Central Administrative Tribunal - Delhi
Nanda Yadwad vs National Highways Authority Of India on 30 December, 2022
1
OA No. 760/2021
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 760/2021
Order reserved on: 21.11.2022
Order pronounced on: 30.12.2022
Hon'ble Mr. Manish Garg, Member (J)
Ms. Nanda Yadwad,
Aged about 43 years,
D/o Sh. Vittal Rao Yadwad,
R/o C/o Sh. L.S.Pujar,
Konchady, Derailbail,
Mangalore.
(Presenting working as Accountant, PIU, Dharwad)
...Applicant
(By Advocate: Mr. S.K.Gupta)
Versus
National Highways Authority of India,
Through the Chairman,
G-5&6, Sector-10,
Dwarka, New Delhi.
... Respondents
(By Advocate : Mr. Manoj Ranjan Sinha)
2
OA No. 760/2021
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
―(i) declare the action of respondent in not extending the long term contract of the applicant and asking the applicant to come through service provider in terms of impugned communication dated 31.03.2021 as illegal and arbitrary;
(ii) direct the respondents allowed the applicant to continue on long term contract basis one existing terms and conditions;
(iii) Further, direct the respondents subject to availability of the vacancies, consider the case of the applicant for regularization sympathetically keeping in view all the circumstances like delay in joining of the applicant without her fault and also relax the relevant Rules/Regulations if there is a need;
(iv) Award all consequential benefits to the applicant;
(v) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.‖
2. Brief Facts:
2.1 The respondent issued advertisement dated 01.01.2009 for the purpose of recruitment of Accountant on long term contract basis. Since the applicant fulfilled the qualification, she applied for the same. Applicant cleared the written 3 OA No. 760/2021 examination and thereafter selected for interview.
On being declared successful in interview, she received the offer of appointment. After completion of pre-appointment formalities like medical test etc., she joined the duties on 23.12.2009. 2.2 The applicant tendered resignation vide letter dated 19.04.2012, which is reproduced as under:
―Sub: Resignation from the post of Accountant and notice period of one month-reg.
Vide NHAI HQ Letter no. 11012/01/2008- Admn dtd. 11.12.2009, I was appointed as an Accountant in NHAI and was posted at PIU Dharwad. Therefore, I joined at NHAI PIU Dharwad on 23.12.2009( F.N).
2. Thereafter, on my request I was transferred to PIU Mangalore vide O.M no.NHAI/17101/01/ 2010/ED/SZ/079 dated 21.04.2011 from the office of Executive Director, NHAI Zonal Office, Bangalore. I Joined duties at PIU, Mangalore after transfer on 12.05.2011(F.N ). NHAI HQ also issued order in confirmation of the same vide no 11041/195/2006-DGM(A)-I dated 24.05.2011.
3. Now, in order to pursue for my professional qualification/career, I would like to resign from the post of Accountant in NHAI.
4. In view of this, I request you to consider my resignation from the post of Accountant and relieve me from the duties of NHAI w.e.f. 09th May 2012 (including notice period of one month).
5. I have no dues in NHAI.
Submitted please.‖ 4 OA No. 760/2021 2.3 Her resignation was accepted on 21.05.2012 by Competent Authority and accordingly she was relieved from the duties. The Office Order dated 21.05.2012 accepting her resignation reads as under:
―No.11019/53/2010-Admn.
Dated: 21.05.2012 OFFICE ORDER The Competent Authority is pleased to accept the resignation dated 19.04.2012 tendered by Smt. Nanda Yadwad, Accountant (on long term contract) with immediate effect. Accordingly, the officer is relieved from the services of NHAI from 18.05.2012 (A/N).‖ 2.4 The applicant was re-engaged w.e.f.
29.06.2012 vide Office Order dated 03.09.2014, which reads as under:
―3rd September' 14 To Smt. Nanda Yadwad, Accountant On short term contract PIU-Mangalore NHAI.
Sub: Appointment to the post of Accountant on long term contract basis in NHAI.
Madam, 5 OA No. 760/2021 It has been decided with the approval of Competent Authority to re-engage you as Accountant (on long term contract basis) w.e.f. 29.06.2012 on long term contract on notional basis and from the date of your joining and onward on actual basis, on the same terms and conditions.
