Central Administrative Tribunal - Delhi
Rajesh Singh Tomar vs Aiims on 28 November, 2024
C.P. No. 316/2024 in O.A.
No. 831/2023 and O.A.
Item No.13 &26 (Court -5) No. 2194/2023 with C.P.
No. 703/2023
Central Administrative Tribunal
Principal Bench, New Delhi
CP No. 316/2024
in
O.A. No.831/2023
M.A. No. 1646/2023
&
O.A. No.2194/2023
C.P. No. 703/2023
Reserved on: 20.11.2024
Pronounced on:
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
O.A. No.2194/2023 & O.A. No.831/2023
Rajesh Singh Tomar, Aged-38 Years, S/o Sh.
Kuldeep Kumar, Working as Life Guard for
swimming pool (on Contract basis) In AIIMS, New
Delhi Resident of A-40, Mohammadpur Village, New
Delhi. -110066.
...Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. All India Institute of Medical Science
(AIIMS) Through its Director, Ansari
Nagar, New Delhi-29.
2. The Administrative Officer, Recruitment
Cell, All India Institute of Medical Science,
Ansari Nagar, New Delhi-29.
...Respondents
(By Advocate: Mr. VSR Krishna)
Page 1 to 31
C.P. No. 316/2024 in O.A.
No. 831/2023 and O.A.
Item No.13 &26 (Court -5) No. 2194/2023 with C.P.
No. 703/2023
C.P. No.316/2024 & C.P. No.703/2023
Rajesh Singh Tomar, Aged-38 Years, S/o Sh.
Kuldeep Kumar, Working as Life Guard for
swimming pool (on Contract basis) In AIIMS, New
Delhi Resident of A-40, Mohammadpur Village, New
Delhi.
...Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Dr. M. Srinivasan, Director, All India
Institute of Medical Science (AIIMS),
Ansari Nagar, New Delhi-29.
2. Sh. Vishwesh Chaturvedi, The
Administrative Officer, Recruitment Cell,
All India Institute of Medical Science,
Ansari Nagar, New Delhi-29.
...Respondents
(By Advocate: Mr. VSR Krishna)
Page 1A to 31
C.P. No. 316/2024 in O.A.
No. 831/2023 and O.A.
Item No.13 &26 (Court -5) No. 2194/2023 with C.P.
No. 703/2023
ORDER
Hon'ble Mr. Manish Garg, Member (J):-
Since a common question of facts and law is involved and the applicant in both the cases is same, we are disposing of O.A. No.831/2023 with C. P. No. 316/2024 and O.A. No.2194/2023 with C.P. /703/2023 by a common order and the decision in one case shall have a bearing on the other.
In the present Original Application (OA/831/2023), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief(s):
"i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 13.01.2023 (Annex.A/1), and consequently, pass an order directing the respondents to consider the case of the applicant for his regularization as per the existing policy and guidelines for regularization, with all the consequential benefits to the applicant from due dates as done in the cases of similarly situated persons in past.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to allow the applicant to work continuously till his regularization as per scheme.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
1.1 Learned counsel for the applicant submitted that the applicant was initially appointed as Life Guard for swimming pool in All India Institute of Medical Science (AIIMS) Gymkhana, New Delhi on 01.04.2007. It has been further highlighted by the learned counsel for the applicant that the applicant has been working against a Page 2 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 regular sanctioned post and he was taken into services by following a due process of law. He further stated that there is a absorption/regularization policy. He further submitted that the applicant has also fulfilled all eligibility criteria/condition for 15 years of the service and, therefore, he is entitled for regularization of service as per regularization policy/scheme issued by the respondents AIIMS.
1.2 Learned counsel for the applicant further relied upon the decision dated 03.09.2012 rendered in OA No. 600/2012 titled Shobha Kandpal vs. AIIMS of this Tribunal. He further highlighted that the policy of absorption/regularization has also been highlighted in OA No. 600/2012. For the sake of better appreciation, the same is reproduced herein below:-
"6. Meanwhile, consequent upon the directions of the Apex Court, in another batch of Writ Petition filed by Dr. B.P. Chaturvedi & Ors. v. Union of India, the respondent-AIIMS approved the proposal submitted by Dr. Indira Nath Committee in respect of the component of Scientist and Technical Staff in the proposed research cadre. The Governing body of the AIIMS has also ratified the aforesaid proposal in its meeting held on 06.07.1992. The Finance Committee of the AIIMS later on in its meeting held on 09.08.1993 decided that as and when suitable persons from the research scheme who have put in more than 15 years of service, are available, there cases should also be considered. Thereafter the AIIMS came out with a policy and laid down guidelines for regularization/absorption of the project employees and its salient features are as under:-
(A) All project employees who have worked for 15 years and above will be considered for regularization in research cadre of AIIMS irrespective of break period but the actual service rendered by an individual should not be less than 15 years in any case on the following basis:
They must fulfill the eligibility criteria and qualification laid down for the post.
The Screening Committee appointed by the Director, will screen Page 3 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 the candidates and assess their suitability for the post in which they are proposed to be regularized. Mere completion of 15 years will not make them automatically eligible for regularization. If the Screening Committee finds that he/she is not suitable/unit for the post, his/her services will not be regularized.
Under no circumstances, relaxation will be permitted in the basis qualifications laid down for the post against which regularization is proposed.
Their performance in all the Research Projects, where they have been working, should have been graded Good by the Project Investigator(s).Age relaxation will be granted to the extent of number of years put in the Research Project(s) at the AIIMS.
