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2018 DIGILAW 496 (ORI)

COL AMULYA KUMAR PANDA v. UNION OF INDIA

2018-05-02

S.N.PRASAD

body2018
JUDGMENT : S.N. Prasad, J - This writ petition is under Article 226 and 227 of the Constitution of India whereby and where under direction has been sought for upon the opposite parties, particularly upon opposite party nos.3 and 4 to extend the security coverage contract made between the petitioner and opposite party nos.3 and 4 under annexure-7 for a period of two years as per the guideline under Annexure-4 and 5. 2. The brief fact of the case of the petitioner is that he, after passing out from National Defence Academy, had joined the Army as a Lieutenant in the year 1982, served in the Armed Force with an unblemished record and ultimately retired as Colonel in the year 2010. The Ministry of Defence, in order to resettle ex-servicemen, has launched various schemes, one of such schemes relate to sponsorship of security agencies, such sponsorship is done by the Directorate General Resettlement (in short DGR) which works under the Ex-Servicemen Welfare Department, Ministry of Defence. The said scheme is governed by the office memorandum dtd.9.7.2012 (Annexure-1), under the aforesaid scheme, the petitioner had applied for empanelment in the year 2013 which was considered and allowed with effect from 20th September 2013 to 19 September, 2016 (annexure-2) . The petitioner, after issuance of the aforesaid empanelment certificate, was not been allowed to make the said certificate operational and for that he was to run from pillar to post and in course thereof, he has made complaint against the security agency as well as the DGR, the DGR, in counter, has issued a show cause on 2.5.2014 for giving false affidavit which was replied by the petitioner and ultimately his status has become operational in the month of June 2014. The petitioner, at that moment, being aggrieved with the action of the DGR by keeping the petitioners' agency in abeyance, had approached this court by filing W.P.(C) No.10512 of 2014 which was withdrawn on 26.3.2014 as the issue was resolved with the opposite party nos. 1 & 2. The petitioner, at that moment, being aggrieved with the action of the DGR by keeping the petitioners' agency in abeyance, had approached this court by filing W.P.(C) No.10512 of 2014 which was withdrawn on 26.3.2014 as the issue was resolved with the opposite party nos. 1 & 2. The petitioner has also filed writ petition against the inter se dispute between him and the other security agencies vide writ petition being W.P.(C) No.15906 of 2016 which relates to renewal of empanelment certificate as regard his security agency, this court while passing an order on 14.09.2016, has issued notice upon the Central Government, as also passed an interim order to maintain status quo with regard to the security agency of the petitioner and directed that no coercive action shall be taken till the next date without leave of the court. The petitioner has been allotted with a letter of award for providing security services and surveillance contract for power grid corporation at Bhubaneswar and its associate offices in the State of Odisha vide letter dtd.11.11.2014. The contract period of the security service initially was for one year w.e.f. 1.12.2014 with a provision for extention of another one year in the same rate, terms and conditions subject to satisfactory performance of the agency. The grievance of the petitioner is that even though the guideline issued by the ministry of defence dtd.9.7.2012 contains a condition entitling the petitioner's security agency for re-sponsorship for further period of two years, as would be evident from Annexure-4 but the same has not been considered even though the certificate of satisfactory performance has been issued to the petitioner. The case of the petitioner is that the same has not been extended only due to the reason that complaint has been filed regarding financial irregularity in the DGR and he has asserted in the writ petition that there is no reason not to extend the sponsorship for a further period of two years and if any, the same needs an enquiry and further whatever complaint he has made against the irregularities in the office of the DGR, the same is to be enquired before taking any adverse action against him. Accordingly this writ petition has been filed. 3. Accordingly this writ petition has been filed. 3. The opposite party nos.2 and 3 have filed detailed counter affidavit inter alia therein it has been stated that a contract was given to the petitioner by way of letter of award dtd.11.11.2014 which was initially for one year from 01.12.2014 with a provision of extension of another one year, according to them the sponsorship which has been given to the petitioner with effect from 11.11.2014 has been continued by virtue of passing an order of extension from time to time up to 31.5.2017, hence the period of one year and thereafter the further period of one year has been extended, not only that, the petitioner has performed the services even more than the period of two years, i.e two and half years and while the maximum period of contract subject to extension is for a period of two years, it cannot go beyond that period since it is the terms of contract which the petitioner has accepted. 