Central Administrative Tribunal - Allahabad
Rakesh Kumar vs M/O Health And Family Welfare on 25 April, 2019
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD.
(Circuit Bench at Nainital)
Original Application No. 331/01095 of 2018
Dated: This the 25th day of April 2019.
PRESENT:-
HON'BLE MS. AJANTA DAYALAN, MEMBER (A)
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
1. Rakesh Kumar (Male, aged about 29 years, Staff Nurse Grade -
II) S/o Shri Mohan Lal R/o Village Sigdola Chhota, P.O.
Rulyanamali, Tehsil Lakshmangarh, District Sikar, Rajasthan.
2. Swati Rawat (Female, aged about 30 years, Staff Nurse Grade -
II) D/o Sri R.S. Rawat, R/o Upper Garhwali Colony, P.O. Nehru
Gram, Dehradun, Uttarakhand.
3. Naazish Naaz (female, aged about 29 years, Staff Nurse Grade -
II) W/o Tanvir Alam D/o Mohd. Ikram R/o C-26A, MDDA Colony,
Dalanwala, Dehradun, Uttarakhand.
4. Sandhya Babu (female, aged about 39 years, Staff Nurse Grade
- II) D/o Babu Joseph R/o Kayathingal (w), P.O.
Thambalamanna, Thiruvanpaly, Calicut, Kerala.
5. Babita Maniyari (Female, aged about 36 years, Staff Nurse
Grade - II) D/o Mohan Lal R/o C/o Megh Singh Pokhriyal Gali
No.4, near Sanshkar Play School, Rishikesh (Bharat Vihar), District
Dehradun, Uttarakhand.
6. Vineeta Devi (Female, aged about 29 years, Staff Nurse Grade -
II) D/o Madan Singh R/o Village Kandoo, P.O. Dugana, Tehsil
Poanta Sahib, District Sirmour Himanchal Pradesh.
7. Pratima Gharu (Female, aged about 27 years, Staff Nurse Grade
- II) D/o Sri Mehar Chand Gharu R/o Village Taruwala, Shiva
Colony, P.O Poanta Sahib, Tehsil Poanta Sahib, District Sirmour
Himanchal Pradesh 173025.
8. Farman (Male, aged about 34 years, Staff Nurse Grade - II) S/o
Shri Subrati R/o V & P.O. Mahanandpur via Piloda, Tehsil
Wazirpur, District Sawai Madhopur, Rajasthan 322205.
9. Mahipal Chouhan (male , aged about 30 years, Staff Nurse
Grade - II), S/o Shri Dhagla Ram Chouhan R/o H. No. 738, Awas
Vikas Colony, Rishikesh District Dehradun.
2
10. Kishor Kumar Joshi (Male, aged about 30 years, Staff Nurse
Grade -II) S/o Shri Mitha Lal Joshi R/o Near Ram Dev Temple,
Joshionka Vass, Samdari, District Barmer, Rajasthan.
. . . Applicants
By Adv: Ms. Neetu Singh
VERSUS
1. Union of India through Secretary, Ministry of Health & Family
Welfare, New Delhi.
2. All India Institute of Medical Sciences Rishikesh, through its
Director, Vir Bhadra Marg, Rishikesh, Uttarakhand 249201.
3. Joint Secretary (PMSSY), Ministry of Health & Family Welfare,
Nirmaan Bhawan, New Delhi.
. . .Respondents
By Adv: Shri D.S.Shukla
ORDER
By Hon'ble Rakesh Sagar Jain, Member (J)
1. The present Original Application has been filed by Rakesh Kumar and others seeking the following reliefs:-
"a. Issue an appropriate directions to the respondent No.
2 to extend the services of the applicants in the same capacity similar to extension granted to other similarly situated contractual staffs of the same organization by the Respondent No. 2 in the facts and circumstances of the case, in the interests of justice to the Applicants.
b. Allow the Original Application and may issue appropriate directions to the respondents to submit scheme of making regularization of contractual staff including the applicants as per the directions contained in the Circular dated 28.8.2018 (Annexure -
4) in Para - II, issued by the Ministry of Health and Family Welfare in the interests of justice to the Applicants.
