Central Administrative Tribunal - Delhi
Smt. Sheenu Saxena vs National Human Right Commission on 1 February, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.3469/2011 with MA No.2530/2011 With CP No.802/2011 Reserved on 03.01.2012 Pronounced on 01.02.2012 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) 1. Smt. Sheenu Saxena, W/o Shri Amit Saxena, R/o Q.No.953, Laxmi Bai Nagar, Near Delhi Hatt. 2. Shri Biman Deb, S/o Late Shri Mohan Kumar Deb, R/o H.No.11889/11, Sat Nagar, Karol Bagh, New Delhi-110005. 3. Shri Manoj Kumar, S/o Shri Jai Bhagwan, R/o V.P.O., Jounti, Delhi-110081. 4. Ms. Archana Tripathi, O/o Lt. R.P. Tripathi, R/o B-167, Surya Nagar, Opp. Vivek Vihar (GZB.). 5. Smt. Sarita Rawat, W/o Ravinder Singh Rawat, R/o E-236, Sector-27, NOIDA (U.P.). . Applicant. (By Advocate : Ms. Jyoti Singh, Senior Advocate with Shri Yogesh Sharma and Shri Amandeep Joshi and Ms. Saahila Lamba) Versus 1. National Human Right Commission, Through the Secretary, Faridkot House, Copernicus Marg, New Delhi. 2. The Joint Secretary, National Human Right Commission, Faridkot House, Copernicus Marg, New Delhi. .. Respondents. (By Advocate : Mr. R.V. Sinha) ORDER
Dr. Ramesh Chandra Panda, Member (A) Smt. Sheenu Saxena and four others have joined together in the present OA praying for the following relief(s):-
(i) That the Honble Tribunal may graciously be pleased to pass an order declaring to the effect that the action of the respondents not allowing the applicants to perform their duties w.e.f. 16.9.2011 inspite of facts that the junior persons are working and posts are vacant, is illegal, arbitrary and discriminatory and consequently pass an order directing the respondents to allow the applicants to perform their normal duties, till consideration of their case of regularisation which is still pending with the competent authority.
(ii) That the Honble Tribunal may further graciously be pleased to pass an order of quashing the impugned Advertisement by which the respondents without considering the case of the applicant invited the application from open market to fill up 10 vacant posts of LDCs on which the applicants are working and consequently pass an order directing the respondents to consider the regularization of the services of the applicants, by treating the appointment of the applicants on regular basis.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant.
2. At the admission stage, the interim relief sought for by the applicants was heard on 22.09.2011 and the following orders were passed:-
Applicants came into employment on ad hoc basis in the year 2006 initially for one year, which is being extended from time to time. It is the case of the applicants that ten ad hoc employees appointed similarly as the applicants were appointed have since been regularized, and even when the case of the applicants is pending for regularization, they have been asked to stop working.
Issue notice to the respondents returnable on 12.10.2011.
Meanwhile, operation of order dated 15.09.2011 (Annexure A-1) is stayed.
Process DASTI.
3. The above direction was about the stay of operation of the order dated 15.09.2011. Though the Tribunal order was dated 22.09.2011, but once the impugned order has been stayed at the admission stage, the respondents should have complied with the said interim direction by maintaining the status quo ante. However, as the applicants were not allowed to perform their duties as LDCs, they moved CP No.802/2011. We heard both OA and CP in the matter together on 03.01.2012. We would first deal with the controversies relating to the OA and lateron dwell on the CP in the instant case.
