WRIC/11479/2024 of M/S SHIVAM ENTERPRISES SAHABGANJ THRU. PARTNER ANOOP SINGH SOMBANSHI Vs STATE OF U.P. THRU. ADDL. CHIEF SECY. DEPTT. OF MEDICAL HEALTH AND FAMILY WELFARE LKO AND 7 OTHERS on 30 December 2024

1. Heard Sri Dwijendra Mishra and Sri Vishva Deep Pandey, learnedcounsel for the petitioner as well as Sri Rahul Mishra, learnedAdditional Chief Standing Counsel for respondent nos. 1, 2, 3, 5, 6, 7and 8 and Sri Puneet Chandra, learned counsel for respondent no. 4.

2. The petitioner has moved an application for urgency in the presentcase which has been allowed and consequently matter has been heardduring the winter recess of this Court. With the consent of learnedcounsel for the parties, present writ petition is heard and decided atthe admission stage itself. Instructions received from Chief MedicalSuperintendent, District Women Hospital, Barabanbki are taken onrecord.

3. The petitioner has approached this Court being aggrieved by orderdated 20.12.2024 passed by the Chief Medical Superintendent,District Women Hospital, Barabanki whereby contract of petitionerhas been terminated which was granted to the petitioner firm on30.08.2018 for the purpose of providing diet to pregnant women underthe National Health Mission Programme.

4. It is submitted by learned counsel for the petitioner that petitionerfirm had participated in the tender process issued by the ChiefMedical Officer, Barabanki and the petitioner being lowest bidder wasgranted the said contract by means of letter dated 31.07.2018. An agreement was also executed between the petitioner and respondentno. 7 on the same day, according to which tender was to be operativefor a period of one year and was to expire on 30.03.2019. It wasfurther provided that the contract can be extended on satisfactoryperformance of service by the petitioner after getting approval andsanction from the competent authority. It is the case of the petitionerthat he has been continuously performing under the said contract tillpassing of the impugned order and his services have been satisfactory.Learned counsel for the petitioner has fairly submitted that no orderwas issued in the meantime for extension of the contract dated30.08.2018, nor was any letter or certificate issued to the petitionerwith regard to satisfactory performance of his duties under the saidcontract.

5. It has been next submitted by learned counsel for the petitioner thatthe respondents have terminated the contract of the petitioner andasked him to vacate the premises by 31.12.2024, as another workorder has already been issued in favour of the lowest bidder from theGEM Portal maintained by the State Government. The fresh contractis to commence from 01.01.2025. Learned counsel for the petitionerhas fairly submitted that the contract awarded to him was for a periodof one year and there is no order in writing with regard to extension ofthe said contract which may indicate that he has any right to continueunder the said contract. It is noticed that petitioner has already workedfor the last six years under the said contract. The petitioner has arguedat length assailing the procedure adopted by the respondents for grantof the fresh contract, but in absence of any prayer being sought inthisregard, we do not find it fit to proceed to consider the said submissionon merits.

6. Learned Additional Chief Standing Counsel on the other hand hasopposed the writ petition on the ground of maintainability and furthersubmits that after due consideration of the entire facts, decision wastaken to invite fresh bids for running the canteen services and also toprovide food services to the pregnant women and other patients. Inthis regard, it is stated that a Committee was constituted by theDistrict Magistrate, Barabanki which consisted number of officialsincluding Chief Medical Superintendent, District Women Hospital,Barabanki. The said Committee duly considered the entire conspectusof the matter and also held that diet/food can be given to the personsfor an amount of Rs.150/- per day as per latest guidelines issued by the National Rural Health Mission Programme. Recommendations ofthe Committee were duly accepted by the District Magistrate and inpursuance to which steps were taken to float fresh tender for invitingbidders for grant of new contract.

