Central Administrative Tribunal - Delhi
Ruchika Madan vs All India Institute Of Medical Sciences on 23 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO. 748/2015 Reserved on 30.06.2015 Pronounced on 23.07.2015 Honble Shri V. Ajay Kumar, Member (J) Honble Shri Ashok Kumar, Member (A) Ruchika Madan, (Physiotherapist) w/o Anoop Agarwal, Aged 31 years, R/o, 21-A, J7K Block, Lakshmi Nagar, Delhi-110092 Applicant (By Advocate: Mr. S. Sunil) Versus All India Institute of Medical Sciences, Through its Director, Ansari Nagar, New Delhi-110 029 . Respondent (By advocate: Mr. R.K Gupta) O R D E R
Mr. Ashok Kumar, Member (A):-
The applicant has filed this OA against the action of the Respondents in not including her name in the list of candidates who had been called for interview for the post of Junior Physiotherapist/Occupational Therapist in AIIMS, vide notification at Annexure A-1 dated 11.02.2015.
2. The reliefs sought in the OA read as under:-
(i) to direct the AIIMS to include the name of the applicant in the list of candidates, called for interview for the recruitment to the post of Junior Physiotherapist/Occupational Therapist, pursuant to the examination held on 27.12.2014,
(ii) to grant costs of this appeal, to the applicant herein, and
(iii) to pass such other order or orders as may be deemed fit and proper in the interest of justice.
3. The applicant had also prayed for interim direction to the respondents to permit her to appear provisionally in the interview scheduled to be held on 10.03.2015 for the said post subject to outcome of the present OA.
4. The prayer for interim relief was considered and both parties were heard on 09.03.2015. Through an interim direction respondents were directed to allow the applicant to provisionally appear in the interview on 10.03.2015.
5. The applicant later on filed Miscellaneous Application No. 1186/2015 in the present OA to permit her to place on record the communication dated 23.02.2015 whereby the respondents AIIMS had informed her with response to her letter dated 12.02.2015 as follows:-
With reference to your email and letter received on dated 12th February, 2015, it is to inform you that as per advertisement the Upper age limit for UR category for the post of Junior Physiotherapist /Occupational Therapist was 30 years. Your name has not been in the merit list because you had crossed the age of 30 years. As per the directions of the Recruitment Cell, no age relaxation is extended to the candidates working on contractual basis. For the reasons stated therein, the MA 1186/2015 is allowed and the document annexed thereto, is taken on record.
6. Another MA No. 1178/2015 dated 11/87 was also filed by the applicant for permission to amend the OA mainly because the applicant had been informed vide communication dated 23.02.2015 that she was excluded from the list of candidates for the interview because of her being a contract employee with AIIMS and further that she was accordingly not treated as employee of AIIMS for the purposes of grant of relaxation in age, she being a contract employee with AIIMS. It was also stated in the MA that although the said communication was not a rejection of her representation which she had addressed to the AIIMs, yet however a challenge there to was necessary because during the oral hearing, a contention had been raised by the respondents that the applicant ought to have challenged the said communication.
7. As an abundant caution and to avoid any technical objection, certain amendments have been proposed in para 5 of the MA. A copy of the amended OA had been annexed as M-1. Having considered the prayer made in the MA, in view of the fact that the amendments sought through this MA was on account of subsequent developments having taken place during the pendency of this OA and further because permitting the applicant to amend the OA was necessary to accord logical consequence to finally adjudicate the grievance of the applicant in the OA, we allow MA No. 1187/2015 in the interest of justice.