Yours faithfully, (Adarsh Kumar Deputy General Manager (HR-II)‖ 2.5 On 07.01.2015, the office of respondent framed, notified and amended the service regulations called as The National Highways Authority of India (Recruitment, Seniority and Promotion) Amendment Regulation, 2015, in the matter of long term contract employees, which stipulated as under:
―13A Definition of Long Term Contract Employees-
xxx xxx xxx
(ii) Who were recruited after following the regular process of recruitment i.e. open advertisement, all India competition which includes written test and skill tests/computer tests/interview, as the case may be.
xxx xxx xxx
(b) Would be eligible for regularization after completion of five years of continuous service on long term contract basis (including their initial period of deputation, if any) and this five years of continuous service should either 6 OA No. 760/2021 be complete or should be completed on or before 30.06.2015.
(c) This is a one-time scheme and it would lapse once long term contract employees who complete five years of continuous service on or before 30.6.2015 are regularized. Henceforth, there would be no recruitment on long term contract basis.‖ 2.6 As per the terms and conditions for engagement of personnel on long term contract basis, Clause 2 of contract reads as under:
―2. DURATION OF ENGAGEMENT/TERMINATION OF CONTRACT The engagement shall be for a period of two years from the date of commencement of the contract. During the period of contract, NHAI reserve the right to terminate the contract at any time without assigning reasons, by giving one month notice or emoluments in lieu thereof. You also have the reciprocal option to request for termination of contract by giving one month notice or depositing emoluments in lieu thereof and your continuation shall be solely at the discretion of NHAI. NHAI reserves the right to terminate you at any time during the contract period depending upon your conduct and performance Services rendered on contract with NHAI shall in no way give you any right to claim regularization/ absorption in the organization.
xxx xxx xxx xviii) Residuary matters: All other facilities as are admissible to the regular employees in corresponding posts will also be admissible to the long term contract employees, provided such facilities are not specifically made inadmissible to the long term contract employees.7 OA No. 760/2021
xviii) The long term contract employees will be governed by such directives and orders issued by NHAI from time to time, which are made applicable to them.
xix) These terms and conditions will govern the contractual appointment of long term contract employees. Grant of allowances and privileges at par with regular employees will not confer any right for regularization of services of the long term contract employees in present or in future.‖ 2.7 Vide notification dated 16.05.2016, The National Highways Authority of India (Recruitment, Seniority and Promotion) Second Amendment Regulations, 2016 came into effect. Clause 6 of the said regulation reads as under:
―In regulation 12 of the principal regulations, for sub-regulation (4), the following sub- regulation shall be substituted, namely:-
"(4) The crucial date for determination of eligibility for posts to be filled on direct recruitment/direct recruitment through lateral entry/deputation / contract basis shall be the last date prescribed for the receipt of applications.‖ 2.8 Clause 13 (C) of the aforesaid Regulation 2016 reads as under:
―13 (C) Appointment on Contract:
(1) Criteria for appointment: Chairman may engage officers on "Contract basis" where the age of superannuation in their parent department is 8 OA No. 760/2021 less than the age of superannuation prescribed in Central Government provided that such officer has completed at least 2 years continuous service on deputation with the Authority.
(2) Period of engagement: The period for which such Officers could be engaged on "Contract basis" would be initially one year and may be extended on yearly basis or curtailed subject to satisfactory performance provided that the period of such engagement shall not be more than three years or shall not go beyond the date of superannuation prescribed by the Central Government, whichever is earlier.‖ 2.9 The Foot note of the aforesaid regulation reads as under:
―Foot note: The principal regulations were published vide notification No.NHAR-12011/1/95- Admn., dated 11th March, 1996, in the Gazette of India, Extraordinary, Part III, Section 4, dated the 11th March,, 1996 and last amended vide notification No.11012/248/2015-Admn., dated 15th February, 2016, published in the Gazette of India, Extraordinary, Part III, Section 4, dated the 19th February, 2016.
Explanatory Memorandum Anything done or omitted to be done prior to notification of this amendment shall not be affected by promulgation of this amendment.‖ 2.10. The service regulations were framed showing the sanctioned strength of Accountant as
88. Around 500 employees were regularized but the case of the applicant was not considered for regularization in the year 2018.9 OA No. 760/2021
2.11. On 14.05.2019 the long term contract of the applicant was extended upto 31.03.2021.
2.12. Thereafter, on 04.03.2021 the service regulations were further amended and the vacancies of Accountant were required to be filled up by way of direct recruitment through advertisement and written test.
