SIBABRATA MISHRA Vs. STATE OF ODISHA AND OTHERS

JUDGEMENT

(1.) This writ petition under Articles 226 and 227 of the Constitution of India whereby and where under the petitioner seeks for the following reliefs:

(2.) Brief facts of the case of the petitioner is that the Mission Director, National Rural Health Mission,Odisha, opposite party no.3, issued an advertisement being Advertisement no.22/11 inviting applications from eligible candidates for filling up various posts under Nationals Rural Health Mission, Odisha on contractual basis for a period of 11 months subject to renewal as per the society norms. The petitioner having qualification of Master in Hospital Administration with post graduate in Diploma in computer application and being eligible, applied in the prescribed manner for the post of Hospital Manager in response to the said advisement. The petitioner being successful in the written test, was called for the interview and computer test in which he has found to be successful, was appointed as Hospital Manager on contract basis from 8.12.2011 with condition that the said appointment can be extended up to 11 months from the date of his joining subject to continuance of the project and the service would be extended if the performance is found to be satisfactory. The petitioner has started discharging his duty with utmost satisfaction of his superiors and since the date of his appoint the authorities taking into consideration his performance has renewed the contract time to time but the same has not been renewed and he has been terminated from service vide order issued in this regard on 26.9.2017 . The authorities after assessing his performance has kept his performance under observation for its assessment for the period of two quarters vide order dated 27.12.2016 under Annexure-11, but his performance has found not satisfactory, hence his contract has not been renewed vide order dated 26.9.2017 as contained under Annexure-16 on the ground that the Contract Renewal Committee in course of assessment of his performance has found it as poor. The petitioner, against the decision of the authorities vide office order dated 26.9.2017, is before this Court by way of the instant writ petition on the ground that the office order dated 26.9.2017 is not sustainable since it has been passed by not renewing the contract with effect from 26.6.2017 and from that date he has been relieved from service, hence it is a case of retrospective termination which is not permissible. The performance which has been assessed by the direct controlling authority is found to be very good but the reviewing authority and the highest authorities is of the view that his performance is poor but no basis of assessment is ever been furnished to him and it is settled that in case of adverse entries of the performance report, the same should be furnished before making adverse entry but here in the instant case the authorities, in complete defiance of the said proposition of law, has not renewed the contract and accordingly terminated him from service while he has discharged his duty with utmost satisfaction of the authorities, that is the reason his immediate controlling authority has assessed his performance as good and very good. The authorities have given no notice prior to termination and as such there is violation of principle of natural justice.

(3.) Learned senior counsel appearing for the petitioner has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Dev Dutt v- Union of India & others, 2008 AIR(SC) 2513 which contained provision of law that adverse entry made in the Annual Confidential Report if not communicated cannot be taken for the purpose of taking adverse decision against the concerned employee and the proposition in the said judgment is applicable since poor performance has never been communicated to him, hence the entire action of the State is absolutely illegal and not sustainable.