A-I) Those who do not fulfill the qualification/eligibility criteria laid down or are found unfit for regularization by the Screening Committee, can be considered for regularization to a lower post for which they fulfill the recruitment rules and are found fit.
A-II) Wherein an individual has rendered part of service in the projects and subsequently worked on ad hoc or temporary basis in any of the department in AIIMS, the service rendered by individual in this case also is 15 years. In other words, if individual has rendered part service in the project and remaining services in AIIMS, the combined service should not be less than 15 years irrespective the break.
A-III) The past services before the proposed regularization will not be counted for any service benefit and they will be considered as fresh entrants at the entry level."
1.3 He specifically relied upon Clause A-II of the said policy, which reads as under:
"A-II) Wherein an individual has rendered part of service in the projects and subsequently worked on ad hoc or temporary basis in any of the department in AIIMS, the service rendered by individual in this case also is 15 years. In other words, if individual has rendered part service in the project and remaining services in AIIMS, the combined service should not be less than 15 years irrespective the break."
1.4 He further submitted and highlighted that in Ms. Shobha Kandpal (supra) case the applicant was also working as a social worker on full time basis and services were regularized pursuant to Page 4 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 the directions passed by this Tribunal. He further stated that para 16 of the order in Ms. Shobha Kandpal (supra) case is amply clear, which reads as under:
"16. We have heard the learned counsel for the applicant Sh. Vinay K. Garg with Sh. Amit Srivastava proxy for Sh. Fazal Ahmed and leaned counsel Sh. Sahil S. Chauhan proxy counsel for Sh. Mehmood Parcha, counsel for the respondents. In our considered view, the Respondent-AIIMS is raising hyper-technical objection to frustrate the case of the Applicant who has already put in more 17 years as MSSO grade-II (Social Worker) under different projects. It was the unqualified affidavit of the Respondent-AIIMS in SLP (C) 19225/2002 before the Apex Court that all project employees who have worked continuously for 15 years and above will be considered for absorption keeping in view the educational qualification, experience and availability of posts. Now, the reason given by them in not regularizing the service of the Applicant is that the post of MSSO Grade-II is not included in the Core Cadre. If that is so, in order to fulfill the aforesaid solemn affidavit before the Apex Court, the Respondent-AIIMS could have regularized the Applicant against one of the 9 posts of MSSO Grade-II now advertised vide Annexure A-I Notice published on 16/22,04,2011. Moreover, the Hon ble High Court of Delhi in the case of Om Prakash & others (supra) had directed in unequivocal terms that not only Researchers and Scientists but others, who have worked on projects for more than 15 years should also be absorbed in service. Further, according to the laid down policy of the respondents and ratified by its Governing Body on 6.7.1992, even those who do not fulfill the qualification/eligibility criteria laid down or are found unfit for regularization by the Screening Committee, can be considered for regularization to a lower post for which they fulfill the recruitment rules and are found fit."
1.5 Learned counsel for the applicant further contended that the impugned order has been passed based on the premises that the applicant had worked at the Gymkhana Club on the different spells and on the request of the Chairman Gymkhana Club with huge breaks, i.e., 781 days break in service (13.06.2007 to 21.10.2022) towards 4611 days (approx. 12 years and 6 Months). Page 5 of 31
C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 1.6. He further relied upon the recent decision rendered by this Tribunal in OA No. 1987/2023 and batch dated 26.04.2024. The relevant portion of the order is reproduced herein below:
"31. We recall that just a few days back, a Co-ordinate Bench of this Tribunal in which one of us was a Member, in OA No. 2525/2023 titled Anita Kumari vs. Municipal Corporation of Delhi & Anr., has considered the principle and issue of regularization of a contract/adhoc employee threadbare. The applicant therein was a Primary Teacher appointed on ad-hoc basis in the Municipal Corporation of Delhi (MCD). She too had claimed regularization, and in that case, amongst other grounds, one of the grounds taken by the respondents was that the applicant had been engaged in a Society and not MCD per se. Even against that background and circumstances, the Tribunal had held the applicant to be entitled for regularization w.e.f the date of her initial appointment. While deciding the OA, the primary considerations which the Co- ordinate Bench had given weightage to were:
(a) the applicant had been continuing in service for nearly twenty years,
(b) she was performing all such duties and responsibilities as are discharged by regular employees,
(c) there was no adverse comment with respect to her conduct and performance.
XXXXXXXXX
35. Therefore, we allow the Original Application with following order(s) and directions:-
(i) We hold and declare the engagement of the applicant as Stenographer Grade-D on ad-hoc/contract basis with intermittent break, as arbitrary and violative of the provisions of Articles 14 and 16 of the Constitution of India;
(ii) Consequently, we direct the competent authority amongst the respondents to pass an order for the regular appointment of the applicant as Stenographer Grade-D with effect from the date of her initial appointment/engagement i.e. 22.11.2012.
(iii) To fix the pay of the applicant as a regular Stenographer Grade-D on 22.11.2012 and grant annual increment(s) as admissible, and also to consider her for promotion/grant of benefits under ACP/MACP scheme(s) as per the extant rules and instructions in this regard; and further to award her other entitlements such as leave, medical cover etc; besides the rest of the consequential benefits arising out of this order."Page 6 of 31
C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023
2. In the aforesaid premises, in the second OA, i.e., OA/2194/2023 the applicant seeks the following relief(s) :
"i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned advertisement/notification only in respect to the post of lifeguard declaring to the effect that reserving the post in question for SC category is totally illegal, arbitrary and against the rules and consequently, pass an order directing the respondents to declare the post in question as a UR category post.