8. Very briefly the facts of the case are that the applicant after having participated in an interview had joined the services as Junior Physiotherapist in the department of Geriatric Medicine in AIIMS on 26.11.2012 on contract basis. Subsequently, a recruitment notice No. 10/2013 was issued by AIIMS inviting applications for recruitment to various posts in Group B and Group C posts including the post of Junior Physiotherapist/Occupational Therapist in which the age limit for the said posts was 30 years as on 31.01.2014. As per clause 9 of the General Conditions of the said notice, in consonance with the clause 6 of the Recruitment Rules (RRs), the age limit was relaxable upto 40 years in the case of employees of AIIMS. The applicant would have been 30 years 3 months and 20 days of age on 31.01.2014 but was entitled to age relaxation up to 40 years as per clause 6 of the RRs as well as condition 9 of the General Conditions referred to above. It was under this understanding that she applied for being considered for the said posts. She was issued a provisional admit card to appear in the examination. She appeared for the written examination on 27.12.2014 and performed well in the examination and could not have been excluded for the interview for the said post on account of her merit as stated by applicant in the OA. On 09.01.2015 the applicant was telephonically informed by the examination section of AIIMS to submit an application regarding the nature of her employment in AIIMS. She submitted an application confirming that she had been employed on contract basis from 28.11.2012 and continued to work there. On informal inquiry later, she was informed that she was not entitled for the benefit of age relaxation under the aforenoted provisions of the RRs and the General Conditions in the recruitment notice since her appointment on contract basis did not entitle her to be considered as an employee of AIIMS. Subsequently, when the impugned notice dated 11.02.2015 was notified she found her name absent from the list. Having not found her name in the list of candidates called for interview, she submitted a representation dated 13.02.2015 with the request to be intimated why her name did not figure in the list. Applicant thereafter approached the Tribunal by filing this OA since no response was received on the representation and the interview was to be held on 10.12.2015.
9. Grounds preferred by the applicant are that her appointment on contract basis can not negate the fact of her being under employment of AIIMS and consequently being regarded as an employee of AIIMS and thus being entitled to age relaxation.
10. It has further being stated that judicial pronouncements, and otherwise support the proposition that the expression employee encompasses all kinds of employees, including those employed on contract basis. Moreover age relaxation is a beneficial provision and must therefore be accorded expansive interpretation. It is also submitted that the impugned notice dated 11.02.2015 being arbitrary and unreasonable are also violative of Article 14 and 16 of the Constitution of India.
11. The respondents have filed counter affidavit. The first ground taken is that the applicants contract period would expire on 30.06.2015 and hence in view of the decision of the Constitution Bench of the Honble Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC-1, the OA is not maintainable because giving of temporary employment or engagement on daily wages and its continuation for a certain length of time can only have a limited role to play when every qualified citizen has a right to apply for appointment. To encourage or approve appointments made or engagements outside the constitutional scheme would result in perpetuating illegality in public employment. The judgment of the Constitution Bench in State of Punjab Vs. Jagdip Singh has also been referred to by the respondents to contend that the Govt. would be acting beyond its competence by giving a status to a person not entitled to the same and cannot be deemed to have been validly appointed. Referring to the objective of setting up AIIMS and the need for it to remain at the fore-front of medical research and development it is submitted by the respondents that it is necessary to attract the best possible talent solely on merit. It is also submitted that the Tribunal in the case of contractual Lab Technicians in OA 3100/2014 vide order dated 30.01.2015 had dismissed the OA and had declined the prayer for regularization. Respondents have further informed in the counter affidavit that inconsonance with the interim order dated 09.03.2015 the result of said posts under unreserved category has been withheld pending the final outcome of this OA. On this ground and for the reasons stated in the counter affidavit, the respondents have prayed for dismissal of the OA.
12. We have heard learned counsel for both sides when Mr. S. Sunil, learned counsel argued on behalf of the applicant and Mr. R.K. Gupta, learned counsel argued for the respondents.
13. The respondents on our direction dated 29.06.2015 produced the result of the applicant in a sealed cover which is placed on record. It was further stated on that date that the respondent counsel would take instruction regarding the number of vacancies for unreserved category and whether the applicant had passed the written test under the selection process under the concerned category. It appears from the result of the applicant produced in a sealed cover that the applicant in the OA had secured 6th rank in the final merit list for the post in question and had obtained a total of 70 marks as per the final merit list. Based on the marks obtained in the written test as well as in the interview, learned counsel for the applicant also produced copy of OM dated 16.06.2015 issued by the Administrative Officer, AIIMS (Recruitment Cell). This OM was in continuation of the earlier OM dated 30.12.2014 interalia stating that the competent authority had decided to extend the period of contractual engagement of the four persons mentioned in the OM as Physiotherapist for a further period of two months w.e.f. 01.07.2015 to 30.08.2015, or till such time that regular arrangement are made, whichever is earlier. The name of the applicant finds mention at serial No. 3 of the list and the department / centre shown against her name is Geriatric Medicine.
