IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.350 of 2011 In (CIVIL WRIT JURISDICTION CASE 1336/2010) The Civil Surgeon-Cum-Member Secretary Dist. Health Society, Araria, District- Araria Appellant Versus 1. The State Of Bihar through the Chief Secretary, Bihar, Patna 2. The Director in Chief, 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, Purnia Division District Purnia 6. The District Magistrate-cum-Chairman, District Health Society, Araria, District Araria 7. Md. Azhar Hussain Son of Ekramuddin, resident of village-Balwa, Tapu Tola P.O. Gaiyari, PS- Araria District Araria Respondents ---------------------------------- With Letters Patent Appeal No.351 of 2011 IN (CIVIL WRIT JURISDICTION CASE 1336/2010) Md.Rehan Ashraf Son of late Md. Khalid, resident at C/o Araria Public School, Muhalla- Rahika Tola, PS- K. Nagar, District- Araria Appellant Versus 1. The State Of Bihar through the Chief Secretary, Bihar, Patna 2. The Director in Chief, 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, Purnia Division District Purnia 6. The District Magistrate-cum-Chairman, District Health Society, Araria, District Araria 7. The Civil Surgeon-cum- Member Secretary, District Health Society, Araria, District Araria 8. Md. Azhar Hussain Son of Md. Ekramuddin, resident of village- Balwa, Tapu Tola P.O. Gaiyari, PS- Araria District Araria Respondents ---------------------------------- 7 19-10-2011 Heard the parties. 2 Both the Letter Patent Appeals arise out of same judgement dated 29-6-2010 whereby writ petition preferred by Md. Azhar Hussain bearing CWJC no. 1336/ 2010 has been allowed by the writ court. The writ court has interfered with termination of contractual service of the writ petitioner before the expiry of fixed tenure of three years mainly on the ground that order of termination does not deal with the allegations in the show cause nor provides good reasons except stating that the work of the writ petitioner was found unsatisfactory. The writ court has also referred to Article 14 of Constitution of India with an observation that even in contractual matters, when they relate to public domain, authorities must not act arbitrarily, whimsical or contrary to provisions of natural justice or fair administration. On behalf of District Health Society, Araria as well as on behalf of Md. Rehan Ashraf who has been subsequently appointed on contract against the post in question, it has been submitted that as per clause 15 of the contract of service the authority 3 concerned had the power to terminate the contract on finding the performance unsatisfactory. Their further stand is that when the State engages in contract to dispense with or settle public largesse, it is definitely required to act fairly and in accordance with Article 14 of Constitution of India but the position is different where the Society has engaged a private person purely on contract. Service on the basis of contract has to be governed by provisions of the contract and even if there be some breach of the terms and conditions of the contract while terminating the contractual service, the Courts should ordinarily not force the service of terminated employee upon the organization because the concerned employee has the opportunity of claiming damages if his grievance can be proved to be genuine. In other words, the second contention is that in matters of contractual service particularly when it is not State service, generally specific performance of contract of service is not ordered by the Courts and the remedy lies in seeking award for damages. On behalf of the writ petitioner, it has been 4 submitted that the Member Secretary of the Health Society, that is, the Civil Surgeon, Araria only two months before the termination of contract has issued a certificate in favour of writ petitioner that his service was satisfactory. We are not impressed with such certificate of the Member Secretary of the Society because the impugned order mentions that in a meeting of the entire Society presided by the Chairman, that is, the District Magistrate, Araria it was noticed that performance of the writ petitioner was not satisfactory. The order further mentions that the writ petitioner was asked to submit a show cause and his show cause was also not found satisfactory. In our view, private contractual service matter is ordinarily not to be entertained in writ jurisdiction. The remedy for the writ petitioner, if any, lies in claiming damages for alleged breach of contract of service. Such view gets support from judgement of the Supreme Court in the case of State Bank of India Vs. S. H. Goel, (2008) 8 SCC 92. 5 For the aforesaid reasons, we set aside the order of the writ court under appeal. The writ petition stands dismissed. Both the appeals are allowed. No costs. BKS/- (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)