3c. Issue an appropriate directions, orders or writ to regularize the services of the Applicants on the vacant posts of Staff Nurses grade - II, to meet ends of justice to Applicants.
d. This Hon'ble Tribunal may issue appropriate directions of payment of equal pay for equal work to the Applicants w.e.f. date of initial appointment of Applicants in the light of the decision of the Hon'ble Supreme Court of India in a similarly situated case titled as State of Punjab and Ors Vs. Jagjit Singh And Ors in Civil Appeal No. 213/2013 decided on dated 26th October 2016 in the interests of justice to Applicants and/or, e. This Hon'ble Court may issue any other directions or orders as may deem fit and proper under facts and circumstances of the present case".
2. Case of the applicants is that they were appointed on contractual basis in 2014 to the post of Staff Nurses Grade - II in pursuance to advertisement No. 21/02/2013 (RIS)/Admn. dated 16.11.2013 (Annexure A-5) for a period of 11 months or till regular incumbents join whichever is earlier; and their appointments were extended yearly. It is the further case of applicants that respondent No. 2 has invited applications for direct recruitment of the Staff Nurses and the applicants apprehend that their services may be dispensed since Ministry of Health & Family Welfare vide G.O. No. F. No. A-11013/5/2013-N dated 04.08.2016 (Annexure A-3) has directed not to make appointments of Nurses through outsourcing mode. Applicants also refer to Note dated 28.08.2018 (Annexure A-4) of Ministry of Health & Family Welfare to examine whether preference can be extended for contractual staffs in regular recruitments and also seeking report on issuing any advertisement for regular recruitment. It is the further case of applicants that many similarly situated contractual employees in the same organization have been 4 granted extension in their contractual services contrary to the rules and G.Os.
3. In the counter affidavit, it has been averred that as per Rules of DOPT, respondents' institution AIIMS (Rishikesh) has initiated the process for regular appointments to various posts through written examination, which would ultimately result in terminating the services of out-sourced/contractual staff by appointment of regular candidates. No direction can be given to do away with the appointment of regular appointments by way of advertising the posts which is open to all citizens to apply for. No direction can be given to continue with the back-door entry in the matter of public employment. The process of employment initiated by the respondents does not violate any right of the applicants who were engaged on contractual basis and once the term of contract expires, the contractual employees have no right to continue in the employment of the respondents and the vacant posts can be filled by candidates who are successful in the Open Examination System. Therefore, the O.A. be dismissed.
4. In the rejoinder affidavit, applicants, while reiterating the pleas taken by them in the O.A., further averred that the procedure and appointment of applicants was the same as mentioned in the statutory rules for the same posts of AIIMS, New Delhi and that the applicants had been appointed on the basis of All India Competitive Examination and interview and further averred that in a similar controversy, Hon'ble High Court of Uttarakhand in writ petition No. WP SS No. 4359 of 2018 granted relief to the contractual staff vide order dated 11.2.2019.
5. In the written argument and during the oral arguments, it was submitted by learned counsel for applicants that the applicants knowing their job to be contractual had applied in other Institutes but the respondents did not give them the N.O.C. to appear in the interviews and were given assurance by 5 respondent No. 2 that their services would be regularized here itself. It is further averred that the applicants are entitled for extension of these contractual services since similarly placed other contractual staff in the respondents' organization has been granted extension of their contracts. It is further submitted that the applicants' services have not been terminated by way of termination letter but they were informed verbally that their services stand terminated w.e.f. 6.9.2018. lt is further the case of applicants that they are better placed in terms of qualification and eligibility than sought for by the respondents and in this regard, the applicants have referred to the order dated 16.5.2018 passed by C.A.T. Principal Bench in OA NO. 1259 of 2018. However, in the said OA applicants who were working as contractual staff nurses had sought a direction to the respondents to engage the applicants therein against any existing vacancies in preference to fresh contractual employees and, therefore, direction was given to the respondents to continue the services of the applicants in the same capacity in preference to any fresh contractual employee. However, the facts of the said OA are distinguishable from the relief sought in the present O.A. since the relief sought by the present applicants is vis-à-vis the selection process which has been initiated for permanent recruitment of staff nurses as per the Recruitment Rules and the question of adjusting the applicants against fresh contractual employees does not arise in the present O.A. Hence, this contention of applicants is devoid of force and to be rejected.
