Central Administrative Tribunal - Madras
M Nirmala Devi vs Indian Council Of Medical Research on 2 January, 2024
1 OA No.310/0887 of 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00887/2016
AND
MA/310/00610/2017
Dated this 2nd January, Two Thousand Twenty Four
CORAM :
HON'BLE MR M. SWAMINATHAN JUDICIAL MEMBER
M. Nirmala Devi,
W/o I. Solomon,
No.5/252, Ayyappan Nagar,
Y. Othakadi,
Madurai. .. Applicant
By Advocate M/s N.Fidelia
Vs.
1.The Director General,
Indian Council of Medical Research,
Ansari Nagar, New Delhi.
2.The Director General,
National Institute for Research in
Reproductive Health Filed Unit,
Jehangir Merwanji Street,
Parel, Mumbai.
3.The Dean,
Government Rajaji Hospital,
Madurai.
4.The Officer-in -Charge,
National Institute for Research in
Reproductive Health Filed Unit,
NIRRH-FU, ICMR,
Department of Obstetrician and Gynaecology,
Government Rajaji Hospital, Madurai. .. Respondents
2 OA No.310/0887 of 2016
By Advocate Mr. M. Kishore Kumar, SPC for 1 & 2
ORDER
(Pronounced by The Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
" (A) Set aside the order passed by the 4th respondent in proceedings Ref. No.667/OC/16 dt.28.4.16 & dated 27.04.2016 (Relieving Order) (B) Set aside the consequential order passed by the 4th respondent in proceedings Ref. No.5/10/20/81-RCH dated 27.04.2016 (Refund of Salary order) (C) Consequently direct the respondents to reappoint the applicant as Social Worker in the 3rd respondent's Hospital with all service and monetary benefits and by regularising her services in the post of Social Worker with effect from the date of her initial appointment (i.e) from 16.03.2009 (D) Issue such further or other appropriate orders as this Hon' ble Tribunal may deem fit and proper in the circumstances of the case and award costs and thus render justice."
2. Brief facts of the case as submitted by the applicant are as under:
The Applicant was appointed as Social Worker temporarily in the Department of Human Reproductive Research, Indian Counsel of Medical Research (ICMR for short) by an order dated 05.03.2009 on consolidated scale of pay and the applicant joined duty on 16.03.2009 and she was receiving her salary without any break. While so in the year October 2015, her salary was suddenly stopped and the reason given was that no budget 3 OA No.310/0887 of 2016 sanction was made. Apart from that though applicant was working for more than 7 years, her services were not regularized. Hence the applicant gave a representation on 18.04.2016 to regularize her services. But the 4th respondent all of a sudden by the impugned dated 27.04.2016, relieved the applicant from the post of Social Worker and by another order even dated 27.04.2016, the 4th respondent directed the applicant to refund the salary received from ICMR. Being aggrieved against the above impugned orders the applicant is filling this Original Application.
3. Heard the learned counsel for the applicant M/s. N. Fidelia and the learned counsel for the respondents Mr. M. Kishore Kumar,SPC and perused the pleadings and the materials placed on record.
4. Arguments of the Applicant 4.1 The learned counsel for the applicant submitted that the applicant was appointed in the year 2009 and her service was not regularized, hence made a representation on 18.04.2016. While she was waiting for an order of regularization, due to her great shock and surprise, the 4th respondent by an order dated 27.04.2016 relieved the applicant from service (A-VI).
She also submitted that not only the applicant was issued with a relieving order but also served a consequential order of refund of salary by order dated 27.04.2016 (A-VII).
4 OA No.310/0887 of 20164.2 The learned counsel further submitted that before issuing the relieving order, the respondents ought to have conducted an enquiry or ought to have given an opportunity of hearing. In the present case, no such enquiry or opportunity of hearing was given to the applicant. Hence the impugned orders have to be quashed on the ground of violation of principles of natural justice.
