Central Administrative Tribunal - Cuttack
Dina Ballav Sahoo vs National Institute Of Fashion ... on 10 December, 2024
1 OA 236 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 236 of 2021
Reserved on : 30.9.2024 Pronounced on : 10.12.2024
Coram : Hon'ble Mr. Sudhi Ranjan Mishra, Member (J)
Hon'ble Mr. Pramod Kumar Das, Member (A)
Dina Ballav Sahoo, aged about 47 years, S/o Sri Gopi Ballav Sahoo, presently working as Computer Engineer, NIFT (National Institute of Fashion Technology) Campus, IDCO Plot No. 24, Opposite KIIT School of Management, Chandaka Industrial Estate, Bhubaneswar - 751024, Odisha.
......Applicant VERSUS
1. Union of India represented through Secretary, Ministry of Textiles, At - Udyag Bhawan, Dr. Maulana Azad Road, New Delhi - 110011.
2. Director General, NIFT (National Institute of Fashion Technology), Hauz Khas, Near Gulmohar Park, New Delhi - 110016.
3. Director, NIFT (National Institute of Fashion Technology) Campus, IDCO Plot No. 24, Opposite KIIT School of Management, Chandaka Industrial Estate, Bhubaneswar - 751024, Odisha.
4. Registrar, NIFT HO, New Delhi, NIFT (National Institute of Fashion Technology), Hauz Khas, Near Gulmohar Park, New Delhi - 110016.
......Respondents
For the applicant : Mr.A.Kanungo, counsel
For the respondents: Ms. S.B.Das, counsel
Mr.S.K.Acharya, counsel
2 OA 236 of 2021
O R D E R
Hon'ble Mr.Pramod Kumar Das, A.M.
It is the case of the applicant that he is a holder of Master Degree in Computer Science having 02 years of experience in the field of IT Sector in different organizations. Vide order dated 30.1.2014 he was selected and appointed as Computer Engineer on ad hoc basis in National Institute of Fashion Technology (NIFT) Centre Bhubaneswar. He worked as such with all sincerity and devotion to the best satisfaction of the authorities concerned. The respondent department issued advertisement No. 21/2014 inviting application for selection for the post of Computer Engineer amongst other posts on contractual basis in regular scale of pay. However, the said process could not be completed. Again advertisement No. 10/2019 was issued for recruitment on contractual basis for 05 years (with a possibility of regularization on the basis of satisfactory performance). The applicant submitted his application but the same was rejected vide order dated 1.4.2021 since he crossed the age for recruitment as per the rules even after giving relaxation. He submitted representation against such rejection and also a representation seeking relaxation/permanent absorption. In the circumstances the applicant has filed the present OA seeking the following relief :
a) Quash the letter dated 1.4.2021 at Annexure A/7.
b) Direction/directions be issued to the respondents to regular4ize and absorb the applicant in the post of 'Computer Engineer' with effect from 30.1.2019, i.e. the date he completes the 5 years service on contract basis (applicant has completed more than 8 years) and allow the regular scale of pay in the pay scale attached to the post.
c) Any other direction/directions be issued under the circumstances as this Hon'ble Court would deem fit and proper.
3 OA 236 of 2021
2. In the course of hearing learned counsel for the applicant has submitted that the respondent department issued advertisement No. 21/2014. The applicant submitted his application and appeared at the written examination for the post of Computer Engineer but the result of the said selection has not been published till date. According to the learned counsel for the applicant, since the applicant has got the work experience and while working on such ad hoc basis, he crossed the age required for selection to the post in question, the respondents ought to have relaxed the age limit and allow the applicant to participate in the selection. According to the learned counsel for the applicant the procedure adopted by the respondents amounts to hiring and firing taking into consideration the helpless condition of the common citizen and the unemployment problem in the country. Learned counsel for the applicant to justify his claim has placed reliance on the decision of Hon'ble Apex Court in the case of N.S.K.Nayar & ors. -vs- UOI & Ors. [1992 Supp.(2) SCC 508]. Accordingly, the learned counsel for the applicant has prayed for the relief claimed in the OA.
