Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3919 of 2013 ====================================================== 1. Vimal Prakash S/O Late Umesh Narayan Verma R/O Mohalla- Mitra Mandal Colony, B/24, P.S.- Anisabad, District- Patna 2. Ram Kumar Gupta S/O Jagnarayan Gupta R/O Village- Jith Kahiya, Mai Sthan M.I.T., P.S.- Brahampura, District- Muzaffarpur 3. Sadhana Singh W/O Ravi Shankar Prasad Singh H/No. A/13, Behind- Patliputra School, Beur, Jail Road, Anishabad, Patna 4. Ashish Ranjan Akhilesh S/O Late Jitendra Kumar Verma Village + Post- Tiwari Toka, Shanti Nagar, Ward No. 32, District- Saharsa 5. Vijay Kumar S/O Shri Dura Sah Gram + Post- Bhatauni, Bhaya- Simti Bakhtiyarpur, District- Saharsa 6. Krishna Kumar S/O Shri Kapil Deo Sharma Gram + Post- Badhauna, Bhaya- Kharagpur, District- Munger 7. Shamim Akhtar S/O Iliyas Ansari Village + Post- Sarta, P.S.- Rahika, District- Madhubani 8. Atul Ranjan S/O Shri Umesh Goit R/O Village- Parsahi Laukta, P.S.- Khutauta, District- Madhubani 9. Ajay Kumar S/O Naval Kishore Verma R/O Mohalla- Nand Gaon, P.S.- Shastri Nagar, District- Patna 10. Savita Kumari D/O Ramdeo Das R/O Mohalla- Bhasani Tola, P.S.- Mal Salami, District- Patna 11. Meena Kumari C/O- Professor Bikram Narayan Singh, R/O Mohalla- Krishna Puri, P.S.- Sheikhpur, New Zcromile, District- Muzaffarpur 12. Md. Anwar S/O Md. Id Ansari R/O- Rahat Cottage House No. 103, Asif Colons Opposite Sabita Apartment, P.O.- Ashya Nagar, District- Patna 13. Kiran D/O- Shri Nand Bihari Singh, W/O- Shri Mahendra Kumar Sinha Village- Pachetan, P.O. + P.S.- Asthawan, District- Nalanda, (Bihar) 14. Anil Kumar S/O Baidhnath Singh R/O Mohalla- Sultanpur, Koiri Tola, House No. 327, Ward No. 17, Danapur 15. Amrendra Kumar S/O Bindeshwari Sah P.O.- Panchvir Market, District- Begusarai 16. Kamakhya Narayan Shukla S/O Shri Rajendra Prasad Shukla Village- Baksara, P.S.- Katmahar, District- Rohtas 17. Archana Prabhakar W/O Rudra Murti R/O- Vijay Nagar, Road No. 07, Rukunpura, Patna 18. Rita Kumari W/O Saroj Kumar Village + Post- Bhaudiha, P.S.- Nokha, District- Rohtas, At Present Address C/O- Sanchita Nand Prasad Cid Inspector Lalgi Tola, Patna- 1 19. Dilip Kumar S/O Ram Narayan Das Village- Pakki Sarai, P.O. + P.S.- Ghogha, District- Bhagalpur 20. Braj Mohan S/O Shri Bhugeshwar Jha Village + Post- Liladh, Bhaya- Ghoghadiha, District- Madhubani 21. Arpana W/O Dr. Aditya Ranjan R/O Mohalla- Bajar Samiti (Rampur) Patna, D/O Late Shri Krishna Sharma, Motihari, Station Road, Motihari (East Champaran) .... .... Petitioners Versus 1. The State Of Bihar Through Principal Secretary Health Department Government Of Bihar Patna 2. The Project Director, Bihar State Aids Control Society (Health Department Government Of Bihar) Sheikhpura Patna Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 2 3. The Deputy Director (Vctc) Bihar State Aids Control Society (Health Department Government Of Bihar) Sheikhpura, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Manan Kumar Mishra, Sr.Advocate Mr. Radha Mohan Pathak, Adv. For Respondents no.2 &3: Mr. Ashok Kumar Dubey, Adv. Mr. Upendra Kr. Singh, Adv. For the State : Mr. Bhashkar Shankar, AC to GP16 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 15-07-2013 Heard counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows: “For issuance of an appropriate writ/order/direction to the respondent authorities to renew/ extend the period of contract in respect of the petitioners w.e.f. 1.4.2012 as the last renewal/ extension of contract was issued vide office order no.38/664 dated 22.7.2011 whereby and whereunder the period of contract was extended upto 31.3.2012 but in spite of the expiration of the contract period, the work is being taken from the petitioners and the concerned authorities have issued the absentee statements also in respect of each of the petitioners for the work done by them. 1/A. That the petitioners further pray for issuance of an appropriate writ/order/direction to the respondents authorities to the effect that consequent upon the above mention renewal of contract period, the petitioners should be paid the honorarium as per their entitlement and the arrears which have accrued to petitioner no.1 from June
Legal Reasoning
Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 3 2011 and to remaining petitioners from August 2011 and onwards till date.” 3. During the pendency of this writ application the petitioners have also filed I.A.No. 2952/2013, wherein the additional prayer has been sought to the following effect: “(ii) That the petitioner further prays for issuance of an appropriate writ/order/direction to quash office order No. 81 dated 15.4.2013 issued from file No. letter No. 16/AIDS/ICTC/42-07/12-13 by the Additional Project Director Bihar State AIDS Control Committee, Patna whereby and whereunder the payment of honorarium in respect of the petitioner no.3 has been denied w.e.f. 1.8.2011 to 14.4.2013 and also the Service Contract of the petitioner has been extended upto 30.9.2013 at the Sadar Hospital Bihar Sharif (Nalanda) i.e. her 1st place of posting instead of Red Cross Patna where the petitioner has been working.” 4. It has to be also noted that the petitioners by filing yet another I.A.No. 3917/2013 have sought further relief which reads as follows: “1/D. That the petitioners further pray for issuance of an appropriate order/ direction to restrain the respondents from filling up the post of Counsellors and Lab Technicians on contractual basis by appointing any new/ fresh candidate on contract basis during the pendency of the instant writ application as these posts are presently being hold by the petitioners on contract basis.” Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 4
Legal Reasoning
5. Mr. Manan Kumar Mishra, learned Senior counsel appearing on behalf of the petitioners, in support of the aforementioned prayer having taken to this Court to the number of documents and the pleadings has ultimately confined his submission on two aspects, namely, that once the petitioners’ initial engagement was made for the control of the AIDS by undergoing prescribed procedure for selection on contractual basis, their services cannot be un-ceremoniously terminated by replacing them with another set of contractual employees. To that extent he has pointed out that the advertisement issued on 1.6.2013 is to fill up the post already occupied by the petitioners. He has further submitted that the dispute with regard to payment of salary and emoluments for the period the petitioners have worked has unnecessarily been created at the instance of the directorate, inasmuch as none of the petitioners have worked at the place without there being a proper order of assigning of duty at the place where the petitioners are presently working. 6. On the other hand, the respondents having filed the counter affidavit have sought to impress to this Court that the petitioners’ engagement was only upto 30.9.2011 and after that they were given specific terms and conditions for their extension of agreement but as none of them barring petitioner no.12 i.e. Md. Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 5 Anwar had complied the terms and conditions by executing agreement, they would not be entitled for either for extension or payment of salary. He has also submitted that as a matter of fact petitioner no.13 Mrs. Kiran in fact had never signed even the original agreement and therefore, the respondents do not recognize her as a working employee under AIDS Control. Counsel for the respondents has also laid stress on this aspect that the petitioners having not worked at the place for which they were initially engaged and the work of those centers having suffered they would not be entitled for payment of salary only because they claim to have worked at some other centers. 7. In the considered opinion of this Court there are two aspects to the whole issue which have been raised in this writ application. The first issue is with regard to continuation of the petitioners on contract for the work of AIDS Control and the second relates to payment of wages and emoluments as per terms of the contract. So far the first aspect is concerned, there is no dispute that at one point of time all the petitioners were selected by undergoing a regular procedure of appointment beginning from the advertisement, qualifying test and the selection leading to their engagement, of course on contract basis. Such contractual appointment being on year to year basis the petitioners were also Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 6 continuing on such contract but later on a dispute had emerged in view of the subsequent transfer and posting of the petitioners either at their own request or made by the controlling authority due to administrative exigencies. In the counter affidavit no document has been brought on record to show that the order of deputation or transfer of the petitioners in the period of their contract was ever cancelled or any action was taken against the persons who had passed such order for deputation or transfer of the petitioners without prior approval of the directorate. In that view of the matter, this Court will not be in a position to accept the submission of learned counsel for the Respondents that the petitioners’ continuation at other center beyond one on which they were originally appointed would either amount to infringement of the terms of the contract or will make their services unsatisfactory and thus also fit for removal from service. 