Orissa High Court
Bipra Prasanna Muduli vs The Director Of Indian Institute on 9 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13317 OF 2016
(An application under Articles 226 and 227 of the
Constitution of India)
Bipra Prasanna Muduli ... Petitioner
-versus-
The Director of Indian Institute
of Technology and another ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. Budhadev Routray,
Sr.Advocate
-versus-
For Opposite Parties
: Mr.Bimbisar Dash.
Advocate
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
09.8.2023.
Sashikanta Mishra,J. The Petitioner having M.Sc. and M. Phil
degree in Chemistry applied to the Indian Institute of
Technology (I.I.T), Bhubaneswar for the post of Junior
Technician on contract basis. After verification of his
testimonials and selection process conducted by a
selection committee, the Petitioner's candidature was
accepted and he was favoured with a letter of
assignment for the post carrying remuneration of
Rs.12,000/- per month. Such engagement was for a
period of one year w.e.f. 8th July, 2009. The Petitioner
joined in the post on 13th July, 2009. The contract was
renewed from time to time till 2015 when the last such
renewal of contract expired. It is claimed that similarly
situated persons as the Petitioner were continued to be
engaged by renewing their contracts. The Petitioner
submitted his representation to the Director on 3rd
November, 2015 ventilating his grievance with prayer
for renewal of his contract period. Since no action was
taken on such representation he moved this Court in
W.P.(C) No.564/2016. By order dated 21st January,
2016, this Court disposed of the Writ Petition directing
the Director to take a decision on the representation
filed by the Petitioner and to pass appropriate orders
within three months. By letter dated 30th June, 2016 of
the Registrar, I.I.T, Bhubaneswar (Opposite Party No.2)
the Petitioner's representation was rejected simply by
reaffirming the earlier decision of non-renewal of
contract from the date of its expiry i.e. 30th September,
2015.
2. Being aggrieved by such rejection of his
representation, the Petitioner has filed the present Writ
Petition with prayer to quash the same and to direct
the Opposite Party-authority to renew his services as
against the post of Junior Technician.
3. The stand of the I.I.T as reflected in its counter
affidavit is that the Petitioner was engaged on contract
basis under certain terms and conditions for a
particular period. The contract was renewed from time
to time till 30th September, 2015 on which date the last
contract period expired. It is the further case of I.I.T
that the contractual engagement was a stop-gap
arrangement till regular appointment is undertaken
through process of selection. Since the renewal of the
contract depends on requirement it was not obligatory
for the authority to cite reasons for non-extension of
contract. The averment that similarly placed
contractual employees have been allowed to continue
is specifically denied by stating that regular employees
have been appointed pursuant to an open
advertisement followed by a selection process. It was
open to the Petitioner to appear in the selection
process.
4. Heard Mr. B. Rourtay, learned Senior counsel, with
Mr. S.Das, learned counsel for the Petitioner and Mr.
Bimbisar Dash, learned counsel for the Opposite
Parties (IIT).
5. Mr. Routray, learned Senior counsel, would argue
that the Petitioner has rendered service from 2009 till
2015 i.e. for six years without any blemish or
complaint from any quarter whatsoever. It is also not
the case of the authorities that the Petitioner's
performance was not satisfactory. Mr. Routray has in
particular, referred to an advertisement issued by IIT
on 16th December, 2020 for different non-teaching
posts which includes contractual positions such as
Junior Technician, Junior Laboratory Assistant and
Junior Assistant. Twelve such vacancies were
advertised. On such basis, Mr. Routray would forcefully
argue that the advertisement reflects two things- firstly,
that vacancies do exist and secondly, the post against
which the Petitioner was contractually engaged for all
these years is sought to be filled up again by another
set of contractual employees, which is not permissible
in the eye of law as per the dictum of the Apex Court
in the case of State of Haryana and others vs. Piara
Singh and others; (1992)4 Supreme Court Cases 118.
It is also argued by Mr. Routray that the Petitioner has
become over-aged by efflux of time and therefore, he
cannot simply be thrown out of employment.
6. Mr. Bimbisar Dash, learned counsel for the I.I.T, on
the other hand, would submit that the Petitioner
having been engaged on contract for a particular period
has no right of continuance against such post, which is
subject to renewal from time to time. So, only because
the contract was renewed from 2009 to 2015 does not
confer a right on the Petitioner of being appointed even
after expiry of his contract. Shri Dash further argues
that the engagement of the petitioner was entirely need
based and since the institute had no further
requirement, it decided not to renew the contract after
the expiry of the stipulated period. As regards the
advertisement dtd.16th December, 2020, Mr. Dash has
informed the Court that the said advertisement has
since been cancelled in obedience to the direction
issued by the Government of India in Ministry of
Human Resources Development, Department of Higher
Education.
7. The facts of the case as averred in the Writ Petition
are undisputed inasmuch as the Petitioner was
engaged under a contract effective from 13th July, 2009
for a period of one year. Such contract appears to
have been extended from time to time till 30th
September, 2015. It has been averred that several
other persons, who were similarly engaged on
contractual basis have been allowed to continue, but
such fact has been specifically denied by the opposite
Parties. It goes without saying that a contractual
employee has no vested right over such contractual
appointment. In the case of Director, Institute of
Management Development, U.P. vs. Pushpa
Srivastava (Smt); (1992) 4 SCC 33, the Supreme Court
reaffirmed the principle that where the appointment is
contractual and the appointment comes to an end by
efflux of time, the appointee has no right to continue
in the post and the fact that even after expiry of the
original period the services are continued on Adhoc
basis from time to time would not confer any such
right. Such being the position of law, a contractual
employee cannot, as a matter of right, ask the employer
to renew his contract. But then, this Court is also
conscious of the ratio laid down in the case of Piara
Singh (supra); wherein it was held that one set of
contractual employees cannot be substituted by
another set of contractual employees. It is in this
context that the advertisement dated 16th December,
2020 brought on record by way of an additional
affidavit filed by Opposite Party No.2 assumes
relevance. As many as 12 contractual posts with a
tenure of two years had been advertised including the
post of Junior Technician. So while on one hand, it has
been contended that there was no requirement for the
contractual engagement of Junior Technician at the
same time, attempt is made to engage fresh contractual
appointees for a fixed tenure. This militates against the
dictum of Piara Singh (supra) and also offends the
principle of equality enshrined under Article 14 of the
Constitution of India.
