Patna High Court
Jeetendra Kumar vs The State Of Bihar And Ors on 9 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13086 of 2017
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Jeetendra Kumar S/o Late Baso Paswan, Resident of Village-Churamanbigha,
Post Office- Gopalpur, Police Station-Iton Chanan, District-Lakhisarai.
... ... Petitioner
Versus
1. The State of Bihar
2. The District Magistrate, Bhagalpur.
3. The Deputy Development Commissioner, Bhagalpur.
... ... Respondents
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Appearance :
For the Petitioner : Mr. Siyaram Sahi, Advocate
Mr. Syed Masleh-Uddin Ashraf, Advocate
For the Respondents : Mr. Harish Kumar, G.P.-8
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
C.A.V. JUDGMENT
Date : 09-08-2021
The petitioner has put to challenge an order issued by
the District Magistrate, Bhagalpur, vide Memo No. 1231 dated
29.05.2017, whereby he has been removed from the post of
Programme Officer, which he was holding on the basis of his
contractual engagement.
2. The petitioner had preferred an appeal against the said
order dated 30.08.2017, which has been rejected by an order dated
08.03.2018, passed by the Secretary, Rural Development
Department, Government of Bihar, as the appellate authority,
issued vide Memo. No. 360506 dated 16.03.2018. The said order
has been brought on record by way of Annexure-8 to I.A. No. 1 of
2019. The petitioner seeks to challenge the said appellate order
Patna High Court CWJC No.13086 of 2017 dt. 09-08-2021
dated 30.08.2017 by seeking amendment in the writ application
through I.A. No. 1 of 2019. Since the said appellate order arises
out of the order under challenge in the writ application, the prayer
for amendment in the writ application is allowed. Accordingly the
petitioner is permitted to question the correctness of the order
dated 08.03.2018 passed by the Secretary, Rural Development
Department, Government of Bihar.
3. I.A. No. 1 of 2019 stands allowed accordingly.
4. The petitioner was admittedly appointed as
Programme Officer on contractual basis in 2007 under District
Rural Development Agency (DRDA), Bhagalpur, agreement in
respect of which was entered into on 25.09.2007. A copy of the
said agreement has been brought on record by way of Annexure-I
to a supplementary counter affidavit filed on behalf of the DRDA.
Clause 3 of which reads as under : -
"3. The position offered to you is on
contract extending not more than Two year
from subject to satisfactory performance. The
contract would be reviewed by DRDA based on
your performance during the contract period.
DRDA might rescind the contract if your
performance has been found unsatisfactory.
However if the performance is satisfactory
DRDA may extend the contract period for
Patna High Court CWJC No.13086 of 2017 dt. 09-08-2021
further period of 2 years on same terms &
condition."
5. It transpires from the statement made in the writ
application that the petitioner was issued a show cause notice on
01.03.2017 by the Deputy Development Commissioner-cum-Chief
Executive Officer, DRDA, Bhagalpur, asking him to explain as to
why there was no progress in the Block where he was posted,
according to MIS report for the month of February, 2017 in
execution of a programme under MNREGA.
6. A show cause notice was issued to the petitioner on
01.03.2017 (Annexure-1 to the writ petition) asking him to explain
as to why the contract of his engagement be not cancelled because
of administrative lapses, want of interest in discharge of his
function as well as non-compliance of the orders issued by the
District Magistrate. The show cause notice was based on MIS
report for the month of January, 2017.
7. The petitioner filed his show cause reply justifying
the reasons for lack of progress including the fact that he was
holding additional charge of Programme Officer of Naugachia
Anchal for long period of time. It is the petitioner's case that
without considering the said reply, the District Magistrate,
Patna High Court CWJC No.13086 of 2017 dt. 09-08-2021
Bhagalpur, by the impugned order dated 29.05.2017, has removed
the petitioner from the post of Programme Officer.
