High Court · 2012

The appellant is aggrieved by order of learned Single Judge declining to interfere with the order of termination of his contractual appointment as Block Programme Manager (BPM) under a Scheme of the Health Department.

2. The appellant was appointed as Block Programme Manager on 1.9.2009 for s ix months, which was extended from time to time, and the last extension was upto 31.3.2012. On 31.3.2012, impugned order of termination of his services was pass ed as per Clauses 8 and 9 of the terms of appointment finding his performance to be unsatisfactory.

3. Aggrieved thereby, the appellant approached this Court under Article 226 of the Constitution. Learned Single Judge after due consideration, did not find any merit in the writ petition. It was observed :- In the counter affidavit filed by the respondents they have enclosed Ann (cid:28)11. exure-A performance appraisal report of BPM. The said report includes as many as 13 BPMs. Their performance was assessed by the District Programme Manager, Naga on; Joint Director of Health Services, Nagaon and the Addl. Deputy Commissioner (Health), Nagaon. As per the said appraisal report, the petitioner’s performanc e was below expectation. While appraising the performance of different BPMs, the committee assigned marks at individual level. As per the said report, the petit ioner secured the lowest average marks which is 4.

12. There is some dispute regarding service of show cause notice dated 18.02 .2012. The said notice reflected the performance of the petitioner as below expe ctation. The notice also stated about non-performance of the petitioner directly or indirectly affecting the Block PHC. According to the petitioner, the said no tice was not received by him. However, it is the stand of the respondents that t he said notice was handed over to the appropriate authority for furnishing the p etitioner. Irrespective of service of the notice, the performance of the petitio ner having been adjusted by a duly constituted committee and there being recomme ndation not to continue his services on expiry of the term of contract on 31.03. 2012, the petitioner being a contractual employee, cannot harp upon the plea of non-receipt of the show cause notice. In the case of Dharmeswar Baishya (supra) the Court was concerned with t 13. he question as to whether the termination of the incumbent was termination simpl iciter or punitive. It was held that dispensation of service of the petitioner w as by way of penalty. His service was dispensed on the ground of unauthorised ab sence and dereliction of duty. The respondent also conducted an ex-parte enquiry without providing opportunity of being heard to the petitioner. It was in such circumstances, the order of termination was held to be punitive. In the instant case, same is not the position. The service of the petiti 14. oner has been dispensed with upon appraisal of performance which is normally don e in case of contractual employees and even in case of temporary govt. employees who are on probation.

15. In Rijumoni Das (supra) the dispensation of service of the petitioner wa s on the basis of the enquiry conducted relating to financial irregularity purpo rtedly committed by the petitioner. In such situation, it was held that service of the petitioner could not have been dispensed without providing him an opportu nity of being heard. In the said case there was serious allegation of committing financial irregularity by the petitioner and accordingly an enquiry was conduct ed without providing any opportunity of being heard to the petitioner. It was al so found that the employees like that of the petitioner were graded on the basis of their performance appraisal and while doing so, the employees graded as belo w average and poor were retained in service. However, the petitioner who was gra ded above them was not retained in service. As per the requirement of Clause-8 o f the terms of agreement involved in the said case, the service of the petitione r could not have been terminated without affording him an opportunity of being h eard.

16. Unlike the above case, the service of the petitioner was dispensed with on the basis of the appraisal of his performance by a duly constituted committee . As narrated above, his service even otherwise also came to an end on expiry o f the term on 31.03.2012 and thus, there was no requirement of issuing any notic e to him. However, the respondents in their wisdom paid one month salary in lieu of notice. Even in case of temporary govt. employee, the service can be dispensed w 17. ith on the basis of the performance. While adjudging such performance or taking any action on the basis of the such performance, no notice is required to be giv en to the temporary govt. employee.

18. Clause 5 of the terms and conditions referred to above, also empowers th e employer to dispense with the service of the contractual employee. The said cl ause provides automatic dispensation of contractual service on expiry of the per iod of employment. In the instant case the petitioner’s terms expired on 31.03.2 012. This court exercising its power under Article 226 of the Constitution of In dia cannot issue any mandamus to continue the contractual service of the petitio ner beyond its term. (cid:29)

4. We have heard learned counsel for the parties.

5. It is not disputed that the appointment of the appellant was for a fixed period of six months, which was extended from time to time for about two and ha lf years. In these circumstances, it has been rightly held that no right accrued in favour of the appellant to continue in service. It can also not be held that the termination of the service petitioner was punitive as the impugned order on ly refers to unsatisfactory record and not to any misconduct.

6. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge. Dismissed.