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Allahabad High Court · body

2014 DIGILAW 1793 (ALL)

CHETNA PANDEY v. STATE OF U. P.

2014-05-30

DINESH GUPTA, SUNIL AMBWANI

body2014
JUDGMENT By the Court.—We have heard Ms. Chetna Pandey appearing in person. Shri P.N. Saxena, Sr. Advocate assisted by Shri Prabhash Pandey has appeared for Shri C.M. Pandey, Deputy Director (Panchayat), Varanasi. Shri Udai Chandani appears for Shri Rajiv Yadav-respondent No. 5. 2. By this application the applicant is seeking recall of the order dated 13.1.2014 by which after condoning the delay, the Special Appeal was dismissed. 3. The applicant filed Writ-A No. 54720 of 2013 for a direction to the Deputy Director (Panchayat), Varanasi to allow her to work on the post of Divisional Consultant ‘Red Alerts’ and for further directions to release her salary from July, 2013 till date and to go on paying the same monthly, when it fall due. The writ petition was dismissed on 3.10.2013 by a short order on the ground that there was nothing to show that the petitioner was ever appointed; at the best there was a pure contractual engagement and that it has not conferred any right upon the petitioner to maintain the writ petition. Learned Single Judge further observed that she has ceased to perform work and that too in July, 2013. 4. The applicant filed a review application and argued the matter in person. The application was rejected on 2.12.2013 on the ground that a review application cannot be treated to be an opportunity to argue the case on merits afresh. The rearguments on merits cannot be allowed in review application. Learned Judge relying on Rajendra Kumar v. Rambai, AIR 2003 SC 2095 ; Lily Thomas v. Union of India, AIR 2000 SC 1650 and Inderchand Jain v. Motilal, (2009) 4 SCC 665, held that the power of review can be exercised for correction of a mistake and not to substitute the order with a new order on merits. The powers for review are to be exercised within limits of the statute dealing with the exercise of powers. 5. The special appeal was heard by us and was dismissed with the following observations : “The cause shown for condoning the delay of 65 days in filing the special appeal is good and sufficient. The delay is condoned. The office will give regular number. We have heard the learned counsel appears for petitioner. Learned Standing Counsel appears for State-Respondents. Shri B. Pandey, appears for respondent No. 3. The delay is condoned. The office will give regular number. We have heard the learned counsel appears for petitioner. Learned Standing Counsel appears for State-Respondents. Shri B. Pandey, appears for respondent No. 3. The special appeal has been filed against the order of the learned Single Judge dismissing the writ petition on the ground that the petitioner was appointed on contract and thus she has no right to continue in service. A review petition annexing therewith appointment letter, was dismissed. The petitioner was appointed on the post of Divisional Coordinator in the project ‘red alert’, sponsored by UNICEF in three districts, namely, Jaunpur, Mirzapur and Varanasi for proper implementation of the aforesaid project by the Director, Punchayat Raj, U.P. The appointment letter dated 30th August, 2011 provided that she was appointed purely on contract basis and that her services will continue till the end of project. It is submitted that project is still continuing, and thus the termination of the petitioner services was not justified and is against the terms of the appointment letter. Shri Pandey, appearing for Deputy Director (Panchayat)-respondent No. 3, has produced a copy of the affidavit dated 18.3.2013 signed by the petitioner in pursuance to the appointment letter in which she had accepted that the contract of her employment was upto 30th June, 2013 and that she can be terminated at any time, prior to 30th June, 2013, after giving her 15 days notice. The petitioner was not appointed on any post in the employment of the State. She was appointed in the project on contract initially for one year. Her services could be terminated at any time with notice of fifteen days. She has not stated or taken any ground that the notice of 15 days was not given to her. We do not find any error of law in the judgment of the learned Single Judge in dismissing the writ petition. The petitioner has no right to continue in employment. The special appeal is dismissed.” 6. With the recall application the applicant has taken an opportunity to argue the matter all over again on merits. She insisted that she has been treated arbitrarily and that no one has heard her grievance. Her counsel did not appear and argue the special appeal and thus the entire facts and circumstances could not be placed before the Court. With the recall application the applicant has taken an opportunity to argue the matter all over again on merits. She insisted that she has been treated arbitrarily and that no one has heard her grievance. Her counsel did not appear and argue the special appeal and thus the entire facts and circumstances could not be placed before the Court. On her insistence we called for counter-affidavit both on the merits of the case and on recall application from the Deputy Director (Panchayat), Varanasi as well as the Principal Secretary (Panchayat), Government of U.P. She was also given an opportunity to file rejoinder-affidavit and was heard at length. 