(ii) That the Hon'ble Tribunal may further graciously be pleased to pass an order directing the respondents not to fill up the post of lifeguard till the final disposal of the OA No.831/2023 as the applicant is working on the same post since 2007.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
2.1. In the aforesaid OA, vide order dated 31.08.2023, an interim order was granted in favour of the applicant, which reads as under:
"11. Meanwhile, the respondents shall not declare the result of the examination held for the post of Life Guard pursuant to the impugned advertisement."
2.2. The sum and substance of the arguments of the learned counsel for the applicant is that if the applicant succeeds in the first OA, i.e., OA/831/2023 where the applicant is seeking regularization, the question of filling up of unfilled vacancy will not arise. 2.3. The applicant's counsel further contended that this is the second round of litigation. The impugned order has been passed in light of the directions passed by this Tribunal in OA No. 3153/2022 vide order dated 31.10.2022 which is impugned herein. He further submitted that the applicant has impugned the Annexure A/1 dated 13.01.2023 on the premises that though there is no dispute regarding Page 7 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 the factum of appointment of the applicant as per the procedure on contractual basis, the case of the applicant has been rejected for regularization as he has worked only on contractual basis on different spells with huge breaks and he has never worked in the research cadre/project. He further submitted that the respondents did not consider the case of the applicant on the ground that the Hon'ble Supreme Court directions to the AIIMS, New Delhi was only for absorbing/regularizing of Research Cadre Staff in AIIMS. The case of the applicant does not match with the case of Dr. V P Chaturvedi in Writ Petition No.917/1990 because the applicant was hired on contractual basis and he has not worked in the research cadre/project.
2.4. It is the contention of the applicant's counsel in the second round of litigation that though the post was earlier advertised in the year 2018 under UR Category, the applicant did not fulfill the eligibility criteria of 15 years at that time. However, the said vacancies were not filled and the same were re-advertised in the year 2020 against UR category which was also not finalized due to some administrative reasons. He further contends that in the year 2023, the said post was re-advertised but the respondents changed the category of post from UR to SC category. It is contended that the impugned action on part of the respondents in conversion of the said post from UR to SC category without any basis is totally illegal and arbitrary only to deprive the claim of the applicant as the applicant is a UR Page 8 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 category candidate.
3. Opposing the grant of relief in both the OAs, the learned counsel for the respondents would rely upon the averments made in counter affidavit filed in respective OAs.
3.1 Learned counsel for the respondents submitted that the a decision has been taken by the respondents as per the policy decision of the DoPT in respect of reservation/appointment to post of services in Central Govt. qua the SC/ST/OBC category and a roaster point has been followed and there were three vacancies for the post of Lifeguard, from which the present vacancy which is lying vacant is falling as per the roaster point under the SC category. Therefore, the advertisement was issued which is at Sl.22 pg. no.17 of the OA. For the sake of better appreciation, the same is reproduced herein below:
3.2 He further submitted that the said vacancy is reserved for SC as per the roaster since maintenance of roaster is a constitutional requirement and cannot be dispensed with merely at the request of the applicant seeking quashing of the advertisement notification itself. Even otherwise, he would contend that the applicant was working on a contractual and need based basis as well as he was not working in the research cadre/project. Therefore, the applicant is not Page 9 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 entitled to the relief sought in the present OA. He would contend that if there is a small cadre the respondents are within their discretion and as per the constitution mandate to advertise and follow the reservation policy.
3.3 He further relied upon the Compendium of Instructions on Reservation in Appointments in Posts/Services in the Central Government, Clause '4', which reads as under:
"4. Grouping of Posts In the case of posts filled by direct recruitment, isolated posts and small cadres may be grouped with posts in the same class for the purpose of reservation orders taking into account the status, salary and qualifications prescribed for the posts in question.
For the purposes of determining the reservation, the vacancies occurring in various constituents of the Group may be plotted on the roster strictly in a chronological order i.e. sequence of date of occurrence.
While reservations would be made according to the groups as provided above, the total reservation in any of the posts/services so grouped should not exceed 50 per cent of the vacancies to be filled in it i.e. in the particular post/service, in a recruitment year. The total reservation for SCs, STs and OBCs in any post or service should also not exceed 50 percent of the total number of posts in the particular post/service."
3.4 He further submitted that the roaster which is being maintained is annexed at pg.13, which is reproduced herein below:
Reservation Recruitme Sl. Point Name of the Date of Category Reservatio Remarks SI Brought nt Year No. earmar appointee Appointme n carried G Forward ked nt forward S ST OBC 1 UR Sh. William Singh 20.03.61 UR Rtd as C (Physical Training on Instructor) 30.11.19 97 2 UR Sh. Yashpal Tokas 17.08.05 OBC (On (Life Guard) merit) 3 UR Sh. Jasbeer Tokas 17.08.05 OBC (On (Life Guard) merit) 4 OBC Sh. Sanjay Kr. 16.04.07 IR (Physical Training Instructor) (PTI) 5 UR Pawan Chopra (PTI) 10.10.22 UR 6 UR Piyush Maurya (PTI) 27.05.23 UR Page 10 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 3.5 He further submitted that the point '7' (SC) as per the above roaster has to be filled which is being done in accordance with constitution mandate as well as in terms of the advertisement notification.