14. Learned counsel for the applicant thereafter argued that not only on the date on which the applicant made the application for the posts, but as on the date of written examination as well as the date on which the interview was conducted, the applicant continued to be in employment on contract basis with the respondent AIIMS and was continuing under such contract employment till date. Learned counsel for the applicant referred to the judgment of the Honble Supreme Court in the matter of UPSC Vs. Dr. Jamuna Kurup and Others (2008 11 SCC 10) wherein it was held in the case of the Delhi Municipal Corporation that when neither the advertisement issued by the DMC or the DMC Act defined the term employee the term has therefore to be given ordinary meaning which includes contractual employees.
15. On the other hand Mr. R.K. Gupta, learned counsel for the AIIMS firstly referred to the registration slip relating to the applicant in which against the column Are you an AIIMS employee.? the applicant had mentioned Yes. He also produced the communication from the recruitment cell dated 18.03.2014 in reply to a reference of the examination section dated 04.03.2014 whether a candidate working on contract basis in the institution would be considered as departmental candidate for the purposes of age relaxation and the answer given by the recruitment cell was negative. Referring to the arguments and judgments given in the counter affidavit, namely the judgment of Honble Supreme Court in Uma Devis case and the orders of the Tribunal in OA No. 3100/2014, he produced a copy of the judgment of the Honble High Court of Delhi dated 24.02.2015 in WP(C) No. 1767/2015 in Deepesh & Others Vs. Union of India and another in which the Honble High Court had upheld the judgment of the Tribunal that since the contractual employees appointed by the Respondents directly or through contractual Agencies on the post of Lab Technicians are no more in service, their contract period stood terminated. Another judgment produced by the respondents counsel was of the Honble Supreme Court in UPSC Vs. Girish Jayanti Lal Vohela wherein the Honble Supreme Court held the view that respondents No. 1 in that matter could not be said to be a government servant as she had been working on contract basis and was therefore not eligible for any relaxation in upper age limit. Respondents counsel also relied on the judgment of the Honble Supreme Court in Secretary, Karnataka and Ors. Vs. Uma Devi & Ors. case to argue that in terms of that judgement the continuation of appointments other than on regular basis is not within the constitutional scheme and should not be allowed to perpetuate.
16. We have perused the pleadings and documents and have considered the arguments of both sides. The short issue in question is whether by virtue of being a contract employee, the applicant could be treated as an employee of AIIMS and could consequently be entitled to the benefit of age relaxation in terms of the notice issued by the respondents for recruitment to the related posts. Annexure A/4 is a copy of the (relevant portion of the RRS ) relating to appointment of Junior Physiotherapist / Occupational Therapist. As per the related portion of the existing RRs applicable for the post in question for which the applicant has filed this OA, Column-6 reads as follows:-
No. Description As is Recruitment Rules To be Recruitment Rules
1.
Name of the post Junior Physiotherapist / Junior Occupational Therapist Junior Physiotherapist / Junior Occupational Therapist
2. Number of posts 10 (1992) 37 (2011)
3. Classification Group C-B Group B
4. Pay band and Grade Pay Rs. 1400-40-1800-EB-50-2300 Pay Band: 2 (Rs 9300-34800) Grade Pay Rs. 4200
5. Method of recruitment 100% by Direct 100% by direct recruitment
6. Age limit for Direct Recruits Between 18 to 30 years ( relaxable for employees of AIIMS upto 40 years Between 20 and 30 years ( Relaxable for Government servants /departmental candidates (Emphasis Added) It appears from the above, that the age relaxation is for employees of AIIMS as per the Recruitment Rules.
17. Annexure A-5 is a copy of the Recruitment Notice No. 10/2013 inviting applications for various posts including the post in question. Under column 16, the upper age limit for the post of Junior Physiotherapist / Junior Occupational Therapist is mentioned as 30 years. However, in the General Conditions mentioned in para 9 of the Recruitment notice, the age relaxation up to 40 years for these posts is stated to be in case of employees of AIIMS.