8. True it is that in Annexure 3, the order of further renewal of contract, a clause was put in which reads as follows: ^^ftl iz;ksx’kkyk izoSf/kdh ,oa ijke’khZ dk ftl txg ds fy, izFke lafonk ij fu;qfDr gqbZ Fkh mudk vof/k foLrkj mlh vuq:i fd;k x;k gS ,oa mlh LFkku ds fy, vuqcU/k ij gLrk{kj djuk gksxkA** 9. This however was a policy decision taken by the respondents and therefore, if the petitioners prior to this date were working at other centers allegedly in view of the order of their Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 7 controlling authority, they cannot be denied the benefit of extension of contract because such orders were never cancelled. The petitioners, being beggars were not choosers in the matter of continuation in service. The Government today is continuing the whole job of medical and health care by engaging people on contractual basis. Such appointment, however, is being made after following the mandate of Articles 14 and 16 of the Constitution of India and therefore, the "bargaining power" of such contractual employee an expression used by the Supreme Court in the case of Central Inland Water Transport Corporation Ltd. & anor. vs. Brojo Nath Ganguly & anor., reported in AIR 1986 SC 1571 cannot be equated much less compared with the mighty power of the State. Therefore, in the given situation this Court cannot allow the respondents to take a plea that since they had not executed the agreement, their services will be deemed to have been terminated. 10. This aspect become further clear from paragraph no.6 of the counter affidavit that all the petitioners barring Miss Kiran, petitioner no.13, who had never signed even the original agreement, are still continuing in service. It has been alleged that their such continuation, however, is with the collusion of the local authorities. The question, therefore, would be if no action has been taken against the local authority can the petitioners alone be Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 8 punished in the matter of continuation in service or renewal of contract? 11. Having thus considered all these aspects this Court is of the considered view that if the petitioners, barring petitioner no.13 Miss Kiran, whose writ application is not pressed by Mr. Mishra if they report to the original place for which their original appointment was made and execute their agreement to remain there on that very place, their services will remain undisturbed. 12. It goes without saying that since the aforesaid condition has already been complied by petitioner no.12, Md. Anwar, he will not be required to execute any fresh agreement but for rest of the petitioners a period of one month will be given to them to execute agreement and go back to the respective place for which their original selection and appointment was made and for which they had also entered into an agreement in the first instance. 13. It is also clarified that if any one amongst the petitioners no. 1 to 11 and 14 to 21 would not join at their original place and execute agreement within a period of one month from today their services will be deemed to have come to an end and in such event the respondents will have liberty to treat such post as vacant for undertaking further selection process and filling them in accordance with law. Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 9 14. As with regard to the issue of payment of salary and emolument, this Court on the basis of materials on record must hold that petitioners no. 1 to 12 and 14 to 21 will be entitled for payment of their arrears of salary and emoluments on the basis of absentee statement which has been submitted by their controlling authorities. If, however, any of the aforesaid petitioners in whose favour there is no absentee statement and/or there is no proof of their actual working they will not be entitled for payment of salary. This exercise, therefore, must be completed by the respondents within a period of one month from the date of receipt of this order and the payment of salary of deserving petitioners must be made in the same period. 15. Coming to the issue of filling up the post occupied by the petitioners this Court must hold and declare that though the respondents will have the liberty to fill up those post occupied by the petitioners on regular basis or till the services of the petitioners are terminated on account of unsatisfactory service but if the scheme continues and the extension of service is given to the persons alike the petitioners they too will be also entitled for such extension till those posts on which petitioners 1 to 12 and 14 to 21 are continuing is filled up on regular basis. This restriction will however apply only for the post held by the petitioners and not for Patna High Court CWJC No.3919 of 2013 (4) dt.15-07-2013 10 any other post which has been advertised by the respondents for being again filled up on contractual basis. 16. With the aforementioned observation and direction,
Decision
this application is disposed of. (Mihir Kumar Jha, J) surendra/-