3.6 The learned counsel for the respondents' further highlighted that over and above as the sanctioned post are being already filled as per the Recruitment Rules, the question of regularization of the applicant does not arise, specially, when the said post is for SC category. He further submitted that it is an admitted position that the applicant has been employed on contractual basis on fixed emoluments and is clearly distinguished to an ad hoc appointment. He further relied upon the terms and condition of the contractual appointment which has been reproduced in column 1 to the reply on points/question in the impugned order dated 13.01.2023, which reads as under:
"Reply As per available record the applicant appointed on the contractual basis vide letter no 1-1/2005-Estt.I(P./F) dated 10-08- 2007 duly signed by Sr. Admn. Officer after the approval of competent authority as per request of President/Chairman Gymkhana, AIIMS, New Delhi. As per the terms and conditions mentioned below to the post:-
1. The appointment will be on a purely contractual basis and this appointment does not entitle to any regular appointment.
2. The appointment may be terminated at any time without any prior notice and without assigning any reasons.Page 11 of 31
C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023
3. Contractual appointment will not bestow on the person any claim for regular appointment and that contractual service rendered will not count for the purpose of seniority in that grade eligibility for promotion, confirmation etc.
4. The appointee will have to conform to the rules discipline and conduct prevailing in this Institute on all their employees.
5. If the appointee wishes to resign from the post, he may do so by giving one month's notice or by deposing pay and allowances with the Institute for the period by which the notice falls short of one month.
6. No travelling or any other allowances will be paid to the appointee for joining the duty.
7. Private practice of any kind whatsoever is prohibited.
8. The date of joining of the appointee in the institute may be intimated to the Establishment Section (recruitment cell), immediately.
The case of Dr. V. P. Chaturvedi, who had worked under the Research Project and completed 15 years of service at AIIMS, the case of Sh. Rajesh Singh Tomar does not cover under research core cadre as he has worked at AIIMS New Delhi on contractual basis and he was aware of all the terms and conditions of the AIIMS, New Delhi."
3.7 The learned counsel for the respondents' further stated that the case of the applicant cannot be equated with the case of Dr. V P Chaturvedi, who had worked under the Research Project and completed 15 years of service at AIIMS. The scheme is applicable to only Research Project employees.
3.8 He further contended that the case of Ms. Shobha Kandpal (supra) cannot be applied in the present matter as it is clearly highlighted in the order passed on 03.09.2012 that she was appointed on the post of Social Worker (now designated as Medical Social Service Officer Grade-II) in the project sponsored/funded by DGI- Page 12 of 31
C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 153 under Dr. Takkar of the Department of Gynecology of the respondents-AIIMS.
3.9 He further stated that as on the date of consideration of the applicant's case the applicant does not fulfill the eligibility criteria of 15 years of service. The applicant has only rendered only approx. 12 years and 6 Months as on 12.01.2023.
3.10 The learned counsel for the respondents further relied upon the decision rendered by the Apex Court in the matter of Raj Balam Prasad & Ors vs. State of Bihar & Ors in SLP(C) No.31638/2016, which is reproduced herein below:
"16) Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. In our opinion, the view taken by the Division Bench appears to be just, legal and proper and hence does not call for any interference.
17) This is what the Division Bench held for allowing the appeal and dismissing the appellants' writ petition:
"We have heard learned counsel for the parties and find that the order passed by the learned Single Judge is not sustainable in law. The order passed in LPA No.434 of 2001 dated 28th of July, 2008 was not brought to the notice of the learned Single Judge. It is further contended that even if the order dated 10.10.2006 was not have set aside, the fact remains that such order of regularization could not have been passed since the services of the Muharrir have come to an end in 1991 itself. The permanent status could be conferred to those who were in service and not to those whose service had come to an end many years ago. Such an order could not be made basis of permanent status through the writ court. Such order dated 10.10.2006 is not enforceable in law. The representation having been declined in the light of the circular dated 16.04.2008, we do not find that the writ petitioners were entitled to any direction to treat them as regular employees."
18) We agree with the reasoning of the Division Bench quoted supra.
19) In our opinion also, when the appointment of the appellants (writ petitioners) was made for a fixed period in exercise of the powers Page 13 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 under Rule 57-A and the said appointment period having come to an end in the year 1991 after granting some extension, we fail to appreciate as to how the appellants could claim to remain in service after 1991.
20) One cannot dispute that the State has the power to appoint persons for a temporary period under the Act and Rules framed there under and once such power was exercised by the State, the status of such appointee continued to be that of temporary employee notwithstanding grant of some extensions to them for some more period.
21) In other words, the grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularization in the services unless some Rule had recognized any such right in their favour.
22) That apart, when the period fixed in the appointment orders expired in the year 1991 then there was no scope for the appellants to behalf.
23) We have 'perused the Circular dated 16.04.2008 (Annexure P-7) issued by the State. This Circular only says that if any temporary persons are appointed for a particular project and if they are found to be of some utility, their services can be regularized as per Rules.
24) As mentioned above, so far as the cases of these appellants are concerned, their representations were examined by the State but were rejected finding no merit therein. One of the reasons for rejection of the representation was that the services of the appellants had already come to an end in 1991 and, therefore, no orders to regularize their services could now be passed after such a long lapse of time.
25) As rightly observed by the Division Bench in the impugned judgment, the earlier order of the Division Bench in which a vigilance inquiry was ordered to find out as to how an order of regularization could be passed in favour of some Muharrirs was not brought to the notice of the Single Judge which led him to allow the appellants' writ petition.