4. Mr. Vivekananda Naik, learned Central Government Counsel although has not filed counter affidavit but has argued out the case at length and has submitted that the petitioner has been given the agency for a period of two years in view of the office memorandum dtd.11.11.1994 subject to extension for a further period of two years and in view of such sponsorship, he has been sponsored before the opposite party nos.3 and 4 and accordingly the letter of award has been issued in his favour on 11.11.2014 and for the maximum period of contract the services have been discharged by the petitioner and now it cannot be extended by extending the period of contract. He submits by refuting the argument of learned counsel for the petitioner that the office memorandum dtd.11.11.1994 is regarding the sponsorship of agency, meaning thereby the security personnel are to be given a licence by the DGR under the office memorandum dtd.11.11.1994 to render the services of security in the other Central Government undertakings and the period of the said agencies by way of lincence has got no bearing with the contract period. According to him, the learned counsel for the petitioner is arguing on the basis of the office memorandum dtd.11.11.1994 leaving apart the contract period which stipulates the maximum period of contract for a period of 2 years while the maximum period of licence for the agencies for a period of 4 years having no nexus with each other save and except that for getting the letter of award to provide security services the agency by way of a lincence is to be accorded by the DGR in view of the office memorandum dtd.11.11.1994 and in view thereof they will be given licence to render the services depending upon the terms and conditions of the contract containing the period of contract. 5. Heard the learned counsel for the parties and appreciated their rival submissions. This court has gone through the pleadings made in the writ petition, counter affidavit as also rejoinder affidavit filed in court and found that the petitioner is an ex-serviceman, got sponsorship agencies from the office of the DGR for a period of two years in view of the office memorandum dtd.11.11.1994. This court after going across the office memorandum dtd.11.11.1994 has found that the sponsorship period is initially for a period of two years, generally extendable for two more years, for ready reference the part of the office memorandum dtd.11.11.1994 is being quoted herein below:- "2. All Administrative Ministries / Departments are requested to kindly issue necessary instructions to the Public Sector Undertakings under their administrative control to obtain contract security service from the Director General of Resettlement (DGR), West Block 4, R K Puram, New Delhi 110066 (Tel 6872354) or State Ex-servicemen Security Corporations for sponsoring exServicemen Security Agencies on their panel without engaging security agencies on contract through open tenders. The DGR sponsors only one agency for one job for a specific period of 2 years, generally extendable by 2 more years." The name of the petitioner's agency has been sponsored by the DGR to provide security service under the Power Grid Corporation Ltd. of Government of India undertakings and agreement has been entered into in between the petitioner and the Power Grid Corporation on 11.11.2014 (Annexure-7) . It is evident from the terms of contract that the contract period is for a period of one year with effect from 1.12.2014 with a provision of extension for another one year or part thereof on same rate, terms and conditions, subject to satisfactory performance of the agency, for ready reference clause no.5.0 of contract period is being reflected herein below:- "5.0 CONTRACT PERIOD: The contract period of security service contract shall be initially for one year w.e.f. 10.12.2014 with a provision of extension for another One year or part thereof on same rate, terms and conditions, subject to satisfactory performance of the agency." Under the terms and conditions of contract under clause no.1.0 it has been provided that the contract shall be in force for a period initially for one year and shall be deemed to have commenced by virtue of issue of letter of award. Power GRID reserves the right to extend the contract for a further period of one year or part there of on the same terms and conditions as those of the original letter of award subject to satisfactory performance, for ready reference the said part of the stipulation is being quoted herein below:- "1.0: CONTRACT PERIOD: 1.1: The contract shall be in force for a period initial period for one year and shall be deemed to have commenced by virtue of issue of letter award. Power GRID reserves the right to extend the contract for a further period of 01 year or part there