7. It is next submitted by learned Additional Chief Standing Counselthat petitioner was aware of the process undertaken by therespondents. The petitioner is a partnership firm and one of the partnerhad duly submitted earnest money through cheque under thesignatures of one of the partner of the petitioner firm in favour ofChief Medical Superintendent, District Women Hospital, Barabankiamounting to Rs.4,40,100/- drawn on the ICICI Bank which wassubmitted on behalf of Namo Caterer, Barabanki. This clearlydemonstrates that even the petitioner firm/partner was fully aware ofthe fresh process which has been commenced by the respondents forappointment of new contract to run the canteen and they neverobjected or assailed the said proceedings before any forum includingthis Court. The respondents have awarded the fresh contract in favourof one M/s Narendra Industry, Nizamuddinpur Ganeshpur,Bahramghat Ramnagar, Barabanki for a period from 31.01.2025 to31.12.2025.

8. It is in the aforesaid circumstances, this Court has been called uponto consider the validity of the impugned order dated 20.12.2024.

9. Heard learned counsel for the parties and perused the record.

10. It is noticed firstly that there is no material on record to indicatethat the contract of the petitioner was extended any time beyond theperiod prescribed in the contract dated 30.08.2018. It is not the case ofthe petitioner that the said contract was in perpetuity. The petitionerfirm had already worked for six years and after change of policy ofthe State Government and subsequently, GEM Portal having comeinto existence it was thought fit to invite fresh tenders after enhancingmoney for per diet by the committee that fresh tenders were invited.

11. The prayer made in the writ petition is with regard to setting asideimpugned order dated 20.12.2024, terminating the contract of thepetitioner and also seeks direction to the respondents to permit thepetitioner to continue to make supply of diet for pregnant womenunder the NRHM Scheme at The District Women Hospital, Barabanki.

12. With regard to prayer no. 2 [prayer ‘b)’ in the writ petition], it isnoticed that prayer for injunction to permit the petitioner to continuesupply of diet cannot be granted as it is clearly contrary to theprovisions of Specific Relief Act. The contract of the petitioner wasfor providing food and canteen services is a contract for personnelservice which cannot be specifically enforced as per the provisions ofSection 14(b) of the the Specific Relief Act, 1963. Even otherwise, asper Section 41(e) of the Specific Relief Act, 1963 injunction in favourof petitioner firm in this regard cannot be granted. This issue evenotherwise has been interpreted by the Hon’ble Supreme Court in thecase of Nandganj Sihori Sugar Co. Ltd. v. Badri Nath Dixit, (1991)3 SCC 54, the Apex Court has observed as under :- “8. In Halsbury's Laws of England (4th edn., Volume 44, at para 407)it is stated:

“407. Contracts for personal work or services.— A judgment forspecific performance of a contract for personal work or services isnot pronounced, either at the suit of the employer or the employee.The court does not seek to compel persons against their will tomaintain continuous personal and confidential relations. However,this rule is not absolute and without exception. It has been held thatan employer may be restrained from dismissing an employee inbreach of contract if there is no loss of confidence between employerand employee or if (at least in a contract of employment to carry out apublic duty) the employee has been dismissed in a manner which doesnot comply with statutory or contractual regulations governingdismissal. No court may, whether by way of an order for specificperformance of a contract of employment or an injunction restraininga breach or threatened breach of such a contract, compel anemployee to do any work or attend at any place for the doing of anywork.

This principle applies not merely to contracts of employment,but to all contracts which involve the rendering of continuous servicesby one person to another, such as a contract to work a railway line….”

9. As stated by this Court in Executive Committee of Vaish DegreeCollege, Shamli v. Lakshmi Narain, (1976) 2 SCC 58:- “… a contract of personal service cannot ordinarily be specificallyenforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removedfrom service can be deemed to be in service against the will andconsent of the employer. This rule, however, is subject to three wellrecognised exceptions — (i) where a public servant is sought to beremoved from service in contravention of the provisions of Article 311of the Constitution of India; (ii) where a worker is sought to bereinstated on being dismissed under the Industrial Law; and (iii)where a statutory body acts in breach or violation of the mandatoryprovisions of the statute.

