WASHIM HASAN ZAMAN AND ANR v. The State of Assam

31.03.2010. It was mentioned that the first 3(three) months of the contract will be on probation and the contract was further renewable on yearly basis, in case of good performance and on mutual agreement. Clause 9 of the said contract stipulates that the contract can be terminated from either side with 1(one) month notice or in lieu of it by paying one month’s remuneration by the DTCS or by surrendering one month’s salary by the petitioner. The petitioner duly accepted the said contract by signing on the same.

5. Although the terms of the contract were clear and explicit but the petitioner in paragraph 5 stated that the services of the petitioner was extended time to time on yearly basis and the petitioner continued in his services with an expectation that he may be absorbed in the service in the regular manner and thus, the petitioner has a legitimate expectation. It was also stated that the services of the petitioner was coterminous with scheme though relevant to mention that there was no mention of which scheme.

6. The further case of the petitioner is that on 06.07.2009, the petitioner was arrested by the police on suspicion in connection with Mukalmua P.S. Case No. 116/2008 under Section 341/325/34 IPC and subsequently Section 302 of the IPC was added. The petitioner was granted bail by this Court vide an order dated 19.09.2009 in Bail Application No. 3888/2009. The further case of the petitioner is that on

06.10.2009, the respondent authorities without following due process of law and also without following mandatory provisions of law, issued the Page No.# 5/13 impugned order to the petitioner by which the services of the petitioner was terminated on the ground of detention in Jail Hazot for more than 48 hours, without issuing show cause notice or any prior notice for hearing of the petitioner. The petitioner had submitted a representation on

16.10.2009 with a prayer to keep his service until final disposal of the criminal case. But the respondent authorities were reluctant to receive the said representation for which the petitioner approached this Court under Article 226 of the Constitution. At this stage it may be relevant herein to mention that the petitioner by way of the said petition sought for a writ of certiorari to set aside the order bearing Memo No. DHS/KI/RNTCP/09/361-366 dated 06.10.2009 and for a writ of Mandamus, directing the respondents to reinstate the petitioner in service with all service benefits in accordance with the appointment order.

7. An affidavit-in-opposition was filed on behalf of the Respondent No. 5 who was the District Program Officer, RNTCP, I/c-District T.B. Centre, Kamrup(M), Guwahati. In the said affidavit-in-opposition, the respondent stated that the service of the petitioner was contractual in nature and the contractual appointment was being renewed annually from time to time. It was further mentioned that the petitioner was arrested in connection with Mukalmua P.S. Case No. 116/2008 on 06.07.2009 and was in judicial custody till 19.09.2009. The petitioner did not inform the authority about his detention and rather by misleading the authority, he applied for an earned leave and remained absent from duty and the petitioner did not join his duty after the expiry of his leave application without any prior information to the competent authority. A notice dated 01.09.2009 was Page No.# 6/13 served upon the petitioner which was duly received by this mother. As no response was received from the petitioner, a second notice was again served upon him on 10.09.2009 which was duly acknowledged by his mother. Thereupon it came to light before the respondent authorities from a communication made by the Mukalmua Police Station dated

19.09.2009 that the petitioner has been in judicial custody from

06.07.2009 in connection with Mukalmua P.S. Case No. 116/2008 and consequently, vide a communication dated 06.10.2009 on ground that the petitioner was in Nalbari Jail for a period of more than 48 hours i.e. from 06.07.2009 to 19.09.2009, contractual services of the petitioner were terminated with immediate effect. As regards the Appeal claimed by the petitioner, it was mentioned that no such Appeal dated 16.11.2009 was received by the office of the respondents.

8. The petitioner thereupon filed an affidavit-in-reply. In paragraph 4 of the said affidavit-in-reply, it was mentioned that as per the contractual agreement of the petitioner with the respondent authority, it was a pre- condition that to terminate the contract in question, there should be 1(one) month notice from either side or in lieu of that by paying 1(one) month remuneration by the DTCS or by surrendering 1(one) month salary by the present petitioner. As per the petitioner, the said pre- condition was not followed. On the said basis, the petitioner in his affidavit-in-reply stated that termination order dated 06.10.2009 was in violation to Clause 9 of the contract agreement.

