Madhya Pradesh High Court

Saroj Gupta vs The State Of Madhya Pradesh on 12 June, 2023

Author: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 12TH OF JUNE, 2023
WRIT PETITION NO. 17750 OF 2018

BETWEEN:-

SAROJ GUPTA D/O SHRI DEVIDEEN GUPTA,
AGED ABOUT 46 YEARS, OCCUPATION -
PROJECT FACILITATOR TEAM MEMBER (PFT),
R/O NEAR PWD COLONY, IN FRONT OF DR.
NANHE SINGH THAKUR, DINDORI, DISTRICT
DINDORI (M.P.)

......PETITIONER

(BY SHRI JITENDRA TIWARI - ADVOCATE)

AND

1. STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY PANCHAYAT
& RURAL DEVELOPMENT DEPARTMENT,
MANTRALAYA, VALLABH BHAWAN,
BHOPAL (M.P.).

2. THE M.P. RURAL LIVELIHOOD MISSION,
THROUGH CHIEF EXECUTIVE OFFICER,
UNDER M.P. PANCHAYAT & RURAL
DEVELOPMENT DEPARTMENT, VALLABH
BHAWAN, BHOPAL (M.P.)

3. THE ADDITIONAL CHIEF EXECUTIVE
OFFICER, M.P. RURAL LIVELIHOOD
MISSION, BHOPAL (M.P.)

4. ZILA PANCHAYAT DINDORI THROUGH ITS
CHIEF EXECUTIVE OFFICER, DINDORI
(M.P.)

5. THE PROJECT COORDINATOR, M.P. RURAL
LIVELIHOOD MISSION, BHOPAL (M.P.)
2

.....RESPONDENTS
(SHRI DARSHAN SONI - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE)
(SHRI MANAN AGRAWAL - ADVOCATE FOR RESPONDENT NOS.2, 3 AND 5)
(SHRI AJAY PRATAP SINGH - ADVOCATE FOR RESPONDENT NO.4)
................................................................................................................................................
Reserved on : 17.03.2023
Pronounced on : 12.06.2023
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:

ORDER

Petitioner has filed this petition under Article 226 of the Constitution of India questioning the legality, validity and propriety of the orders dated 13.06.2018 (Annexure P/1) and 19.07.2018 (Annexure P/8).

2. Vide order dated 13.06.2018 instructions issued to the District Project Manager for not renewing the agreement of contract of the petitioner further as her performance was not found satisfactory for the period 2017-18.

3. As per the facts of the case, the petitioner was appointed vide order dated 11.03.2008 (Annexure P/2) as a Member of Project Facilitator Team (PFT) by respondent No.5. As per the agreement, the assignment was temporary and purely on contractual basis. Initially six months period was a probation period and after its successful completion, services were to be continued up to June, 2012 or up to the end of project, whichever was earlier. The order of appointment i.e. Annexure P/2 also contains other service conditions.

4. The contract of the petitioner was renewed from time to time and from the letter dated 25.04.2017 (Annexure P/3) it reveals that the petitioner's services were taken up till 31.03.2017 and thereafter on the basis of work done in the year 2016-17 the agreement was further renewed till 31.03.2018 and that renewal was made by the Additional Chief Executive Officer, M.P. Day State Rural Livelihood Mission. On 08.04.2017 (Annexure P/4) the petitioner was given a notice by respondent No. 5 apprising her as to what irregularities found in her performance during the course of inspection made by Nodal Officer along with the Project Coordinator (respondent No.5). The petitioner was granted time to file her explanation about irregularities pointed out and also pointed out that during the course of inspection the petitioner was not present. It was also made clear that if satisfactory explanation is not received then it would be decided to initiate proceeding against the petitioner. As per the petitioner, reply was filed by her along with medical documents but that reply is not made part of the record, although certain documents relating to medical treatment is made part of the petition. The respondents thereafter passed an order Annexure P/1 deciding not to renew the contract of the petitioner and as such she was removed from service. She preferred an appeal against the said order. The appeal was also decided vide order dated 19.07.2018 (Annexure P/8) whereby the order passed by the authority deciding not to continue the contract of the petitioner was affirmed.

