Central Administrative Tribunal - Madras
A Govindasamy vs Indian Council Of Medical Research on 30 July, 2024
1 OA 1345 to 1347/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01345 to 01347/2019 & MAs 575 & 568/2022
Dated, Tuesday, the 30th day of July, Two Thousand Twenty Four
CORAM:
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
&
HON'BLE MR. M. SWAMINATHAN, Member (J)
J.Balasubramanian,
S/o.Jaganathan, 2/503, Road Street,
Ko Mavidanthal,Karkudal PO,
Virudhachalam Taluk 606 003. ... Applicant in OA 1345/2019
D.Ramesh,
S/o.Devarasu,
9/34-E, Muthukumarasamy Nagar,
Bhudhamur,Virudhachalam 606 001. ... Applicant in OA 1346/2019
A.Govindasamy,
S/o.R.Ambalam,No.115, Meenambgai Nagar,
9th Street, Jeeva Nagar,
Jai Hindpuram,Madurai 625 011. ... Applicant in OA 1347/2019
By Advocate M/s.G.Ethirajulu
Vs
1.The Director General,
Indian Council of Medical Research,
V.Ramalingaswamy Bhavan,
Post Box No.4911,
Ansari Nagar, New Delhi 110 029.
2.The Secretary,
Ministry of Health and Family Welfare,
Nirman Bhavan, Ansari Nagar,
New Delhi 110 001.
3.The Director,
ICMR-Vector Control Research Centre,
Gorimedu, Indira Nagar,
Puducherry.
4.Indian Council of Medical Research (ICMR),
Centre for Research Medical Entomology,
Rep., by it Director,
No.4, Sarojini Street,
Chinna Chokkikulam,
Madurai 625 002. ...Respondents
By Advocate Mr.M.Kishore Kumar
2 OA 1345 to 1347/2019
ORDER
(Pronounced by Hon'ble Mr.Varun Sindhu Kul Kaumudi, Member(A)) Since the issues involved in all the three OAs are common, they are heard together and disposed of by this common order. With the consent of both the parties, OA 1345/2019 shall be treated as the lead case in this matter. In the said OA, the applicant seeks the following relief:
"To call for the records relating to the impugned order passed by the 3rd respondent in his office proceedings Order No.O.A.591 of 2019/Estt./Legal Cell/2019-20/468 dated 09.09.2019 and quash the same and consequently regularize the service of the applicant with all attendant benefits and pass such further or other order as this Hon'ble Tribunal may deem fit and necessary under the circumstances of the case and thus render justice."
The relief sought in the other two OAs is as follows:-
"OA 1346/2019To call for the records relating to the impugned order passed by the 3rd respondent in his office proceedings Order No.O.A.593 of 2019/Estt./Legal Cell/2019-20/466 dated 09.09.2019 and quash the same and consequently regularize the service of the applicant with all attendant benefits and pass such further or other order as this Hon'ble Tribunal may deem fit and necessary under the circumstances of the case and thus render justice.OA 1347/2019
To call for the records relating to the impugned order passed by the 3rd respondent in his office proceedings Order No.O.A.592 of 2019/Estt./Legal Cell/2019-20/467 dated 09.09.2019 and quash the same and consequently regularize the service of the applicant with all attendant benefits and pass such further or other order as this Hon'ble Tribunal may deem fit and necessary under the circumstances of the case and thus render justice."