9. Mr. J.I. Barbhuiya, learned counsel for the opposite party/writ petitioner had also submitted that on 09.06.2015, an additional affidavit was filed in the writ petition by the petitioner bringing on record the Page No.# 7/13 judgment and order dated 20.12.2014 passed in Sessions Case No. 46/2011 which arose out of Mukalmua P.S. Case No. 116/2008 and vide the said judgment and order, it was held that the prosecution failed to prove its case beyond reasonable doubt and accordingly, the persons accused including the petitioner were acquitted of the charges and were set at liberty.

10. This Court, almost after 9(nine) years from the date of passing of the impugned termination order dated 06.10.2009 vide a judgment and order dated 08.05.2018 allowed the writ petition. In doing so, this Court held that a communication dated 06.10.2009 stands vitiated for non- compliance with the principles of natural justice and the same was accordingly set aside and quashed. Further to that, the respondents were directed to reinstate the petitioner back in service from the date of termination i.e. 06.10.2009 along with backwages. It was also mentioned that the backwages shall be paid to the petitioner within a period of 6(six) months from the date of receipt of the copy of the order of the Court by the respondents. It is against the said order dated 08.05.2018 that the respondents in the writ petition have filed the instant review petition.

11. Mr. B. Gogoi, learned counsel for the review petitioner submits that the petitioner was initially appointed on 29.04.2004 on contractual basis and his period of service was renewed from time to time on the basis of fresh execution of contracts and the last of such contracts was entered into whereby, the petitioner’s contractual service stood for the period from 01.04.2009 to 31.03.2010. He submits that the learned Single Judge had committed an error apparent on the face of the record by Page No.# 8/13 directing reinstatement of the petitioner back in service from the date of his service termination w.e.f 06.10.2009 along with backwages without taking into consideration that after 31.03.2010, the petitioner could not have been reinstated in service and the direction to reinstate the petitioner to service beyond 31.03.2010 would amount to extending the contract by this Court which is not within the realm of the powers under Article 226 of the Constitution. He further submits that if the learned Single Judge was of the opinion that the termination of the petitioner was illegal, the learned Single Judge taking into consideration that the matter came up for adjudication in the year 2018, could have at best directed for payment of salary for the period up to 31.03.2010.

12. On the other hand, Mr. J.I. Barbhuiya, learned counsel for the opposite party/writ petitioner submitted that the review petition was not maintainable as the person who filed the review petition was not authorized to do so. He further submitted that there was no error apparent on the face of the record as the service of the petitioner was coterminous with the scheme and in that regard, he had drawn the attention of this Court to the judgment of this Court in the case of Dharmes War Baishya Vs. State of Assam and Ors. reported in 2004 (2) GLT 253 as well as another judgment of this Court rendered in the case of Dijen Roy and Ors. Vs. State of Assam and Anr. reported in 2015 (1) GLT 325. On the basis of the said judgment, he therefore submits that as the petitioner’s service was coterminous with the scheme, the direction for reinstatement of the petitioner in the year 2018, beyond the contractual period of 31.03.2010 was justified as the scheme under which the petitioner was appointed was continuing at the time when the Page No.# 9/13 judgment was delivered and as per him the said scheme still continues. He further submitted that it is no longer res integra that when a person is appointed on contractual basis under a scheme, his appointment is coterminous with the scheme. He further submits that though the petitioner may not be entitled for regularization, but the petitioner has a right to continue on contractual basis till the scheme exists. He further submits that there are no averments made by the respondents either in the affidavit-in-opposition or even in the review petition to that effect that the petitioner’s services were not coterminous with the scheme. In that regard, he draws the attention of this Court to the judgment of the Supreme Court rendered in case of Mohd. Abdul Kadir and Anr. Vs. Director General of Police, Assam and Ors. reported in (2009) 6 SCC 611 and more particularly to the observation made in paragraph Nos. 16, 17, 18 and 26 of the said judgment.