2.13. Vide order dated 09.03.2021, the respondent decided to treat the applicant against the direct recruit vacancy temporarily. The following temporary adjustments are made:
Name of the Post Temporary adjustments made until further orders Accountant 02 Accountants on contract temporarily adjusted against DR quota 2.14. By virtue of impugned communication dated 31.03.2021, it was stated that NHAI has decided not to extend long term contract and the applicant was asked to give her willingness for appointment on short term contract basis and come through service provider. It is submitted that 10 OA No. 760/2021 counterparts of the applicant have been regularized and it is a case where the case of the applicant is required to be considered sympathetically and it is not the case where there is no work available. It is further submitted that services of the applicant cannot be replaced by another contractual employee.
2.15. The applicant is working on the post of Accountant on long term contract basis till date by virtue of interim order of this Tribunal.
3. Per contra, learned counsel for respondents filed their counter reply vehemently opposing the claim of the applicant. It is contended that applicant is seeking regularization in terms of the notification dated 07.01.2015 of the respondents, issued under the powers conferred upon it by the NHAI Act, 1988. An extract of the notification dated 07.01.2015 is reproduced below:
―13A(1). Scheme for one time regularization of long term contract employees Only those officers/employees appointed on long term contract who fulfill the following terms and 11 OA No. 760/2021 conditions shall be considered for regularization below the post of Manager:-
(a) Should not be more than 55 years of age as on 01.01.2014.
(b) Would be eligible for regularization after completion of five years of continuous service on long term contract basis (including their initial period of deputation, if any) and this five years of continuous service should either be completed or should be completed on or before 30.06.2015.
(c) This is a onetime scheme and it would lapse once long term contract employees who complete five years of continuous service on or before 30.06.2015 are regularized. Henceforth, there would be no recruitment on long term contract basis.
(d) ....
(e) ....
(m) Suitability of the officer/employee being considered for regularization shall be assessed by a Selection Committee as applicable for the post for which he/she is being considered.‖
4. It is further contended that there is no provision of relaxation in the scheme for one time regularization of long term contract employees. As such, the case of the applicant was not considered for regularization. It is further submitted that in absence of any provision for recruitment of contract basis in the RRs and after it was decided to fill up all the vacancies as per the RRs dated 04.03.2021, it was not possible to continue the contract of 12 OA No. 760/2021 applicant in violation of Statutory Regulations. It is further submitted that it is settled principle of law that a contractual employee cannot claim regularization on confirmation of his/her services. It is lastly submitted that the applicant has nowhere challenged the competence of the respondent authority which has passed the impugned order nor any ground has been urged that the impugned order has been passed in a malafide manner. The OA is bereft of any merit and is liable to be rejected.
5. Heard Sh. S.K.Gupta, learned counsel for applicant and Sh. Manoj Ranjan Sinha, learned counsel for respondents and perused the pleadings on record and written submissions of both the parties.
6. Analysis:
6.1 Learned counsel for the applicant has argued that applicant joined the post on 23.12.2009 on long term contract basis. Thereafter, she resigned 13 OA No. 760/2021 from the post on 19.04.2012 and re-engaged on the same post on 29.06.2012, i.e. within 37 days, on the same terms and conditions in terms of their earlier selection which was conducted and this period was required to be condoned for all purposes.
6.2 It is further submitted that in terms of communication dated 14.05.2019, long term contract of the applicant was extended upto 31.03.2021. During this period she was treated as regular for all purposes as she was allowed financial upgradation (revised pay band) on completion of 5 years of service, annual increments etc. 6.3 It is also submitted that the impugned order was issued not extending the long term contract beyond 31.03.2021 and the applicant was directed to join duties on short term contract basis with same scope of work as carried out earlier.14 OA No. 760/2021
In this backdrop of factual matrix, it is to be seen that ―whether the act of re-engagement after a gap of 37 days can be construed to be novation of contract‖. In the event, the intervening period can be condoned, it can be said that there is no novation of contract. Hence, the applicant be extended the benefit of regularisation in terms of notification dated 07.01.2015 wherein she would be extended the benefit of ‗continuous service' as contract employee in clause (b) and (c) (para 2.5 supra).
