Central Administrative Tribunal - Delhi
Love Thakur vs M/O Health And Family Welfare on 28 November, 2022
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Item No.30
O.A. No. 2487/2016
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 2487/2016
This the 28th day of November, 2022
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Chhabilendra Roul , Member (A)
1. Love Thakur, Age-33 years,
S/o Sh. Mukteshwar Thakur,
B-66/5, Baljit Nagar,
Nanglooi, Delhi-86
2. Nitin Kumar Gupta, Age-27 years,
S/o Sh. Suresh Chand Garg,
H.No.-68, Near Post Office,
Siraspur, Delhi
3. Ravi, Age-31 years,
S/o Late Sh. Mahender,
D-11,Dispensary Chowk,
Bhajanpur, Delhi-53
4. Rutesh Kumar, Age-29 years,
S/o Sh. Netrapal Singh,
C-1029, Netaji Nagar,
Delhi-23
5. Ms. Bhagwati, Age-26 years,
D/o Sh. Rajinder Singh,
H-479, Type-II,
Kali Bari Marg,
New Delhi-110001
6. Ms. Priyanka, Age-31,
D/o Sh. Rajinder Singh,
25, Baldev Park,
New Delhi-51
7. Kundan Lal, Age-35 years,
S/o Sh. Inderpal, 2/96, Harijan Basti,
New Rohtak Road,
New Delhi-110005
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Item No.30
O.A. No. 2487/2016
8. Ravi Kumar, Age-33 years,
S/o Sh. Khub Ram,
H.No.-573m, Near Old SBI Bank,
Badli Village,
Delhi-42
9. Ms. Meenal Sardar, Age-28 years,
D/o Sh. Vinayak Sardar,
R/o A-48, Gali No.-7, Shakti Vihar,
Mohan Garden, Uttam Nagar, Delhi-59
10. Naveen Rajput, Age-26 years,
S/o Sh. Naresh Kumar,
H.o.-6755, Qila Kadam Sharif,
Nabi Karim, Pahar Ganj,
New Delhi-55
11. Vicky Goyal, Age-30 years,
S/o Sh. Parmod Goyal
House No. 1435, Faiz Ganj
Bahadur Garh Road, Delhi-110006.
12. Ms. Pushpa, Age-36 years,
D/o Sh. Paltan Lal,
H.No.-B-63, Rani Garden,
Shashtri Nagar,
Delhi-31
13. Ms. VeenuKasturia, Age-32 years,
D/o Late Sh. Vinod Kumar Kapoor,
H.N. A-107, SrajmalVihar,
Delhi-110 092
14. Mahender Rewarni, Age-57 years,
S/o Late Sh. Baleshwar Rewani,
150-F, Pkt.-A3,
Mayur Vihar Phase-3,
Delhi-96
15. Ashok Kumar Soni, Age-38 years,
S/o Late Sh. J.L. Soni,
D-263/2, Krishna Park,
Khanpur, Delhi-62
16. Sandeep Singh Negi, Age-27 years,
S/o Sh. Vikram Singh Negi,
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Item No.30
O.A. No. 2487/2016
B-109, Azad Vihar,
Khora Colony, Ghaziabad, UP
17. Pakaj Kumar, Age-29 years
S/o Sh. Surender Kumar
621/1A/2B, 18 Quarter
Vishwas Nagar
Vishnu Gali, Shahdara,
Delhi-32
...Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
Union Of India through,
The Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi.
2. Medical Superintendent,
Ram Manohar Lohia Hospital,
New Delhi.
3. The Dy. Director (Admn . ),
Ram Manohar Lohia Hospital,
New Delhi.
...Respondents
(By Advocate:Mr. Ranbir Singh Sandhu for Mr. Gyanendra
Singh)
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Item No.30
O.A. No. 2487/2016
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) By way of the present O.A., filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have sought for the following relief(s):-
"(i) To quash and set-aside the order dated 12.07.2016 and to further direct the respondents that applicant be entitled for all Consequential benefits.
Or/and
(ii) Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant."