8. Coming to the impugned order of rejection of the
Petitioner's representation (Annexure-9), it has been
simply stated that the institute reaffirmed its decision
of non-renewal of contract. Nothing has been said as to
why such decision was taken in the first place. It has
been stated in the counter affidavit that since the
contractual service of the petitioner had already
expired, the institute was not obliged to submit reasons
for rejection of the representation. In the counter
affidavit filed by the Institute, it is stated under
paragraph-15 that the decision of the Institute for non-
renewal of the contract was based on the requirement.
This is not an acceptable proposition because firstly,
in the absence of such fact being specifically mentioned
in the impugned order, it is not open to the Opposite
Parties to improve upon its own case by supplying
additional reasons in the counter and secondly, this
Court has already negatived the stand taken by the
Opposite Parties that there was no requirement of work
in view of the publication of the advertisement dated
16th December, 2020. The fact that the advertisement
was subsequently cancelled, for whatever reason, does
drive home the point that there is requirement of work
for contractual employees. True, the Petitioner being a
contractual appointee cannot claim as a matter of right
for the contract to be continued indefinitely. But then,
after having been so engaged for a long period of time
i.e. 6 years, he is legitimately entitled to be informed of
the reasons for non-renewal of his contract abruptly. It
is not the case of the Opposite Parties that his
performance was not satisfactory. The only reason cited
by the Opposite Parties that there was no requirement
of work does not hold good in view of what has been
discussed earlier. The I.I.T being an instrumentality of
the State is not absolved of the salutary requirement of
adhering to the principles of reasonableness and
rationality in its actions. In the case of Kumari
Shrilekha Vidyarthi and others vs State Of U.P.
And Ors ; (1991) 1 SCC 212 the Apex Court observed
as follows;
"There is an obvious difference in the
contracts between private parties and
contracts to which the State is a party.
Private parties are concerned only with their
personal interest whereas the State while
exercising its powers and discharging its
functions, acts indubitably, as is expected of
it, for public good and in public interest. The
impact of every State action is also on public
interest. This factor alone is sufficient to
import at least the minimal requirements of
public law obligations and impress with this
character the contracts made by the State or
its instrumentality. It is a different matter
that the scope of judicial review in respect of
disputes failing within the domain of
contractual obligations may be more limited
and in doubtful cases the parties may be
relegated to adjudication of their rights by
resort to remedies provided for adjudication
of purely contractual disputes. However, to
the extent, challenge is made on the
ground of violation of Article 14 by alleging
that the impugned act is arbitrary, unfair or
unreasonable, the fact that the dispute also
fails within the domain of contractual
obligations would not relieve the State of its
obligation to comply with the basic
requirements of Article 14. To this extent, the
obligation is of a public character invariably
in every case irrespective of there being any
other right or obligation in addition thereto.
An additional contractual obligation cannot
divest the claimant of the guarantee
under Article 14 of non-arbitrariness at the
hands of the State in any of its actions.
Thus, in a case like the present, if it is shown
that the impugned State action is arbitrary
and, therefore, violative of Article 14 of the
Constitution, there can be no impediment in
striking down the impugned act irrespective
of the question whether an additional right,
contractual or statutory, if any, is also
available to the aggrieved persons."
9. The following words of the Apex Court in the case of
Dwarkadas Marfatia & Sons Vs .Board of Trustees
of the port of Bombay; (1989) 3 SCC 293 are also
highly relevant in the present context;
"xxx xxx xxx xxx
Where there is arbitrariness in State action, Article
14 springs and judicial review strikes such an action
down. Every action of the Executive authority must
be subject to rule of law and must be informed by
reason. So whatever be the activity of the public
authority, it should be meet the test of Article 14.
xxx xxx xxx xxx."
10. From what has been discussed earlier the
impugned can hardly be treated as meeting the
requirement of Article 14. On the contrary, the same
reflects arbitrariness and unreasonableness in full
measure prompting this Court to interfere.
11. Thus, from a conspectus of the discussion
made hereinbefore, this Court is left with no doubt that
the impugned order under Annexure-9 cannot be
sustained in the eye of law. Resultantly, the Writ
Petition is allowed. The impugned order under
Annexure-9 is hereby quashed. Since this Court in
W.P.(C) No.546/2016 had once remitted the matter to
the authority to consider the representation of the
Petitioner in accordance with law, this Court finds no
justification for granting yet another opportunity to the
authority to do the same thing.
12. Thus, in order to bring a quietus to the issue
and keeping in mind the fact that there is requirement
of work in the Institute for a Junior Technician, the
Opposite Parties are directed to consider the
renewal/execution of a fresh contract with the
Petitioner till the post is filled up through a regular
selection process. A decision in this regard shall be
taken within a month under intimation to the
Petitioner.
.
..................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Designation: A.R.-CUM-SR.SECRETARY
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Aug-2023 18:19:10
