Chandan Chakraborty vs Union Of India And Ors

Heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. S. Pandit, learned counsel appearing for the petitioner. Also heard Mr. D. Sharma, learned Additional Government Advocate appearing for the State-respondents and Mr. Bidyut Majumder, learned CGC appearing for the Union of India-respondent.

By means of filing the present petition, the petitioner has challenged the order of discontinuation of his contractual service w.e.f. 31.10.2015, vide memo dated 29.10.2015, issued by the District Programme Co-ordinator (District Education Officer), Rashtriya Madhyamik Siksha Abhiyan (for short, RMSA) [Annexure-1A of the writ petition], Gomati District, Udaipur.

The case of the petitioner, in brief, is that under the flagship programme of Rastriya Madhyamik Shiksha Abhiyan (RMSA, for short), a centrally sponsored scheme, the petitioner was engaged on contractual basis initially for 4 (four) months as Laboratory Assistant. He was posted at Jharjharia High School. The engagement of the petitioner as Laboratory Assistant on contractual basis was extended time to time and lastly, vide order dated 28.12.2014 his service was extended for a period of one year i.e upto 25.12.2015. However, the contract service of the petitioner was discontinued w.e.f. 31st October,2015 in pursuance of the Memo dated 29.10.2015.

Mr. Bhattacharjee, learned senior counsel for the petitioner has submitted that before completion of the period of his engagement, the service of the petitioner was discontinued vide Memo. dated 29th October, 2015 w.e.f. 31st October, 2015 which is most illegal, arbitrary and discriminatory in nature and as such the said Memo is liable to be set aside and quashed.

Learned senior counsel has drawn my attention to the decision of the Project Approval Board, dated 22nd May,2014 wherein it was held as under:

"13. PAB's attention was invited to the terms and conditions specified in the appointment orders of staff where it is linking the staff appointment to approval from GoI under the RMSA progamme. PAB expressed concern that this would mean that as and when the programme support stops, schools opened under support from RMSA would be closed down and staff appointed with support from the programme would be terminated which is not the case. Clearly, teachers and staff are appointed by the State, based on the recruitment rules and policies of the State and are the State's responsibility which should not be undermined by such misleading aversions in the appointment orders. It was also clarified that while the state may take a view on recruitment of PGT under RMSA, however, the financial commitment under RMSA will be projected on the basis of TGT and their pay scales."

Learned senior counsel has taken me to the Memo, dated 24.09.2012 (Annexure-R/2 to the counter affidavit) and relied upon Part (i) which is as under:

"(i) The engagement shall be of 4 (four) months on a fixed monthly honorarium as mentioned above and purely on contractual basis."

He further leads me to take notice of a communication dated 7th May, 2015 made by the Under Secretary, Govt. of India, Ministry of Human Resource Development, Department of Education and Literacy which is as under:

"Sir,

Please find enclose herewith the copy of minutes of the Project Approval Board (PAB) meeting held on 26th February,2015 for the approval of Annual Work Plan & Budget 2015-16 of Tripura under the Centrally Sponsored Scheme of the Integrated Rashtriya Madhyamik Shiksha Abhiyan (RMSA) for information and necessary action at your end."

Learned senior counsel, Mr. Bhattacharjee, has further referred to the statements that are made in the counter affidavit filed by the Union-respondent to the effect that RMSA launched in March, 2009 envisages improving access of secondary education by providing a secondary school within a reasonable distance of every habitation, improving quality of education imparted at secondary level through making all secondary school conform to prescribed norms and removal of gender, socio-economic and disability barriers. Under RMSA there is provision for giving only the financial support for salary of the staff appointed under the scheme as per the norms of the scheme and not the actual salary. For the year 2015-16, it was decided by Project Approval Board (for short,PAB) in the meeting held on 12.03.2015 for the State of Haryana not to provide any financial support to the non-teaching staff due to resource constraints and to focus on the teaching staff only, which is applicable for all the States/UTs. Further, the scheme of RMSA which was commenced in the year 2009-10 aims to achieve universal access to secondary education by the year 2017 i.e. by the end of 12th Plan. The States/UTs are also aware of the long term financial implications.

