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Allahabad High Court · body

2017 DIGILAW 930 (ALL)

PRAMOD KUMAR SHARMA v. PRINCIPAL SECRETARY, INFO. & TECH. DEPARTMENT, U. P.

2017-04-04

P.K.S.BAGHEL

body2017
JUDGMENT Hon’ble P.K.S. Baghel, J.—The jurisdiction of the Court under Article 226 of the Constitution is invoked against the order dated 16.1.2017 passed by the third respondent, who has rejected the request of the petitioner for further extension of his contractual appointment. 2. The factual matrix of the case is in short compass. The Government of India with a view to provide e-governance in the country launched a scheme to establish a Centre for e-Governance at State level. The Principal Secretary, Information Technology and and Electronics is its Chief Executive Officer. 3. The scheme is funded by the Central Government and guidelines have been framed to run the scheme effectively. The said guidelines have been amended by the State Government, according to exigency of the local need. The guidelines provide amongst other, the appointments under the scheme shall be on contract basis. It is State Government’s responsibility to manage and run the scheme. 4. In each District a District Manager is appointed on contract basis for a year which can be extended up to three years. Subject to satisfactory services after three years, six months’ extension can also be given. The District e-Governance Society invited applications for the contractual engagement to the position of e-District Manager, Maharajganj. The petitioner made an application and was selected by the selection committee. 5. On 10.9.2013 an offer-cum-engagement letter was issued to the petitioner. It clearly stipulated that engagement is on contract basis. The petitioner, a qualified person, accepted the offer of engagement and joined. He states that his work and conduct remained excellent hence his services were renewed two times by the District Magistrate/Chairman, District e-Governance Society vide his order dated 3.9.2014 and further extension of one year was given to him by order dated 10.8.2015. 6. It is stated that in the Government order dated 7.6.2016 (in fact it is not a Government order but a circular issued by the Chief Executive Officer, addressed to all the District Magistrates) it is provided that if an e-District Manager has completed his three years term, a decision for extension of his term only for six months can be taken at the District e-Governance Society (D.e.G.C.), but the term shall not be extended beyond six months albeit it can be terminated before six months. 7. 7. The grievance of the petitioner is that the benefit of the said circular for extension of six months period was not extended to him although the petitioner has a good experience in Computer Programme and several certificates of appreciation were issued to him. Having no other remedy, the petitioner had earlier preferred a writ petition i.e. Writ-A No. 53143 of 2016 seeking a direction upon the authorities for extension of six months period. This Court without expressing any opinion on the merits vide its order dated 8.11.2016 directed the District Magistrate to consider his grievance and pass appropriate order. 8. It appears that the Principal Secretary sent a communication dated 3.1.2017 to the District Magistrate for compliance of the order of this Court. In his communication the Principal Secretary has mentioned that this Court has issued a direction for extension of petitioner’s services for six months period. 9. The District e-Governance Committee considered the request of the petitioner for further extension of six months and vide its decision dated 21.9.2016 it turned down his request on the ground that his work and conduct is unsatisfactory. 10. Aggrieved by the said order the petitioner has instituted this writ proceedings. Learned counsel for the petitioner submits that earlier the Committee has recorded that the work and conduct of the petitioner is satisfactory hence his services be extended. In spite of the said report the District Magistrate called a fresh report and on the basis of the fresh report he has rejected the claim of the petitioner on the ground that his work and conduct is not satisfactory. 11. Lastly, he urged that the petitioner has been discriminated as in terms of the circular the services of most of the e-District Managers in other Districts have been extended for six months. 12. No other submission has been made. 13. Learned Standing Counsel has drawn my attention to Paragraph-11 of the counter-affidavit, wherein it is mentioned that the petitioner does not attend his office punctually and he also does not take interest in his work hence a show-cause notice was issued to him on 10.6.2016. In the said show-cause notice, it is mentioned that the performance of the District Maharajganj is found to be unsatisfactory among other e-District Projects in the State and earlier a warning was issued to him in respect of his performance. In the said show-cause notice, it is mentioned that the performance of the District Maharajganj is found to be unsatisfactory among other e-District Projects in the State and earlier a warning was issued to him in respect of his performance. In spite of the said show-cause notice dated 10.6.2016 there was no improvement in the performance of the petitioner hence the Committee has not extended his term. 14. Learned Standing Counsel has further submitted that the petitioner has completed his three years term and after evaluating his performance the Committee has taken a decision not to extend his period. 15. Learned counsel for the petitioner has filed rejoinder-affidavit. It is taken on record. 