26) Learned counsel for the appellants, however, argued vehemently that the order of the Single Judge deserves to be restored by setting aside the impugned judgment of the Division Bench as the same is based on proper reasoning but in the light of what we have held supra, we cannot accept his submission. In our opinion, the Division Bench was right in setting aside of the order of the Single Judge and we concur with the reasoning and the conclusion of the Division Bench. In addition, we have also given our reasoning in support thereof.
Page 14 of 31
C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023
27) In the light of foregoing discussion, we find no merit in the appeal, which thus fails and is accordingly dismissed." 3.11 The learned counsel for the respondents further relied upon the decision rendered by the Apex Court in the matter of Surendra Prasad Tiwari vs. Uttar Padesh Rajya Krishi Utpadan Mandi Parishad And Ors., which is reproduced herein below:
"On careful analysis of the appointment orders, it is revealed that the the work of a specified project. The appellant was engaged from time to time to work on different projects and the last contract was dated 14.10.1991 and thereafter, the appellant was not appointed. The appellant's appointment was purely a fixed term appointment. By no stretch of imagination it could be said. that the appointment of the appellant was made while following the procedure as laid down under Articles 14 and 16 of the Constitution. A three-Judge Bench of this Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., reported in [1992] 4 SCC 99, observed as under:
"The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for providing full employment throughout the year, they would have given employment only vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularization, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasis that even among the unemployed a distinction existsbetween those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc."
In the instant case, the appellant has continued in service for 14 Page 15 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 years because of the interim order granted by the High Court on 15.9.1992. In the aforesaid case, the Constitution Bench has observed that merely because an employee had continued under cover of an order of the court, which the court described as "litigious employment", he would not be entitled to any right to be absorbed or made permanent in the service.
4. In rejoinder to the arguments put forth by the learned counsel for the respondents, the learned counsel for the applicant submitted that the Hon'ble High Court of Delhi in the case of Om Prakash & others (supra) had directed in unequivocal terms that not only Researchers and Scientists but others, who have worked on projects for more than 15 years should also be absorbed in service. He further contended that the calculation as given in the impugned order approx. 12 years and 6 Months is absolutely wrong and the actual working of the applicant is more than 15 years. However, the respondents have come to a conclusion that the applicant's working is less than 15 years, which is contrary to their own contention.
5. Heard learned counsel for both the parties at length and carefully gone through the records of the case as well as the case laws cited by the respective counsel.
6. ANALYSIS A. OA No.831/2023 6.1 In CIVIL APPEAL NO.1716 OF 2004 -CSIR & Ors. Versus Ramesh Chandra Agrawal & Anr. decided on December 19, 2008, the Apex Court observed as under :-
"34. We may, however, notice that recently the doctrine of legitimate expectation has been applied by this Court in Southern Petrochemical Page 16 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 Industries Co. Ltd. v. Electricity Inspector & ETIO and Others (2007) 5 SCC 447 and Jitendra Kumar and Others v. State of Haryana and Another [(2008) 2 SCC 161] wherein a clear distinction has been made between legitimate expectation and an anticipation.
We, therefore, are of the opinion that in the facts and circumstances of this case, the doctrine of legitimate expectation cannot be said to have any application whatsoever.
35. Submissions had also been made that failure to take into account or giving due weight to a relevant criterion would be contrary to the doctrine of legitimate expectation. Respondents, however, singularly failed to demonstrate as to what are the relevant criteria which had not been taken into consideration and how due weight had not been granted to a relevant consideration.
It was further observed that in Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others [(2006) 8 SCC 671], this Court held:
"11...The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/ Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As Respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions."
In Union of India and Others v. R.N. Hegde and Others [(1998) 8 SCC 731], this Court held:
"6. By the impugned judgment, the Tribunal has given direction for regularisation of the respondents by giving the relaxation in the upper age limit by treating the minimum period of 40 days for the calendar year 1989 and no period for the calendar year 1990 for such of the Casual Staff Artistes who were recruited prior to 1988 and were not assigned work in the calendar years 1988 and 1989 in pursuance of the note dated 26-5-1989 (sic). The said direction of the Tribunal is not in consonance with the scheme as notified vide OM dated 9-6-1992 and it cannot be upheld. The matter of regularisation of the respondents, including the question whether they should be given relaxation in the matter of age, has to be considered only in accordance with the provisions contained in the scheme as notified vide OM dated 9-6-1992."
Similar view has been taken by this Court in Director, Doordarshan Kendra, Trivandrum and Others v. S. Kuttan Pillai and Others [(1998) 8 SCC 736].
Page 17 of 31
C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023
39. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly."
6.2 The Scheme of regularization was contemplated in Scientist and Technical Staff in the "research cadre", pursuant to decision rendered in Writ Petition. The applicant has not been working as Scientist and Technical Staff in the "research cadre". The said scheme contemplated and presupposes, twin conditions i.e., working as "Scientist and Technical Staff" and "research cadre". There was no scheme pertaining to Life guard or like. The applicant cannot draw and equate himself to that of "Scientist and Technical Staff"
and "Research Cadre". Even otherwise, the applicant had been working on contractual basis and not on any research project. There is nothing on record to show that said scheme was applicable to Life Guard or the like. Mere completion of 15 years will not make the applicant automatically eligible for regularization. If the Screening Committee finds that he is not suitable/unit for the post, his services will not be regularized.
