IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1336 of 2010 MD.AZHAR HUSSAIN, S/O MD. EKRAMUDDIN R/O VILL BELWA TAPU TOLA, P.O GAIYARI, P.S ARARIA, DISTT- ARARIA. VERSUS 1. THE STATE OF BIHAR THROUGH CHIEF SECRETARY, BIHAR, PATNA 2. THE DIRECTOR IN CHIEF, HELATH DEPTT., BIHAR, PATNA. 3. THE SECRETARY, HELATH DEPRTMENT, BIHAR, PATNA. 4. THE EXECUTIVE DIRECTOR, STATE HELATH SOCIETY, BIHAR, PATNA. 5. THE REGIONAL DEPUTY DIRECTOR OF HEALTH SERVICES PURNIA DIVISION DISTT- PURNEA. 6. THE DISTRICT MAGISTRATE CUM CHAIRMAN, DISTRICT HELATH SOCIETY, ARARIA, DISTT- ARARIA. 7. THE CIVIL SURGEON-CUM-MEMBER SECRETARY, DISTRICT HELATH SOCIETY, ARARIA, DISTT- ARARIA. ----------- 02 29.06.2010 The petitioner challenges the order dated 01.12.2009, passed by the Civil Surgeon-cum-Member Secretary of the District Health Society, Araria, by which petitioner’s contractual engagement, which was valid up to 2012, has been terminated on the ground that his work was found to be unsatisfactory. A counter affidavit has been filed and with consent of parties, the writ petition is being disposed of at this stage itself. For carrying out and discharging State’s constitutional obligation for providing health care to the citizens, the State of Bihar has corporatized its functioning. It has established State Health Society at the State level to provide health and health related services instead of the Health Department doing the same. At district level, District Health Societies have been created. The District Magistrate-cum-Collector of the district has been made the - 2 - Chairman of the District Health Society and the Civil Surgeon has been made ex-officio member Secretary of the District Health Society. The District Health Society, in turn, employs different category of employees for different works. It also out sources various works that were otherwise done by State. It employs a person with the designation District Programme Manager on contractual basis, which is made after due selection. It appears that in the year 2005, the said post of District Health Programme Manager was advertised for contractual appointment for a period of 11 months. Ultimately, petitioner was selected and an agreement in this regard was entered into and appointment letter was issued on 14.10.2006, which is Annexure-2 to the writ petition. The employment for 11 months starting from 15.11.2006 to 14.10.2007, the agreement in that regard is part of Annexure-3. The petitioner was to get a fixed remuneration of Rs.23,000/- per month. The agreement provides that the service contract would expire with expiry of the period of contract. It further provided that the service contract would be terminated by competent authority of the Society, if the consultant is found to be guilty of any subordination in temperance or other misconduct or breach of non-performance. It also provided that it could be unilaterally terminated with one month notice or one month remuneration in lieu of notice. On successful completion of 11 months of service, as such, petitioner’s contract was renewed from time to time. On 17.03.2008, both the District Magistrate and the - 3 - Civil Surgeon duly certified that performance of the petitioner was excellent. Then came the matter of renewal of service contract for period commencing from 15.04.2009 onwards. Considering the excellent performance of the petitioner recommendation was made and it was approved at the State level. Accordingly, petitioner’s agreement this time was made for the period 15.04.2009 to 14.04.2012 three years at strange, instead of normal 11 months and, accordingly, agreement, which is part of Annexure-7, was entered into for the said period on a remuneration of Rs.25,300/- per month. The agreement was signed on 31.08.2009. From the counter affidavit, it appears that once the agreement was so executed in August 2009, suddenly hell broke loose. In the counter affidavit, it is alleged that in the review meeting of the District Health Society dated 22.10.2009, the work and the performance of the petitioner was reviewed and the Collector-cum-District Magistrate found the work to be unsatisfactory. He, accordingly, ordered the removal of petitioner immediately and replacement by another competent person. It is stated that it is in this perspective the show cause was issued to him under memo no.914 dated 02.11.2009 (Annexure-E to the counter affidavit). Petitioner’s reply was unsatisfactory and, as such, by the impugned order dated 01.12.2009 petitioner’s services were terminated. A perusal of the counter affidavit clearly indicates two things. It does not contradict the factual assertion of the petitioner - 4 - including certificate of excellent performance, as granted by the Collector of the district and the Civil Surgeon. Renewal of contract for three years was because of excellent work, which renewal was done with approval of the State as late as in August, 2009. It does not deny that in October and in December, the Civil Surgeon, who as the member Secretary of the District Health Society, had given certificate of excellence to the petitioner. The other thing is that in the counter affidavit various allegations are being levelled against the petitioner to show his incompetence. It is stated that the petitioner had, as late as in January 2009, been fined by the District Magistrate. He had been censured by officers of the State Health Society as late as July, 2009. In the counter affidavit, over 15 derelictions have been listed. In this connection, I may note that one of them formed part of the show cause, as issued to the petitioner, which is appended as Annexure-E to the counter affidavit. Further, the proceedings of the review meeting of the District Health Society dated 22.10.2009 have been annexed. In none of the items there is any reference to petitioner of unsatisfactory work by him, as if by way of insertion at the end, the District Magistrate has recorded that the district ranking has fallen, which is because of the petitioner, as such, he should be removed, which is Annexure-B to the counter affidavit. What show cause petitioner filed and in what respect it was found to be unsatisfactory, has neither been disclosed in the order impugned nor in the counter affidavit. - 5 - On over all view of the facts aforesaid, it would be clear that there were more things than that meets the eyes. What is alleged in the show cause is not to be found in the counter affidavit. What is found in the counter affidavit is not to be in the review meeting of the District Health Society. There being no allegations against the petitioner, he was granted excellent work certificate by the Collector himself and by the Civil Surgeon before and after the impugned order. The whole episode is bundle of contradictions. A person who was found suitable in August, suddenly looses favour and is found to be most incompetent two months later. Coming to the legal issue, one has to start from the review meeting dated 22.10.2009 (Annexure-B to the counter affidavit). The only thing that is noted there is that the district ranking of Araria has fallen to 28. It is in this background, petitioner’s services is being required to be terminated. Petitioner is issued a show cause (Annexure-E to the counter affidavit), which makes no mention of certain other allegations. The impugned order does not deal with anything, neither the allegations nor the show cause nor the reasons in support of the termination. It merely states the work and the show cause unsatisfactory and, thus, the contract is prematurely terminated. In my view, such an action cannot be upheld, even in contractual matters, specially when the matter is of public domain, authorities are bound by Article-14 of the Constitution. The action - 6 - can neither be arbitrary nor whimsical nor contrary to the principles of natural justice or fair administration. Thus, I find that the order impugned cannot be sustained and is set aside. It would be deemed that the petitioner’s services were never terminated. The writ petition stands disposed of. Trivedi (Navaniti Prasad Singh, J.)