7. In order to ensure improved service delivery of various public welfare schemes in three districts of eastern U.P., a proposal was made to the Government of Uttar Pradesh supported by UNICEF to implement Community Monitoring System of Red Alerts for protection of child rights in three districts of Jaunpur, Mirzapur and Sonbhadra in the State of U.P. The proposal stated that Uttar Pradesh is one of the most densely populated states in the country, as per Census 2011 the total population of Uttar Pradesh is 199 million. The literacy rate of female is far below than the national average. The female literacy of the State is 59.26% as compared to national average of 65.46%. Being agriculture based State most of the people are farmers and landless labourers. A major part of the population lives below poverty line and depends on various minimum and small scale cottage industries. The birth rate, death rate, natural growth rate and IMR are much higher in U.P. as compared to national average in India. According to the statistics collected by Government there are 20 million child labours in the country while other agencies claim that it is 50 million. As per 2001 population census the children in the age group of 0-14 constitute about 360 million and account for 35.3% of the total population. The children in the 05-15 age group constitute about 251 million and account for 24.6% of the population. According to the National Sample Survey (2004-05) 61st Round estimates suggest that child labour in the country is around 8.9 million with a work force participation rate of 3.4%. The children in the 05-15 age group constitute about 251 million and account for 24.6% of the population. According to the National Sample Survey (2004-05) 61st Round estimates suggest that child labour in the country is around 8.9 million with a work force participation rate of 3.4%. As per census of 1991 there were 1,410,086 child labour in U.P. and after a decade in 2001 it has increased to 1,927,999 with 36.7% decadal increase. The percentage of child labour to the total work force is 15.2 in 2001. 8. The Project proposed to create a protective environment for children with a particular emphasis on their rights to their education and protection in three districts of U.P. namely Jaunpur, Mirzapur and Sonbhadra for realisation of the millennium development goals and which included; (1) eradicate extreme hunger and poverty, (2) achieve universal primary education and (3) promote gender equality and empowered women with a millennium declaration Chapter VI in compassing protection from violence, exploitation and abuse providing a strong focus on child protection. 9. The overall project objectives of Community Monitoring System of Red Alerts were focused at quality education for all children from 6 to 14 years; child protection structures in place apprising child rights, and child protection issues specially child labour; knowledge enhanced and attitude change of families and communities in 6046 villages for protection of child rights and protection of children against violence, exploitation and abuse, enhanced access to service providers and social protection schemes by vulnerable families and women empowered to champion/promote rights of children specially those from social excluded groups. 10. The Community Monitoring System of Red Alerts is projected to respond to the need of communities in a quick and efficient way. Red Alert system provide for review and reporting of the service delivery issues starting at community level. It proposes that information flows from the community to appropriate governance structures accountable for service delivery. The Red Alert envisages critical indicators that identify women ‘at risk’ and children who need special attention and who risk missing a service/facility if not attended immediately. 11. The project provided for Divisional ‘Community Monitoring Cell’ to be established at Varanasi with an objective to provide technical assistance and hand holding required for the entire set of interventions, housed at the office of Deputy Director, Panchayati Raj, Varanasi, which is the nodal department for rolling out the interventions. 11. The project provided for Divisional ‘Community Monitoring Cell’ to be established at Varanasi with an objective to provide technical assistance and hand holding required for the entire set of interventions, housed at the office of Deputy Director, Panchayati Raj, Varanasi, which is the nodal department for rolling out the interventions. The Deputy Director, Panchayati Raj, Varanasi was to be the incharge of the project for the entire practical and implementation purposes. The District Panchayati Raj Officers of the three districts were provided to nodal officers for the purpose of implementation and rolling out of Red Alerts system in the district. A District Level Control Room was to be established at DPRO office to facilitate the process. 