2. Brief facts of the case, as stated by the applicant, are as follows:
This is the third round of litigation. On 17.04.1995, the applicant was appointed by the respondents, on temporary basis, through Employment Exchange, in the scale of pay of Field Laboratory Assistant at the CRME (ICMR), Madurai, and he worked, as such, till March, 2018, and, thereafter, 3 OA 1345 to 1347/2019 at the ICMR VCRC, Puducherry, till the date of filing of the OA, with artificial break in few years, and still continues to be in employment, on consolidated pay, for nearly 25 years. Initially, the applicant filed OA No.388/2015 before this Tribunal, wherein this Tribunal, by order, dated 27.10.2015, issued a direction to the respondents to consider the case of the applicant, on priority basis, as and when new projects are taken up, without waiting for a formal application from them and also issued a direction to review, on quarterly basis, for two years, the scope for their engagement in suitable project. On 02.01.2019, the applicant made a representation to the respondents for appointing him, permanently, in any of the posts available in the respondents' office, but the 3rd respondent, vide order, dated 25.02.2019, rejected his claim, stating that his request for regular appointment at the ICMR/CVRC could not be considered, as there was no provision for regularization of project services, in the ICMR Recruitment Rules.
Aggrieved, the applicant filed OA No.591/2019, wherein this Tribunal, by order, dated 29.04.2019, held as under:-
"Keeping in view the limited relief urged and without going into the substantive merits of the case, since it is alleged that there is discrimination between the applicants and similarly placed persons in the matter of regularization of their services and specific names have been mentioned in the representation of the persons alleged to have been regularized, we deem it appropriate to direct the respondents to review their impugned communication dated 25.02.2019 and pass a fresh reasoned and speaking order duly dealing with the allegation that similarly placed persons had been regularized within a period three months from the date of receipt of copy of this order."
In compliance with the orders of this Tribunal, respondents have passed the impugned order, dated 09.09.2019, again rejecting the claim of the applicant. Being aggrieved, the applicant has filed the present OA seeking the aforesaid relief. On 06.11.2019, the OA was admitted and an interim 4 OA 1345 to 1347/2019 order was granted by this Tribunal, directing the respondents to maintain status quo in respect of the applicant, till the filing of the reply by the respondents.
3. After notice, respondents have entered appearance through their counsel and filed their reply statement, refuting all the averments made in the OA except those which are admitted on facts.
3.1 It is submitted that the applicant, Mr. J. Balasubramanian, was appointed as Field/Lab Assistant on ad-hoc basis on a pay of Rs. 950/- per month, on 24.04.1995, at the Centre for Research in Medical Entomology (now merged with VCRC), Madurai, vide CRME Memorandum No. CRME/Admn/APPT/95/56, dated 17.04.1995. He was engaged in various projects and all the projects were different. There were considerable gaps of time in the engagement of the applicant, viz., March, 2015, to September, 2015, and May, 2016, to March, 2017, and March, 2018, to June, 2018.
Therefore, all the engagements in different projects were on temporary basis, which were separate engagements. Hence, the claim of regularization does not arise at all.
3.2 As per the ICMR Recruitment Rules for Technical Cadre, there is no provision for regularizing the services of the project staff or appoint any individual against a technical post, by considering the services rendered in the project. Accordingly, the request of the applicant to consider him for regular appointment could not be considered by the 3rd respondent. Further, in all the offers of appointment / engagement, for project position, issued to the applicant, it is very clearly mentioned that "the appointment will not bestow any claim for regular appointment in any post in future against vacancies arising in the Centre". The applicant, having accepted the terms & 5 OA 1345 to 1347/2019 conditions stipulated in the offer of appointment / engagement, has reported for duty and worked on the above projects. Therefore, the respondent has rightly considered all the facts and issued an order, dated 25.02.2019, to the applicant that his request for regular appointment at ICMR- VCRC could not be considered.
3.3 Regarding appointment of two staff, namely, Ms. K.P. Pushpalatha, Technical Officer-B, and Mr. K.N. Sugathan, Staff Car Driver, the statement of the applicant that they had been given permanency in the VCRC, from a project, as per the order of the Hon'ble Supreme Court, is not correct. The two staff members have been appointed in the VCRC on the basis of merit, by open competition. They were only given pay protection, as per the order of the Hon. Supreme Court. Therefore, the case of the applicant cannot be compared with the cases of the above two members of the staff and treated as similarly placed cases. The statement made by the applicant in his representation, dated 02.01.2019, that many staff who worked in various projects were made permanent in the erstwhile CRME, Madurai, is not correct. They had been recruited on merit through open competition and, in fact, the applicant also participated in the open competition once. Hence, there is no discrimination between the applicant and similarly placed persons in the matter of appointment.