W
2. The applicants, 17 in numbers, were initially engaged as LDC on contract basis w.e.f. 31.12.2010 and 01.02.2011 respectively. They are working without any break and they are discharging their duties in different department of R.M.L. Hospital, New Delhi. It is alleged that the duties so performed by the applicants is perennial in nature and there were 41 posts lying vacant and their services are very much required.
3. It is stated that on 12.07.2016 instead of appointing persons on regular basis, the respondents engaged the services of persons from M/s Sybex Support Services Pvt. Ltd. for getting manpower as LDC.
4. On receipt of impugned order on 12.07.2016, the applicants made a representation on 25.07.2016 before the 5 Item No.30 O.A. No. 2487/2016 competent authority. Since, the said order dated 12.07.2016 was applicable to the services of the applicants w.e.f. 01.08.2016, the applicants have approached the Tribunal and vide interim order dated 27.07.2016, the Tribunal has granted status quo to them.
5. Learned counsel for the applicants draws our attention on the judgment of Hon'ble Apex Court in the matter of State of Haryana and Ors. Etc. Vs. Piara Singh and Ors. Etc. (1992) 4 SCC 118 and Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1.
6. Against alleged termination, notices were issued and accepted by standing counsel, Mr. Gyanendra Singh, learned counsel for the respondents and a detailed reply has been filed. It is submitted that the appointment is purely on contract basis and initially they were engaged for a period of three months, which was extended from time to time at the discretion of Medical Superintendent of R.M.L. Hospital. This will not vest any legal right for regular appointment in the hospital or for continuing as contractual appointees. The consolidated salary/amount of Rs.7730/- was paid to them on pro-rata basis.
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7. It is further stated that the impugned termination order issued to the applicants without assigning any reason whatsoever.
8. The cadre restructuring committee was constituted way back in 2001. The committee submitted its report on February, 2002, wherein following decisions have been taken:-
"(i) To discontinue the Direct Recruitment to the post of Lower Division Clerk of Central Secretariat Clerical Services (CSCS).
(ii) To abolish vacant post of Lower Division Clerk in CSCS, which are filled up through direct recruitment.
(iii) To change the mode of recruitment for the post of Lower Division Clerk CSCS) by way of 70% by promotion of Group „D‟ staff and 30% through limited departmental competitive examination (for Group „D‟ staff).
Accordingly, this hospital is on the process to follow the instructions of the Govt. of India and therefore decided to convert these LDCs into other category of MTS through outsourcing basis as per Govt. of India wages."
9. It is further submitted that at present 39 posts of LDCs were lying vacant, therefore, as per DOP&T guidelines, 33 posts were deemed abolished and only 6 posts are alive. Therefore, the appointment of 17 LDCs, who were working on contractual basis, would have to be terminated to comply with the decision of the Cabinet.
10. It is further stated that these contractual appointees are not discharging the full duties as in comparison to the 7 Item No.30 O.A. No. 2487/2016 newly appointed LDC(s) through Staff Selection Commission and reiterated that 39 posts are lying vacant.
11. Heard the learned counsels for the parties, perused the records and appreciated the legal position.
12. The short question raised before this Tribunal is whether the services of the applicants could be regularised/liable to be continued on contract basis/can be allowed to continue on outsource basis. The legal position in this regard is that the Hon'ble Apex Court in the matter of Uma Devi (supra) where the judgment of Hon'ble Apex Court in the case of Piara Singh (supra) has been referred, which requires regularisation of adhoc/temporary or causal employee as observed in paras 23 to 25 of the said judgment. Pursuant to this anomaly, this matter has been dealt with by Hon'ble High Court of Delhi in the matter of Abhinav Chaudhary & Ors. vs. Delhi Technological University & Anr. in WP (C) No. 3512/2014 decided on 20.01.2015.
13. In para 25 of the judgment in the case of Uma Devi (supra) para 46 of the case of Piara Singh (supra) is referred to and which para 46 states that an adhoc or temporary employee should not be replaced by another adhoc or temporary employee and such an employee can be 8 Item No.30 O.A. No. 2487/2016 replaced by a regularly selected employee and which is to avoid any arbitrary action on the part of the appointing authorities.