10. A contract of employment cannot ordinarily be enforced by oragainst an employer. The remedy is to sue for damages. The grant ofspecific performance is purely discretionary and must be refusedwhen not warranted by the ends of justice. Such relief can be grantedonly on sound legal principles. In the absence of any statutoryrequirement, courts do not ordinarily force an employer to recruit orretain in service an employee not required by the employer. There are,of course, certain exceptions to this rule, such as in the case of apublic servant dismissed from service in contravention of Article 311of the Constitution; reinstatement of a dismissed worker under theIndustrial Law; a statutory body acting in breach of statutoryobligations, and the like. (S.R. Tiwari v. District Board, Agra [AIR1964 SC 1680] ; Executive Committee of U.P. State WarehousingCorporation v. C.K. Tyagi [(1969) 2 SCC 838] ; Executive Committeeof Vaish Degree College, Shamli v. Lakshmi Narain [(1976) 2 SCC58].

11. On the facts of this case, the High Court was clearly wrong inissuing a mandatory injunction to appoint the plaintiff. Even if therewas a contract in terms of which the plaintiff was entitled to seekrelief, the only relief which was available in law was damages and notspecific performance. Breach of contract must ordinarily sound indamages, and particularly so in the case of personal contracts.Assuming that a contractual relationship arose consequent upon theletters addressed by defendant 3 to defendant 1, the plaintiff was atotal stranger to any such relationship, for, on the facts of this case,no relationship of a fiduciary character existed between the plaintiffand defendant 3 or other defendants. Neither on principles of law orequity nor under any statute did the plaintiff acquire an enforceableright by reason of the letters exchanged between defendants 1 and 3.The plaintiff had no privity of any kind to their relationship. No

collateral contract to which the plaintiff was a party did arise on thefacts of this case. At no time was defendant 3 acting as an agent of theplaintiff. There is no express or implied contract which is enforceableby the plaintiff.”.

The other aspect of the matter is with regard to maintainability of thewrit petition under Article 226 of the Constitution of India.

13. In the present case apart from the contract awarded to thepetitioner firm on 30.08.2018, there is no document indicating thatpetitioner firm has satisfactorily performed the contract for the last sixyears or that the said contract was extended any time beyond31.03.2019.

14. It is in the aforesaid circumstances that above are the disputedquestions of facts and same cannot be adjudicated in writ proceedingsunder Article 226 of the Constitution of India. Even the Apex Court innumber of decisions have stated that such disputed questions of factarising out of contract cannot be adjudicated by the writ Court underArticle 226 of the Constitution of India. This aspect was alsoconsidered by the Apex Court in the case of State of Kerala &Others Vs. M.K. Jose, AIRONLINE 2015 SC 448, wherein theApex Court has observed as under :- “13. A writ court should ordinarily not entertain a writ petition, ifthere is a breach of contract involving disputed questions of fact. Thepresent case clearly indicates that the factual disputes are involved. InState of Bihar v. Jai Plastics and Chemicals Ltd., a two-Judge Benchreiterating the exercise of power under Article 226 of the Constitutionin respect of enforcement of contractual obligations has stated:- “It is to be reiterated that writ petition under Article 226 is not theproper proceedings for adjudicating such disputes. Under the law, itwas open to the respondent to approach the court of competentjurisdiction for appropriate relief for breach of contract. It is settledlaw that when an alternative and equally efficacious remedy is opento the litigant, he should be required to pursue that remedy and notinvoke the writ jurisdiction of the High Court. Equally, the existenceof alternative remedy does not affect the jurisdiction of the court toissue writ, but ordinarily that would be a good ground in refusing toexercise the discretion under Article 226.” In the said case, it hasbeen further observed:- “It is true that many matters could be decided after referring to thecontentions raised in the affidavits and counter-affidavits, but thatwould hardly be a ground for exercise of extraordinary jurisdictionunder Article 226 of the Constitution in case of alleged breach ofcontract. Whether the alleged non-supply of road permits by theappellants would justify breach of contract by the respondent woulddepend upon facts and evidence and is not required to be decided ordealt with in a writ petition. Such seriously disputed questions or rivalclaims of the parties with regard to breach of contract are to beinvestigated and determined on the basis of evidence which may beled by the parties in a properly instituted civil suit rather than by acourt exercising prerogative of issuing writs.”