of one the same terms and conditions as those of the original LOA subject to satisfactory performance." Under Annexure-5 there is a heading, i.e. special terms and conditions of contract under which also the period of contract has been provided under clause B which is for a period of one year from the date of award for the date as mentioned in the contract with a provision of extension for another one year or part thereof on the same rate, terms and conditions, subject to satisfactory performance of the agency. It is, thus, evident that the petitioner has entered into a contract on 11.11.2014 which was initially for a period of one year with a provision of extension of another one year subject to satisfactory performance of the agency. The petitioner agency has started providing service w.e.f. 1.12.2014. It is, thus, evident that the petitioner has entered into a contract on 11.11.2014 which was initially for a period of one year with a provision of extension of another one year subject to satisfactory performance of the agency. The petitioner agency has started providing service w.e.f. 1.12.2014. It is evident from the pleading made in the counter affidavit that the security contract was extended for one more year from 1.12.2014 to 31.11.2016 thereafter for six months, i.e. from 1.12.2016 to 31.5.2017. Further extension beyond the period of two years was given to the petitioner since there was no sponsorship by the DGR, as such the petitioner's agency has provided their services from 1.12.2014 to 31.5.2017, which is for a period of two years and nine months. Thereafter the DGR has sponsored the name of new agencies for security and allied services, as would be evident from annexure-B/3 dtd.23.11.2016 but the petitioner, few days before issuance of sponsorship letter dtd.23.11.2016, has approached this court on 15.11.2016 for getting extension of the contract as contained under Annexure-7 on the ground that the opposite parties are bent upon not to extend the contract due to the reason that he has made complaint against the working of the office of the DGR, this court has passed an interim order on 23.11.2016 directing the opposite party nos.2 and 3 to maintain status quo with regard to the security coverage contract of the petitioner appearing at annexure 7 till the next date, by virtue of the same, the petitioner agency is still providing the services. The main contention raised by the petitioner is that since he has made a complaint against the functioning of the office of DGR, the new sponsorship has been made and his contract has not been extended, as such the allegation of mala fide has been alleged against the opposite parties but that argument is not worth to be considered for the reason that it is the admitted case of the petitioner that before entering into a contract with the opposite party nos.3 and 4, he has made complaint against the functioning in the office of the DGR as would be evident from paragraph 6 of the writ petition and the said statement has been supported by the document as contained under Annexure-3 series, from its perusal it is evident that the first complaint is dtd.26.11.2013, the second complaint is also dtd.26.11.2013 and the next complaint is dtd.10th September, 2014, as would be evident from page 21, 22 and 24 of the writ petitions, meaning thereby the first complaint has been made by the petitioner on 26.11.2013 and even after the said complaint his name has been sponsored and he has been issued with the letter of award on 11.11.2014 and thereafter also his period of contract has been extended, as per the period of contract stipulated, i.e. maximum period of two years and even thereafter, as such it cannot be said that the petitioner's interest in any way has been prejudiced with the action of the opposite parties, furthermore, the allegation of mala fide is very easy to level but it is very difficult to prove, that too when none of the parties has been impleaded by name and it is settled that allegation of mala fide is to be alleged against individual functionary by impleading him party by name and it cannot be alleged against the designation / post, hence the allegation of mala fide leveled against the opposite parties is hereby rejected for the reason aforesaid. 6. The petitioner has tried to impress upon the court by relying upon the office memorandum dtd.11.11.1994 which stipulates for sponsorship for a specific period of two years, generally extendable for two more years, as such he submits that at list he ought to have been allowed to provide for a period of four years which he is not being allowed. The petitioner has tried to impress upon the court by relying upon the office memorandum dtd.11.11.1994 which stipulates for sponsorship for a specific period of two years, generally extendable for two more years, as such he submits that at list he ought to have been allowed to provide for a period of four years which he is not being allowed. This court, after appreciating the argument advanced on behalf of the opposite parties in this regard and by going