3.4 The Respondents further submitted that, as per the directions of this Tribunal in order, dated 29.04.2019, the case of the applicant has been reviewed and a detailed speaking order has been issued to the applicant on 09.09.2019. The 3rd respondent rightly considered the case with other similarly placed cases as alleged by the applicant, in terms of the order passed by this Tribunal. There is no ground to re-consider the case of the 6 OA 1345 to 1347/2019 applicant as there is no provision in the ICMR recruitment rules to regularize or to appoint an individual on the basis of his/her services rendered in the short / long term projects of ICMR. Further, filling of vacant posts in all cadres (including MTS) has been taken up centrally by ICMR and the powers of 3rd respondent to appoint an individual against the regular vacancy has been withdrawn by the Council. As the matter has already been reviewed and considered at various intervals, there is no scope for the applicant to claim regularization of services on the basis of services rendered in the project. They further submitted that the applicant is free to apply whenever the process is initiated to fill up the vacant posts, in future, if he is eligible as per Recruitment Rules no.16/8/2017-Admn.II, dated 10.11.2017. There is no provision for absorption in permanent post as per the above Recruitment Rules. Therefore, they prayed for dismissal of the OA.
4. Heard learned counsel for the applicants, Mr.G.Ethirajulu, and learned counsel for the respondents, Mr.M.Kishore Kumar, and perused the pleadings and materials on record, including typed sets filed by both the parties.
5. The applicants have filed MA 575/2022,MA 568/2022 & MA 567/2022 respectively, wherein they have stated that the respondents issued a memorandum, dated 18.04.2022, stating that the services of the applicants are no longer required beyond 30.04.2022, and they stand relieved from their duties on the afternoon of 30.04.2022, and, hence, they prayed to extend the order of status quo granted as on 06.11.2019 until further orders, so as to enable them to work in the 3 rd Respondent Research Centre as 'Contract Technician', in terms of the order, dated 18.04.2022, made in No.ICMR/VCRC/Estt./Covid-19/2021-22/54 or in any other present project, pending disposal of the OA. The said MAs, except MA 567/2022, are still 7 OA 1345 to 1347/2019 pending consideration. MA 567/2022 was closed on 28.11.2023 stating that since the project is over, there is no question of considering the relief sought by the applicant to allow him to continue on the same work.
6. The learned counsel for the applicants has filed a typed set of papers containing copies of the following judgments that he relied upon:
i. Order, dated 25.08.2006 of the Hon. High Court of Madras in WP Nos.25490 to 25493 & 25574 to 25577 of 2002 ii. Order, dated 26.10.2009 of the Hon. Supreme Court in SLA (A) No.14953/2007 & batch iii. Order, dated 26.08.2010 of the CAT, Madras Bench in OA 1115/2009 iv. Order, dated 22.11.2019 of the CAT, Madras Bench in OA 949/2011 He submitted that, in all the above cases, similarly situated persons of Project Staff, like the applicants, have been granted regularization of their services in the respondent department. He further relied upon the decisions of the Hon. Supreme Court, reported in 2014(7) SCC 190 and 2006 (4) SCC 1 (State of Karnataka Vs. Umadevi (3). The contention of the applicants is that the respondents ought to have followed the above said decisions of the Hon'ble Courts while considering the cases of the applicants.
7. The learned counsel for the respondents has relied upon the following judgments in support of their contention:
(i)Judgment, dated 07.03.2022 of the Hon. Apex Court in Civil Appeal No.1875/2022 (The Managing Director & Anr. Vs. Chiggan Lal & Ors.
