Central Administrative Tribunal - Delhi
Shikha Jain vs M/O Health And Family Welfare on 12 August, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.100/2149/2016
M.A.No.100/2020/2016
Order Reserved on: 03.08.2016
Order pronounced on 12.08.2016
Hon'ble Shri V. Ajay Kumar, Member (J)
Hon'ble Dr. Birendra Kumar Sinha, Member (A)
1. Ms. Shikha Jain, aged 33 years
W/o Sh. Rajesh Bisht
Working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
New Delhi - 1
R/o H.No.2053, Sec.-4A,
Vasundhara
Ghaziabad-201012 ... Applicants
2. Ms. Sapna Aggarwal, aged 31 years
w/o Sh. Tarun Aggarwal
working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
New Delhi - 1
R/o C-6/99, G.F. Lawrance Road
Near Keshav Puram Metro Station
Delhi - 35.
3. Ms. Rachna, aged 34 years
w/o Sh. Pawan Kumar
working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
OA 100/2149/2016
2
New Delhi - 1
R/o RZH 291/1, Street No.9A, Raj Nagar Part-II
Palam Colony, New Delhi-77.
4. Ms. Anita Guliyani, aged 39 years
w/o Sh. Manoj Guliyani
working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
New Delhi - 1
R/o D-1/C, 10-A, Janak Puri, New Delhi-58.
5. Surender Singh, aged 45 years
s/o Sh. Ajmer Singh
working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
New Delhi - 1
R/o B-1/66, Sector-11, Faridabad.
6. Ms. Surjit Kaur, aged 43 years
w/o Sh. Jatinder Singh
working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
New Delhi - 1
R/o WZ-63A, Plot No.223, First Floor
Chand Nagar, Delhi - 110 018.
7. Ms. Meena Arya, aged 39 years
W/o Sh. Sunil Kumar
Working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
New Delhi - 1
R/o BD-7F, DDA Flats, Munirka
OA 100/2149/2016
3
New Delhi - 110 067.
8. Promod Kumar Jaiswal, aged 35 years
s/o Lt. Sh. Kailash Nath Jaiswal
working as Program Assistant at
National AIDS Control Organization (NACO)
Under Ministry of Health & Family Welfare
6th Floor, Chandralok Building, 36 Janpath
New Delhi - 1
R/o House 50. H/o Laxman, Jindal Colony
Kapashera, New Delhi-37. ... Applicants
(By Advocate: Sh. Yogesh Sharma)
Versus
1. Union of India through
The Secretary
Ministry of Health & Family Welfare
Govt. of India
Nirman Bhawan
New Delhi.
2. The Additional Secretary (Health)
National AIDS Control Organization
Ministry of Health & Family Welfare
Govt. of India, 6th Floor Chandralok Building
36, Janpath
New Delhi - 1. ... Respondents
(By Advocate: Sh. M.S.Reen)
ORDER
By V. Ajay Kumar, Member (J):
The applicants, eight in number, and who are working as Program Assistants on contract basis in the National Aids Control Organization (in short `NACO') of the Ministry of Health and Family OA 100/2149/2016 4 Welfare, filed the OA against the action of the respondents in not extending their respective contracts beyond 30.06.2016 mainly on the ground that they have decided to hire the support staff through the domestic budgetary support through an out-sourced agency.
2. The applicants earlier filed OA 1785/2016, which was disposed of by an order dated 24.05.2016 of this Tribunal by directing the respondents to consider the grievances of the applicants and to pass appropriate orders thereon. Accordingly, after considering the representations of the applicants, the respondents vide the impugned speaking order dated 22.06.2016 rejected the claim of the applicants. The relevant paragraphs of the said order dated 22.06.2016 read as under:
"3. Before proceeding to declare the case, it would be appropriate to divulge the circumstances as under:
a) These eight Program Assistants are supported by the bilateral/multilateral agencies and have complete more than three years of service with NACO on contractual basis. The details of the bilateral/multilateral agency funding their positions is given below:
NAME FUNDING SOURCE
Ms. Shikha Jain Bill & Melinda Gates Foundation
Ms. Sapna Global Fund for AIDS, TB &
Aggarwal Malaria
Ms. Rachna Bill & Melinda Gates Foundation
Ms. Anita Guliyani United States Agency for
International Development
Mr. Surender Bill & Melinda Gates Foundation
Singh
Ms. Surjit Kaur United States Agency for
International Development
Ms. Meena Arya Global Fund for AIDS, TB &
Malaria
Mr. Pramod Kumar Global Fund for AIDS, TB &
Jaiswal Malaria
b) Govt. has clearly issued instructions vide DEA order No.1/42/205-
PMU dated 29th December 2015 and the minutes of the meeting of the Screening Committee of Secretaries (copies attached) to discharge the services of consultants engaged from bilateral partners and multilateral organizations who have completed 3 years in the Ministry within a period of 3 months i.e., June 2016 and NACO has complied with these instructions. Since these OA 100/2149/2016 5 Program Assistants had completed more than 3 years in NACO, their contract was extended till 30th June, 2016;
c) Regarding absorption & regularization of services in the National AIDS Control Program which is approved as planned scheme, the support staff are appointed on contractual basis for specific purpose and period and not to replace regular posts. Since they are not on NACO's payroll, there is question of regularizing these 8 Program Assistants only in view of their past service; and
d) In the above scenario, NACO is in the process of hiring the support staff through the Domestic Budgetary Support through an outsourced agency.