4. We may refer briefly to the facts of the case which may be relevant to adjudicate the issues involved in the present OA. The respondent National Human Right Commission (NHRC) vide its order dated 16.7.2003 invited the applications for filling up six posts of Lower Division Clerk (LDC) on regular basis for which the applicants, having fulfilled the eligibility criteria prescribed under the Recruitment Rules for the essential educational qualification and age limit, the names of the applicants were sponsored by the Employment Exchange. Along with others, the applicants were called for the selection and after the applicants became successful in their written examination and further in typing test for the selection, they were included in the panel. It is the case of the applicants that when the advertisement was issued, there were only six posts of LDC but subsequently, during the process of selection, number of LDC posts became vacant and those who were senior in the panel were given regular appointment to the LDC post and the remaining about 9 selected persons in the panel were given ad hoc appointment to the post of LDC including the five applicants. It is further the case of the applicants that their selection was as per the regular selection process for the regular vacancies though the applicants were put temporarily on ad hoc basis in the post of LDC. The applicants got their appointments as LDC in the month of August-December, 2006. The applicants appointment as LDC was extended year to year basis and they had been continuously working till 16.9.2011. It is averred that in the year 2008, respondents regularized the services of four similarly situated ad hoc LDCs who were appointed along with applicants. They are Ms. Preeti Sharma, Ms. Mamta Rohilla, Shri Arvind Nair and Shri Prashant. It is further averred that despite the availability of vacancies of LDC, the respondents did not consider the case of the applicants for their regular appointment, and the representations given by them to the Competent Authority to treat them at par with four of their colleagues whose services had been regularized, were rejected. On the basis of the said representations, the respondents withheld the process of filling up of the LDC posts from the open market and it is the case of the applicants that the respondents decided to consider their case for regularisation. It is further the case of the applicants that NHRC has engaged 10 more persons on adhoc basis during 2009-2010 and these junior ad hoc LDCs are still working whereas the applicants have been disengaged. Their case is that the fresh advertisement issued by the NHRC in January, 2011 discloses existence of 10 vacancies for direct recruitment of LDCs. Being aggrieved by the action of the respondents, the applicants have approached the Tribunal in the instant OA.
5. Highlighting the above facts of the case Mrs. Jyoti Singh, learned Senior Advocate appearing for the applicant would contend that the selection on the basis of which the applicants were empanelled and appointed was for regular appointment and that was the main reason for which the NHRC had given regular appointment initially to six persons and regularized the ad hoc services of four persons subsequently. Those four ad hoc LDCs were appointed from the same panel in which the applicant found place. Therefore, she contends that treating the applicants as ad hoc appointee and not considering them for regularization is arbitrary, illegal and discriminatory action of the respondents. Mrs. Jyoti Singh submits that the applicants fulfill all the eligibility criteria i.e. essential qualifications as well as age limit as per advertisement of year 2003. Their names were sponsored by the Employment Exchange. It is submitted that they were called for the selection and after they became successful, they were included in the panel. Therefore, her submission is that not regularizing the services of the applicants regularly selected and issuing a fresh advertisement for the same posts on which the applicants are working since 2007 is wrong in the eyes of law. Drawing our attention to the admitted position of the respondents, she would submit that except the word used by the respondents on adhoc basis all other formalities were done as required to be done in the case of regular appointment. Another contention canvassed by the learned senior counsel was that in the year 2008, the respondents regularized the service of four similarly situated persons those who were appointed along with the applicants and urged that the applicants should also be considered and appointed in the same manner. It is further contended that last come first go principle has not been followed by the respondents as the juniors to the applicants are still continuing as ad hoc LDCs in NHRC. Disputing the respondents note dated 15.09.2011 whereby applicants adhoc appointment was not extended beyond 06.09.2011, Mrs Singh would place before us photocopy of Attendance Register to support her contention that the applicants actually worked in the NHRC even upto 16.9.2011. She, therefore, argues that appropriate directions should be issued to the respondents not only to engage the applicants w.e.f. 16.9.2011 when their services were verbally terminated but also to regularly appoint them against available regular LDC vacancies.
6. Opposing the grounds taken by the applicants, the respondents have filed their reply affidavit on 09.11.2011 through Shri R.V. Sinha, learned Senior Central Government Counsel. It is contended that applicants do not have any enforceable right to continue in the service of the respondents on ad hoc basis nor they can claim to be regularized in the vacant posts nor the Tribunal can issue any mandamus in view of the law laid by Honble Apex Court. He placed his reliance on the judgments in the Secretary, State of Karnataka Versus Uma Devi and Others [2006-4-SCC-1]; Indian Drugs and Pharmaceuticals Ltd. Versus Workmen Indian Drugs and Pharmaceuticals Ltd. [2001-1-SCC-408]; State of Uttar Pradesh and Another Versus Ram Adhar [2008-12-SCC-136]; and Official Liquidator Versus Dayanand [2008-10-SCC-1] and judgment of this Tribunal in batch of two OAs [OA No.3719/2010 and OA No.4055/2010 decided in a common order dated 23.11.2011. Shri Sinha would submit that the applicants were appointed purely on adhoc basis without having completed the selection process and against the temporary vacancies created on regular LDCs proceeding on deputation. It is, therefore, contended that appointment of applicants has not been as per the Recruitment Rules framed under Article 309 of the Constitution of India and as such illegal appointment on adhoc/temporary basis cannot be regularized. Shri Sinha, therefore, refers to the Annexure-A2 to state that NHRC has already initiated to fill up 10 LDC regular vacancies. Adverting to the ground of discrimination advanced in favour of the applicant, Shri Sinha would submit that the concept of equality and equal treatment is positive and negative way the concept could not be invoked. Reliance is placed by Shri Sinha on the judgments in Post Master General, Kolkata Versus Tutu Das (Dutta) [2007-5-SCC-317]; and State of Bihar Versus Upendra Narayan Singh and Others [2009-5-SCC-65]. Referring to para 53 and 54 of judgment of Apex Court in Uma Devis case [supra) which is a binding precedent, Shri Sinha distinguishes the judgment of High Court of Allahabad in the case of Bimal Chandra Pandey Versus Engineer in Chief [2000(85) FLR 726] relied on by the applicants being in conflict with law laid down by Honble Supreme Court.