(ii) Judgment, dated 24.03.2022 of the Hon. Apex Court in Civil Appeal No.1951/2022 (The State of Gujarat & Ors. Vs. R.J.Pathan & Ors.
(iii) Judgment, dated 12.09.2023 of the Hon. Apex Court in SLA© No.2543/2023 (Ganesh Diga, Ber Jambhrunkar & Ors. Vs. The State of 8 OA 1345 to 1347/2019 Maharashtra & Ors.
(iv) Judgment, dated 03.08.2023 of the CAT, Mumbai Bench in OA 297/2016
(v) Judgment, dated 25.08.2023 of the Hon. High Court of Madras in WP No.25614 of 2019
(vi) Judgment, dated 28.03.2019 of the Hon. High Court of Madras in WP No.29035 of 2018
(vii) Judgment, dated 02.01.2024 of the CAT, Madras Bench in OA 888 & 887/2016
8. The applicants have also filed written arguments wherein they have reiterated the averments made in the OAs and further submitted that the 3 rd respondent has misconstrued the order of this Tribunal in OA 591/2019.
When the Tribunal has issued a direction to consider their regularization on par with others who are similarly placed, taking note of the tabular statement given by the applicants, the 3 rd respondent has given the details of regular appointment without giving preference to similarly placed employees like the applicants. He further submitted that the reasons assigned by the 3rd respondent for rejecting the claim of regularization, on par with other similarly placed persons, on the ground that they are selected on merit, are not justified and the tabular column in the impugned order did not reflect the truth wherein at serial numbers 11 and 13, the applicants appeared for the said posts, but it was wrongly stated as if they have not applied for the posts. The contention of the applicants is that when several posts were vacant, the respondents should have preferred the candidate only as the employees who are in service for several decades, as temporary employees, have more experience than the new candidates. The judgment, 9 OA 1345 to 1347/2019 dated 07.03.2022, in C.A.No.1875/2022, relied upon by the respondents, is not applicable to the facts of the present case, because it relates to fixation of pay scale and not regularization. Further, the judgment, dated 18.07.2022, in WP © No.9570/2015 relied upon by the respondents is only for implementation of the project of computerization in District and Subordinate Courts for the period of two years and, once it is installed, the basic work will be completed and will no longer subsist except for operation and maintenance, whereas in the case of health, it is perennial in nature and, hence, that judgment will not be applicable in the present case.
9. The respondents have also filed their written arguments reiterating the averments made in the reply statement and stating that no parity can be claimed based on regularization of services made in earlier years. Working for a long period on contractual basis does not create a vested right for regularization. No such direction can be issued by the High Court for absorption/regularization of the employees who were appointed in a temporary unit which was created for a particular project and that, too, by creating supernumerary posts. Hence, prayed for dismissal of the OA.
10. The main issues were already pressed by the applicants during the hearing in OAs 591-593 of 2019, including the point of alleged discrimination. The order, dated 29.04.2019 in the said OAs reads as under:-
"As it is submitted that the grievance of the applicants and the relief sought in the three OAs were one and the same, they are taken up together and disposed of by this common order.
2. The relief sought by the applicant in OA 591/2019 is as under:
"To call for the records relating to the impugned order passed by the 3rd respondent in his office proceedings No. ICMR/VCRC/Estt/Misc/208-19/1482 dated 10 OA 1345 to 1347/2019 25.02.2019 and quash the same and consequently regularise the service of the applicant with all attendant benefits and pass such further or other order"
3. The applicants had been engaged on projects for a long time and they are seeking regularisation of their services in the respondent institution. Although a detailed representation was made by them dated 02.01.2019, the respondents passed the impugned order dated 25.02.2019 which is cryptic and says nothing beyond the alleged ineligibility of the applicant for regularisation as there is no provision for regularisation of project services in the ICMR Recruitment Rules.