3. The respondents have filed their counter contesting/objecting the prayers of the applicant. Relying on the averments made in the counter learned counsel for the respondents has submitted that the very appointment of the applicant was on ad hoc basis with certain conditions that the applicant cannot claim any right for regularization and his services can be terminated without assigning any reason thereof. The applicant accepted such terms and conditions and joined the post. As per the 4 OA 236 of 2021 requirement, his service was extended with such terms and conditions. The applicant with an open eye accepted the conditions and joined the post and therefore he cannot claim his regularization as a matter of right de horse the rules. Learned counsel for the respondents in course of hearing has brought to our notice the decisions of the co-ordinate Benches of the Tribunal such as Jabalpur Bench in OA 491/2015 dated 30.7.2015, Guwahati Bench in OA 141/2021 dated 30.5.2024 to state that the applicants therein have also approached the respective Benches with same prayer which was rejected. The present case being one and the same by applying the aforesaid decision is liable to be dismissed. Learned counsel for the respondents has also placed reliance on the decision of Hon'ble Apex Court in the case of Secretary, State of Karnataka -vs- Uma Devi [(2006) 4 SCC 1] to state that appointment made on ad hoc, contractual, daily wage basis cannot accrue a right on such appointee to claim regularization de horse the rules as direction for regularization would be violative of the mandate enshrined in the Article 14 and 16 of the Constitution of India. Further it is stated that regularization cannot give permanence to an employee whose services are adhoc in nature and the employee concerned has been continuously accepting it over the years. It is submitted that the fact that an individual has been working for a long period of time on ad hoc, contractual or daily wage basis would not mean that he had acquired a right for regularization and to fortify his argument he has placed reliance on the decision of the Hon'ble Apex Court in the case of A.Umarani -vs- Registrar, Co-operative Societies [(2004) & SCC 112]. Accordingly he has prayed for dismissed of the present OA.
5 OA 236 of 2021
4. We have considered the submission of the parties and perused the materials available on record.
5. It is a fact that the applicant was initially engaged as Computer Engineer at NIFT Centre Bhubaneswar on ad hoc basis vide order dated 30.1.2014 with the terms and conditions as under :
"1. The appointment is purely temporary for a period of six months from the date of joining or until further orders which0ever is earlier.
2. The appointment is subject to the submission of all the supporting documents as claimed by you in your CV submitted at the time of Walk in Interview at NIFT Bhubaneswar.
3. You will be paid a consolidated salary of Rs.35,000/- per month (Rupees thirty five thousand only). No other allowance/benefit will be admissible except with the special orders of appointing authority.
4. You will be required to perform duties of Computer Engineer and any other duties as may be assigned to you by the Institute from time to time.
5. The appointment will be terminable on either side by giving one month notice in writing.
6. The engagement in no way entails responsibility of NIFT Bhubaneswar for permanent absorption/appointment to any post based on this offer.
7. The appointment can be terminated by either side without assigning any reason, after giving one month's notice or one month's salary in lieu thereof.
8. You shall be entitled for 1 day Casual Leave for each 1½ months of completed service and 2½ days Earned Leave for each month of completed service. No other kind of leave shall be admissible to you.
9. TDS will be deducted as per norms.
If the above terms and conditions are acceptable, you may join NIFT, Bhubaneswar Centre on or before 7.2.2014, failing which this offer letter will be treated as withdrawn and cancelled. Extension of the date of joining will not be entertained under any circumstances.
The ad hoc service was also extended vide order dated 12.8.2014, 30.10.2014, 30.4.2015, 16.1.2015 and so on. It is seen that in the advertisement the age criteria for the post of Computer Engineer was stated 6 OA 236 of 2021 that the candidate should be within the age of 25 to 40 years and 05 years relaxable in case of NIFT employee (regular and long term contract only) and deserving candidates possessing higher educational qualification/ experience. It is not in dispute that the applicant was not a regular/long term contractual employee of the NIFT and further it is not in dispute that by the cut off date of advertisement, he was 45 years 10 months and 16 days and therefore even after giving relaxation of 05 years, he will not be eligible to appear before the selection as per the advertisement. Another important aspect which needs to be looked into is that in the representations, his prayer was to "convert my short term contractual employment to long term employment in due scale of pay of Computer Engineer in NIFT". In the OA he has prayed to quash the order of rejection wherein his prayer to grant him age relaxation was rejected and to direct the respondents to regularize and absorb him in the post of computer Engineer w.e.f. 30.1.2019. Therefore it is seen that the prayer of the applicant in the representations and in the OA are totally different and thus the very approach before this Tribunal in the OA is hit by Section 20 of the Administrative Tribunals Act, 1985. Besides the Hon'ble Apex Court in the landmark decision in the case of Uma Devi (supra) was pleased to held that regularization of contractual, ad hoc and daily wage employees are impermissible in law as it would offend the provision enshrined in Article 14 and 16 of the Constitution of India. We have also gone through the decision relied upon by the applicant in the case of N.S.K.Nayar (supra). We find tht the facts of the said case is different from that of the present case. Hence the same is distinguishable and is not applicable to the present case. Hence 7 OA 236 of 2021 going by the decision of the Hon'ble Apex Court in the case of Uma Devi (supra) and the decisions of the co-ordinate Benches of Jabalpur Bench in OA 491/2015 dated 30.7.2015 and Guwahati Bench in OA 141/2021 dated 30.5.2024, we find no merit in this OA which is accordingly dismissed.
6. There shall be no order as to costs.
(PRAMOD KUMAR DAS) (SUDHI RANJAN MISHRA) MEMBER (A) MEMBER (J) Indrani/PPS