6.4 Reference is made to Section 62 of the Indian Contract Act, 1872, which reads as under:
―62. Effect of novation, rescission, and alteration of contract.--If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. ―If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed."
6.5 The word ‗Novation' literally means to replace with a new contract and the same obligations are performed by same parties or different parties.15 OA No. 760/2021
Under novation, the liabilities under the existing contract are extinguished. The doctrine of novations is recognized under Section 62 of the Indian Contract Act, 1872. Every contract can be novated and novation can be effective only when there is a new contract and not a new agreement. The basic requirement of Section 62 was discussed by the Supreme Court in the case of Lata Construction & Ors v. Dr. Rameshchandra Ramniklal Shah, novation requires a complete substitution of a new contract in place of the old one and only in that condition the original contract does not have to be performed. The new substituted contract should rescind or completely alter the terms of the original contract. In Ramdayal v. Maji Devdiji, the Court observed that novation takes place by introducing new terms in the contract or by introducing new parties. A contract of novation requires a party to agree to extinguish or discharge his obligation or debt. Unless this has been accomplished there can be no 16 OA No. 760/2021 novation. Therefore, the test is to know whether the parties intended to enter into a new contract between them or not. For novation to take effect, modification to the contract must go to the root of the original contract and change its essential character as held by the Calcutta High Court in the case of Juggilal Kamlapat v. NV Internationale. In the case of Nalini Singh Associates Vs. Prime Time IP Media Service Ltd., 2008 (106) DRJ 734, it was held that Section 62 of the Contract Act allows novation, modification and alteration of an earlier contract with a new agreement. It gives right to parties to put a contract to an end or terminate it. Under the new agreement or upon amendment of an earlier contract, prior rights of parties are extinguished and new rights and obligations come into existence. It is based upon the principle that a contract is the outcome of a mutual agreement and it is equally open to the parties to mutually agree to bring the said contract to an end, enter into a new contract or modify the earlier contract. 17 OA No. 760/2021 6.6 The applicant has not been able to point out that there has been no novation of the original long term contract but an extension to earlier contract which has blended or merged to a new long term contract or alternative to say that the terms and conditions of the original long contract still subsists and exists in the new one. Since, the applicant has herself tendered the resignation and thereafter, the same having been accepted by the respondent, there was no compelling circumstances to do so on her own volition, which has attained finality. Reference is also drawn to the fact that in her application, the reasons for resignation was ―professional qualification/career‖, however, to the contrary the applicant has stated in para 4.5 of OA that she resigned as she is facing some difficulties, which is self-contradictory. It appears that the applicant in present case became wiser to again apply for contractual employment. 6.7 By act of taking resignation, which was duly accepted, the applicant herself had discharged or 18 OA No. 760/2021 relinquished from the original contractual employment. It is not a mere agreement to substitute the existing contract, the same will not be binding unless it has been accepted and executed mutually by all the parties. Thus, a new contractual obligation has arisen when parties novates a contract.
6.8 During the course of the argument the learned counsel for applicant heavily relied upon the provisions of Section 21 of the General Clauses Act and sought to invoke the same for the purpose of extending the benefit of one time regularization scheme introduced by the respondent submitting that cut off date 30.06.2015 should be altered/ extended in respect of applicant herein as there is only a gap of 37 days from the date of initial resignation and date of joining under new long term contract.
6.9 To examine the above aspect, Section 21 of the General Clauses Act is reproduced for sake of reference:-
19OA No. 760/2021
―Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.--Where, by any 1[Central Act] or Regulations a power to [issue notifications,] orders, rules or bye- laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to amend, vary or rescind any [notifications,] orders, rules or bye-laws so [issued].‖ 6.10 Learned counsel for applicant has relied upon the following judgments:
(i) A.P.Dairy Development Corporation Federation vs. B.Narsimha Reddy, 2011 (9) SCC 286 wherein it was held that State being a continuing body can be stopped from changing his stand in a given case.