18. It is clear from the aforenoted two documents that the word used both in the Recruitment Rules as well as Recruitment notice are employees of AIIMS. It is no where expressly stated as to which categories of employees would fall within the said relaxation in age as employees of AIIMS. It is also nowhere mentioned that contract employees would not be entitled to the benefit of age relaxation, as has been the stand taken by the respondents in the counter affidavit as well as during arguments. It is noted above that vide communication dated 18.03.2014, the Recruitment cell had clarified to the Examination section on their query as to whether candidates working on contract basis in the institute would be considered as departmental candidates or not for the concession of age relaxation. The answer given was in the negative. Learned counsel for the respondent, Mr. R.K. Gupta had relied on this communication. It is however not understood that if this was the stated position of AIIMs, why it was not mentioned in the recruitment notice clarifying that contract employees would not be eligible for age relaxation as employees of AIIMS. Even if this had been done, it would not have been sufficient because the RRs also only provides age relaxation for employees of AIIMS, and does not specify or define as to which category of employees were to be treated as employees of AIIMS, and which category would stand excluded from the category of employees of AIIMS for the purpose of age relaxation.
19. The judgments relied upon by learned counsel, Mr. R.K. Gupta are of no assistance to the respondents. The judgment in Uma Devis case is basically that persons appointed without following the due process should not be allowed to continue and such a situation should not be allowed to perpetuate. Appointment should be made under the constitutional scheme and through a proper process of selection. The present case is distinguishable because the issue relates to selection through a duly notified process, which included written examination as well as interview. In view of the facts of the present case the judgment in Uma Devi (Supra) is not specifically relevant.
Similarly, the judgment in the matter of UPSC Vs. Girish Jayanti Lal Vaghela (Supra) is also distinguishable. The Honble Supreme Court in their judgment in UPSC Vs. Jamna Kurup and Others (Supra) in para 16, after examining the judgment in Girish Jayati Lal Vaghela matter held as follows:-
16. The learned counsel for the appellant submitted that the advertisement granted age relaxation to employees of MCD and employees of the Government of India, and that the words permanent or regular were not used either with reference to employees of the government or employees of MCD. It is pointed out that in Vaghela this Court while dealing with persons employed in identical circumstances, that is engaged for a period of six months from the date of joined or till a candidate selected by UPSC joined on a regular basis, held that the term government servant did not refer to or include persons employed on contract basis. It is argued that on the same principle, the term employees of MCD cannot include a contract employee of MCD. We cannot agree. Vaghela related to contract employment by the Government whereas in this case the contract employment is by a municipal corporation. The reason that weighed with this court in Vaghela to hold that a contract employee was not a government servant, was in view of the special connotation of the term government servant. This court after referring to the decision of the Constitution Bench in Roshan Lal Tandon v. Union of India, and the decision in Dinesh Chandra Sangma v. State of Assam, held that employment under the government Is a matter of status and not a contract even though acquisition of such a status may be preceded by a contract; and that contract employees of the government were governed by the terms of contract and did not possess the status of governed servants, nor were governed by the rules framed under Article 309 of the Constitution, nor enjoyed the protection under Article 311. But a municipal corporation is not Government, and municipal employees are not government servants governed by Articles 309 to 311. Though permanent employees of municipal corporation or other statutory bodies may be governed by statutory rules, they do not enjoy the status of government servants. Therefore, the decision in Vaghela, rendered with reference to government servant may not be of any assistance in interpreting the term employees of MCD in fact, for that very reason these matters were delinked from the hearing of Vaghela.
(Emphasis Added) The judgment of the Honble High Court of Delhi in Deepesh & Others (Supra) would also not be applicable in the present case because the order of the Tribunal which was under challenge before the High Court and was upheld by the High Court, related to regularization of contract employees and not to appointment on regular basis.