4. Learned counsel for the applicants would submit that the applicants had referred to precedent cases where persons appointed in the projects had also been granted the benefit of regularisation in ICMR notwithstanding the alleged absence of any provision therefor. Accordingly the applicants would be satisfied if the respondents are directed to consider their representation and pass a detailed reasoned and speaking order.
5. Ms. Sunitha Kumari takes notice for the respondents.
6. Keeping in view the limited relief urged and without going into the substantive merits of the case, since it is alleged that there is discrimination between the applicants and similarly placed persons in the matter of regularization of their services and specific names have been mentioned in the representation of the persons alleged to have been regularized, we deem it appropriate to direct the respondents to review their impugned communication dated 25.02.2019 and pass a fresh reasoned and speaking order duly dealing with the allegation that similarly placed persons had been regularized within a period three months from the date of receipt of copy of this order.
6. OA are disposed of accordingly. "
The impugned order, dated 09.09.2019, is the result of the above order of this Tribunal. The impugned order, dated 09.09.2019, has disproved the allegation of discrimination and given the factual basis of appointment of persons on regular basis. In several instances, the applicants' names also figured as one to have applied for the post against the advertisement for regular appointment. The following paras of the impugned order are noteworthy:-
"In compliance with the Honorable CAT, Madras Bench, Chennai a common order dated 29th April 2019 passed in OA. 591 of 2019 filed by Mr. J. Balasubramanian, OA. 592 of 2019 filed by Mr. A. Govindasamy and OA. 593 of 2019 filed by Mr. D. Ramesh; the representation dt 02-01-2019, submitted by the applicants were one and the same. Wherein the applicant 11 OA 1345 to 1347/2019 mentioned about the order of OA. 310/318 to 321, 376 to 378 & 388 of 2015. The order of para 11 is reproduced below:-
Para 11: "We therefore, deem it appropriate to direct the respondents to consider the case of the applicants on priority basis as and when new projects are taken up on. vacancies arise in ongoing similarly temporary projects where there could be gainfully deployed and grant them the offer of appointment without waiting for a formal application from them each time. For this purpose, the applicants may submit their willingness to be considered any ongoing or future projects along with a copy of their CV containing their education qualification, experience etc.It is also directed that the respondents shall review on a quarterly basis for the next two years the scope for engagement of the applicants in suitable projects and pass a speaking orders each time so that applicants are allowed the opportunity to be considered for appointment in a suitable post at the earliest".
Hence, here it is important to note that the direction given that the applicant may be considered for appointment in temporary ongoing project or new project. There is no mention for regularization of service towards the permanent posts. Even after the completion of two years period as directed by the Hon'ble Tribunal, this Centre is giving preference to the applicant in letter and spirit of the order passed by the Hon'ble Tribunal. However, this Hon'ble Tribunal never passed an order by making the selection of the applicant automatic dehors the selection process which is essential for assessing the qualification, eligibility and suitability of the applicant to hold the post. There would be selection process even among the applicant covered under the judgment.
Further, the applicant stated in his representation dated 02-01- 2019 that Ms.Puspalatha, TO and Mr. Suguthan, Driver had been given permanency in VCRC from a project as per the order of Hon'ble Supreme Court. It is not correct. The two staff had been appointed in VCRC, on the basis of merit by open competition. They were given pay protection as per the order of Hon'ble Supreme Court.
Therefore, it is evident from the above that there is no discrimination between the applicant and similarly placed persons in the matter of appointment.
Further, as mentioned by the applicant in his representation dt. 02-01-2019, the VCRC initiated to fill up the various vacant post vide advertisement No: 03/2018-19, dt: 08-03-2019. However, ICMR has cancelled the recruitment for the posts of Scientist-C & above and Technical cadre including MTS vide office letter No. ICMR/HSRC/1/2019 recruitment cell, dt: 14- 05-2019 and No. 16/34/2019-Admn.Il dated 16-05-2019. The applicant is free to apply whenever the process is initiated to fill up the vacant posts in future, if he is eligible as per recruitment rules no 16/8/2017-Admn.ll dt. 10.11.2017 and there is no provision for absorption in permanent post as 12 OA 1345 to 1347/2019 per the above recruitment rules."