(ii) A.P.Pollution Control Board-II vs. Prof. M.V.Naiudu, 2001 (2) SCC 62 wherein the Hon'ble Supreme Court had laid down as under:
―the ld. Appellate authority erred in thinking that because of the approval for plan by the Panchayat or on conversion of land used by the Collector or grant of letter of intent by Central Govt. a case for applying principle of ―promissory estoppels‖ applied to the facts of this case.....‖ 20 OA No. 760/2021
7. In the case of W.P.(C) No. 9570/2015 -Desh Deepak Srivastava & Ors. vs. Delhi High Court & Anr., while dealing with in issue wherein the High Court had relaxed the educational qualifications and age for the post of JJA(T) for the existing Data Entry Operators presently working in the Court on contractual basis as a one-time measure. Four out of twelve petitioners also applied against advertisements and their candidatures were found to be eligible in terms of the eligibility criteria mentioned in the said advertisement. The Hon'ble High Court dismissing the Writ Petition had held as under:-
"10. It is an admitted fact that the petitioners were appointed in terms of the appointment letter No.6969/Comp./DHC dated 13.03.2012 issued by Respondent No.1, purely on temporary and contractual basis for a fixed period under e-courts mission project funded by Government of India and their appointments were co-terminus with the said project. Petitioners joined the services fully aware of the terms and conditions of their employment in terms of the advertisement No.424/Comp./DHC dated 27.05.2011 which was purely on temporary and contractual basis for a fixed period. They were fully aware that the services were liable to be terminated without any notice and/or assigning any reason thereof. Further, the appointment 21 OA No. 760/2021 letters mentioned that the officers so appointed will not have any right to claim regular/continuing service as System Officers in the Courts.
The petitioners after having taken advantage of such appointment for a period of three years cannot now claim that their services be regularized disregarding the terms of their appointment. It is also a matter of fact that Delhi High Court, pursuant to the meeting of the Chairperson of the High Court Computer Committee held on 14th-15th February, 2015, under the aegis of the e-Committee at Supreme Court, had taken a decision to return the unspent funds released by NIC to the High Court for the above purposes. Pursuant thereto, a sum of ₹ 1,66,167.10 was returned to NIC by the Delhi High Court, thereby, leaving nothing to support the salaries of persons temporarily employed such as petitioners.
11. Such appointment if granted would fallfoul of the law laid down by the Hon'ble Apex Court in the case of State of Karnataka v. Uma Devi.
12. It is also settled law 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.
13. In Mohd. Abdul Kadir v. DGP,(2009) 6 SCC 611, the Supreme Court observed as under:
"15.On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such project or scheme cannot claim any right to continue in service, nor seek regularisation in some other project or service."
Similarly the Hon'ble Apex Court in Resmi R S v. Government of India, 2019 SCC 2649 held that: 22 OA No. 760/2021
"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."
xxx xxx xxx
14. A perusal of the policy and action Plan Document Phase II of the e-courts project under the Chapter Human Resources, makes it abundantly clear that the policy only recognized the need for the technical assistance till such time the technical manpower is permanently recruited. It recognized that the exercise of recruitment of permanent technical manpower is likely to take a number of years in the light of the need to find the funds, finalize the recruitment rules, undertake recruitment and eventually placing the selected candidates at the disposal of Courts. Therefore, in the meanwhile, a stop-gap arrangement was recognized to be put in place for the project duration so as to ensure that the necessary technical assistance continues to be available to Courts. Respondent No. 1 has filed an affidavit categorically stating that the appointment of the petitioners was made keeping in mind the above- mentioned stop-gap arrangement so as to ensure that the necessary technical assistance continues to be available to Courts."
