WP(C) 5957/2009 BEFORE HON’BLE MR. JUSTICE B K SHARMA The petitioner who was on contractual assignment as Block Programme Mana ger(in short BPM) under a scheme promulgated under the National Rural Health Mis sion (in short NRHM) has assailed the legality and validity of the Annexure-E co mmunication dated 11.12.2009, by which, he was informed that his contractual ass ignment would not be renewed from 11.12.2009. By the said communication, while r equesting him to hand over all documents, office records, materials (if any) etc ., it was also intimated that the petitioner would be entitled to get one month’ s remuneration from the effective date i.e. 11.12.2009. [2] The petitioner was appointed as Block Programme Manager under th e particular scheme and his appointment was stated to be for a period of 6(six) months from the date of joining, same was communicated to him by Annexure-A/2 le tter dated 4.6.2007. In the said communication it was also stipulated that the p etitioner would be required to execute an agreement laying down the terms and co nditions of the contractual assignment. [3] The aforesaid contractual assignment was accepted by the petitio ner and he undertook this assignment by executing an agreement laying down the t erms and conditions of such assignment. The agreement was executed on 4.6.2007 s tipulating inter alia the following terms and conditions : 4. The appointment of the Party is purely on a contract basis and the Party would not be entitled to any claims, right, interests or further benefits in te rms of regulation or consideration of further appointment to the said post or an y other post under the Society. 5. The services of the Party shall stand automatically terminated at the ex piry of contract period, without any necessity of the Society giving any notice or notice pay to the Party and without any liability on part of the Society to p ay any retrenchment or other compensation or other amounts to the party. 6. Any action either directly or indirectly of the party for the change of place of posting will be treated as disqualification for the post and the societ y will have the right to terminate this agreement without any notice for such ac tion. 7. The Party will have to stay within 2 K.M radius of the place of posting. 8. Notwithstanding anything contained herein above, the services of the Par ty may be terminated at any time by the Society if the Party is found to be guil ty of any insubordination intemperance or other misconduct or of any breach or n on performance, it being clearly understood that the Society shall always invoke this clause in consultation with the Chairman of the Society and Member Secreta ry of the society. 9. Either of the parties hereto have the right to terminate this Agreement without assigning any reasons; provided that a written notice of one month is gi ven to the other party. Both the parties may, in lieu of the written notice, giv e the other party a sum equivalent to the amount of his salary for one month or shorter notice than one month with a sum equivalent to the amount of his pay for the period of which such notice falls short of 1 month. [4] Although the contractual assignment of the petitioner was stipul ated to be for a period of 6(six) months but the petitioner continued with the s aid assignment without, however, any further order towards continuance of the sa id assignment. However, there is no dispute that the petitioner continued in his assignment which came to an end w.e.f. 11.12.2009 on the basis of the aforesaid impugned communication dated 11.12.2009 (Annexure-E). Strictly speaking, on exp iry of the initial terms of the engagement/assignment, which was for a period of 6(six) months from the date of joining, there was no necessity to issue the Ann exure-E, impugned communication dated 11.12.2009 towards cessation of the assign ment from the particular date. Consequently, there was also no necessity to give one month’s remuneration to the petitioner. [5] According to the petitioner, his performance as BPM was satisfac tory and there was no occasion to pass any adverse remark in respect of his perf ormance. Based on such performance it was the expectation of the petitioner that his contractual assignment would be continued for further period. However, by t he aforesaid impugned communication his assignment was discontinued. It is the c ase of the petitioner that other similarly situated persons have enjoyed the ben efit of further extension of their assignments leaving aside the petitioner alon e. [6] The respondents have filed 2(two) counter-affidavits, one dated 19.1.2010 and another dated 9.3.2010. They are described as 1st and 2nd affidavi t. [7] In the 1st affidavit the respondents have stated that as per the report of the Performance Appraisal Committee of BPM and BAM(Block Account Mana ger) of Kamrup District dated 3.8.2009, the performance of the petitioner was fo und not to be satisfactory. The area of lacunas have been identified as follows : I) Poor Team Spirit and tendency of insubordination. ii) No lucid idea about HMIS and poor involvement in HMIS reporting. iii) lack of coordination with block level health functionaries. iv) Involvement in corrupt practice (Third party report). The performance appraisal committee gave E Grade to the petitioner which is below average and recommended for engagement of new BPM in place of the petitio ner to improve the programme implementation process. The performance appraisal c ommittee of Karimganj District was headed by the Deputy Commissioner of the Dist rict and all higher authorities of the petitioner. Thus from the above it is evi dent that the claim of the petitioner that he has been serving to the full satis faction of all his higher authorities is not correct.. [8] According to the respondents, the performance of contractual st aff working under the NRHM are evaluated by the said Performance Appraisal Commi ttee, constituted as per the guidelines issued by the Mission Director, NRHM, As sam. As regards the particular performance, which the petitioner has highlighted to his credit, it is the stand of the respondents that the said performance was only in respect of immunisation and that the said performance does not depend o n only one person. It has been stated that such performance depends on teamwork of all the officers and staff where the major role is played by service