7. Having heard the contention of the rival parties, with their assistance, we perused the pleadings and relied on judgments.
8. Admittedly, there are 40 sanctioned posts of LDCs in NHRC, and as per the Recruitment Rules 90% posts are to be filled up by direct recruitment and 10% by promotion. Thus, 36 LDC posts are to be filled up by direct recruitment. Respondents in their reply affidavit have stated that in the year 2003 selection for regular vacancies was undertaken and the panel was prepared to meet future regular and temporary vacancies. It is apt for us to take extract of relevant part of the counter reply which read as follows :-
(ii) That as NHRC is an autonomous body, the recruitment is not being done through Staff Selection Commission (SSC). The direct recruitment vacancies are filled up by NHRC itself. In the year 2003, there were 06 regular vacancies for which nominations were invited from the Employment Exchange and for wider publicity the vacancies were also circulated to all the Ministries, and departments and the Notice Board of the Commission. The written examination was held on 16.11.2003 followed by Typing Test on 07.02.2004. The regular vacancies were filled up in the order of merit keeping in view the reservation roster.
(iii) That since, the examination is not held on annual basis and since NHRC does not have the requisite infrastructure for holding the examination on annual basis, a panel of 22 qualified UR candidates and 05 OBC candidates in the order of merit was also drawn to fill up the future vacancies. Subsequently temporary vacancies arose caused by regular LDCs proceeding on deputation. Since these were not regular vacancies, efforts were made to fill up these vacancies on deputation basis as provided in the Recruitment Rules. In response, only two applications were received and both the candidates were selected but their department did not relive them due to administrative reasons. In view of the exigencies of work, the following 09 candidates (including the 05 applicants) who were part of the merit list, were given the offer of appointment purely on ad hoc basis. They accepted the offer and were appointed purely on adhoc basis from the panel drawn in Feb 204 against the temporary vacancies which occurred from time to time due to deputation of regular LDC of the Commission to other organizations. Out of the 09 LDCs, first 04 LDCs who were higher in merit were subsequently regularized when the regular vacancies became available :-
Sl.No Name of the candidate Category Date of joining Date of regularisation
1. Prashanth Chandran Gen 19.11.04 1.9.2006
2. Mamta Rohilla OBC 08.11.04 25.8.2008
3. Preeti Sharma Gen 06.12.04 25.8.2008
4. N. Arvind Nair Gen 20.05.05 25.8.2008
5. Biman Deb Gen 06.09.06
6. Sheenu Sinha (now Sheenu Saxena) Gen 31.08.06
7. Manoj Kumar Gen 08.01.07
8. Archana Tripathi Gen 11.01.07
9. Sarita Gussain (now Sarita Rawat0 Gen 09.03.07 Above facts clearly indicate that (i) selection process adopted in 2003 has been as per the Rules; (ii) admittedly the NHRC does not have requisite infrastructure to hold the examination; (iii) the applicants have been part of the list of selected qualified candidates for filing up future vacancies; (iv) subsequently 9 candidates including 5 applicants were put in the merit list; (v) the panel of 9 was prepared to meet future vacancies; (vi) all nine of them were appointed as LDCs on ad hoc basis, and (vii) four of nine candidates in the merit list (senior & higher) have been regularized as LDCs from 01.09.2006 to 25.08.2008. In view of these facts, the judgment relied on by the counsel for respondents do not support the respondents case. There is positive discrimination against the applicants.
9. Though in the reply affidavit the respondents have averred about 9 existing regular vacancies of LDC posts [3 Un Reserved (UR) and 6 Other Backward Castes (OBC)], the corrigendum issued to the January 2011 advertisement, available at page 16 of the paper book, total LDC posts vacant are 10 (UR-5, OBC-4 and ST-1). It is apt to note that all five applicants belong to UR category; and vacancies in UR category being 5, both match perfectly.