12. The project envisages training of front line functionaries namely service providers AWW/atleast one teacher from village school and Gram Panchayat Pradhan and ward members; training of Gram Panchayat Secretaries, ANM and block resource persons (education) from each Nyay Panchayat; Training of master trainers (TOT); Managerial Training cum orientation, and proposed to issue guidelines at appropriate levels and holding village level meeting, monthly meetings at the Gram Panchayat level, monthly meetings at the block level, quarterly meetings at the district level and software development and installation. 13. The development of Red Alert cards duplicated by the monitoring sell in the Deputy Director office, Varanasi is provided to be made in the DD office, Varanasi. The primary responsibility of the demand mapping and ensuring supply to the required village/gram Panchayat was to be the Red Alert Compliance Centre to be established in the office of the Deputy Director, Panchayati Raj, Varanasi. The project document further provided for the implementation in phases with an overall objective of supervising, monitoring and providing for deficiencies or non-supply of deliveries in the various Government schemes in seven departments namely in Health, Panchayati Raj, Education, Samaj Kalyan, Aanganbari, Gramin-Vikas, Public Distribution System and Bal Vikas and Pushtahar. Any deficiency or non-availability of service or missing out of the benefits of any beneficiary were to be reported by Red Alerts in the programme to be taken up in the meetings and for its monitoring. 14. The project documents provided for establishment of Red Alert Compliance Centre in the office of Deputy Director, Panchayati Raj, Varanasi and provided : “13. 14. The project documents provided for establishment of Red Alert Compliance Centre in the office of Deputy Director, Panchayati Raj, Varanasi and provided : “13. Establishment of “Red alert compliance centre”: The “Red alert compliance centre” will be established at DD Office, Deptt of Panchayati Raj, Varanasi. The compliance centre may be supported by hiring cost for one computer alongwith net connecting device, printer and scanner. The deployment of devoted staff1 to the centre will ensure a functional and vigilant cell. This centre will work in leadership of DD, Varanasi and facilitate the overall implementation of the planned interventions in the three project districts. [1. One programme and one data analyst person is required at the “Red alert compliance centre”. The detailed profiles have been provided in the annexure-I.]” 15. Annexure 1 of the project document provide for detailed profile for the Red Alert Compliance Centre to be established by the staff including one Programmer and one Data Analyst to carry out following objectives. “ANNEXURE-I Services of two persons to support programme interventions at “Red alert compliance centre” will be hired in consultation with UNICEF. The persons will be responsible for the following: Programme support at “Red alert compliance centre” Support in executing overall intervention of “Red alerts” under the guidance of Deputy Director, Varanasi. Facilitate the planning and coordinating various training programmes. Facilitate in organizing capacity building programs and continuous guidance of staff. Interface and facilitation of stakeholders such as Government agencies, NGOs, teachers, ward members, parents, local leaders. Support in monthly compilation of reports. Reporting to UNICEF, and other key stakeholders under the guidance of Deputy Director, Varanasi. Undertake field visits for monitoring and technical support. Provide support to UNICEF (and its consultants, agencies engaged by UNICEF) in plannings, assessments, studies and other such activities. Data Analyst : Maintain and organize all required documents; collect & compile all project related information & data and submit report in the prescribed format and stipulated time-frame. Develop and organize data storage system so as to retain the data generated in the field. Analyse and interpret this data through easy retrieval & query functions from the database. Extend support on the software management, developed specifically for the project.” 16. The proposed rolling project with the support of UNICEF for eradicating child labour and to enforce child rights and their protection was approved by the Chief Secretary. Analyse and interpret this data through easy retrieval & query functions from the database. Extend support on the software management, developed specifically for the project.” 16. The proposed rolling project with the support of UNICEF for eradicating child labour and to enforce child rights and their protection was approved by the Chief Secretary. The approval was communicated by the Principal Secretary, State Planning Commission-II, Planning Department, Government of U.P. to all concerned on December 31st, 2010. The Deputy Director, Panchayati Raj, Varanasi Division was nominated as implementing partner of the project. 