Mr. Bhattacharjee, learned senior counsel has submitted that the decision in regard to the State of Haryana were made applicable to all the States. On the strength of the aforesaid statements, learned senior counsel has tried to persuade this Court to interfere with the order of discontinuation of the petitioner that it is liable to be set aside for the reason that the respondents, particularly, the State respondents are under obligation to continue the service of the petitioner as long as entire scheme is continued under the RMSA Project. Learned senior counsel has emphasized that the scheme is still being continued and has not been stopped by the State Government.

On the other hand, Mr.D. Sharma, learned Addl. G.A. has submitted that no RMSA Project has been undertaken by the Ministry of Human Resource Development, Government of India and under the said scheme, the petitioner was engaged on contract basis as Lab. Assistant through walk-in-interview as per the schematic pattern and the salary support components are to be provided by the Government of India in the Ministry of Human Resource Development and the State Government in the ratio 90:10. Since the Project Approval Board, New Delhi has withdrawn the salary support in the year 2015-16 for those Laboratory Assistants and LDCs, it has become impossible for the society created under the RMSA scheme to continue the petitioner without budgetary allocation. It is further submitted by Mr. Sharma, learned Addl. G.A. that removal of the Laboratory Assistant and LDCs for the period from 01.04.2015 to 31.10.2015 was paid out of the fund available from the Government of India under the RMSA component and the additional fund granted by the State Government out of Stage budget. Therefore, according to learned Addl. G.A., it should not be said that the actions of the society is arbitrary and unreasonable.

Mr. Bidyut Majumder, learned CGC has submitted that it is true that PAB has taken a conscious decision considering different aspects of the scheme to withdraw financial support for the posts of LDCs and Laboratory Assistants. However, the scheme though is still under operation but only for teaching staff and not for non-teaching staff.

Based on the aforesaid submissions, I have taken note of the engagement letter in regard to the petitioner vide Memo dated 24.09.2012. The said Memo clearly stipulates the terms and conditions of the engagement of the petitioner. It is clearly stated that the engagement shall be of 4(four) months with stipulation of automatic termination on expiry of 4(four) months from the date of engagement. However, further continuation may be allowed for another period of satisfactory performance. The petitioner has accepted the terms and conditions as indicated in the Memo dated 24.09.2012 and thereafter, he was engaged.

I have also perused the decision of the PAB wherein the said authorised body has consciously taken a decision that the financial support would be provided to the State for the purpose of salary to the teaching staff only, and the Board has specifically withdrawn the salary support to the persons holding the posts of LDC and Laboratory Assistant. There is no reason to disagree with the submissions of learned senior counsel that RMSA Project is still continued. However, I should not lose sight to the fact that though the scheme is continued, but, the Union-respondent has withdrawn the salary support to the persons holding the posts of LDC and Laboratory Assistant. In view of this admitted fact, in my opinion, it is the discretion of the State-respondents whether to continue the posts of Laboratory Assistant and LDC or not.

This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot direct the State Government to continue the scheme so far as the posts of Laboratory Assistant and LDC are concerned.It is the prerogative of the State Government to continue the posts considering its financial status. More so, in the instant case the engagement of the petitioner as Laboratory Assistant is purely contractual in nature which may be terminated on the expiry of the period of contract. Being a contractual employee, the petitioner can neither claim to continue his engagement nor to continue the post to which he was engaged as a matter of right.

The Apex Court in Grubachan Lal Vrs. Regional Engineering College, Kurukshetra & Ors., reported in (2007) 11 SCC 102 relying upon its earlier decision in U.P. Land Development Corporation Vrs. Amar Singh, reported in (2003) 5 SCC 388 has held that- the employees who are working in the project will not get any vested right to claim regularization or continuation of the post to which they have been engaged.

The Supreme Court in the case of Gurbachan Lal (supra) has further held relying upon the case of State of H.P. Vrs. Nodha Ram, reported in AIR 1997 SC 1445, further held as under:

"4. It is seen that when the project is completed and closed due to non-availability of funds, the employees have to go along with its closure. The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor can directions be given to the State to create posts in a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them despite non-availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is, therefore, set side." (emphasis supplied)

At this juncture, Mr. Bhattacharjee, learned senior counsel has submitted that the enunciation of law as referred to above has no relevance to the facts of the instant case for the reason that PAB has taken a decision not to undermine the aims and objects of the scheme and the State is under obligation to make suitable arrangement to continue the said post for providing better education to the children of the village. In the instant case, what I have noticed is that the PAB has left the issue of continuing the posts of LDC and Laboratory Assistant upon the State Government. The PAB has observed at Para 13 of the Minutes of the 38th RMSA PAB meeting (Annexure-4 to the writ petition) as quoted above, that the State Government appoints teachers and staff based on its own recruitment rules and policies.

