Central Administrative Tribunal - Delhi
Dr. Pramod C. Pal vs All India Institute Of Medical Sciences on 14 May, 2015
Central Administrative Tribunal Principal Bench OA No.547/2014 New Delhi, this the 14th day of May, 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) Dr. Pramod C. Pal, All India Institute of Medical Sciences, Ansari Nagar, New Delhi-110029. ...applicant (By Advocate : Shri C. Hari Shankar, Sr. Advocate alongwith Shri Pushkar Kr. Singh, Shri Jagdish N. and Shri Harsh G.) Versus All India Institute of Medical Sciences, Ansari Nagar, New Delhi-110029. ...respondent (By Advocate : Shri R.K. Gupta ) ORDER (ORAL)
A.K. Bhardwaj, Member (J) :-
The applicant jointed as Lab Technician in a research project of AIIMS on 11.02.1983 and continued as such till 18.09.1985. He worked in various research projects as Assistant Research Officer/Sr. Research Fellow/Senior Research Officer w.e.f. 04.08.1992. Presently, he is working as Scientist-III in the project titled Effect of Non-ionizing Electro Magnetic Field (EMS) on Human Health funded by Indian Council of Medical Research under Doctor D.N. Rao w.e.f. 01.08.2010 sanctioned for five years from 15.05.2010.
2. In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought issuance of directions to the respondents to regularise his services as Scientist-III with all consequential benefits.
3. Shri C. Hari Shankar, Sr. Counsel, appeared for the applicant submitted that in view of the judgment of Honble Delhi High Court in Om Prakash & Ors. Vs. The Director, AIIMS and Another uphold by Division Bench in LPA No.307/2001 and stand taken by the AIIMS before Honble Supreme Court in SLP (C) No.19225/2002 preferred against the aforementioned order of the Honble High Court that on completion of more than 15 years service in different projects of AIIMS, the applicant has become entitled for regularisation of his services. With reference to Memo No.F.9-2009/Res.Sec. dated 11.08.2011, whereby he was considered ineligible for regular appointment, the learned Sr. Counsel submitted that the only ground to nix the regular appointment to the applicant is that he did not possess the qualification of M.Sc Ist Class and once the applicant is eligible in all respects for the post of Research Officer i.e. Scientist-I and is in possession of the qualification of Ph.D, there can be no ground/reason to deny him regular appointment, in terms of the view taken by the Honble High Court and the stand taken by the AIIMS before Honble Supreme Court (ibid).
4. On the other hand Shri R.K. Gupta, learned counsel for respondents submitted that as has been viewed by the Honble Supreme Court in M.D. U.P. Land Development Corporation and Anr. Versus Amar Singh and Ors. Appeal (Civil) No.6847/1997; Jawahar Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P. Versus Bal Kishan Soni & Ors. as well as Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors. Appeal (Civil) No.3595-3612/1999, the ad hoc/contractual/project employment comes to an end with culmination of the project/requirement of ad hoc service. No incumbent of the posts on ad hoc project/contractual basis can claim any right either to continue in service or to seek regularisation on the post held by him in such capacity. He further submitted that the applicant was offered appointment as Laboratory Technician in the pay scale of Rs.4500-7000 on 01.07.2009 but he did not accept the offer. The further stand taken by him is that in 2012 the applicant was again considered for his regularisation but was not considered fit by the Screening Committee.
5. We have heard the learned counsels for the parties and perused the record.
6. Indubitably, the applicant joined research project of AIIMS on 11.02.1983 i.e. 32 years ago and since then he has been serving its different projects. Now, he is 58 years old and is left with two years to reach the age of superannuation in any Govt. service. As is the stand of the counsels for the parties and has been apparent from the reply, the project under which he is now working would come to an end on 15.05.2015 i.e. tomorrow and thereafter he would be without any job. It is not gainsaid that the person appointed on adhoc or contract basis in a project can have no right either to seek regularisation or to continue in the service. The position has been well declared by Honble Supreme Court in Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors. (supra). Para 23, 24, 26 & 27 of the judgment referred to by Shri R.K. Gupta, learned counsel for respondents, read thus :-
23. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others [AIR 1994 SC 1638], a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.
24. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said: "It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, "the judicial process would become another mode of recruitment dehors the rules."
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26. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.
27. In A. Umarani Vs. Registrar, Cooperative Societies and Others (2004 (7) SCC 112), a three judge bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. This Court also held that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.
7. Nevertheless, in the said judgment itself, their Lordships made an exception and viewed that in such cases where the employees have continued to work for 10 years and more without the intervention of the orders of Courts or of Tribunals, their cases need to be treated differently. Para 44 of the judgment read thus :-
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
8. As has been noticed hereinabove in the present case, the applicant has been working for more than 32 years without there being any intervention by any Court or Tribunal. In Om Prakash & Ors. Vs. The Director, AIIMS and Another (supra), the Division Bench of Honble High Court of Delhi ruled that the Researchers and Scientists who had worked on projects for more than 15 years should have been absorbed in the service within a period of four months and those who had worked on projects for 10 years and more should have been allowed to complete 15 years service and then should be absorbed on regular basis. Para 28 of judgment read thus :-
28. While keeping in view the ratio of the aforesaid judgments of the Apex Court, we direct that:
(1) Researchers, scientists and others who have worked on these projects for more than 15 years should be absorbed in the service within a period of 4 months;
(2) Researchers, scientists and others who have worked on these projects for 10 years and more should be allowed to complete 15 years and they be absorbed thereafter on a regular basis.
(3) We refrain to give any directions to the Institute regarding employees who have served for less than 10 years but we expect the Institute to utilize their services in available projects or in the Institute as far as possible while keeping humanitarian angle in view. The fact that these employees have approached the courts for redressal of their grievances should not weigh against them. Perhaps any one placed in their position would have done the same.
9. Further in affidavit filed by Dr. P.K. Dave, Director, AIIMS before the Honble Supreme Court in SLP (Civil) No.19225/2002, it was stated that all project employees who had been working continuously for 15 years and above would be considered for absorption keeping in view the educational qualification, experience and availability of posts. The affidavit was signed on 23.04.2003. It had been viewed by Honble High Court of Delhi on 22.05.2002 that all those who had been working for 10 years should be allowed to complete 15 years of service and they should be considered for regularisation and further it was also the stand of the respondents before the Honble Supreme Court on 23.04.2003 that all those who had been working continuously for 15 years and above would be considered for absorption keeping in view the educational qualification, experience and availability of posts. As far as the applicant is concerned, he started discharging the functions as ARO w.e.f. 04.08.1992 and had completed 10 years service on 04.08.2002 i.e. well before the Director, AIIMS executed the affidavit filed before the Honble Supreme Court (ibid). Though there are sufficient merits in the submissions put forth by Shri R.K. Gupta, learned counsel for respondents that after 2006, legal position has been substantially changed by the decision of Honble Supreme Court in Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors., and the scope of appointment by way of regularisation is not there but since the applicant had completed 10 years service as ARO much before the date of judgment of Honble Supreme Court as well the date of the affidavit filed before the Honble Supreme Court, his right for regularisation, had materialised before 2006. The right was further strengthened when he was allowed to continue for another five years as Researcher in the project. He is continuing in service as Scientist-III. May be being in service as Scientist-III for five years only and that too after 2010 i.e. the date subsequent to the date of judgment of Honble Supreme Court the applicant can not get regularisation as Scientist-III but when he had completed 10 years service before the Director, AIIMS filed affidavit before the Honble Supreme Court and admittedly is eligible for regularisation as Research Officer, we are of the view that the respondents should consider him for his regularisation as ARO. Shri R.K. Gupta, learned counsel for respondents argued with vehemence that the project in which the applicant is working is sponsored by ICMR and the applicant has no right to seek regularisation in AIIMS. Such plea is nixed by the fact that AIIMS itself considered the applicant for his regularisation but did not consider him suitable only because he did not meet the qualification of M.Sc. Ist Class. Memo dated 11.08.2011 (Annexure-A/38) whereby such view was taken by the AIIMS read thus :-
MEMORANDUM Sub: Regarding absorption after completion of 15 years of service in project.