17. The Deputy Director, Panchayati Raj published a notice on the notice board at Vikas Bhawan, Varanasi for appointment of a Divisional Consultant Programmer. The applicant applied for the post and faced interview. She was selected and joined in September, 2011. It is admitted that she was not issued an appointment letter. She was paid out of the funds approved for Red Alerts System of Community Monitoring, Basic Services in three districts by UNICEF vide letter written by Shri Akhilesh Gautam, Policy Planning, Monitoring and Evaluation Specialist, UNICEF to Shri C.M. Pandey, Deputy Director, Panchayat, Varanasi. It is alleged that the UNICEF released the salary of Rs. 30,000/- per month for the Divisional Consultant; however, she was paid only Rs. 25,000/- per month. 18. It is submitted that the applicant prepared the work plan and reports to be sent by mail as well as communicated orally. She attended meeting with various authorities and conducted workshops for better coordination with the District Magistrate. The project was successfully implemented with good results in all the three districts. The petitioner’s work was appreciated by Government Departments, who issued certificates to her. One such certificate issued by the Deputy Director, Panchayat, Varanasi and Mirzapur region on 8.8.2012 is annexed as Annexure 7 to the writ petition. 19. It is submitted that the Deputy Director, Panchayat Raj, Varanasi invited applications for appointment of Resource Persons for each of the three districts at district level and a Committee was constituted by Deputy Director, Panchayati Raj, Varanasi on 1.3.2013 including Shri Sushil Kumar Pandey, Regional Coordinator, Varanasi and Vindhyachal Dham, Varanasi; Ashok Kumar Srivastava, District Panchayati Raj Officer, Varanasi and Ms. Chetna Pandey, the Regional Coordinator, Red Alerts. Chetna Pandey, the Regional Coordinator, Red Alerts. In the interviews Shri Rajiv Yadav, respondent No. 5 with PGDM from AIMA, Bangalore was found to be most suitable candidate with qualifications for Resource Persons at district level. He was selected and started working. 20. It is submitted that after the selection and appointment of Shri Rajiv Yadav as District Level Resource Person differences started growing between the Deputy Director, Panchayati Raj, Varanasi and the applicant. He did not like the applicant visiting the Commissioner of Vindhyachal Dham for the support of the project for which he had himself deputed the applicant. In the writ petition it is stated in paragraph 20 and 21 that the applicant had opposed the appointment of Shri Rajiv Yadav as there were several other qualified persons on which pressure was put upon her and she was threatened that she will be removed from service. She was, thereafter, put to lot of difficulties like submitting her travelling details from December, 2012 to March, 2013. Her table and chair was removed from the office on 29.6.2013, after which she was not permitted to work in the office. Her several e-mails sent to the Deputy Director were not answered. Her monthly plans were not approved. No responses were received to her e-mails sent to the Deputy Director. She was, however, paid salary for the month of May, June and July, 2013. 21. It is alleged that the petitioner was denied to work and has been deprived of her job in violation of principles of natural justice. She had given her best in preparing the work plans and regularly participating in all the meetings. Her work and conduct was appreciated by all concerned. The Commissioner of the Division had also praised her work. The Deputy Director, Panchayati Raj, however, in collusion with Shri Rajiv Yadav, who was actually selected and appointed by a Committee of which the applicant was member, hatched a plan to remove her. 22. In the counter-affidavit of Shri C.M. Pandey, the Deputy Director, Panchayati Raj, Varanasi, it is stated that the applicant has forged and fabricated document dated 30.8.2011 and 19.5.2013, which she claims to be the appointment letter and the order of termination of her services. In her recall application she has raised contradictory issues. 22. In the counter-affidavit of Shri C.M. Pandey, the Deputy Director, Panchayati Raj, Varanasi, it is stated that the applicant has forged and fabricated document dated 30.8.2011 and 19.5.2013, which she claims to be the appointment letter and the order of termination of her services. In her recall application she has raised contradictory issues. The reality of the project is that the UNICEF in agreement with the Government of U.P. provided financial assistance for the execution of Community Monitoring Basic Services in three districts under child right projects in which the appellant was selected on temporary basis as Divisional Consultant. After her selections as per the terms and conditions mentioned in the advertisement she was appointed on contract. Shri Deen Dayal and Shri Ashish Kumar Tiwari were also hired on temporary basis as Data Operator and Assistant pertaining to the execution of the project. No contract document was executed for the reason that it was a new project and that format of the contract was to be provided by UNICEF on the basis of which the contract was to be executed with the individuals. In the advertisement dated 16.8.2011 it was clearly stated that the appellant shall work purely on contract basis and her employment will be temporary in nature. This fact was within the knowledge of the applicant. She started work on the project without any contract from September 2011 to 17th March, 2013. During the said period on 8.8.2012 a letter of appraisal was issued, which will establish that there was no malice harboured against her. In the meantime, three District Resource Persons were appointed in three districts of Jaunpur, Mirzapur and Sonbhadra in March, 2013. 