8. In a recent judgment rendered by the Hon'ble Apex Court in Writ Petition (Civil) No. 1374 of 2020 Common Cause (A Registered Society) Versus Union of India & Ors decided on 8.9.2021 had occasion to deal with ambit and scope of Section 23 OA No. 760/2021 21 of the General Clauses Act, wherein it is held as under:-
―18. The object of the General Clauses Act is to shorten the language of Central Acts, to provide as far as possible for uniformity of expression in Central Acts by giving definitions of a series of terms in common use, to state explicitly certain convenient rules for the construction and interpretation of Central Acts and to guard against slips and oversights by importing into every Act certain common forms and clauses, which otherwise ought to be inserted expressly in every Central Act. In other words, the General Clauses Act is a part of every Central Act and has to be read in such Act unless specifically exclude.(State Of Punjab v. Harnek Singh)
19. In Kamla Prasad Khetan, this Court was concerned with a notification that amended the period of authorization to take over the management of a sugar mill from a period of one year to two years. It was held that the power to issue an order under the Central Act includes the power to amend an order, as provided by Section 21 of the General Clauses Act. However, the power is subject to the verification of a very important qualification that it is exercisable in the like manner and subject to the like sanction and conditions, if any. This Court observed that Section 21 of the General Clauses Act embodies a rule of construction and that rule must have reference to the context and subject-matter of the particular statute to which it is being applied. An earlier judgment in Strawboard Manufacturing Co. v. Gutta Mill Workers' Union which was relied upon by the Petitioners was distinguished by the Constitution Bench in Kamla Prasad Khetan's case as not being applicable to the facts of the case. It is necessary at this stage, to examine the judgement of this Court in Strawboard Manufacturing Co. v. Gutta Mill Workers' Union (supra). An industrial dispute was referred by the State Government to the Labour Commissioner on 18.02.1950 directing that the award should be submitted before 24 OA No. 760/2021 05.04.1950. The award was made on 13.04.1950. The Government by a notification dated 26.04.1950 extended the time for making the award till 30.04.1950. This Court in Strawboard Manufacturing Co. (supra) held that the State Government did not have authority to extend the time as the adjudicator became functus officio on the expiry of the time fixed in the original order of reference and, therefore, the award passed was without jurisdiction and a nullity. It was observed in the said judgement that Section 21 of the UP General Clauses Act cannot have retrospective operation.''
9. The Three Judges Bench of the Hon'ble Supreme Court in recent judgment in Writ Petition (C) No. 208 of 2022 titled as "Shikhar & Anr.
Versus National Board of Examination & Ors"
decided on 05.04.2022, while dealing with sanctity of cut-off date, observed as under:-
"10. In Rachna v. Union of India & Ors, (2021) 5 SCC 638), a petition under Article 32 of the Constitution was instituted before this Court with a prayer to grant one additional attempt to clear the Civil Services (Preliminary) Examination 2020 to petitioners who were otherwise not eligible to participate in subsequent examinations due to their exhausting available attempts or because of crossing the age bar. The petitioners pleaded that on account of the unprecedented Covid-19 pandemic, they had faced difficulties in preparing for the examination. The petitioners also argued that the government had previously granted such a relaxation in 2015. This Court dismissed the petition and held that policy decisions are taken by the executive considering the prevailing circumstances. The Court further observed that the petitioners cannot invoke the writ jurisdiction of the Court to direct the government to come out with a 25 OA No. 760/2021 specific policy granting relaxation to certain candidates as a matter of right. The following observations of this Court are relevant: "45. Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the courts to legislate. The courts do interpret the laws and in such an interpretation, certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right. Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for the reason that there was a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Services Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right."
12. Whenever a cut-off is extended, some students are likely to fall on the other side of the dividing line. In State of Bihar v. Ramjee Prasad(1990) 3 SCC 368, the State had prescribed that applicants applying for the post of Assistant Professors must have three years of experience. In the preceding year, the cut-off date for the receipt of applications was set in June, however, in the year in question, the date was fixed in January making certain candidates ineligible owing to their failure to meet the three-year requirement. This Court held that the cut-off date cannot be held to be arbitrary unless it is shown that it is unreasonable, capricious or whimsical even if no reasons are forthcoming as to the choice of date. This Court observed thus:
26OA No. 760/2021
"8. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as January 31, 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as January 31, 1988 the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix June 30 of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of anyone that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the government's action of fixing the last date for receipt of applications as 27 OA No. 760/2021 January 31, 1988 as arbitrary." (emphasis supplied)
13. Recently in Hirandra Kumar v. High Court of Judicature at Allahabad & Anr. (2020) 17 SCC 401 , a two-judge Bench of this Court, of which one of us (DY Chandrachud, J) was a part held that the cut-off date or an age limit does not become arbitrary and violative of Article 14 of the Constitution merely because certain candidates fall on the wrong side of it. A cut-off date or an age bar would always exclude some candidates. This Court emphasised that the determination of the cut-off date is within the sphere of the executive and the court cannot assume that function. This Court observed:
"21. The legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age-limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut-off or age-limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.