11. This Tribunal has already taken a view in several OAs while adjudicating contentions as above for regularization of Temporary/Contractual appointees. We have also gone through the citations put forth by both the parties. The whole gamut of issues raised herein have been comprehensively tackled and decided in order, dated 02.01.2024, passed in OAs 887 of 2016 and 888 of 2016. The relevant portion of the order in OA 887/2016 is extracted below:-
7. It is useful to extract the relevant portions of the Judgments relied on by the learned counsel for the applicant as hereunder:
(i) Hon'ble Delhi High court Judgment reported in 2020 SCC OnLine Del 263 :
'28. As far as the case at hand is concerned, it is clear from the replies filed by ICMR to the applications under the RTI Act that there are 12 vacancies in the various posts of Scientists which remain unfilled. A second undisputed fact is that the Petitioner has been employed with ICMR on a continuous basis for more than 15 years i.e. 1st June, 1998 to 31st December, 2013. Going by the stand taken by AIIMS before the Supreme Court in the SLP filed against the judgment of this Court in Om Prakash (supra), it had been agreed in principle that those who have worked for projects continuously for more than 15 years would be considered for absorption keeping in view their educational qualification and experience and the availability of posts. There is nothing in the counter affidavit of the ICMR before CAT to indicate that it decided to adopt a policy different from that of AIIMS, on the question of permanently absorbing or regularizing project employees. The Court sees no points of distinction between project employees engaged by AIIMS and those engaged by ICMR for research work.
29. Lastly, the decision in Dr. V.L. Chandra (supra) has been consistently followed by this Court in the aforementioned decisions, one of which has been affirmed by the Supreme Court in the manner noticed hereinbefore.
30. Consequently, the Court sees no difficulty in allowing the prayer of the Petitioner that his services 13 OA 1345 to 1347/2019 should be regularised in one of the vacant posts of Scientist available with the ICMR.
31. The impugned order of the CAT dated 6th February, 2015 is accordingly set aside. A direction is issued to ICMR to issue the necessary orders appointing the Petitioner, consistent with his experience and qualifications in an appropriate post of Scientist, which is vacant and available in the ICMR, within a period of eight weeks from today. It is clarified that the period of service between 1st June, 1998 and 31st December, 2013 will be taken into account for the purposes of calculating the pensionary benefits incidental to regular employment. The termination order dated 31st November, 2013 which brings to an end the Petitioner's tenure in the particular project for which he was engaged would not come in the way of the Petitioner being regularised."
(ii) The following is the extract from the Judgement of the Hon'ble Madras High Court reported in 2017 SCC OnLine Mad 10195
7. In the above said circumstances, considering all the aspects and the materials on record, We deem it fit to allow the Writ Petition by directing the Competent Authority, the official respondent to regularize the service of the petitioner with effect from the date of his original appointment with all consequential attendant benefits, as given to other similarly placed employees in O.A.No.1332 of 2000 etc.,. This exercise shall be completed within a period of three months from the date of receipt of copy of this order
(iii) This Tribunal's order in OA.No.1282 of 2015 reported in 2017 SCC OnLine CAT 1069
7. As the applicant is working for the last 29 years in the project which is still continuing and his request for regularization for all these years has not attained any finality in spite of several litigations and taking into account the very recent judgment of the Hon'ble High Court of Madras cited supra, we are of the view that the said decision applied to case of the applicant herein. Therefore the respondents are directed to regularize the service of the applicant with effect from the date of his original appointment with all consequential attendant benefits. An appropriate order to be issued in this regard within a period of three months from the date of receipt of a copy of this order
8. The OA is allowed in the above terms without any order as to costs.
8. Likewise, it is worthwhile to extract the relevant portions of the judgments referred to by the learned counsel for the 14 OA 1345 to 1347/2019 respondents.