23. It is stated in the affidavit of Shri C.M. Pandey that Shri Yogesh Kumar, the State Monitoring and Evaluation Consultant, Child Rights Project, U.P. sent a format of contract through mail on 8.3.2013 to the appellant, wherein it was specifically mentioned that she will finalise the contract in consultation with the Deputy Director of the Project. On the basis of the format a final contract was prepared and was executed with the appellant alongwith other individuals namely Shri Din Dayal and Shri Ashish Kumar. The contract was executed on 18.3.2013. On the basis of the format a final contract was prepared and was executed with the appellant alongwith other individuals namely Shri Din Dayal and Shri Ashish Kumar. The contract was executed on 18.3.2013. It is further stated in paragraph 4 (f), that the contract of three months was executed with all the persons, who were working in the project since inception for the reason that the budgetary system of UNICEF is trimonthly. 24. Shri Pandey has stated in his affidavit that in her recall application the applicant has raised several irrelevant issues pertaining to renewal of her contract without documentary evidence to malign his image. The truth is that in the year 2013 while preparing the annual budget the appellant was adamant that her salary be enhanced from Rs. 30,000/- to Rs. 38,000/- and in this reference she approached him to send revised budget and on which he mailed the budget to UNICEF, which was refused on the same day telephonically on 1.2.2013. On this refusal the appellant got annoyed and started avoiding day to day work creating serious hindrance in the functioning of the project. She sent her resignation on 28.2.2013 without explaining any reason personally to him in a very rude manner, which was marked on the same day. Though the resignation letter was personally given by the appellant, being the seniormost and incharge of the project the resignation letter was not taken on record and efforts were made to persuade her to continue with work. 25. It is thereafter stated in paragraph 4 (ii) (e) that from 19th March, 2013 to 21st March, 2013 and thereafter on 25th March, 2013, 30th March, 2013, 3rd April, 2013, 31st May, 2013 and 1st June, 2013 the applicant remained absent in a very arbitrary manner. She sent e-mails without any approval. On 21.3.2013 after joining the work the applicant replied by mail in a very unprecedented manner that she has reached the office, it is not a matter of salary, it is matter of your respect. She again proceeded on medical leave from 16.6.2013 to 28.6.2013, which was the peak time for the project. Considering her request the medical leave was allowed to her, which also demonstrates that there was no malice against her. For all these reasons the officials of the UNICEF were not satisfied with the work and conduct of the applicant. She again proceeded on medical leave from 16.6.2013 to 28.6.2013, which was the peak time for the project. Considering her request the medical leave was allowed to her, which also demonstrates that there was no malice against her. For all these reasons the officials of the UNICEF were not satisfied with the work and conduct of the applicant. They send an e-mail to him stating that the appellant is not taking an interest in her work and is not providing correct report, which is unjustified. On 15.3.2013 UNICEF forwarded a mail to the applicant in which it was specifically mentioned that since New District Resource Persons are taking care of field work, she will only visit the area, where project is running for ten days in a month rather than 17 visits and for the rest of the period she will work from office. She sent a reply stating that it is necessary for her to be in the area for visit defining the instructions of UNICEF. 26. It is submitted by Shri P.N. Saxena appearing for the Deputy Director, Panchayati Raj, Varanasi that for the aforesaid reasons and on the e-mail received from UNICEF, which provide the funds for the project, the contract with the applicant was not renewed. The UNICEF had found that the applicant was bypassing their instructions, a specific communication was also made on 16.5.2013 that without any arrangement and preparation the applicant has conducted a Vikas khand meeting with the UNICEF officials, which was unsuccessful. Smt. Piyush Antony holding the designation of Social Policy Specialist, UNICEF, sent a mail on 17.5.2013 in which it was specifically mentioned that appropriate action may be taken against the applicant for not following the protocol of the meeting and introducing herself as staff of UNICEF in the district, which was totally unfortunate. On the same day a clarification was sought form the applicant through mail. She replied, wherein she mentioned the explanation for not following the protocol and introducing her as UNICEF staff. In the same letter she also mentioned that she wanted her contract cancelled and further mentioned if any type of support required to DRP or others by her for RA implementation, then she will give her best support as outer consultant. 