IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1648 of 2011
In
Civil Writ Jurisdiction Case No. 6335 of 2011
With
Interlocutory Application No. 7612 of 2011
In
Letters Patent Appeal No. 1648 of 2011
======================================================
Ashok Kumar, S/o Ramphal Prasad Swarnkar, R/o Village- Kupadi, P.S.-
Raniganj, District - Araria
.... .... Petitioner/Appellant
Versus
1. The State of Bihar
2. The Director, Mid-Day-Meal Scheme, Bihar, Patna
3. The District Magistrate-Cum-Chairman, Mid-Day-Meal Scheme Co-
Ordination Committee, Araria
4. The In-Charge Officer, Bihar State Mid-Day-Meal Scheme Committee,
Araria, Distt.- Araria
5. The District Superintendent of Education, Araria
6. The Sub-Divisional Education Officer, Araria
.... .... Respondents/Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Sunil Kumar Verma, Advocate.
For the Respondent/s : Mr. Bhaskar Shankar, A.C. to GP 16.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 11-11-2011 Re. Interlocutory Application No. 7612 of 2011:
The delay of 25 days occurred in filing the Letters
Patent Appeal is condoned.
Interlocutory Application stands disposed of.
Re. Letters Patent Appeal No. 1648 of 2011:
Feeling aggrieved by the order dated 3rd August 2011
made by the learned single Judge in above CWJC No. 6335 of
2011, the writ petitioner has preferred the present Appeal under
Clause 10 of the Letters Patent.
2 Patna High Court LPA No.1648 of 2011 (2) dt.11-11-2011
2/4
By order dated 11th July 2007 made by the Sub
Divisional Education Officer, Araria the appellant was appointed
as Sadhan Sevi for 11 months on monthly honorarium of
Rs. 3500/-. Under the terms and conditions of the said
appointment the contract was terminable without notice at any
time for unsatisfactory performance, and; on adverse report made
by the inspecting officer.
It appears that after expiry of the contractual period
the appellant was retained as Sadhan Sevi by further orders of
appointment. Last one was made on 10th May 2010 on identical
terms and conditions. In other words, the appellant was engaged
as Sadhan Sevi for a period from 13th May 2010 to 12th April
2011. Before the expiry of the said period of contract, the service
contract of the appellant was terminated unilaterally by order
dated 2nd February 2011 made by the Director, Mid-Day Meal
Scheme, Bihar, Patna. The allegation was that the appellant had
failed to perform his duty in respect of the Middle School,
Sangrampur Prakhand, Raniganj. The provision for meal under the
Mid-Day Meal Scheme was closed since 24th December 2010 till
the school was inspected on 29th January 2011.
Challenge to the said order dated 2nd February 2011
before the learned single Judge in above CWJC No. 6335 of 2011
filed under Article 226 of the Constitution has failed on the sole
ground that the appointment of the appellant being contractual, the
remedy for unilateral termination of contract lies before the Civil
Court and not under Article 226 of the Constitution. Therefore, the
present Appeal.
Learned Advocate Mr. Sunil Kumar Verma has
appeared for the appellant. He has submitted that although the
3 Patna High Court LPA No.1648 of 2011 (2) dt.11-11-20113/4
appointment was contractual, the observation of principles of
natural justice before unilaterally terminating the contract, was
sine qua non. In absence of compliance with the principles of
natural justice, order was liable to be set aside. The appellant was
entitled to reinstatement in service as Sadhan Sevi. In support
thereof he has relied upon the judgment of the learned single
Judge (Coram: J.N.Singh,J.) in the matter of Sadanand Paswan
V. State of Bihar [CWJC No. 6007 of 2010 decided on 8th
December 2010] and the judgment of the Division Bench (Coram:
Dr. J. N. Bhatt, C.J. & S.K.Sinha,J.) in the matter of Upendra
Narayan V. The Union of India & Ors.[L.P.A. No. 123 of 2006 in
CWJC No. 9065 of 2004, decided on 5th December 2006]. Mr.
Verma has also relied upon the intimation given by the appellant
on 7th December 2010 to the Block Education Officer in respect of
75 schools under Mid-Day Meal Scheme under the supervision of
the appellant. Under the said intimation the appellant had
informed the Block Education Officer that the estimated cost
(advance fund) was required in respect of the said 75 schools
including the middle school, Sangrampur Prakhand, Raniganj.
We do agree with Mr. Verma that the petition under
Article 226 of the Constitution in the subject matter could have
been entertained. However, the power under Article 226 of the
Constitution is discretionary. The court may refuse to exercise
such power in view of the availability of alternative remedy. We
have noticed, as recorded hereinabove, that the service contract of
the appellant has expired in April 2011. The question of setting
aside the order of the termination of the contract should, therefore,
not arise; although, Mr. Verma has vehemently argued that had
the appellant been continued until April 2011, his service contract
4 Patna High Court LPA No.1648 of 2011 (2) dt.11-11-20114/4
would have been renewed and the appellant would have continued
in service as Sadhan Sevi.
We are not impressed by the argument. The
contention is too far fetched. A petition can not be entertained on a
mere chance of renewal of the service contract of the appellant.
We do agree with the learned single Judge that the appellant has
remedy in respect of the unilateral termination of the service
contract before the Civil Court. Whether the principle of natural
justice was required to be followed or not also can be decided by
the Civil Court.
For the aforesaid reasons, we see no merit in this
Appeal. Appeal is dismissed in limine.
(R.M. Doshit, CJ)
Sujit /- (Birendra Prasad Verma, J)