6. Whereas learned counsel for respondents argued that the appointments by the Government can be made only in accordance with rules and procedure relating to regular recruitment and it would be improper for the Courts to regularize services of temporary or contractual workers not appointed following the procedure laid down under Article 14, 16 and 309 of the Constitution. It was further argued by respondents that the 6 dispute in the present case is one of contract and contractual obligations by the contracting parties. The applicants entered into the contracts with the respondents of their own consent and free will. The employment by contracts are interim measures taken by the administration to tide over the immediate pressing problem faced in the running of the hospitals and these contracts are always subject to recruitment by way of regular appointment through the open merit system. The applicants have no right to continue beyond the period of their contract and to allow the O.A. would be to foist employees upon an unwilling employer.
7. Learned counsel for respondents further submitted that there is no scope for applicants to seek the relief of furthering their appointments as they were appointed on contractual basis and the remedy, if any is for the applicants is to file a suit for damage, in case the applicants think that there has been a breach of contract by the respondents and when the appointment comes to an end by efflux of time the appointees have no right to continue in the post and to claim regularization. It has been also argued by the learned counsel for respondents that the action initiated by the respondents in terms of new advertisement does not intend to replace one set of contractual employees with a new set of such contractual employees. This Advertisement is, in fact, intending to fill up the posts on regular basis.
8. Applicants' case is also that they had applied for NOCs to appear in interview for jobs in other institutions but the NOCs were not issued by the respondents. However, refusal to give NOC would not reflect upon the case in any manner as even as per contract, the applicants were bound to serve the organization as per terms and conditions of contract.
79. We have heard and considered the arguments of the learned counsels for the parties and gone through their pleadings as well as their written arguments.
10. It is the case of applicants that they are entitled for extension of their contractual services since similarly placed other contractual staff in the respondent's organization have been granted extension of their contracts. The applicants have placed on record the details of the staff on contractual appointment whose contractual services have been extended for 11 months or till regular appointments are made. Undoubtedly, contracts of some staff members have been extended. However, it has been argued by the learned counsel for respondents that the nature of the duty of the said staff is different from that of the present applicants who are staff nurses and hence are not similarly situated and the nature of their duties are not identical. Respondents are adopting a proper procedure established by law for selection of staff nurses and the same cannot be jettisoned by the reasoning that the contracts of other employees having different nature of duties have been extended. The circumstance for extending the contract of other employees having different duties cannot be used for disallowing the respondent to adopt a regular process for employing staff under a due process of law. The respondents are filling the post of staff nurse by adopting a regular appointment process. The applicants can be replaced once regular appointments are made on the basis of an approved set of Recruitment Rules and in any case, it is a settled law that no contract employee has a right to have his/her contract renewed from time to time.
11. The Advertisement dated 16.11.2013 clearly indicates that the appointment will be 'on contractual basis, initially for a period of 11 months or till regular appointment made for these posts' and 'on the terms and conditions mentioned in Annexure A'.
8Further terms and conditions in Annexure 'A' clearly indicate as follows under the heading 'Expiry of Contract' 'The contract will automatically expire on completion of 11 months until it is renewed with mutual consent for the decided period....'.
12. The appointment letters issued to the applicants also state clearly that the 'appointment is purely on contract basis for a period of 11 months or till such time the regular appointments against these vacant posts are made, whichever is earlier, with effect from the date of joining. Thereafter, the contract will lapse automatically'.