through the terms of contract as under clause no.5.0 of the letter of award dtd.11.11.2014 and the terms and conditions as also the special terms and conditions of contract, as quoted above, wherein the contract period of security service shall be initially for one year w.e.f. 1.12.2014 with a provision of extension for another one year or part thereof on same rate, terms and conditions subject to satisfactory performance of the agency. It is evident from the pleading made in the counter affidavit that the contract was entered on 11.11.2014 begins from 1.12.2014 up to 31.11.2015 and thereafter it was extended up to 1.12.2015 to 31.11.2016 and thereafter it was extended from 1.12.2016 to 31.5.2017 and again up to 31.8.2017, meaning thereby the petitioner agency has provided service for a period of three years and nine months which is excess to the period of contract since the period of contract is for a maximum period of two years in case of extension. The contention of the petitioner is that the agency may be allowed to provide service for a period of 4 years as per the office memorandum dtd.11.11.1994 but the said argument is not worth to be considered for the reason that the office memorandum dtd.11.11.1994 is for sponsorship of ex-servicemen security agency from their panel for a specific period of two years, generally extendable by two more years and if any agency would be provided the sponsorship agency by virtue of the office memorandum dtd.11.11.1994, their names will be sponsored by the DGR to any public sector undertaking to provide the security services, meaning thereby, there has to be empanelment for sponsorship by the DGR, however, the petitioner has got the sponsorship and by virtue of the same his name has been sponsored before the Power Grid Corporation of India Ltd. and in view thereof the letter of award was issued on 11.11.2014 asking him to provide security services initially for a period of one year subject to extension of further one year out of which he has rendered their service for a period of two years 9 months, as such continuing the name of the agency in the panel of DGR is one thing and getting the contract to provide security services to the Central Government undertakings is another thing, it is for the reason that the sponsorship, i.e. by way of enlistment before the DGR and by virtue of the sponsorship the letter of award would be issued by the concerned public sector under takings and the agency will provide their services in terms of the contract entered in between the agency and the Central Government undertakings before it the services is to be provided. Here in the instant case the petitioner since has entered into contract on 11.11.2014 and by keeping his eyes open, has accepted the terms and conditions of the contract, now cannot turn around and say that the period of contract be extended for four years on the basis of the period of sponsorship none in pursuance to the office memorandum dtd.11.11.1994. It is settled position of law that the terms and conditions of a contract is binding upon the parties and after accepting it the same cannot be assailed. It is settled position of law that the terms and conditions of a contract is binding upon the parties and after accepting it the same cannot be assailed. The petitioner's case is not that the terms of contract is against any statutory provision and it cannot be for the reason that the work to provide security services is by way of compassion shown to the ex-servicemen and it is settled that compassion cannot be taken as a matter of right. This court, has come across the fact that due to non-sponsorship of the agencies by the DGR the petitioner was allowed to provide service even after completion of the period of two years but it is evident from Annexure-B/3 that the other security agencies have been sponsored by DGR to provide security services before the Power Grid Corporation Ltd., as such the petitioner now cannot seek direction from this court to extend the terms of the contract by rewriting the terms of contract, reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in the case of Life Insurance Corporation of India and Another Vrs. S. Sindhu, (2006) 5 SCC 258 (para-8) . 7. This court, after discussing the factual aspect and the legal position in detail as above, is of the view that the relief sought for by the petitioner for extension of the period of contract cannot be extended by this court in exercise of power conferred under Article 226 of the constitution of India since the contract depends upon the terms and conditions incorporated therein which is binding upon the parties and once it is accepted by the parties, it cannot be subject matter of judicial scrutiny, that too by way of rewriting the terms of contract. 8. In view thereof, on the basis of the discussion made above, in my considered view, the relief sought for by the petitioner is not fit to be entertained, accordingly the writ petition fails and the same is dismissed. Misc. Case, if any, also stand disposed of. Final Result : Dismissed