5. The petitioner has also filed a document i.e. Annexure P/6 which is a letter of agreement containing conditions of service of the petitioner. As per the petitioner, the order taking decision not to continue her contract was taken by the incompetent authority. As per the petitioner, the appointment was made by the Project Coordinator whereas the

impugned order has been issued by subordinate authority i.e. Additional Chief Executive Officer and as such he is not competent to discontinue the services of the petitioner. It is also averred by the petitioner that as per the conditions of agreement, Clause 6 very categorically provides that if annual assessment is made in which the work of the employee is not found satisfactory and services are being discontinued then prior approval of Chief Executive Officer/Additional Chief Executive Officer and Committee constituted under his Presidentialship has to be taken and that approval is not taken by the authority. Petitioner has also placed reliance upon a judgment of this Court passed in WP No. 5978/2018- Harshit Tiwari Vs. The State of Madhya Pradesh & others in which this Court has considered that if any appointment made on contract basis is not extended on the basis of irregularities or dis-satisfactory service, the same cannot be done without providing any opportunity of hearing and also without considering the reply, if any is submitted by the employee. According to the petitioner, since the authority has not considered this aspect of the matter and not provided any opportunity of hearing, the decision for not extending the agreement is liable to be set aside.

6. Reply has been submitted by the respondents taking stand therein that the petitioner was being granted several opportunities to improve her work pointing out the irregularities in her work and as such it was not proper on the part of the petitioner to say that opportunity of hearing was not provided to her. The respondents have filed a document Annexure R/4/5 dated 16.07.2020 in which a chart is prepared giving details of the letters issued to the petitioner expecting from her to improve her work but nothing was found satisfactory on her part showing improvement in her work. It is also contended by the

respondents that the approval for not extending the contract of the petitioner was already taken from the Chief Executive Officer and the respondents have filed note sheet i.e. Annexure R/4/3 dated 11.06.2018 showing that the order has been passed by the competent authority and it was only communicated by the Additional Chief Executive Officer. The respondents have also relied upon an order passed in WP No. 3032/2021-Shyam Babu Jaiswal and another vs. The State of Madhya Pradesh decided on 12.02.2021 wherein the High Court considering the termination of contract of the employee as initially found that the services can be terminated by the respondents and contract appointee had no right to claim his reinstatement the petition was finally dismissed. Respondents have also relied upon a decision reported in (2002) 2 MPLJ 391 - Umesh Kumar Trivedi vs. State Committee, Rajiv Gandhi Prathmik Shiksha Mission and others and the order passed in W.P. No. 27812 of 2021 - Anil Pandey vs. The State of Madhya Pradesh & others decided on 16.12.2021.

7. After having heard the arguments advanced by the learned counsel for the parties and perusal of record this Court is of the opinion that the appointment of the petitioner was made as a Member of Project Facilitator Team on certain terms and conditions i.e. Annexure P/6. Clause 6 of the said conditions is relevant, which reads as under:-

"6. lafonk ij fu;qDr vf/kdkfj;ksa@deZpkfj;ksa dk okf"kZd dk;Z&ewY;kadu laarks"ktud ugha ik;s tkus ij] mudh lsok vof/k lekIr fd;s tkus ds iwoZ fe'ku ds varxZr eq[; dk;Zikyu vf/kdkjh@vfr0 eq[; dk;Zikyu vf/kdkjh dh v/;{krk esa xfBr desVh dk vuqeksnu fy;k tkuk vko';d gksxk A"

Similarly, Clause 1.10 of the original order of appointment of the petitioner Annexure P/2 dated 11 th March, 2008 is also relevant, which reads as under:

"1.10 This assignment does not bestow upon you any right or claim for renewal of contract and/or regularization/continuation of service in Madhya Pradesh Rural Livelihood Project/MPSLRLP or the Government of M.P.

