IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1093 of 2008 MOHAMMAD AFTAB ALAM S/o Sri Abdul Bari,resident of Mohalla Asimabad Colony, Presidency College, P.O.Mahendru P.S.Sultanganj Distr.Patna. Versus 1.THE STATE OF BIHAR 2.The Director inCh8ief,Health Department,Bihar,Patna 3.The Secretary,Health Department,Bihar,Patna. 4.The Executive Director,State Health Society,Bihar,Patna 5.The Regional Deputy Director of Health Services,Magadh Division,Gaya. 6.The District Magistrate-cum-Head of the District Health Society, Dist.Arwal 7.The Civil Surgeon-cum-Secretary,Dist.Health Society,Dist.Arwal 8.The Incharge Medical Officer,Primary Health Centre,Kurtha, Dist. Arwal. ----------- 3 3.3.2009. Heard counsel for the petitioner and the State. Counter affidavit on behalf of State as well as reply to the counter affidavit on behalf of the petitioner has been filed. Petitioner has filed this application for quashing the order contained in Memo no.01 dated 8.12.2007 issued by the Civil Surgeon-cum-Secretary,District Health Society,Arwal whereby petitioner’s appointment on contract basis for two years on the post of Health Manager, Primary Health Centre, Kurtha has been cancelled. The impugned order has been challenged by the petitioner on the ground that it has been issued in violation of Clause-9 of agreement entered into in between the petitioner and the Secretary, District Health Society,Arwal dated 20.3.2007. Clause-9 of the agreement reveals the terms and conditions, in case either of the parties decide to revoke the contract. As per Clause 9 either side will have to give one month’s notice in lieu of it by paying one month remuneration by DHS or by surrendering one month salary by the appointee. The order of termination dated 8.12.2007 has been annexed as Annexure-1. This order do not indicate that any prior notice was issued to the petitioner by the Civil Surgeon-cum- Secretary, District Health Society. Period of contract starts from 20.3.2007 and it was going to expire on 19.3.2009. as such, it was essential that only in compliance of Clause- 2 9 of agreement any notice, terminating service, during the period of contract, could have been passed. Counter affidavit has been filed on behalf of Civil Surgeon-cum-Secretary,District Health Society, Arwal (respondent no.7). In paragraph-8 of the counter affidavit it is stated that the petitioner’s agreement for appointment was cancelled by the then Civil Surgeon-cum- Chief Medical Officer, Arwal in the light of the direction given by District Magistrate,Arwal by Memo no..01 dated 8.12.2007, but the termination order was subsequently recalled in the meeting held on 26.12.2007 by the District Health Society, Arwal. The petitioner was asked to submit his joining at Primary Health Centre, Arwal with a warning to the petitioner to change his work culture. This order was passed vide letter no.1495 dated 28.12.2007. The letter dated 28.12.2007 was duly served to the petitioner but he refused to accept it as such it was sent to him through general post. Letter no.1495 dated 28.12.2007 has been annexed as Annexure-A to the counter affidavit. In this letter endorsement has been made by the clerk of the department indicating that Aftab Alam, the petitioner refused to accept it as such it is being dispatched at his home address through general post . The petitioner in reply to the counter affidavit, has denied the statement made in counter affidavit. His case is that he has no knowledge about any such order. It was never served to him and he has never received such letter which is said to have been dispatched at his home address through general post. Admittedly the letter terminating service of the petitioner dated 8.12.2007 had been issued in violation of Clause-9 of the agreement. No notice was issued to the petitioner in terms of the agreement. Question arises whether the order contained in Annexure- A was ever served to the petitioner. Presuming that the petitioner refused to accept this order, in that case it was required that the order should have been dispatched to him through registered post so that in support of this contention, as an evidence some documents could have been brought on record to show that the order was duly intimated to 3 the petitioner. Counsel appearing for the State has accepted that the letter was never dispatched to the petitioner through registered post. There is no such document in support of this fact that it was ever dispatched to the petitioner.Considering this fact, the statement made in paragraph- 8 of the counter affidavit cannot be accepted. In these circumstances there is no other option than to quash the order contained in Annexure-1 to the writ application dated 8.12.2007. As a consequence of quashing of the impugned order, the petitioner will be deemed to be continuing on the post till the expiry of the period i.e. 19.3.2007 and entitled for his remuneration for this period. Direction is now to re-instate petitioner and to make payment of his salary/remuneration. Counsel for the petitioner has brought on record letter no.8938 dated 3.1.2009, issued as a guideline to all District Magistrates-cum- Chairman, District Health Committee, and Civil Surgeon-cum- Member Secretaries of such committee by Executive Director, State Health Society, Bihar, to give extension to services of persons engaged on contract at District, Block levels under National Rural Health Mission if their services are found satisfactory. Question of satisfaction is involved, as such no direction can be issued. This application is allowed. Sss/- (Mridula Mishra, J)