14. In National Highways Authority of India v. Gaga Enterprises, therespondent therein had filed a writ petition before the High Court forrefund of the amount. The High Court posed two questions, namely,(a) whether the forfeiture of security deposit is without authority oflaw and without any binding contract between the parties and alsocontrary to Section 5 of the Contract Act; and (b) whether the writpetition is maintainable in a claim arising out of breach of contract.While dealing with the said issue, this Court opined that:-

“It is settled law that disputes relating to contracts cannot be agitatedunder Article 226 of the Constitution of India. It has been so held inthe cases of Kerala SEB v. Kurien E. Kalathil, State of U.P. v. Bridge& Roof Co. (India) Ltd. And Bareilly Development Authority v. AjaiPal Singh. This is settled law. The dispute in this case was regardingthe terms of offer. They were thus contractual disputes in respect ofwhich a writ court was not the proper forum. Mr Dave, however,relied upon the cases of Verigamto Naveen v. Govt. of A.P. andHarminder Singh Arora v. Union of India. These, however, are caseswhere the writ court was enforcing a statutory right or duty. Thesecases do not lay down that a writ court can interfere in a matter ofcontract only. Thus on the ground of maintainability the petitionshould have been dismissed”.

15. Having referred to the aforesaid decisions, it is obligatory on ourpart to refer to two other authorities of this Court where it has beenopined that under what circumstances a disputed question of fact canbe gone into. In Gunwant Kaur v. Municipal committee, Bhatinda, ithas been held thus:- “14. The High Court observed that they will not determine disputedquestion of fact in a writ petition. But what facts were in dispute andwhat were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded todismiss the petition in limine. The High Court is not deprived of itsjurisdiction to entertain a petition under Article 226 merely becausein considering the petitioner’s right to relief questions of fact may fallto be determined. In a petition under Article 226 the High Court hasjurisdiction to try issues both of fact and law. Exercise of thejurisdiction is, it is true, discretionary, but the discretion must beexercised on sound judicial principles. When the petition raisesquestions of fact of a complex nature, which may for theirdetermination require oral evidence to be taken, and on that accountthe High Court is of the view that the dispute may not appropriatelybe tried in a writ petition, the High Court may decline to try apetition. Rejection of a petition in limine will normally be justified,where the High Court is of the view that the petition is frivolous orbecause of the nature of the claim made dispute sought to be agitated,or that the petition against the party against whom relief is claimed isnot maintainable or that the dispute raised thereby is such that itwould be inappropriate to try it in the writ jurisdiction, or foranalogous reasons.

15. From the averments made in the petition filed by the appellants itis clear that in proof of a large number of allegations the appellantsrelied upon documentary evidence and the only matter in respect ofwhich conflict of facts may possibly arise related to the duepublication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, the High Court was notjustified in dismissing the petition on the ground that it will notdetermine disputed question of fact. The High Court has jurisdictionto determine questions of fact, even if they are in dispute and thepresent, in our judgment, is a case in which in the interests of both theparties the High Court should have entertained the petition and calledfor an affidavit-in-reply from the respondents, and should haveproceeded to try the petition instead of relegating the appellants to aseparate suit.” [Emphasis added]

16. In ABL International Ltd. v. Export Credit Guarantee Corpn.ofIndia Ltd., a two-Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur (supra) and CenturySpg. And Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, has heldthus:- “19. Therefore, it is clear from the above enunciation of law thatmerely because one of the parties to the litigation raises a dispute inregard to the facts of the case, the court entertaining such petitionunder Article 226 of the Constitution is not always bound to relegatethe parties to a suit. In the above case of Gunwant Kaur this Courteven went to the extent of holding that in a writ petition, if the factsrequire, even oral evidence can be taken. This clearly shows that inan appropriate case, the writ court has the jurisdiction to entertain awrit petition involving disputed questions of fact and there is noabsolute bar for entertaining a writ petition even if the same arisesout of a contractual obligation and/or involves some disputedquestions of fact.