14. The latest judgment of the Hon'ble Apex Court in the matter of Md. Abdul Kadir and Anr. vs. Director General of Police., Assam & Ors., 2009 (6) SCC 611, it is held "that a person, who is employed under the scheme has to continue in the employment till the continuation of the scheme and such a person's services come to an end, if terminated before the expiry of the scheme, except, the propose of disciplinary ground and non satisfactory service or on medical ground or on attaining normal age of retirement."
15. It is further observed that in view of the aforementioned judgments, i.e., Uma Devi, Piara Singh, and Md. Abdul Kadir (supra), since one contractual employee cannot be replaced by other contractual employee and which action will show gross arbitrariness on the part of the respondent no. 1, the present Writ Petition is allowed and respondents are restrained from in any manner terminating the services of petitioners from the contractual posts of Assistant Professors at which they are working with the respondent no. 1/Employer. Of course, this will not 9 Item No.30 O.A. No. 2487/2016 disentitle the respondent no. 1 to appoint any additional Assistant Professors with the respondent no. 1 in accordance with its applicable rules or issue fresh advertisements having contractually substantially different terms than what the petitioners are presently working at.
16. In another judgment of Hon'ble Apex Court in the matter of Maish Gupta & Anr. Etc. Etc. Vs. President of Jan Bhagidari Samiti & Ors. Etc. Etc. (Civil Appeal No. 3084-3088/2022), decided on 21.04.2022 the similar view has been taken.
17. It is settled principle of law that an adhoc employee(s) cannot be replaced by another adhoc employee(s) and can be replaced by regular employee(s).
18. Learned counsel for the applicants also relied upon judgments of Ratan Lal vs. State of Haryana &Anr. 1985 (4) SCC 33 and Hargurupratap Singh vs. State of Punjab and others 2007 (13) SCC 292, it was held in para C that the judgment and order dated 29th September, 2016 passed by learned Single Judge of the High Court is modified as under:
"(i) The writ petitioners appellants herein would be entitled to continue on their respective posts till they are replaced by regularly selected candidates;10
Item No.30 O.A. No. 2487/2016
(ii) The writ petitioners appellants herein would be continued on their respective posts provided that a sufficient number of students are available for the particular course(s) for which the writ petitioners - appellants herein are appointed.
(iii) The writ petitioners - appellants herein would be entitled to honorarium at the rate of Rs.1,000/ per hour as is being paid to them presently."
19. If we apply the law in the present Original Application, the applicants are performing duties of LDC on contract basis with the respondents and were sought to be re- employed through manpower agency, namely, M/s Sybex Support Services Pvt. Ltd. and they are seeking a direction to the respondents that they shall not be replaced.
20. In view of the above-said judgments cited hereinabove, the Hon'ble Apex Court, time and again, has reiterated the fact that no adhoc/temporary/casual employee shall be replaced by another adhoc/temporary/casual employee which amounts to arbitrariness of the respondents. There is another reason qua lie them to continue with the department, as they have performed their duties for more than a decade and they are quite experienced in working in a particular hospital. Thus, all the more necessary, if the respondent no. 1 will engage in future a fresh recruitee for the said post, obviously, they will take some time and this circle will reoccur which is not in 11 Item No.30 O.A. No. 2487/2016 accordance with the legal position held by Hon'ble Apex Court. Thus, we are of the considered view that the applicants can be allowed to continue with the respondents on contract basis de hors the fresh recruitee to the said post on contract/adhoc/casual basis. In any way, if this present Original Application succeeds, we hereby direct that the impugned order dated 12.07.2016 is set aside and the applicants would be entitled to continue on their respective posts till they are replaced by regular selected candidates.
21. The OA is disposed of in the aforesaid terms. No costs.
(ChhabilendraRoul) (Ashish Kalia)
Member (A) Member (J)
/anjali/