Hence the petitioners are not found entitled for the relief in view of the submissions made above. The representation dated 26.5.2016 of the petitioners is disposed accordingly."
3. Since pleadings are complete, and as agreed by both the counsel, the main OA itself is taken up for final disposal.
4. Heard Shri Yogesh Sharma, the learned counsel for the applicants and Shri M.S.Reen, the learned counsel for the respondents, and perused the pleadings on record.
5. MA No.2020/2016, filed for joining together, is allowed.
6. The applicants in the present OA prayed for continuation of their contracts, and also for directions for regularization of their services against regular posts. The learned counsel for the applicants in support of his contention that the applicants' services cannot be replaced by another set of contractual employees, even in the guise of out-sourcing, placed reliance on a decision of the Hon'ble High Court of Delhi in WP(C) No.1741/2014 dated 03.11.2014 (Annexure A4). The relevant paragraphs of the said decision, read as under:
"15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the OA 100/2149/2016 6 petitioners' engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to "outsource" engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners' contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the "outsourced" or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners' employment is not their replacement with regular appointees, but instead, with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended.
16. For the above reasons, this court is of opinion that the CAT erred in law, in holding that the petitioners could not complain against the discontinuance of their contractual employment. Accordingly, a direction is issued to the respondents to continue the petitioners in contractual employment on annual renewal basis, till the currency of the RNTCP scheme/project in 2017. An appropriate consequential order shall be issued by the respondents within eight weeks from today.
17. The impugned order of the CAT is accordingly set aside; the writ petition is allowed in terms of the above directions."
7. The learned counsel for the respondents submits that the applicants are supported by the bilateral/multilateral agencies and have completed more than three years of service with NACO on contractual basis and in view of the instructions of the Government dated 29.12.2015 and the minutes of the meeting of the Screening Committee of Secretaries, to disengage the services of the Consultants engaged from bilateral partners and multilateral organizations, who have completed three years in the Ministry and since the applicants had completed more than three years in NACO, their contract was extended only upto 30.06.2016. It is further submitted that NACO is in the process of hiring the support staff through the Domestic Budgetary Support through an outsourced agency.
OA 100/2149/2016 7
8. The learned counsel for the respondents, in support of their claim, relied upon by the Hon'ble Apex Court's Judgement in B.C.Mylarappa Alias Dr. Chikkamylarappa v. Dr. Venktasubbaiah and Others, (2008) 14 SCC 306.
9. Admittedly, it is not the case of the respondents that there is no work available after 30.06.2016. On the other hand, it is specifically stated that they will hire the support staff through an outsourced agency. That means that the respondents are intending to replace the applicants, who are working on contract basis, for the last few years, with another set of contract employees, may be, through outsourced agencies. The said action of replacing one set of contract employees with another set of contract employees is clearly against to the settled principles of law. Even the aforesaid decision of the Hon'ble High Court is to the same effect.
10. However, in so far as the prayer for direction for framing of a Scheme and for regularization of the services of the applicants against the existing vacancies, if any, is concerned, this Tribunal cannot issue any directions in view of the constitution bench decision of the Hon'ble Apex Court in Secretary, State of Karnataka & Others v. Uma Devi (3) & Others, (2006) 4 SCC 1.
11. In B.C.Mylarappa Alias Dr. Chikkamylarappa v. Dr. Venktasubbaiah and Others, (2008) 14 SCC 306, on which the OA 100/2149/2016 8 learned counsel for the respondents placed reliance, the facts are different and hence, will have no application to the present case.
12. In the circumstances and for the aforesaid reasons the OA is partly allowed and accordingly, the respondents are directed to continue the applicants on the same terms and conditions as long as there is work or till the vacancies are filled up on regular basis. No order as to costs.
(Dr. Birendra Kumar Sinha) (V. Ajay Kumar)
Member (A) Member (J)
/nsnrvak/