6.3 The case of the applicant does not match with the case of Dr. V P Chaturvedi (supra) / Shobha Khandpal (supra) or for that matter that of Om Prakash (Supra) as the applicant was hired on contractual basis and he has not worked in the research cadre/project. The decision rendered in OA/1987/2023 and Batch dated 26.04.2024 (Shilpi Gupta's case) cannot be applied to facts of the present case and are clearly distinguishable. In said case regularization was ordered for engagement of the applicant as Page 18 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 Stenographer Grade-D on ad-hoc/contract basis in a different organization. In present case, the applicant is seeking to derive fruits from Scheme for research cadre. We also find that decision in (Shilpi Gupta's case) was based decision in OA No. 2525/2023 titled Anita Kumari vs. Municipal Corporation of Delhi & Anr. In case of Anita Kumari ( Supra) a Writ Petition W.P.(C) 8501/2024, CM APPL. 34962/2024 -Stay is pending consideration before the Hon'ble Delhi High Court, wherein following order(s) have been passed on 31.5.2024, "11.Having considered the submissions of learned counsel for the parties and perused the records, we dispose of the application by directing that while the operation of the impugned order will remain stayed during the pendency of the present petition, the petitioner will maintain status quo qua the services of the respondent as existing today. Consequently, her services will not be dispensed with until the final disposal of the O.A. whereafter, the parties will be bound by the orders passed by the learned Tribunal/Court. "B. OA No.2194/2024
7. In case of Indra Sawhney & Ors. v. Union of India & Ors., reported in [1992] Supp 3 SCC 217, the Hon'ble Supreme Court observed as under:
"644. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18.
645. Inasmuch as public employment always gave a certain status and power-it has always been the repository of State power-besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while clause (2) declares that no citizen Page 19 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in clause (4) that nothing in the said Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State."
7.1 The Hon'ble Supreme Court in Secretary, State of Karnataka & ors. Vs. Umadevi and ors. CA No. 3595-3612 of 1999 has observed that adherence to the rule of equality in public employment is a basic feature of our Constitution. It was observed as under:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after Page 20 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
7.2. In R. K. Sabharwal v. State of Punjab, (1995) 2 SCC 745, it was held that the reserved categories candidates appointed/promoted in non-reserved posts as a result of competition, cannot be considered to work out the prescribed percentage of reservation, meaning thereby the reservations in the cadre must be determined with reference to number of post held and not the vacancies. Further, in Jitendra v. State of M.P., the Court relied on the law laid down in R. K. Sabharwal (supra) and held that the reserved category candidates cannot be denied appointment against a general category post merely because of being reserved category candidate and are entitled to be considered against a general category post, given that they are eligible in all respects except for the caste. 7.3 Coming the pleadings in OA No.2194/2023, we find that in para 4.2, the applicant has averred that "4.2 That it is relevant to mention here that earlier there two regular sanctioned post of Life Guard for Swimming Pool in AIIMS, but vide order dated 14 9 2016 one more post was created and now there are total three sanctioned post, against which two regular employees are working and applicant is Page 21 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 working on contract basis. It is relevant to mention here that apart from the work of Life Guard, the respondents are taking other work also from the applicant as per requirement from time to time." It is on third vacancy which was created vide office order dated 14.9.2016, the applicant seeks to lay claim of his appointment on the strength of the fact that the applicant has been working uninterruptedly on the post of Life Guard for the last 17 years. It has been stated that he has already preferred an OA No.831/2023 (seeking regularization in terms of his uninterrupted service). The respondents advertised the vacancies for the post of Life Guard twice earlier under the UR category to which the applicant was eligible. However, the advertisement did not reach to its logical conclusion. The respondents have once again gone ahead with the advertisement of the vacancies for the post of Life Guard but this time under the SC category and he claims that it is the same vacancy, which was earlier advertised under the UR category. Thus, it makes the applicant ineligible to apply for the said post. The sum and substance of prayer made by the applicant is that the said post cannot be treated as SC when the said was advertised as UR on earlier occasion(s). The stand adopted by respondents is to defeat his rights to seek regularization as well as deny him the benefit regular employment. Thus, by acts of the respondents advertising Life Guard post for SC candidate, applicant has been deprived to participate in selection process. The applicant seeks to lay his claim Page 22 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 on strength of doctrine of legitimate expectation. In present case, the number of post in the cadre held does not exceed the reservation of 15% to SC, now one vacancy is being filed by SC and as such there is no impediment to fill the vacancy under SC category. The applicant himself had participated in selection process on earlier occasion(s) though not finalized, the applicant chose to remain silent and did not challenge the cancellation of the said selection process at relevant point of time. The reservation policy for SCs, Scheduled Tribes (STs), and Other Backward Classes (OBCs) is as follows:
SCs: 16.66% STs: 7.5% OBCs: 25.84% The total reservation for SCs, STs, and OBCs remains within the limit of 50%.
There is no bar to fill the earlier notified vacancy under un-reserved category to reserved category so long as the same does not exceed 50 % of the limit.8. CP . 703/2023
8.1. The CP arises out of order dated 31.8.2023, passed by this Tribunal , which is reads as under for ready reference:-
"Heard Mr. Yogesh Sharma, learned counsel for the applicant and Mr. V.S.R. Krishna, learned counsel for the respondents on the prayer for interim relief.