In the case in hand, the State Government has not framed any recruitment rules or formulated any such policy for recruitment of teachers and staff for the purpose of running the school under the RMSA project. A plain reading of the decision of PAB at Para 13 as quoted above, it is clear that the PAB has just clarified that while the State formulates its policy, it may take a view on recruitment of Post-graduate teacher under RMSA project. So, the entire thing was left to the State government to frame policy according to its need. In the instant case, the petitioner was engaged on contract basis only on the basis of the project requirements but not on the basis of any post or vacancy created in terms of the recruitment rules or any policies of the State Government.

I have taken into consideration the Memo dated 28th October, 2015 (Annexure-1 to the writ petition) which reads as under:

"No.F.19(11)-SE/RMSA/15(L) Government of Tripura Education (School) Department (RMSA) Dated, Agartala the 28th October,2015.

MEMO

Under the Flagship programme of Rashtriya Madhyamik Shiksha Abhiyan (RMSA), a centrally sponsored scheme, the Lab. Attendants and L.D.Clerks were engaged by the District Programme Coordinators (DEOs) purely temporary on contractual basis for schools upgraded under the RMSA Scheme as approved by the Project Approval Board (PAB) of Ministry of Human Development Department, Government of India in the years 2010-11 & 2011-12. Since the said component has been discontinued by the Project Approval Board in the year 2015-16, the services of the said Lab. Attendants and L.D. Clerks have become redundant and are required to be discontinued with effect from 31st October, 2015 (Afternoon).

All the District Programme Coordinators (DEOs) are, therefore, instructed to discontinue the services of the Lab. Attendants and L.D.Clerks engaged on contractual basis under RMSA for the upgraded schools under their respective jurisdiction with effect from 31st October, 2015 (Afternoon). In future if any change of policy on this matter is communicated by the Government of India, a fresh view will be taken on the matter.

(Dr. P.K.Goyal, IAS)

State Mission Director, RMSA (Jt. Secretary & Director, School Education) Govt. of Tripura."

A plain reading of the said Memo dated 28th October,2015 there should not be any manner of doubt that though the scheme is continued, but, categorically it is with the approval of the PAB the engagement of the petitioner as Laboratory Assistant has come to an end and the action of the State-respondents, particularly, the District Programme Co-ordinator cannot be said to be contrary to the principles of Articles 14 and 16 of the Constitution of India. The staff engaged to the posts of Laboratory Assistant and LDC are discontinued by the Central Government and the State-respondents are specifically instructed to discontinue with the said posts and in consequence thereto, the staff engaged against those posts have been discontinued by the State-respondents. In view of this, the petitioner has no legally enforceable right to claim the continuation of the post of LDC and Lab. Assistant as the case may be in absence of any policy of the State-respondents. Furthermore, this Court in exercise of its discretionary power under Article 226 of the Constitution cannot, or, rather shall not pass any direction upon the Government or its Executive to draw a particular policy or to pass an order by way of mandamus to continue a particular post which is exclusively within domain of the Legislature and its functionaries.

In his treaties on Administrative Law, Durga Das Basu, Ch.4, Pg 121, 6th Edition, 2004 states:

"The scope of judicial review is narrowed down when a statute confers discretionary power upon an executive authority to make such rules or regulations or orders 'as appear to him to be necessary' or 'expedient', for carrying out the purposes of the statute or any other specified purpose. In such a case, the check of ultra vires vanishes for all practical purposes inasmuch as the determination of the necessity or expediency is taken out of the hands of the Courts and the only ground upon which Courts may interfere is that the authority acted malafide or never applied his mind to the matter, or applied an irrelevant principle in making a statutory order." (emphasis supplied)

In the case in hand, the State Government in its own wisdom considering the withdrawal of financial support from the Central Government and other related requirement has not felt the necessity or expediency to continue the post of Lab. Assistant and LDC. In this situation, the Court under its power of judicial review will not over-step the decision of the State. Needless to say, the present case is not the case where authority acted malafide or the decision suffers from non-application of mind, or decision not to continue the post of LDC or Lab. Assistant is based on irrelevant principle.

For the reasons stated above, I find no merit in the instant writ petition and accordingly, stands dismissed.