(i) Hon'ble Apex court Judgement in Civil Appeal No.1951 of 2022 dated 24.03.2022 reported in 2022 Live Law (SC) 313
8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who has continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme.
(ii) Judgement of the Hon'ble High Court of Delhi in WP (C) No.9570 of 2015 dated 18.07.2022
3. The appointment letters issued to the petitioners specifically mentioned that the positions are purely on temporary and contractual basis for a fixed period, funded by the Government of India. It also mentioned that the services are liable to be terminated without any notice and/or assigning any reason thereof, and that the person will not have any right to regular/continuous service as a System Officer.
13. In Mohd Abdul Kadir Vs DGP, (2009) 6 SCC 611, the Supreme Court observed as under:
"15.On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such project or scheme cannot claim any right to continue in service, nor seek regularisation in some other project or service."
Similarly the Hon'ble Apex court in Resmi R.S Vs. Government of India, 2019 SCC 2649 held that:
"9. That contractual employees under a Scheme can have no right to claim that they are entitled to continue in service after the agreed term of contract is over.
10. who had been engaged on contract basis have no right to insist that they are to be permitted to continue after the term of contract has expired."
(iii) Hon'ble Apex court Judgement in Special Leave to 15 OA 1345 to 1347/2019 Appeal (C ) No.2543 of 2023 dated 12.09.2023 reported in 2023 Live Law (SC) 801 in the case of Gaensh Digamber Jambhrunkar and others Vs. The State of Maharashtra and Ors.
(iv) CAT, Mumbai Bench in OA.No.297 of 2106 dated 03.08.2023 (Para No.8 to 11)
8. Dealing with the first issue, it would be relevant to note that appointment of the appellant was clearly on contractual basis and for a particular project only. She was continued for a number of years but for each year sanction had to be sought for continuation of the project and its employees. No semblance of permanency can be seen or read into this
9. The Hon'ble Supreme. Court in various cases held that contractual employees cannot he regularized because this will amount to perpetrating fraud on those candidates who did not apply thinking that the posts are not permanent post. The judgments of the Hon'ble Supreme Court in this regard are as under:
(i) Official Liquidator Vs Dayanand & Others (2008)
10 SCC 1 (ii) National Fertilizers Lid and Others Vs Somvir Singh (2006) 5 SCC 493. (iii) Kendriya Vidyalaya Sangathan and Others Vs L.V. Subramanyeswara and Another (2007) 5 SCC 326
(iv) State of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC 436
10. We completely agree with the arguments urged on behalf of the respondents on this issue that contractual employees cannot claim regularization of their services and confirmation of services in view of the ratios of the four judgments of the Hon'ble Supreme Court referred to above and relevant paras laying down the ratio of which four judgments, along with the ratio of the Constitution Bench of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others 2006 (4) SCC 1.
11. It is not and cannot be disputed that the applicant was selected and appointed only for contractual terms. Once that is so, such persons cannot seek regularization to the posts as held in various judgments of the Supreme Court. That respondents themselves came to this conclusion and in the year 2015 (quoted above) decided to discontinue with the scheme to grant temporary Status as it was not likely to result in regularization. This being their administrative decision cannot be interfered with by the Tribunal as the respondents know what is best to run the administration. With respect to the relief granted to others similarly situated, it would be pertinent to note that they were regularized only on the directions of the court and 16 OA 1345 to 1347/2019 before the policy decision quoted above. Once the respondents have applied their mind and taken a decision not to continue with the scheme for grant of temporary status scheme, it would be bad in law to issue direction for regularization.