13. I have heard the learned counsel for the parties and given my anxious consideration to the matter.

14. Though in paragraph 5 of the writ petition, it has been mentioned that to avoid the pensionary and other monetary benefits, the respondents more particularly the appointing authority used to extend the services up to the completion/abolition of the scheme, meaning thereby the service of the project is needed/required to be followed for about 15 years and the petitioner being a selected and appointed candidate had an legitimate expectation to continue in the said post; and it was similarly contended during the course of the hearing before the learned Single Judge to the effect that the petitioner was appointed as T.B.H.V. in the R.N.T.C.P. and the R.N.T.C.P. scheme is still continuing and Page No.# 10/13 therefore, when the said scheme is in continuance, the respondents could not have terminated the services of the petitioner. The learned Single Judge as could be seen from a perusal of the judgment and order, sought to be reviewed, did not deal with the said aspect of the matter. A perusal of paragraphs 6, 7, 8 and 9 of the judgment and order, sought to be reviewed would show what the learned Single Judge considered while allowing the writ petition was that no notice was issued to the petitioner with regard to his detention in Nalbari Jail for more than 48 hours in connection with Mukalmua P.S. Case No. 116/2008. It was also observed that merely because the petitioner is a contractual employee, it does not give the respondents the unbridled power to terminate the petitioner in the manner they so desire as has been done in the instant case and it was incumbent upon the respondents to first hear the petitioner before terminating him from the services which however was not done. On the basis of the said finding, the learned Single Judge had held that the communication dated 06.10.2009 stood vitiated for non-compliance of the principles of natural justice and accordingly, set aside and quashed. However, the learned Single Judge further went ahead to direct reinstatement of the petitioner back in the service from the date of termination dated 06.10.2009 along with backwages without taking into consideration whether the petitioner’s service stood extended beyond

31.03.2010. The learned Single Judge also did not take into consideration as to whether the contractual appointment of the petitioner was coterminous with any scheme in which he was appointed and without there being finding to that effect, this Court is of the opinion that directing reinstatement by the judgment sought to be reviewed in the Page No.# 11/13 year 2018 in respect to contractual appointment made, which expired as per the contract on 31.03.2010 amounts to be an error apparent on the face of the record.

15. At this stage, it may also be relevant to take into consideration the judgments which have been placed by the learned counsel appearing on behalf of the writ petitioner. A perusal of the said judgments wherein the Supreme Court as well as this Court would show that the Supreme Court as well as this Court, in the facts of those cases held that the contractual appointments so made were coterminous with the scheme. Had the learned Single Judge come to a finding that the appointment of the petitioner was coterminous with such scheme and directed reinstatement then the case would have been different, but having not done so, an error apparent on the face of the record had crept in the judgment sought to be reviewed. It is also relevant to mention that from the pleadings available on record there is no mention in respect to which scheme the Petitioner claims his contractual appointment was coterminous with. Though for the judgment sought to be received, it appears that the Petitioner’s counsel made a submission as regards RNTCP scheme but there is no material on record on the basis of which this Court could come to a finding that the contractual appointment of the Petitioner was coterminous with the RNTCP scheme.

16. Before concluding, this Court would also like to take into account the contention of the opposite party/writ petitioner to the effect that the review petition so filed is not maintainable on the basis of the affidavit sworn by one District T.B. Officer who as per the writ petitioner is not authorized to file the review petition. At this stage, this Court upon taking Page No.# 12/13 into consideration the Gauhati High Court Rules and more particularly Rule 2 of Chapter X, it would be seen that the said Rule stipulates that every application for review of a judgment shall set forth plainly and concisely the grounds on which the review is sought and shall contain a certificate by an advocate of the Court similar to that prescribed in appeals against appellate decrees. It is only in a case where the ground of discovery of fresh evidence is taken, then Rule 3 of Chapter X stipulates the requirement of filing an affidavit. In the instant case, a perusal of the review petition would show that the said review petition is based on a certificate issued by the Standing counsel, Health Department and the review petition does not relate to any question of discovery of new facts and as such the question of filing an affidavit does not arise. Consequently, the ground that the said affidavit so filed was by the District T.B. Officer, it cannot be held that the review application is not maintainable. In view of the above, this Court therefore holds that there is an error apparent on the face of the record in the judgment and order dated 08.05.2018 passed by this Court in WP(C) No. 512/2010 and consequently, the said judgment and order dated 08.05.2018 is accordingly reviewed.

17. In view of the review of the judgment and order dated 08.05.2018 by this Court, the Registry is directed to list the writ petition for hearing on 21.06.2022. The petitioner is given the liberty to file additional affidavit and as well as seek appropriate amendments to the writ petition if he so desires to bring on record the relevant documents to show that the petitioner’s contractual services were coterminous with the scheme of the respondent authorities.

18. With the above observations, the instant review petition stands allowed. Page No.# 13/13 JUDGE Comparing Assistant