2. Mr. Yogesh Sharma, learned counsel for the applicant submitted that despite several opportunities provided, the respondents have failed to file counter affidavit and in pursuance of Page 23 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 the impugned advertisement, the examination has already been conducted, however, the applicant could not participate in the same only due to the fact that the counter affidavit has not been filed by them and insisted that the prayer for interim relief may please be considered.
3. Per contra, Mr. V.S.R. Krishna, learned counsel for the respondents on the merits submitted that the present O.A. itself is not maintainable as the applicant does not fulfil the eligibility criteria for the post of Life Guard as per the advertisement and, therefore, he has no case. Further, neither balance of convenience lies in his favour nor he will suffer any irreparable loss.
4. However, learned counsel for the applicant controverts that the applicant is still working on the post on contractual basis and, therefore, any appointment to the post in question should be subject to the outcome of the O.A.
5. The contention of the learned counsel for the applicant is that the applicant was appointed as Life Guard for Swimming Pool in All India Institute of Medical Science (AIIMS), Gymkhana, New Delhi on 01.04.2007 on contractual basis against a regular sanctioned post. Earlier there were two posts of Life Guard and vide order dated 14.09.2016, one more post was created and, as such, there are total three sanctioned posts. Against those 3 posts, 2 regular employees are working and against the remaining post, the applicant is working on contractual basis. The said post was initially advertised in the year 2018 under UR category, which could not be finalized due to administrative reasons. Again in 2020, fresh advertisement was issued for filling up the vacancy under UR category, but again the said post could not be filled-up. It is the case of the applicant that just to debar him and defeat his right in another O.A. 831/2023 filed by him, the respondents have made an attempt by virtue of the impugned advertisement to fill up the post under SC category. In this regard, he drew reference to the roster point contending that as per roster, 7th point is reserved for SC candidate and this is only 3rd post. According to him, if interim relief is not granted to the applicant in the present O.A., both the O.As. filed by him shall become infructuous.
6. Learned counsel for the respondents controverted that the O.A. is not maintainable as the applicant does not fulfil the eligibility criteria qua the direct recruitment process, which has already been initiated pursuant to the impugned advertisement and, therefore, the applicant has no case at all. The learned counsel contended that the roster relied upon by the applicant only shows the points on the basis of which the posts are to be filled and this is not a conclusive proof. However, a detailed roster is being maintained by the respondents and supplied a copy of the same during the course of the arguments. He further contended that there is a combined roster for two posts, i.e. for Physical Training Instructor and Life Guard, and the same is governed by the rules/instructions on reservation. One post under Page 24 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 direct recruitment quota has been advertised under SC category on the basis of roster point no. 7 and the said roster has been duly certified by the competent authority.
7. After considering the submissions made by both the counsel, it is evident that the applicant is working on the post for more than 15 years and he became ineligible for selection to the said post only due to conversion of UR vacancy into SC vacancy. Vide order dated 08.08.2023, the learned counsel for the respondents was directed to seek instructions whether the post advertised by the respondents is for the same vacancy, that was earlier advertised by them under the UR category. However, the learned counsel for the respondents has not yet clarified the position.
8. In the facts and circumstances, we are of the prima facie view that the applicant deserves to be granted interim protection, otherwise he will be put to irreparable loss and hardships.
9. Accordingly, the learned counsel for the respondents is directed to file an affidavit to clarify the position about the roster point and also that how an UR vacancy got converted into SC vacancy in the impugned advertisement, as the last two advertisements were for UR vacancy, by the next date of hearing.
10. List the case on 15.09.2023.
11. Meanwhile, the respondents shall not declare the result of the examination held for the post of Life Guard pursuant to the impugned advertisement."
8.2 The learned counsel for the applicant points out that there was directions that the respondents shall not declare the result of the examination held for the post of Life Guard pursuant to the impugned advertisement, despite said order, the respondents have proceeded to declare result vide notification No.172/2023 on 14.9.2023, therefore a clear cut violation.
8.3 The learned counsel for the respondent by virtue of compliance affidavit has stated that the Respondents have only declared the list of candidates, who have qualified the first stage and would be Page 25 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 eligible for participating in the second stage of the recruitment process, i.e., the candidates who are qualified for participating in the physical/skill test. That none of the said candidate has any claim over the said post as the recruitment process has not been concluded. Hence there are no third party interests on the post in question. It is further relevant to note that the result notification, annexed as Annexure C-2 to the contempt, itself duly brings out that the candidates have only provisionally qualified for the skill/physical test and hence the said candidates have no right for appointment. It is submitted that the result of the said recruitment has not been declared. Hence the Respondents have not committed any contempt of this Tribunal's order dated 31.08.2023. He further submitted that the Applicant for his part also preferred no representation/letter to the Respondents bringing to the attention of the Respondents the passage of the order dated 31.08.2023 till the issuance of the notification dated 14.09.2023. Hence even the Applicant was not pro active and bring forth his understanding of the orders of this Tribunal. The final result of the said recruitment process has been kept on hold and the same has not been declared awaiting further orders of this Hon'ble Tribunal.
8.4 We find that Result vide notification No.172/2023 on 14.9.2023 has been issued for stage I, i.e. for purpose of short listed. Usage of word "Result" in said notification at first instance may appear to be violation. It would have been appropriate for the Page 26 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 respondents' authorities, not to publish result of stage I, therefore such practice needs to be depreciated. There is no note in said notification that any result shall be subject to outcome of pending OA No. 813/2023 and OA No.2194/2023. The saving point for the respondents is that final result is yet to be declared. We also observe that no prejudice has been caused to the applicant as there was an interim order dated 11.4.2023 protecting his rights in OA No.813/2023, wherein the applicant has sought regularization of the services which continued till the date of filing of present CP. 9. CP No.316/2024 9.1. CP arises out of order dated 11.4.2023, passed by this Tribunal, which is reads as und for ready reference:-
"In terms of the record of proceedings dated 22.03.2023 the matter was listed for considering the grant of interim relief.
