Court No. - 29

Case :- SPECIAL APPEAL No. - 144 of 2021

Appellant :- Anita Bhardwaj

Respondent :- State Of U.P. And 4 Others

Counsel for Appellant :- Siddharth Khare,Sr. Advocate Shri Ashok Khare

Counsel for Respondent :- C.S.C.,Hemendra Kumar Mishra

Hon'ble Pritinker Diwaker,J.

Hon'ble Ashutosh Srivastava,J.

This intra Court Appeal has been filed questioning the legality, propriety and

correctness of the judgment of the learned Single Judge dated 18.02.2021 passed

in Writ (A) No.2201 of 2021 (Anita Bhardwaj Vs. State of U.P. & others)

whereby the learned Single Judge has found no good ground to entertain the writ

petition and dismissed the same as it related to termination of the contractual

engagement relying upon the Division Bench decision rendered in Rajesh

Bhardwaj Vs. Union of India, reported in 2019 (2) ADJ 830.

It has been vehemently contended by the learned counsel for the appellant that

the decision rendered in the case of Rajesh Bhardwaj Vs. Union of India, relied

upon by the learned Single Judge does not lay down the proposition of law that a

writ petition at the instance of a contractual employee would not be maintainable

and the learned Single Judge manifestly erred in law in non-suiting the writ

petitioner/ appellant on that score. The writ petitioner though initially appointed

on the post of A.N.M. on contract basis vide order dated 30.11.2016 had been

working continuously without break in service under orders of extension being

passed from time to time. Vide order dated 28.11.2020 the petitioner was

terminated from services on the ground that she had committed gross

irregularities in the vaccination programme resulting in three diphtheria cases

and death of a child. The services of the petitioner/appellant were terminated

while another A.N.M. namely Shashikant Kushwaha, whose writ petition being

Writ Petition No.14114 of 2020 has been stayed vide order dated 11.01.2021 but

the writ petition of the petitioner/ appellant was dismissed and as such the

appellant has been discriminated with. It is also contended that the order

terminating the services was contrary to the Circular dated 07.03.2019 issued by

the Mission Director which provided a procedure to be followed before

dispensing with the service. The said procedure was not followed besides the

impugned order passed was in violation of principles of natural justice in as

much as no opportunity of hearing was afforded to the petitioner/appellant.

We have heard the learned counsel for the appellant and the learned Standing

Counsel for the State respondents and have perused the record.

The factum that the appellant/writ petitioner was appointed on contract basis on

honorarium vide order dated 30.11.2016 and such appointment was the

contractual appointment is not in dispute.

Having heard the learned counsel for the appellant and having perused the

decision rendered in the case of Rajesh Bhardwaj Vs. Union of India (Supra)

we find that the coordinate Bench while dealing with the question Nos.2, 3 & 4

framed by it opined as under:-

"30. ........ In these circumstances, in the cases like petitioner, consistently it has

been laid down that employment is simply a part of contract. If employment is

terminated or contract of service is terminated, Court shall not grant relief of

reinstatement, i.e. specific performance of contract of personal service, as it is

barred by the provisions of Specific Relief Act, 1963 (hereinafter referred to as

"Act, 1963") and, therefore, no remedy under Article 226 shall be available since

employee, if complains about wrongful termination of service, then must avail

remedy in common law by claiming damages."

Then again in para 31 of the aforesaid judgment while drawing a distinction

between nature of appointment/engagement governed by statute or statutory

rules i.e. governed by "status" and governed by a contract of service opined as

under :-

"31. ....... Nature of engagement/appoint