10. Termination of the applicants ad hoc service seems to have been triggered, as admitted by the respondents in para 6(iv) of their reply, by the provisions of DOP&T OM NO.28036/01/2007 Estt(D) dated 14.11.2007. A careful examination of the said OM would reveal that the OM dealt with the delegation of powers to make appointments, or promotions on ad hoc basis upto the period of three years in Group C and D posts. This OM is in continuation of the OMs dated 30.3.1988 and 23.7.2001 relating to the subject of ad hoc appointment. The OM dated 14.11.2007 inter alia prohibits resorting to the ad hoc appointment by the Departments from the open market. The present case does not attract the DOP&T OMs as the applicants names have been sponsored by the Employment Exchange for filling up regular vacant posts and they figure in the merit list having passed through the prescribed selection process.
11. The present case will attract the doctrine of legitimate expectations. Though the applicants have not pleaded for the same but the doctrine of legitimate expectation being the legal matter, we consider its applicability in the present case. There are many grounds on the basis of this doctrine would be applicable in case of the applicants. The first point was about the selection process, which commenced by the NHRC in 2003, was for the regular vacancies and the process of selection did not mean for the adhoc vacancies. The second aspect is that the panel drawn by the respondents has taken into account the fact that NHRC did not have adequate infrastructure to conduct frequent written examination, typing test for the selection. Therefore, the panel was drawn to meet the future exigencies of regular vacancies in NHRC. Third aspect is that one single panel was drawn, out of which nine candidates in the panel not high up in the panel were given appointment on ad hoc basis and four of them have been given regular appointment subsequently, in the year 2006 and 2008. Yet another angle is that once the Employment Exchange sponsored the names of the candidates and they have been found in the panel, their names may have been automatically struck off the list of job seeking persons in the Employment Exchange. Thus, terminating the services of the applicants would throw them out in the street to seek jobs again which would create further complication for them. Another aspect is that NHRC, admittedly has 10 vacancies and five vacancies exist in the UR category to which the applicants belong. Therefore, on the basis of the self imposed condition to fill up the future regular vacancies from the panel, the respondent NHRC is duty bound to offer them the appointment on regular basis. We may refer to yet another angle. The applicants have already spent more than five years of ad hoc service with the NHRC. The respondents have not advanced any ground about their inefficiency or inadequate performance or indiscipline. In view of the above position, we are of the considered opinion that the doctrine of legitimate expectation would be applicable in the present case and the applicants would be entitled to get their appointment on regular basis in the existing vacancies. As held by Honourable Supreme Court in Poonam Verma Vs. Delhi Development Authority[2007 STPL(LE) 39343 SC] that the "doctrine of Legitimate Expectation would apply only when a practice is found to be prevailing. It has a positive concept." The Senior Counsel for the applicants has brought to our notice that four ad hoc LDCs similarly placed as the applicants have been regularised and this has not been denied by the respondents. Thus, it is proper to infer that such a practice exist in the NHRC. We also find that in the case of such regularisation no illegality will be committed.
12. Honourable Supreme Court considered the principle of legitimate expectation in in Sethi Auto Service Station Vs. Delhi Development Authority[2008 STPL(LE) 40815 SC] by scanning the following cases Jitendra Kumar & Ors. v. State of Haryana & Anr. [2008 (2) SCC.161] ; Bannari Amman Sugars Ltd. v. Commercial Tax Officer & Ors [JT 2004 (10) SC 500] ; Howrah Municipal Corporation & Ors. v. Ganges Rope Co. Ltd. & Ors. [JT 2003 (10) SC 355] ; Laxminarayan R. Bhattad & Ors. v. State of Maharashtra & Anr. [2003 (5) SCC 413] (relied upon); Punjab Communications Ltd. v. Union of India & Ors. [JT 1999 (3) SC 331] (Para 25); National Buildings Construction Corporation v. S. Raghunathan & Ors. [JT 1998 (6) SC 21] ;. P.T.R. Exports (Madras) Pvt. Ltd. & Anr. v. Union of India & Ors. [JT 1996 (6) SC 435]; Union of India & Ors. v. Hindustan Development Corporation & Ors. [JT 1993 (3) SC 15]; Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries [JT 1992 (6) SC 259] ; Council of Civil Service Unions & Ors. v. Minister for the Civil Service [1984 (3) All ER 935]; and Bachhittar Singh v. The State of Punjab [1962 (Supp. 3) SCR 713] (relied upon) and relying on some of them as mentioned, passed a detailed judgment laying the law in the subject.
