IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9301 of 2011 Ajay Kumar S/o Shri Rajendra Rai, R/o village- Singhiya Ghat PS- Bibhutipur Distt- Samastipur-------------------Petitioner Versus 1. The State Of Bihar 2. The Director, Mid Day Meal Programme, Human Resources & Development Department, Bihar, Patna 3. The District Education Officer, Samastipur 4. The District Magistrate, Samastipur 5. The District Superintendent of Education, Samastipur 6. The Sub-Divisional Education Officer-cum-Incharge Mid Day Meal Programme, Samastipur 7. The Block Education Officer, Shivaji Nagar Samastipur-------------Respondents --------------------- 2 30.8.2011 By virtue of annexure-1 the Department of Human Resources, Government of Bihar decided to appoint certain persons on the posts indicated in the said advertisement, for effective monitoring of mid day meal programme being carried out in the State of Bihar. One such post in question in the present writ application is that of Block Resources Person who is supposed to supervise the execution of the scheme. All the appointments including the post on which the petitioner was so appointed was to be made on the basis of contract subsisting for eleven months. Annexure-1 categorically indicates in Clause-5 that any such person appointed under this scheme is purely on contract basis and no claim shall be made in this regard for benefits of a government servant. The agreement entered between the authority and the appointee is annexure-2. The terms and conditions of the entitlement are indicated therein. By reading those terms and conditions coupled with annexure-1 it cannot be the case of petitioner that he in any manner has acquired the attributes of a government servant, appointed 2 in a substantive capacity. In fact, such a contract is a contract for service and not of service. When a review of the working of the mid day meal scheme was carried out in the district by the District Magistrate, Samastipur, many infirmities emerged. The work and the effectiveness of the persons so appointed to supervise or monitor the scheme was found wanting. In other words what was being paid to the petitioner as a fixed lump sum of Rs. 3500/- per month did not beget the required result to the respondents. It is in this background annexure-5 dated 5th April, 2011 came to be passed. Petitioner has challenged the said order by filing the present writ application on the ground that there was neither any enquiry nor show cause before the order of removal was passed. Therefore, it needs to be interfered with by the High Court under Article 226 of the Constitution of India. With due respect to learned counsel representing the petitioner, none of the requirements talked about has any applicability to the petitioner as he is not holder of a civil post nor appointment made on substantive basis. The eleven months contract could be terminated in terms of the contract, if the authorities were not satisfied with the work being done by him. In the opinion of the Court the right and duty emerge from the contract itself and in the concluded contract of this kind there is no occasion for this Court to extend the benefits available to the holder of a civil post on a substantive basis. Such matters therefore do not come within the parameters of judicial scrutiny of Article 226 of the Constitution of India and neither any constitutional right nor statutory 3 right has been violated relating to service law. If the petitioner feels that there is a breach of contract, the remedy for him would be available under common law and the Court is not inclined to go into the nitty-gritty or the reason for rescinding the contract, which power respondents surely have. Learned counsel for the petitioner relies on the decisions of Hon’ble Supreme Court rendered in the case ABL International LTD & Another vs. Export Credit Guarantee Corporation of India LTD. & others reported in 2004 (3) SCC 553 as well as the case of Verigamtonaveen vs. Government of A.P & Others reported in 2001 (8) SCC 344 to assert that even in contractual matters High Courts have power to exercise. There is no dispute with the proposition which has been laid down by Hon’ble Supreme Court in the two decisions that it is not in every case of contract that there is a bar upon the High Court to exercise power under Article 226 of the Constitution of India or to entertain a writ application. Such applications can be entertained when the matter arises from performance of a statutory duty by a statutory authority or where action of the State per se is arbitrary or irrational. There is a very narrow opening or window which is available to the High Court in such matters and not every form of contract case become subject matter of judicial scrutiny under Article 226 of the Constitution of India. The appointment and engagement of the petitioner is a contract for service and if the respondents were not satisfied with the work done by him even though it was extended for further time it does 4 not give him a right to continue in that capacity or challenge such decision by filing a writ application. Dismissal of the writ application however shall not come in the way of petitioner invoking the jurisdiction for common law remedy, for breach of contract. This writ application is dismissed in the above background with liberty as above. RPS ( Ajay Kumar Tripathi, J.)