With reference to his letter dated 1.8.2011 on the subject cited above, it is to inform that the matter was discussed on 30.3.2009 in the Screening committee under the Chairmanship of Prof. Rani Kumar and job of Lab. Technician was offered which is as per qualification of Dr. P.C. Pal and as per guidelines framed for this purpose. However, he refused to accept the same.
The qualification of Scientist-I in Ist class M.Sc. with 3 years experience OR Ph.D. But it may be noted that the essential qualification is M.Sc. Ist class and 3 years experience and Ph.D. are desirable qualification. However, the appeal of Dr. P.C. Pal is under review and will be placed in the next meeting of the Screening Committee. All other issues raised by Dr. P.C. Pal in his letter are fibulas and no called for.
10. Moreover, the respondents themselves regularised certain persons, namely, Dr. V.L. Jindal, Shri Raj Kumar, Shri Dinesh Kumar Chavan and Shri Pramod Kumar. The Memorandum No.F-1/2000/RS dated 20.04.2012 recommending regularisation of such employees and denying the same to applicant read thus :-
MEMORANDUM Sub: Absorption/ Regularisation after completion of 15 years services in various Research Projects at AIIMS.
The Screening Committee held on 7.3.2012 has considered the proposal for regularization/ absorption of services of the following employee after completion of 15 years of service in various research projects at AIIMS and recommended for regularisation/ absorption of the following employee.
A
1. Dr. V.L. Jindal, RO (Medical), (I-13), Department of Obst. & Gynae.
2. Sh. Raj Kumar, Lab. Tech., (N-129-A), Department of Microbiology.
3. Sh Dinesh Kumar Chavan, Lab Attendant, (I-652), Department of Cardiology.
4. Sh. Pramod Kumar, Lab Attendant, (I696), Department of Microbiology.
The following employees were not recommended by the Committee for regularization/ absorption.
B
1. Dr. P.C. Pal, (Scientist-III), (I-663), Department of Biochemistry.
2. Sh. Arun Kumar, RO (Non-Medical) (I-13), Department of Obst. & Gynae.
3. Ms. Leema Mati, Social Worker, (I-13), Department of Obst. & Gynae.
4. Sh. Naresh Kumar, LDC, (AIIMS adhoc)
5. Sh. Bir Singh, Driver, (I-13), Department of Obst. & Gynae.
The recommendation of Screening Committee in respect of the 4 (four) project employees at A above, is forwarded to Recruitment Cell, AIIMS to take further action in this matter.
11. Having regularised certain project employees and having considered the applicant also for his regularisation, the respondents cannot now take a stand that such employees who worked in ICMR sponsored projects or otherwise in any project cannot seek regularisation. In the facts and circumstances of the case, particularly, the view taken by Honble High Court, the affidavit filed by the Director, AIIMS before the Honble Supreme Court and the fact that the applicant has been working in various projects managed by AIIMS for the last 32 years and is left with only two years to reach the age of superannuation in any Govt. service, we dispose of this OA with a direction to the respondents to consider the applicant for his regularisation as ARO in AIIMS within three months from the date of receipt of a copy of this order. If the post of ARO is abolished/not in existence, then he would be considered for regularisation as RO from due date. Till the exercise of consideration of the applicant for his regularisation is completed, his services would be continued in the available projects managed by the AIIMS either as Scientist-I, Scientist-II or Scientist-III. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj )
Member (A) Member (J)
/rk/