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27. From the above discussion of ours, the following legal principlesemerge as to the maintainability of a writ petition:

(a) In an appropriate case, a writ petition as against a State or aninstrumentality of a State arising out of a contractual obligation ismaintainable.

(b) Merely because some disputed questions of fact arise forconsideration, same cannot be a ground to refuse to entertain a writpetition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary claimis also maintainable.

While laying down the principle, the Court sounded a word of cautionas under:- “However, while entertaining an objection as to the maintainability ofa writ petition under Article 226 of the Constitution of India, the courtshould bear in mind the fact that the power to issue prerogative writsunder Article 226 of the Constitution is plenary in nature and is notlimited by any other provisions of the Constitution. The High Courthaving regard to the facts of the case, has a discretion to entertain ornot to entertain a writ petition. The Court has imposed upon itselfcertain restrictions in the exercise of this power. (See WhirlpoolCorps. v. Registrar of Trade Marks.) And this plenary right of the High Court to issue a prerogative writ will not normally be exercisedby the Court to the exclusion of other available remedies unless suchaction of the State or its instrumentality is arbitrary and unreasonableso as to violate the constitutional mandate of Article 14 or for othervalid and legitimate reasons, for which the Court thinks it necessaryto exercise the said jurisdiction”.”

15. In the impugned order it has been stated that the contract wasinitially awarded in favour of the petitioner on 30.08.2018, and he hasworked under the said contract till date. Due to the fact that thedecision has been taken to review the rates, process for grant of freshcontract has been undertaken and contract has been awarded andtherefore the petitioner has been directed to vacate the kitchen by31.12.2024.

16. It is clear that the contract of the petitioner has been determined bythe impugned order. The rights if any of the petitioner, which areallegedly violated are out of contract, and no argument has been raisedon behalf of the petitioner that any of his fundamental rights protectedunder Part III of the Constitution of India or any statutory provisionhas been violated rendering the impugned order illegal and arbitrary.

17. It is in the aforesaid circumstances that this Court has consideredentire facts of the present case where a contract which was initiallyawarded for a period of one year, continued for six years, in themeanwhile the State Government has issued another policy withregard to supply of diet to the pregnant women and to other patientscoming to the District Women Hospital, Barabanki, for which betterfacility has been sought to be provided and for the said purposeamount of money per diet has been enhanced. As per procedureprovided fresh tenders were invited from the GEM Portal and theentire exercise has been concluded and contract has been awarded toanother firm. The petitioner on coming to know of this fact, haschosen not to assail the proceedings of the State Government whichresulted in grant of fresh contract to another firm namely M/sNarendra Industries and hence no such relief as argued by thepetitioner can be granted in absence of impleading necessary parties inthe present writ petition, and making a specific prayer in this regard.

18. We have also given our anxious consideration to the arguments ofthe petitioner and find that there is no illegality in the impugned order.The issue of breach of contract and the remedy of seeking compensation can be raised by the petitioner before the appropriateforum, but we do not deem it fit and proper to exercise theextraordinary remedy under Article 226 of the Constitution of India inthe facts of the present case.

19. In the aforesaid facts and circumstances, we are not inclined togrant the relief as claimed by the petitioner in the present writ petition.The writ petition being devoid of merits is dismissed.

Order Date :- 30.12.2024A. Verma

(Brij Raj Singh, J.) (Alok Mathur, J.)