8. Looking to the terms and conditions of appointment of the petitioner, it is very specific that the appointment was purely on contract basis, it was temporary in nature and initially it was for a specific term i.e. till 30th June, 2012 or end of the project whichever is earlier as per the Condition No. 1.1 of the order of appointment dated 11 th March, 2008 (Annexure P/2). Thus contract was further extended and as per letter dated 25.04.2017 (Annexure P/3) extension was made till 31.03.2018. A notice was issued to the petitioner on 08.04.2017 (Annexure P/4) showing irregularities and shortcomings in her service and performance of work as inspection got done in the presence of District Project Coordinator with Nodal Officer and explanation was sought from the petitioner. Meaning thereby, opportunity was provided to her to satisfy the authority about her dis-satisfactory performance and the explanation was sought but nowhere it is shown that any reply to the said notice was given by the petitioner, although some medical documents are available on record just to explain as to why during the course of inspection the petitioner remained absent. The appeal Annexure P/7 was also preferred by the petitioner in which also it is not shown that the notice issued to her was replied by her, although in the

memo of appeal she has taken some personal grounds and tried to satisfy the authority that the decision is not proper but even in the memo of appeal nothing has been said as to why the petitioner remained absent during the course of inspection and whatever irregularities pointed out in the notice dated 08.04.2017 (Annexure P/4) were not correct. The appellate authority while considering the appeal and order passed therein has given reference of notice dated 16.03.2018 and reply submitted by the petitioner thereof whereas it is not part of the record and after considering the said reply the appellate authority has also observed that the explanation given by the petitioner was not satisfactory because the documents made available to him indicating that petitioner's explanation was not proper. The reply submitted by the respondents in which a chart has also been annexed showing that the petitioner has been asked an improvement in her work giving opportunities on several occasions and reference of letters have also been given but there was no improvement noticed in the work of the petitioner and finally decision was taken that too with the approval of the competent authority for not extending the contract. The terms of the contract are also made part of the petition by the petitioner in which Condition No. 1.10 makes it clear that it would not be the right of the employee to claim for renewal of contract. It is also clear from Annexure P/3 dated 25.04.2017 that the contract was renewed till 31.03.2018 but that contract was not extended thereafter and as such by Annexure P/1 dated 13.08.2018 (Annexure P/1) decision was taken not to continue the term of contract of the petitioner. It is not a case in which the petitioner was not granted proper opportunity of hearing. Explanation was sought from the petitioner pointing out irregularities in her performance and only thereafter decision was taken. The note sheet

filed by the respondents also indicating that the decision was taken by the competent authority and that was communicated to the petitioner by the Additional Chief Executive Officer. After filing the document by the respondents about approval of competent authority, nothing was filed by the petitioner indicating that the said decision was not by the competent authority and therefore the challenge made by the petitioner with regard to the impugned order issued by an incompetent authority is not sustainable and cannot be accepted.

9. Petitioner has also filed a rejoinder in which she has reiterated the same facts which she has raised in the petition although the stand taken by the respondents about taking approval from the competent authority has not rebutted by the petitioner even in her rejoinder. Claiming regularization on the basis of past performance and long service is not proper because the order of appointment is very specific that the appointment of the petitioner was purely on temporary basis and was coterminous with the project. In the terms and conditions of the appointment it is clearly mentioned that the employee would not be having any right to claim regularization.

10. Considering the existing facts of the present case and the challenge made by the petitioner, it is clear that it is not a case in which the petitioner was not granted any opportunity of hearing before taking decision of not extending her contract. It is also not a case in which violation of principles of natural justice has been done but here it is a case in which proper opportunity was granted to the petitioner and then the decision was taken not to extend her contract services. The Supreme Court in the case of Madras Institute of Development Studies and another vs. K. Sivasubramaniyam and others reported in (2016) 1 SCC 454 has held that a decision of experts about suitability of a

candidate generally cannot be examined under writ jurisdiction in absence of malafides, bias or arbitrariness. Admittedly, in the present case the decision of the authority has not been assailed on the ground of malafide, bias or arbitrariness and therefore, in a writ jurisdiction when petitioner's performance was not found satisfactory and there were sufficient reasons shown by the authority for the same, interference in their decision not to extend the contract of appointment of the petitioner does not seem to be proper. The case of Harshit Tiwari (supra) on which the petitioner has placed reliance is not applicable in the present case because facts of this case are altogether different as in the said case no opportunity was granted to the petitioner therein before taking decision for not extending his contract appointment whereas in the present case proper opportunity has been provided. Therefore, in my opinion, nothing wrong has been committed by the respondents in taking decision for not extending the contract appointment of the petitioner. The petition therefore being without any substance and devoid of merit is hereby dismissed.

(SANJAY DWIVEDI) JUDGE

Raghvendra

RAGHVENDRA SHARAN SHUKLA 2023.06.14 16:08:04 +05'30'