Xxx xxx xxx
27....the validity of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy. A court in the exercise of the power of judicial review does not take over the function for itself. Plainly, it is for the rule-making authority to discharge that function while making the Rules."28 OA No. 760/2021
10. On analysis of the ratio of the Common Cause (A Registered Society) Versus Union of India (supra), the applicant stand to invoke provisions of Section 21 of General Clauses is unwarranted and uncalled for the reasons as under:-
(i) Section 21 of the General Clauses Act embodies a rule of construction and that rule must have reference to the context and subject-
matter of the particular statute to which it is being applied.
(ii) Section 21 of the UP General Clauses Act cannot have retrospective operation.
(iii) Section 21 of the General Clauses Act cannot vest such power by necessary implication.
(iv) the rule of construction embodied in Section 21 of the General Clauses Act can apply to the provision of a statute only where the subject matter, context and effect of such provisions are in no way inconsistent with such application.
(v) no amendment cannot be allowed un less and until complying and satisfying the conditions of the Section 21 of the General Clauses Act.
29OA No. 760/2021
11. Viewed from another angle and also in light of Rachna v. Union of India & Ors (supra), the submissions of the learned counsel Sh. S. K. Gupta does not satisfy the requirement for invoking the provisions of Section 21 of the General Clauses Act to extend or relax the cutoff date to facts and circumstances of the present case wherein the applicant has chosen to resign herself and now requesting for regularization by seeking amendment to cutoff date, as highlighted above. Furthermore, no submissions have been made as to how one time regularization scheme, by giving a cutoff date for the said purpose, can be said to be arbitrary, irrational and discriminatory so as to defeat the aim and object of bringing out such scheme which can be said to be contrary to Rule Position. If the submissions of the learned counsel for applicant are accepted, it would lead to opening of pandora box of litigation at this belated stage. Even otherwise, the mistake of the applicant herself 30 OA No. 760/2021 giving resignation, would not warrant invoking Section 21 of the General Clauses Act.
12. The above plea of invoking Section 21 of General Clause Act does not factually satisfy the tests in service jurisprudence on following counts:-
(i) there is no dispute that original long term contract was for a particular period, which had extended from time to time by the conduct of both the parties.
(ii) It could not be ignored by act of taking resignation, which was duly accepted, the applicant herself has discharged or relinquished from the original contractual employment. It is not a mere agreement to substitute the existing contract will not be binding unless it has been accepted and executed mutually by all the parties.
(iii) There is no challenge to Notification dated 09.03.2021, wherein there is specific provision of Contractual employment.31 OA No. 760/2021
(iv) As already noticed above, the applicant has herself tendered the resignation and thereafter, the same having been accepted by the respondent, there was no compelling circumstances to do so on her own violation it has attained finality. Reference is also drawn to the fact the in her application, the reasons for resignation was career advancement, however to the contrary the applicant has stated that he resigned due to family circumstances which itself is contradictory.
(v) There is no challenge to the cut off date, i.e. 30.06.2015 as contemplated in Clause (b) and (c) of Notification dated 07.01.2015.
(vi) There was a right to terminate contract by either party under the relevant clause of the contract.
(vii) There is no challenge to Office Order dated 13.11.2017 in so far as effective date of joining in respect of applicant was 29.06.2012, whereby Accountants (on long term contract) are granted financial upgradation in PB-2 Grade Pay of 32 OA No. 760/2021 Rs.4800/- on completion of five years of their engagement as Accountant in PB-1 Grade Pay Rs.2800/- with effect from the date mentioned against their names. The name of the applicant was at Sl. No.84 (where the date of joining is shown as 29.06.2012) and financial upgradation was granted w.e.f. 01.07.2017 in Grade Pay of Rs.4800.
(viii) There is no challenge to office order dated 04.06.2018 whereby services of long term contract employees, 180 Finance Personnel and 193 Secretariat Personnel appointed between 2000 and 2010, were regularized w.e.f. 01.06.2018 and applicant's name was not included.
(ix) In W.P.(C) No.7767/2011 titled Narayan Lal Meena Vs. Govt. of NCT of Delhi, the Hon'ble High Court of Delhi had occasion to consider the sanctity of the cut off date qua eligibility qualification wherein it is held as under:
―13. It is thus apparent that the responsibility of satisfying that the eligibility conditions were fulfilled was on the applicants and the petitioner cannot take any advantage of the mistake of the 33 OA No. 760/2021 respondents in allowing the petitioner to appear in the examination and the interview and also in appointing him even though he did not fulfill the eligibility conditions as on the cut-off date. Moreover the Supreme Court in Ashok Kumar Sonkar having held such appointment to be illegal, the question of estopple does not arise.