"27. An examination of the afore-noted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectationin the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectationwithout anything more cannot ipso facto give a right to invoke these principles. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectationmight be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited."
13. In Jitendra Kumar Vs. State of Haryana [2008-2- SCC-161] Honourable Supreme Court considered the Doctrine of legitimate expectation and and relying on its earlier judgment in Kuldeep Singh v. Govt. of NCT of Delhi [(2006) 5 SCC 702] held that "legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and hope. It is based on a right. [See Chanchal Goyal (Dr.) v. State of Rajasthan (2003) 3 SCC 485 and Union of India v. Hindustan Development Corpn. (1993) 3 SCC 499] It is grounded in the rule of law as requiring regularity, predictability and certainty with the Government's dealings with the public. We have no doubt that the doctrine of legitimate expectation operates both in procedural and substantive matters."
In view of the above well settled position in law, we are of the considered view that the doctrine of legitimate expectation would be applicable for the applicants case in the present OA, as their selection, empanelment has been for the future regular posts of LDC.
14. Having considered the totality of facts and circumstances of the case and for the reasons stated above, we are of the considered view that applicants have succeeded in their claim in the present OA as stated within. Therefore, the impugned order dated 15.09.2011 terminating the adhoc services of the applicants w.e.f. 06.09.2011 is quashed and set aside. Resultantly, the respondents are directed to ensure that the applicants are taken back on the ad hoc service as LDC which was existing before the impugned order was passed, with further direction to maintain the continuance of service from 16.9.2011 to till the date when they would be taken back to the service. The respondents are further directed to consider the applicants for the existing regular vacancies of LDCs in the UR categories.
15. In view of the peculiar nature of the case as the applicants have been disengaged from their adhoc service w.e.f. 16.09.2011 for no fault of theirs, as the said disengagement continued despite stay granted by the Tribunal and the said action of the respondents being illegal, we direct the respondents to pay them back wages from the date of disengagement till the date of joining back in the service of NHRC.
CP No.802/201116. As stated within, the applicants moved the Contempt Petition against non implementation of the interim order passed by the Tribunal on 22.09.2011. We heard the learned counsel for the applicants and respondents. Shri R.V. Sinha, learned counsel appearing on behalf of the respondents submits that the CP is not maintainable on the sole ground that by the time the order was passed by the Tribunal on 22.09.2011, the order of termination dated 15.09.2011 terminating adhoc services of the applicants w.e.f. 06.09.2011 stood implemented. Therefore, Shri Sinhas contention was that the applicants would not have been taken back to service in view of the directions of the Tribunal. Therefore, he submits that there is no willful disobedience of the orders of the Tribunal by the respondents. Mrs. Jyoti Singh, learned Sr. Advocate on behalf of the applicants would submit that the order passed by the Tribunal was very specific where the operation of the respondents order dated 15.09.011 was stayed and the respondents were duty bound to restore their service forthwith. Not restoring the services of the applicants as LDC on ad hoc basis by the respondents would mean willful disobedience of the respondents in implementing the directions of the Tribunal dated 22.9.2011. In these circumstances, she submits that contempt proceedings should be continued against the willful disobedience of the respondents.
17. We have very dispassionately and carefully considered the contentions of both the parties, and note that we have passed a final order in the present OA, as per which, the applicants are to be taken back in service and have also ordered that the continuance of service with effect from the date of disengagement to their date of joining should also be granted with back wages. In view of the above directions, our interim order merges with the present order passed in the OA. Both the parties have relied on various case laws to buttress their respective stand. Our careful perusal of those judgments would reveal that the Tribunals interim order staying the operation of the respondents impugned order dated 15.09.2011 should have been implemented as in our considered opinion, the interim order by staying the operation of the impugned respondents order in terminating the services of the applicants would signify that the operation of the stay would be to maintain status quo ante. Therefore, though the prima-facie , there is a case of disobedience of the Tribunals interim order, respondents have indicated that they had no intention to disobey the order. As we have directed the respondents to take back the applicants to their previous service with back wages and regularise them in the regular vacant posts of LDCs, we do not consider it proper to take forward the contempt proceedings any further against the respondents. We, therefore, close the Contempt Petition and discharge the notices issued to the respondents.
18. In terms of our above orders and directions to the respondents, the Original Application having merits is allowed. In view of the typical nature of this case, there shall be no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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