8. It is the petitioners' case that he has been able to show
in his reply to the show cause notice that it was because of lack of
staff, food, etc. and other circumstances that the execution of
scheme under MNREGA was not found satisfactory. Further, he
has canvassed that he was deputed for maintaining law and order
during Intermediate examination and Board examination of 2017
by the Sub Divisional Officer as also during Holi and flood, which
added to the reasons for poor out put in terms of performance.
9. Mr. Siyaram Sahi, learned counsel appearing on
behalf of the petitioner has argued that the District Magistrate,
while passing the impugned order has not considered the points
raised by the petitioner in his reply to the show cause notice. He
has further argued that the appellate authority has also not duly
considered the points taken in his memo of appeal.
10. A counter affidavit has been filed on behalf of the
respondents. Mr. Harish Kumar, learned G.P.-8 representing the
respondent State of Bihar has relied on Supreme Court's decision
in case of GRIDCO Ltd. v. Sadananda Doloi, reported in (2011)
15 SCC 16, to submit that the scope of judicial review under
Article 226 of the Constitution of India in the matters of
Patna High Court CWJC No.13086 of 2017 dt. 09-08-2021
contractual appointments is very limited and it cannot extend to
this Court acting as an appellate authority sitting in judgment over
a decision of termination of contractual engagement. The action of
the respondents cannot be termed to be unreasonable, unfair,
perverse or irrational, he contends. He has accordingly submitted
that the petitioner cannot claim violation of any legal right which
accrued to him.
11. I find force in the submissions made on behalf of the
State of Bihar, placing reliance on the supreme Court's decision in
case of GRIDCO Ltd. (supra), which has taken note of decision in
case of Satish Chandra Anand v. Union of India (AIR 1953 SC
250), wherein a five-Judge Bench dismissed the petition
challenging the termination primarily on the ground that the
petitioner of that case could not prove a breach of fundamental
right since no right accrued to him as the whole matter rested in
contract and termination of contract did not amount to dismissal or
removal from service. The Supreme Court concluded in paragraph
41, in case of GRIDCO Ltd. (supra), as under : -
"41. It is also evident that the
renewal of the contract of employment
depended upon the perception of the
management as to the usefulness of the
respondent and the need for an incumbent in
the position held by him. Both these aspects
Patna High Court CWJC No.13086 of 2017 dt. 09-08-2021
rested entirely in the discretion of the
Corporation. The respondent was in the service
of another employer before he chose to accept
a contractual employment offered to him by the
Corporation which was limited in tenure and
terminable by three months' notice on either
side. In that view, therefore, there was no
element of any unfair treatment or unequal
bargaining power between the appellant and
the respondent to call for an over-sympathetic
or protective approach towards the latter."
12. In the present case, the petitioner was given an
opportunity of hearing. He had remedy to prefer an appeal, which
he availed. The appellate authority has passed a detailed reasoned
order rejecting the contention raised by the petitioner before the
appellate authority. Neither the impugned order passed by the
District Magistrate nor that of the appellate authority can be said to
be perverse or without reason. They have assigned specific reason
for discontinuing the services of the petitioner.
13. It is true that a writ Court exercising jurisdiction
under Article 226 of the Constitution may judicially review any
executive action and determine the issues of illegality, perversity,
unreasonableness or irrationality, rendering such action vulnerable,
no matter the action falls in the realm of contract. It has, however,
been repeatedly held, at the same time, that such jurisdiction
Patna High Court CWJC No.13086 of 2017 dt. 09-08-2021
cannot extend to the Court acting as an appellate authority sitting
in judgment over the decision.
14. For the reasons noted and discussions made
hereinabove, in my opinion, no case is made out for this Court's
interference in the matter.
15. This application, in Court's opinion, has no merit
and is accordingly dismissed.
16. There shall, however, be no order as to cost.
(Chakradhari Sharan Singh, J)
Pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 29.06.2021
Uploading Date 09.08.2021
Transmission Date N/A