Learned counsel for the applicant draws our attention to letter dated 16.12.2022 which reads as under:-
" with reference to your letter dated 27.09.2022 regarding extension of Sh. Rajesh Singh Tomer, working as Life Guard on contractual basis for further six months w.e.f. 22.10.2022 to 21.04.2023.
In the above context, request to provide the justification for "Do we need lifeguard during this period when swimming pool is not functional?"
He further states that the respondents may be restrained from replacing one contractual employee by another contractual employee.
Per contra, learned counsel for the respondents states that a contract is a matter between the respondents and the individual entering into the contract and the same is governed by the terms and conditions prescribed therein. Hence, no right accrues to the applicant. After hearing both the learned counsel on the issue of grant of interim Page 27 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 relief, we find that the applicant is simply praying to the effect that in case the services of a Life Guard are required then he may be allowed to continue and the respondents should not replace him by another contractual employee. He also cites a catena of judgments including that of Piara Singh & Ors vs State Of Punjab in which it has been upheld by the Hon'ble Apex Court that one contractual employee should not be replaced by another contractual employee. In view of the above, as an interim measure we direct the respondents that if the services of a Life Guard are required, the applicant be allowed to continue on the contractual post till the next date of listing.
Learned counsel for the respondents seeks and is granted four weeks time to file reply. Rejoinder, if any, may be filed within two weeks thereafter.
List the matter on 04.08.2023.
"Order Dasti"."
9.2 The said interim order(s) continued till date. It an admitted fact that the services of the applicant has been dispensed with on 16.10.2023. The applicant has sought relief of regularisation in OA No.831/2023. His employment is protected in terms of interim order dated 11.4.2023. In the meantime, the respondents have advertised Life Guard post for SC candidate, thus, applicant has been deprived to participate in selection process. In the OA No. 2194/2023 reliefs qua fresh advertisement for regular employment has been sought. 9.3 The premises on which the interim order dated 11.4.2024 was passed was to the effect which can been seen from the observations inter-alia to the effect that "we find that the applicant is simply praying to the effect that in case the services of a Life Guard are required then he may be allowed to continue and the respondents should not replace him by another contractual employee." Page 28 of 31
C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 9.4 The OA No. 2194/2023 wherein reliefs qua fresh advertisement for regular employment has been sought is also sub- judice and is been taken up for disposal. It is not in dispute that interim protection had been accorded in OA No. 2194/2023 has already been discussed. There was no bar not to advertise the post of guard as per RR's for filing up regular vacancies. A common Advertisement has been issued for various posts. The applicant had been allowed to continue to work till the disposal of OA No.831/2023. No interim order(s) were passed for staling selection process. The respondents have dispensed with the services of the applicant as on 16.10.2023 despite order(s) this Tribunal probable on premises that there was no embargo not to advertise fresh recruitment process as only requirement was that in case the services of a Life Guard are required then he may be allowed to continue and the respondents should not replace him by another contractual employee. Furthermore, what appears is it would have been just and proper not to disturb, the contractual employment till disposal of OA No.2194/2023 on principles of "lis pendis".
9.5 The contempt proceeding(s) in present context may not come within the ambit of willful an /or deliberate attempt to defy the interim order (s) passed by the Tribunal.
10. CONCLUSION 10.1 To conclude, we find there is no infirmity in impugned order Page 29 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 dated 13.01.2023 (Annex.A/1) insofar as applicability of regularization scheme is applicable to the Research Project under research core only. The OA No. 831/2023 is dismissed. All pending applications, if any, shall also stand disposed of. No Costs. 10.2 The OA No.2194/23 also fails as there is nothing on record to establish that grouping of posts for the purpose of reservation, the respondents have exceeded 50% of vacancies in particular post/services in a recruitment year. The OA stands rejected. All pending applications, if any, shall also stand disposed of. No Costs. 10.3 In view of what has been observed herein above, no contempt is made out in CP/316/2023 and there is no willful and /or deliberate attempt to defy the interim order(s) passed by the Tribunal. Accordingly, we close the CP. Notices stand discharged. However, we are of the view that the manner in which notification has been issued is depreciated. All pending application(s), if any, are also disposed of. No costs.
10.4 In CP No. 703/2023, in order to do substantial justice on the principle of lis pendis, we dispose of the same by directing the respondents to release salary of applicant w.e.f 4.8.2023 till 16.8.2023 in full, if not released till date and from 17.8.2023 @ 50 % of wages drawn by him till 31.10.2023 within two months from date of receipt of certified copy of this order, failing which the applicant shall be entitled to interest at the GPF rate till the date of actual payment. Notices stand discharged. All pending Page 30 of 31 C.P. No. 316/2024 in O.A. No. 831/2023 and O.A. Item No.13 &26 (Court -5) No. 2194/2023 with C.P. No. 703/2023 application(s), if any, are also disposed of. No costs. 10.5 The copy of this order shall be placed on all the files of the concerned OAs as well as CPs by the Registry of this Tribunal.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/suraj/
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