13. In view of the above facts and circumstances, we find no arbitrariness in the action of the respondents in adopting a selection process established by law for appointment of staff nurse on regular basis.
14. Further, even in view of the law laid down by the Hon'ble Apex Court, applicants have no right to extension of their service/contract. This is more so when the respondents have initiated a process established by law to make appointments. It would be apt to note the observation of the Hon'ble Apex Court in State of Karnataka v/s Uma Devi, AIR 2006 SC 1806 that:-
"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission.
xx xx xx xx 9
38. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment."
And in Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad (2006) 7 SCC 684, the Hon'ble Apex Court has held as under:-
"25. The appellant submitted that he has been continued in service for 14 years and is entitled for regularization. This aspect of the matter has also been specifically dealt with by the said Constitution Bench in para 45 of the judgment and it was observed as under:
"45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the 10 view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible..."
15. It is further submitted by the applicants that their services have not been terminated by way of termination letter but they were verbally informed that the services stand terminated w.e.f. 6.9.2018. The terms and conditions of employment of applicants are governed by a contract and on the expiry of the term of the contract, the employment of applicants is not required to be terminated by notice. This point is further clear from the advertisement and the terms and conditions of appointment of the applicants as is brought out in paragraphs 11 & 12 above. lt is also the case of applicant that they are better placed in terms of qualification and eligibility than sought for by the respondents while advertising for regular appointment. What are the terms, qualification and eligibility required in a candidate lies within the exclusive domain of the Executive and the Tribunal in terms of power of judicial review cannot interfere with the conditions etc laid down by the executive unless they are in violation of the Constitution or law. In the present case, the qualifications laid down in the advertisement are as per Recruitment Rules for the post and the applicants were not able to show that there was any deviation from Recruitment Rules.
16. In the present case, it is not in dispute that the applicants had been engaged on contract basis. The terms of the contractual engagements were spelt out to the applicants at the time of their engagement, which, inter alia, included consolidated monthly salary payable to them, period of engagement as well as other conditions.
17. In the case of State of Maharashtra & others v. Anita & another etc. 2016 (5) SLR 136, the Hon'ble Apex Court has observed as follows:-
11"15. It is relevant to note that the respondents at the time of appointment have accepted an agreement in accordance with Appendix 'B' attached to Government Resolution dated 15.09.2006. The terms of the agreement specifically lay down that the appointment is purely contractual and that the respondents will not be entitled to claim any rights, interest and benefits whatsoever of the permanent service in the government....
16.... the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents' engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment."
18. It is also a settled law that in matter of contract between two parties, in the event of any breach of contract, the adversely affected party can seek enforcement of the contract or damages and nothing beyond that. The Hon'ble Apex Court in the case of Nandganj Sihori Sugar Co. Ltd. V. Badri Nath Dixit, (1991) 3 SCC 54 has held that :-
"11..... Even if there was a contract in terms of which the plaintiff was entitled to seek relief, the only relief which was available in law was damages and not specific performance. Breach of contract must ordinarily sound in damages, and particularly so in the case of personal contracts..."12
19. In the present case, the contract between the applicants and respondents was for a fixed period and on the expiry of the contract period, the contract stood concluded and therefore, the applicants have no legal right to seek further appointment on the basis of a contract in which the fixed term had expired. When the applicants' contract came to end by efflux of time, they were not permanent servants of the respondents and respondents were not bound either to re-employ them or to continue them in service or renew their contracts.
20. We may also refer to law laid down by the Hon'ble Supreme Court of India in Director, Institute of Management Development, U.P. v/s Pushpa Srivastava, (1992) 4 SCC 33 wherein it is held as under:
"To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on 'ad hoc' basis for more than a year whether she is entitled to regularisation? The answer should be in the negative."
21. In view of the facts of the case and the legal principles, we do not find any merit in this O.A. It is accordingly dismissed. In the circumstances of the case, parties are left to bear their own costs.
(Rakesh Sagar Jain) (Ajanta Dayalan)
Member (J) Member (A)
Manish/-