27. Shri P.N. Saxena states that question of selection of Rajiv Kumar Yadav and is eligibility criteria was examined. In the same letter she also mentioned that she wanted her contract cancelled and further mentioned if any type of support required to DRP or others by her for RA implementation, then she will give her best support as outer consultant. 27. Shri P.N. Saxena states that question of selection of Rajiv Kumar Yadav and is eligibility criteria was examined. Out of 319 application forms 25 aspirants were shortlisted. The Selection Committee including the applicant had selected him after interviews. He infact topped the select list and interview. She had herself given maximum marks to Rajiv Kumar Yadav. 28. Shri P.N. Saxena states that the Deputy Director had categorically denied the allegations of malafides made by the applicant. While dismissing the special appeal also it was observed that the petitioner was not appointed on any post in the employment of the State. She was appointed in the project on contract initially for one year. Her services could be terminated at any time with notice of 15 days. She has not stated or taken any ground that notice of 15 days was not given to her. 29. We have given our anxious consideration to the issues raised by the applicant and do not find that she has any right of employment, which may be protected by the Court. It is true that the applicant is qualified and was appointed though without any appointment letter and had taken keen interest in the project. Her work and conduct was also praised by the Deputy Director as a coordinator of the project. It, however, appears that during the passage of time the applicant became ambitious and started demanding higher salary. She also started questioning the authority of the Deputy Director coordinating the project and misrepresented herself as representative of the UNICEF. The entire funding of the project is provided by UNICEF. The proforma contract of appointment was also provided in which appointment for only three months was proposed as the budget is provided on trimester method. The State Government was simply coordinating the project alongwith UNICEF. The applicant appears to have harboured notions that her efforts in the project were invaluable and that she cannot be replaced by any other employee. The UNICEF made objections in the manner, she was conducting herself in the project and in the meeting. 30. The State Government was simply coordinating the project alongwith UNICEF. The applicant appears to have harboured notions that her efforts in the project were invaluable and that she cannot be replaced by any other employee. The UNICEF made objections in the manner, she was conducting herself in the project and in the meeting. 30. We do not find that the petitioner was appointed on any post or that she has any right to continue to work beyond the period for which she was appointed. She has not denied that she received the mail from UNICEF for providing the format of contract. She, however, states that since there was no term of contract on which she was appointed, any subsequent contract would not alter her terms. The argument has no substance at all. Even if the employment began without specifying any term of appointment, such period could be proposed and was accepted by her. Infact she had herself received the mail from UNICEF and formated the contract. She has now turned around complaining after UNICEF has objected to the manner in which she was representing herself and after her contract was not renewed, allegations were made against the Deputy Director coordinating the project. 31. We do not find that there is any link between the appointment of Shri Rajiv Yadav and non-renewal of her contract. Shri Rajiv Yadav’s qualifications cannot be questioned by her as she herself was in the selection committee and never raised any objection against his qualifications and suitability for the project. 32. We find that though the project is being coordinated by the State officers, the entire concept of the project and the funding is provided by the UNICEF, which is ultimately guiding, monitoring and supervising the project. The applicant’s contract was limited on the instructions of UNICEF and was not renewed. She herself gave in writing that she is not willing to work and thereafter absented herself. Her complaint of arbitrariness and harassment has no substance at all. 33. We may make it clear that we entertained the recall application and invited affidavits only to find out if there is any substance in the contention of the applicant, who appeared in person and insisted upon making enquiries into the manner in which her contract for appointment was not renewed. It is on her insistence to do complete justice, we allowed her hearing in open Court. 34. It is on her insistence to do complete justice, we allowed her hearing in open Court. 34. The recall application has no merits and is accordingly rejected.