20. On the other hand the applicants counsel has produced the judgment of the Honble Supreme Court in UPSC Vs. Dr. Jamuna Kurup and Others 2008 11 SCC 10. In that matter the respondents were engaged as Medical Officers (Ayurved) by MCD on purely contractual basis till regularly selected candidates were to be made available by UPSC. UPSC issued an advertisement for regular appointment in which it was mentioned that the upper age limit was relaxable upto 5 years for employees of MCD. The respondents in that matter claimed this relaxation to which UPSC did not agree on the ground that it was meant for regular employees and not for contractual employees. The Honble High Court held that age relaxation was admissible. UPSC in their appeal before Honble Supreme Court relied on the judgement in Girish Jayanti Lal Vaghela (Supra) case where it was held that the term government servant did not refer to, or include persons employed on contract basis. The appeal was dismissed by the Honble Supreme Court. Paragraph 9 and 10 of the said judgment are reproduced below:-
9. UPSC contended that the term Age relaxable for employees of Municipal Corporation of Delhi in the advertisement dated 13.3.2004, is intended to refer only to regular and permanent employees of MCD. It was also contended that being short-term contact employees, the respondents cannot claim to be employees of MCD. For this purpose reliance was placed on the decision of this Court inn UPSC v. Girish Jayanti Lal Vaghela wherein this Court held that persons working on short-term contract basis cannot claim the status of government servants. UPSC submitted that on a similar interpretation, employees of MCD will not include contract employees.
10. The learned counsel appearing for the respondents submitted that the decision in Vaghela did not apply to the respondents as they did not claim to be government servants. He submitted that the respondents claimed age relaxation as employees of MCD which was specifically provided in the advertisement. We have already noticed that the UPSC advertisement (No. SPL-03-2004) clearly specified that the age-limit of 35 years was relaxable for employees of Municipal Corporation of Delhi, up to five years. Therefore, the only question that arises for consideration is whether the words employees of MCD should be construed as referring only to permanent or regular employees of MCD as contended by UPSC or to all employees of MCD including contract employees, as contended by the respondents.
(Emphasis added)
21. After having examined the advertisement issued by the UPSC for recruitment and the provisions of the DMC Act 1957 the Honble Court held in para 14 and 15 as follows:-
14. The term employee is not defined in the Delhi Municipal Corporation Act, 1957, nor is it defined in the advertisement of UPSC. The ordinary meaning of employee is any person employed on salary or wage by an employer. When there is a contract of employment, the person employed is the employee and the person employing is the employer. In the absence of any restrictive definition, the word employee would include both permanent or temporary, regular or short term, contractual or ad hoc. Therefore, all persons employed by MCD, whether permanent or contractual will be employees of MCD.
15. The respondents who were appointed on contract basis initially for a period of six months, extended thereafter from time to time for further periods of six months each, were therefore, employees of MCD, and consequently, entitled to the benefit of age relaxation. If the intention of MCD and UPSC was to extend the age relaxation only to permanent employees, the advertisement would have stated that age relaxation would be extended only to permanent or regular employees of MCD or that the age relaxation would be extended to employees of MCD other than contract or temporary employees. The fact that the term employees of MCD is in no way restricted, makes it clear that the intention was to include all employees including contractual employees. Therefore, we find no reason to interfere with the judgment of the High Court extending the benefit of age relaxation. (Emphasis Added)
22. Finally, the appeal was dismissed by the Honble Apex Court and UPSC was directed to declare the result of the Respondents who had participated in the examination and to grant them the benefit of age relaxation.
23. To our mind, the judgment of the Honble Supreme Court is squarely applicable to the applicant in the present OA, given the facts of the case. Respondents have no where mentioned in the recruitment notice that contractual employees were excluded from the term employees of AIIMS. In the absence of such explicit exclusion, it is clear that all employees including contractual employees under the recruitment notice, as well as under the recruitment rules, were entitled to age relaxation. The applicant is thus entitled to the benefit of age relaxation as provided under the recruitment notice as well as the recruitment rules for the related posts. The stand of the respondents being without merit cannot be accepted and is accordingly rejected.
24. In view of above, respondent AIIMS is directed to declare the result of the applicant and to take consequential action in terms of the rules and instructions for appointing her against the unreserved category to the post of Junior Physiotherapist/Occupational Therapist in the Geriatric Medicine department as per the notified vacancy, if otherwise found fit. This shall be done within a period of 6 weeks from the date of receipt of a copy of this order.
25. In result OA succeeds and is accordingly allowed. We make no order as to costs.
(Ashok Kumar) Member (A) (V. Ajay Kumar) Member (J) /daya/