provider s i.e. the Doctors and Nurses. The petitioner is not a service provider. [9] The affidavit has also dealt with the terms of the agreement, in terms of which a contractual assignment could be closed with one-month notice, which in the instant case has been done. [10] The respondents have stated that the Performance Appraisal Repor t was prepared in presence of all the members of the Committee following the pro cedure of such performance appraisal. It has been stated that a total 120 marks was set against each BPM and BAM. The Performance Appraisal Committee allotted m arks on the basis of performance of the contractual staff and while doing so dul ly considered the recommendations made by District Programme Management Unit mem bers and after threadbare assessment among all the members of the aforesaid Comm ittee final report was submitted. In paragraph 5 of the counter-affidavit, the r espondents have categorically stated about presence of all the members of the Pe rformance Appraisal Committee on the date of making the appraisal. [11] From the aforesaid stand of the respondents in their affidavit what has transpired is that the contractual assignment of the petitioner has be en done away with on the basis of his performance and not out of malafide exerci se of power. However, the petitioner in his affidavit in reply has stated about his good performance during his contractual assignment. According to him, all th e members of the Performance Appraisal Committee were not present when its meeti ng was convened on 26.6.2009. Further stand of the petitioner is that the petiti oner has been deprived of continuation of his contractual assignment on the basi s of some fabricated complaints, which the respondents took into account while a ssessing the performance of the petitioner. [12] I have heard Mr. A K Talukdar, learned counsel for the petitione r as well as Mr. B Gogoi, learned Standing Counsel, Health Department, Assam, re presenting the respondents. I have also considered the materials available on re cord. [13] By the very nature of engagement and/or assignment of the petiti oner, it cannot be said to be an appointment against any particular post. The co ntractual engagement of the petitioner was under the particular scheme as referr ed to above. His very appointment was for a period of 6(six) months from the dat e of joining the post of BPM. Thus, on expiry of said period of 6(six) months hi s contractual assignment stood automatically concluded. However, his contractual assignment was continued without any written order and thereafter, by the impug ned communication dated 11.12.2009 he was intimated that there would be no furth er renewal of his contractual assignment. By the said communication, it was also notified that the petitioner would be entitled to get one month’s remuneration in lieu of one month’s notice. [14] As noted above, by the very nature of the contractual engagement of the petitioner for a limited duration, his service was to come to an end on expiry of the terms of appointment. Thus, it was really not necessary for the re spondents to pay one month’s remuneration in lieu of one month’s notice which ha s been done in terms of Clause-9 of the terms and conditions of contractual enga gement. [15] The petitioner has alleged discrimination in the matter of disco ntinuation of contractual assignment, but it is on record that altogether 13 BPM s including the petitioner have been discontinued from their contractual assignm ents. Although, in Pargraph-11 of the writ petition, the petitioner has stated t hat the impugned communication is the result of malafide exercise of power but o n perusal of the statements made in the said paragraph what has transpired is th at the same is vague and indefinite. No materials and/or instances have been dis closed as to how the petitioner was allegedly victimised. There is also no indic ation as to who are responsible for such victimisation. No such person has also been impleaded as party respondent in the writ petition. Needless to say that if , a plea is advanced that a particular act is founded on malafide or colourable exercise of power, the said plea will have to be established with cogent materia ls and not on the basis of some vague indefinite statements. [16] The case of the petitioner was considered by the Performance App raisal Committee. All the members were present and upon a threadbare discussion of materials on record it took the conscious decision not to renew the contractu al appointment of the petitioner. Apart from the fact that the members of the sa id Appraisal Committee are not party respondents in this proceeding, the petitio ner has also not alleged any malafide exercise of power by any one of the member s of the said Committee. In the first affidavit, the respondents have annexed th e Performance Appraisal Report dated 3.8.2009. As per the parameters laid down f or awarding grading to the contractual staff, the petitioner earned grade ’E’ wi th 46.26 per cent marks. All others have earned higher gradings with higher perc entage of marks. If, on the basis of such Appraisal Report prepared by the Appra isal committee, the authority decided not to continue with the contractual assig nment of the petitioner, no fault can be attributed to the said authority. [17] Learned counsel for the petitioner submits that the petitioner o ught to have been given an opportunity of being heard before refusing to renew h is contractual appointment. I am afraid, such a plea is not acceptable. The peti tioner was not in any kind of appointment which, envisages following the procedu re under Article 311 of the Constitution of India or any Service Rule before dis pensation of service. Admittedly, he was in a contractual assignment under a sch eme. He accepted the terms and conditions of the assignment by signing the agree ment, it was in such circumstances and on the basis of Performance Appraisal Rep ort prepared by the competent authority the decision was arrived at not to conti nue with his contractual assignment. I do not find any infirmity in the same. [18] For all the aforesaid reasons, I do not find any merit in the wr it petition. Accordingly, the writ petition stands dismissed. [19] Dismissal of the writ petition shall not be a bar for the respon dents to provide fresh engagement of the petitioner in accordance with the polic y decision, if any.