4.3 The learned counsel submitted that the applicant has already worked under the respondent as Computer Operator during 2008 and in the year 2010, she was appointed in the existing vacancy caused due to the retirement of an incumbent and worked continuously till 27.04.2016.
Having rendered 7 years of service as Social Worker and that too without any complaint, the sudden relieving order is arbitrary and unreasonable.
Therefore, she prayed for the relief sought by the applicant.
4.4 The learned counsel relied upon the following Judgments
(i) Judgement dated 22.01.2020 of the Hon'ble Delhi High court in WP (C ) No.1920 of 2016 reported in 2020 SCC OnLine Del 263 (Para No.28 to 31)
(ii) Judgement dated 14.02.2017 of the Hon'ble Madras High Court in WP No.7597 of 2015, reported in 2017 SCC OnLine Mad 10195 (Para No.7 & 5 OA No.310/0887 of 2016
8)
(iii) CAT, Madras Bench order dated 22.02.2017 in OA.No.1282 of 2015 reported in 2017 SCC OnLine CAT 1069 (Para No.7)
5. Arguments of the Respondents 5.1 Per contra, the learned counsel vehemently opposed the submission of the applicant. He submitted that the appointment of the applicant is 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 joined the services on temporary basis; she is not entitled to regularization even though the applicant worked for years together and at any point of time, she can be terminated without giving prior notice.
5.2 The learned counsel further submitted that the issue of Temporary status scheme has been deliberated by the Government. This issue was taken up with the Department of Expenditure, Ministry of Finance which had conveyed that after examination of the scheme as proposed, the scheme is not likely to serve any useful purpose in terms of reduce litigation as it does not provide for regularization of employees (R-1).
Therefore he prayed for the dismissal of the OA.
5.3 The learned counsel for the respondents relied upon the following Judgments:
6 OA No.310/0887 of 2016(i) Hon'ble Apex court Judgement dated 24.03.2022 in Civil Appeal No.1951 of 2022 reported in 2022 Live Law (SC) 313 (Para No.8, 10 &
11)
(ii) Judgement of the Hon'ble High Court of Delhi dated 18.07.2022 in WP (C ) No.9570 of 2015 (Para No.3 & 13)
(iii) Hon'ble Apex court Judgement dated 12.09.2023 in Special Leave to Appeal (C ) No.2543 of 2023 reported in 2023 Live Law (SC) 801
(iv) CAT, Mumbai Bench order dated 03.08.2023 in OA.No.297 of 2106 (Para No.8 to 11)
(v) Judgment dated 25.08.2023 of the Hon'ble High Curt of Madras in WP No.25614 of 2019 (Para No.2, 5 & 7)
6. I have given my thoughtful consideration to the submissions made by the learned counsel on both sides and also gone through the decisions relied upon by the parties, in support of their contentions.
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 7 OA No.310/0887 of 2016 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 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 8 OA No.310/0887 of 2016
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 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 9 OA No.310/0887 of 2016
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."10 OA No.310/0887 of 2016
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 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 11 OA No.310/0887 of 2016
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 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 12 OA No.310/0887 of 2016 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 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 13 OA No.310/0887 of 2016 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.14 OA No.310/0887 of 2016
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 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.
11. With regard to recovery of salary paid to the applicant, the impugned order dated 27.04.2016 passed by the 4th respondent is quashed and set aside. The OA is allowed to that extent only.
12. The OA is disposed of on the above terms.
13. As regards the MA 610 of 2017 filed by the applicant for the payment of salary for the service rendered during the period from October 15 OA No.310/0887 of 2016 2015 to April, 2016 (7 months), the same shall be paid to the applicant without interest, if it is not paid earlier, within a period of 3 months from the date of receipt of a copy of this order, since admittedly, she had worked during the said period and relieved from service w.e.f. the forenoon of 28.04.2016, by the order of the 4th respondent dated 27.04.2016. The MA 610 of 2017 is allowed to that extent.
14. In the circumstances, there shall be no order as to costs.
(M. SWAMINATHAN) MEMBER(J) 02.01.2024 mas