(v) Judgment of the Hon'ble High Curt of Madras in WP No.25614 of 2019 dated 25.08.2023
3. The learned counsel appearing for the petitioners strenuously argued before this Court that when the petitioners have been working continuously for more than 15 years as casual labourers on daily wage basis with the respondent Department either engaged directly or through a registered contractor, they are entitled to seek for regularisation of their services. He further submitted that the Central Administrative Tribunal has not passed orders on merits and when an application was filed by the petitioners for restoration of the O.A., the Central Administrative Tribunal, recording the submission made by the learned counsel appearing for the respondent Department that the petitioners were already disengaged and the prayer has become infructuous, dismissed the O.A., for default. According to the petitioners, since the O.A., has not been disposed of on merits, the order passed by the Central Administrative Tribunal is liable to be set aside.
5. We have carefully considered the rival contentions. The issue raised in this writ petition is no longer res integra, as the Constitution Bench of the Hon'ble Supreme Court way back in the year 2006, in the case of Secretary, State of Karnataka v. Uma Devi and others (2006) 4 SCC 1, has succinctly held that 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 procedures and he is aware of the consequences of appointment being temporary, casual or contractual in nature, such persons cannot invoke the theory of legitimate expectation for being confirmed in the post.
7. In the light of the above dictum, coming back to the facts of the present case, it is the admitted case of both sides that the petitioners were not appointed by the respondent Department either in the sanctioned posts or by following the procedures established in law in the matter of public employment. Further, the petitioners have not placed any material before this Court to show that they have been appointed by the respondent Department in any sanctioned vacancies through an 17 OA 1345 to 1347/2019 offer of appointment. In such circumstances, accepting the contention of the respondent Department that the petitioners were already disengaged by the registered contractor, we hold that the petitioners are not entitled to seek for regularisation of their services in the regular sanctioned vacancies and on this score, the writ petition is liable to be dismissed.
9. Findings of the Tribunal: On a careful analysis of the submissions made by the respective parties and also the decisions referred by them, I am convinced that decisions relied upon by the learned counsel for the respondents are applicable to the facts of the present case. It is now well settled that even if a Scheme has been in operation for some decades or that the employee concerned has continued on ad hoc basis for decades, it would not entitle the employee to seek permanency or regularisation. It is very clear that contractual employees can have no right to claim that they are entitled to continue in service after the agreed term of contract is over. As pointed out by the respondents in their reply that the applicant was engaged purely on ad hoc basis only for the limited period for which the project is in existence and cannot be continued beyond the project period, the applicant is not entitled to seek regularisation, even though she worked for years together. After going through the decisions relied upon by the learned counsel for the respondents, I am of the considered view that the issue raised in the OA is no more res integra and the applicant cannot seek regularisation. In this regard, it is relevant to refer to the rulings of the Hon'ble Apex Court in the recent decision delivered on 12.09.2023 in the case of Ganesh Digamber Jambhrunkar and others Vs. State of Maharashtra and Ors.:
"The issue with which we are concerned in this petition is as to whether by working for a long period of time on contractual basis, the petitioners have acquired any vested legal right to be appointed in the respective posts on regular basis. We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current 18 OA 1345 to 1347/2019 recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken.
The present petition shall stand dismissed.'
10. In the light of the Hon'ble Apex Court rulings cited supra, the applicant has not made out a case for regularisation of her service nor she is entitled to seek reappointment. The relief claimed in this regard is dismissed.
12. In OA 806/2022, this Bench, citing the judgments of the Hon. High Court of Bombay (Aurangabad Bench) and the Hon. Apex Court, in the case of Ganesh Digamber Jambrunkar and ors Vs. the State of Maharashtra and ors in WP No. 4546 of 2016 and SLP (C) No. 2543/2023, respectively, has come to similar conclusion. The OAs are, accordingly, dismissed. Interim Relief already granted stands vacated.
Pending MAs closed. No order as to costs.
(M.SWAMINATHAN) (VARUN SINDHU KUL KAUMUDI)
MEMBER (J) MEMBER(A)
MT 30.07.2024