16. I have heard Sri N.K. Mishra, learned counsel for the petitioner, Sri Vikram Bahadur Yadav, learned Standing Counsel and perused the record. 17. The petitioner was initially engaged on contract for one year on honorarium basis at Rs. 28000/- per month. His term was extended for two times thus he has completed three years term. He seeks further extension of six months in terms of the circular issued by the respondent No. 1 for extension of the term of the e-District Managers for six months. However, when his term was not extended, earlier he preferred a writ petition. In the said writ petition, this Court without expressing any opinion on the merits of the case, had directed the District Magistrate to consider his grievance. The Court expressly clarified that it has not adjudicated the matter on merits as it had mentioned that without entering into merits of the claim, the writ petition is disposed of. The relevant part of the direction of the Court is extracted below: “Be that as it may, without entering into merits of the claim made by the petitioner, the writ petition is disposed of with the direction to the respondent No. 3, namely the District Magistrate, Maharajganj to consider the claim of the petitioner in accordance with law, keeping in view the circular dated 7.6.2016 issued by the Principal Secretary Information and Technology Department (I.T. Evam Electronics Anubhag) U.P., Lucknow, expeditiously, preferably within a period of six weeks from the date of submission of certified copy of this order.” 18. Before this order was considered by the District Magistrate, it appears, the Principal Secretary on the representation of the petitioner sent a letter to the District Magistrate on 3.1.2017 stating therein that the High Court has issued a direction for extension of the petitioner’s term. 19. From a perusal of the order of this Court it is evident that no such direction was issued by this Court. The only direction was issued that the claim of the petitioner be considered in accordance with law, thus the Principal Secretary appears to have misread the directions of the Court. The appropriate authority which has passed the impugned order has considered the work and conduct of the petitioner and was not satisfied hence it had not made any recommendation for extension of term of the petitioner and the claim of the petitioner has been rejected. 20. As noticed above, the work and conduct has not been found by the appropriate authority up to mark and a warning was issued to the petitioner to improve his work in comparison to other districts which has been mentioned in paragraph-11 of the counter-affidavit that the performance of the District Maharajganj was found to be unsatisfactory. It is also stated in the counter-affidavit that in spite of the warning issued, the performance of District Maharajganj was not improved, hence I do not find any arbitrariness or illegality in not extending the term of the petitioner. 21. In addition to above, it is a well-settled law that the appointment on contract basis comes to an end on the date when the contract is completed. Reference may be made to the judgment of the Supreme Court in the case of Secretary, State of Karnataka and others v. Uma Devi (3) and others, (2006) 4 SCC 1 , wherein the Supreme Court has held as under: “47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” 22. On the issue that the contractual appointment comes to an end at the end of contract, reference may also be made to the judgments in State of Tripura and others v. Jhuma Gupta (Smt) and others, 1999 SCC (L&S) 622; and Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt), (1992) 4 SCC 33 . 23. Applying those principles in the present case, I find, the petitioner cannot claim as a matter of right his extension in terms of a circular dated 7.6.2016 issued by the first respondent. The appropriate authority after considering his performance has taken the decision not to extend his period. 24. The submission of learned counsel for the petitioner that the earlier the Committee has made a recommendation in favour of the petitioner and the District Magistrate has got a fresh report from the Committee against the petitioner and on the basis of the said report the petitioner’s claim has been rejected, I am unable to accept the said submission. The petitioner has not made any allegation of mala fide against the District Magistrate or the Committee. 25. There is no material on the record to indicate that the District Magistrate has malfidely acted against the interest of the petitioner. 26. It is trite that the allegation of mala fide cannot be considered on general and sweeping allegations. The petitioner has not made any allegation of mala fide against the District Magistrate or the Committee. 25. There is no material on the record to indicate that the District Magistrate has malfidely acted against the interest of the petitioner. 26. It is trite that the allegation of mala fide cannot be considered on general and sweeping allegations. The petitioner has not impleaded the District Magistrate in the writ petition in his personal capacity nor there is any pleading or material on the record to indicate that the impugned order has been passed due to mala fide. Reference may be made to the judgment of the Supreme Court in the case of Federation of Railway Officers Association and others v. Union of India, AIR 2003 SC 1344 ; and State of Bihar and another v. P.P. Sharma and another, AIR 1991 SC 1260 . 27. After careful consideration of the matter, I am of the view that no interference is called for under Article 226 of the Constitution. The writ petition lacks merit. It is, accordingly, dismissed. No order as to costs.