2022 and has prayed for a direction to the authorities for
extension of their contract period.
6. Per contra, learned counsel for the State has vehemently opposed the
contentions and submits that the appointment of the petitioners were on
contract basis. The appointment orders of the petitioners reflects that their initial
appointment was only for a period of two years subject to extension depending
upon the performance of work. The contract period of the petitioners were
extended up to July, 2020, but thereafter there was no extension. An
advertisement was issued by the respondents for appointment on contract basis
and the last date for submission of the application was 15.12.2021 and the
examination was conducted on 24.12.2021 as per the petitioners' averment. The
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 8/25/2023
5:23:37 PM
aforesaid period is already over and the fresh appointments must have already
been done and now another advertisement was issued 09.04.2023. It is argued
that the law with respect to entitlement of the contractual employees is settled
by the Hon'ble Supreme Court in the case of State Bank of India Vs. S.N.
Goyal reported in (2008) 8 SCC 92 wherein the Hon'ble Supreme Court has
clearly laid down that a contract employee is having no right to seeks extension
of his services. The aforesaid was followed by the Division Bench of this Court
in W.A. No.617 of 2015 (Brijendra Gupta vs. State of M.P. and others) and
bunch of writ appeals decided on 18.03.2016. Under these circumstance, no
relief can be extended to the petitioners regarding extension of their contract
period. The petitioners have submitted their applications in view of the fresh
advertisement. In view of the aforesaid, no relief can be extended to the
petitioner. He has prayed for dismissal of the petition.
7. Heard the counsel for the parties and perused the record.
8. Admittedly, the petitioners are contractual employees. Their initial
appointment were only for a period of two years. There was a provision for
extension of contract period subject to work performance. The extension was
granted to the petitioners up to July, 2020. Thereafter, the authorities have
chosen not to extend the contract period of the petitioners. Subsequently, an
advertisement was issued in November, 2021 i.e. after almost one and a half
years from July, 2020. The petitioners could have very well participated in the
subsequent advertisement which was issued. A fresh advertisement was issued
on 09.04.2023. They have chosen not to apply for the same. It is not a case
where services of the petitioners are put to an end during their contract period
but their contract period is over and there is no extension given to them. A
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Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 8/25/2023
5:23:37 PM
contractual employee is having no right to ask for continuation of his services
once the contract period is over. It is the domain of the employer whether to
extend the period or not.
9. The service contract are not enforceable in terms of bar in Section 14 of the
Specific Relief Act, 1963. The Hon'ble Supreme Court ha gone to the extent
that if there is a termination from service during the contract period the
employee can claim damages and cannot ask for specific performance of
contract. The aforesaid aspect was considered by the Hon'ble Supreme Court
in the case of S.N. Goyal (supra) and has held as follows: -
"Where the relationship of master and servant is purely contractual, it
is well settled that a contract of personal service is not specifically
enforceable, having regard to the bar contained in section 14 of the
Specific Relief Act, 1963. Even if the termination of the contract of
employment (by dismissal or otherwise) is found to be illegal or in
breach, the remedy of the employee is only to seek damages and not
specific performance. Courts will neither declare such termination to
be a nullity nor declare that the contract of employment subsists nor
grant the consequential relief of reinstatement. The three well
recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of
the provisions of Article 311 of the Constitution of India (or any law
made under Article 309);
(ii) where a workman having the protection of Industrial Disputes Act,
1947 is wrongly terminated from service; and
(iii) where an employee of a statutory body is terminated from service
in breach or violation of any 7 mandatory provision of a statute or
statutory rules.
There is thus a clear distinction between public employment governed
b y statutory rules and private employment governed purely by
contract. The test for deciding the nature of relief damages or
reinstatement with consequential reliefs is whether the employment is
governed purely by contract or by a statute or statutory rules. Even
where the employer is a statutory body, where the relationship is
purely governed by contract with no element of statutory governance,
the contract of personal service will not be specifically enforceable.
Conversely, where the employer is a non-statutory body, but the
employment is governed by a statute or statutory rules, a declaration
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Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 8/25/2023
5:23:37 PM
that the termination is null and void and that the employee should be
reinstated can be granted by courts."
10. A Division Bench of this Court has considered the similar issue in the case
of Brijendra Gupta (supra) and has held as under: -
"Each of the appellants accepted these conditions and were fully
aware that their services would be continued on contract basis only
for a period of 2 years. It is a different matter that the appellants were
continued in service, but, by extending contract period, their
appointment nevertheless, shall remain on contract basis. No
document or Regulation has been filed by the appellants and atleast
brought to our notice, which may even remotely suggest that there was
an agreement reached between the parties that on completion of 5
years of contractual service the concerned employee would be
regularized in service. The fact that the appellants have now become
over age and will not be eligible for appointment elsewhere, cannot be
the basis to answer the controversy. The matter has to be answered
keeping in mind that the contractual employee cannot insist for
regularization in absence of policy, scheme or regulation having the
backing of law and enforceable against the employer. In the present
case, no such document has been brought to our notice. As a result, it
is not open to this Court to issue writ to direct the respondents to
regularize the appellants in service. The fact that the appellants have
served the respondent/Company for almost five years, by itself, cannot
be the basis to issue such direction unless it is a case of legally
enforceable right which has enured in favour of the appellants. That is
not the case at hand."
11. From the law laid down by the Hon'ble Supreme Court it is apparently,
clear that the contract employee is having no indefeasible right to ask for
continuation of his services. The case law which has been relied upon by the
petitioners i.e. in the case of Manish Gupta (supra) is dealing with the cases of
Guest Faculties. It is totally a different set of employees, who are inducted in
teaching work, thus, their cases cannot be equated with that of the petitioners as
they have been inducted in service after following the due procedure and
subject to fulfilling the qualifications. They are being granted protection as they
were asked to undergo the recruitment process after every 11 months or end of
academic session. Thus, their cases cannot be compared with that of
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Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 8/25/2023
5:23:37 PM
petitioners. It is not in dispute that contract period of petitioners, who were
inducted on contract basis for a particular project itself, is over. Therefore, the
case law which has been relied upon by the petitioners is of no help to them.
12. Under these circumstances and looking to the settled proposition of law
by the Hon'ble Supreme Court in the case of S.N. Goyal (supra), no relief can
be extended to the petitioners.
13. The writ petition sans merit and is accordingly dismissed. No order as to
costs.
(VISHAL MISHRA)
JUDGE
taj
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 8/25/2023
5:23:37 PM