14. We are further of the opinion that granting any relief to the petitioner would tantamount to giving a benefit to the petitioner to the prejudice of others. If the eligibility were to be allowed to be determined on the date of interview and/or on the date of appointment, then the same would be to the detriment/prejudice of the others who considering themselves to be ineligible as per the terms of the advertisement, did not apply. The same would tantamount to giving a premium to the illegality practiced by the petitioner in applying when he was clearly in the know that he was ineligible to apply. It is well-nigh possible that had others similarly placed as the petitioner and who acted honestly and did not apply, had also applied and competed, the petitioner may not even have been found successful. The counsel for the respondents in this regard has also relied on Dr. Santosh Kumar v. Union of India (1995) 1 SCC 269 where it was laid down that allotment of seats in Medical Colleges has to be according to merit and it does not depend upon who comes to the court and who does not; the matter is one of principle; a more deserving candidate may not have the means to approach the court.‖
13. As borne out from the records of the case, the long term contract was executed between the applicant and the respondents upto 31.03.2021.
However, by virtue of notification dated 04.03.2021 the service regulations were amended ―in so far as they related to the post of Deputy General Manager (Finance), Manager (Finance and Accounts), 34 OA No. 760/2021 Accounts Officer, Junior Accounts Officer and Accountant except as respects to things done or omitted to be done before such supersession, providing for the recruitment, seniority and promotion of Deputy General Manager (Finance), Manager (Finance and Accounts), Accounts Officer, Junior Accounts Officer and Accountant‖. Clause 14 of the regulation provides ―Appointment on Contract‖:
―14. Appointment on Contract- (1) Chairman may engage officers on "Contract basis" where the age of superannuation in their parent department is less than the age of superannuation prescribed in Central Government:
Provided that such officer has completed at least 2 years continuous service on deputation with the Authority.
(2) The period for which such Officers could be engaged on "Contract basis" would be initially one year and may be extended on yearly basis or curtailed subject to satisfactory performance:
Provided that the period of such engagement shall not be more than three years or shall not go beyond the date of superannuation prescribed by the Central Government, whichever is earlier.‖
14. It is also seen that for the post of Accountant, the number of posts in the year 2021 were 88 in Level 5 in the pay matrix Rs.29200-92300. The 35 OA No. 760/2021 post of Accountant is a selection post and the age limit for direct recruitment is not exceeding 30 years and its essential qualifications are as under:
(1) (2) (3) (4) (5) (6)
5. 88 (2021)* Group- Level-5 in Selection Not
Accountant *subject to ‗C' the pay exceeding
variation matrix thirty
dependent (Rs.29200- years
on 92300)
workload
(7) (8) (9) (10)
Essential Not One year, By direct
Educational applicable extendable by recruitment
Qualification:- further period through an
of six months, open
(i) Bachelor in at the advertisement
Commerce or discretion of and written
Intermediate in Appointing examination.
Chartered Authority and
Accountant or subject to
Intermediate in conditions
Certified stipulated in
Management regulation 8 of
Accountant or these
Master in Business regulations.
Administration
(Finance) (through
regular course) from
a recognized
University or
Institute;
OR
Passed in the
Subordinate
Accounts Service
(SAS) or equivalent
examination
conducted by any of
the organized
Accounts
Department of the
Central Government
or of the State
Government;
36
OA No. 760/2021
(11) (12) (13)
Not applicable Not applicable Not applicable
15. As already notice above, Clause 6 provides for relaxation for age limit in case of officers or employees at the discretion of Chairman. It is also noticeable that as per Office Order dated 09.03.2021 for the post of Accountant, as a temporary measure, 2 Accountants on contract basis were adjusted against direct recruitment quota.
16. It is also noticed that a representation dated 11.05.2020 was preferred by the applicant, inter alia, contended as under:
―Dated. 11.05.2020 The Grievance Redressal Committee, National Highways Authority of India, G5&6, Sector-10, Dwarka, New Delhi - 110075.
Respected Sir, Sub:- Grievance Redressal Committee petition-
Smt. Nanda Yadwad, Accountant -PIU Mangalore-Submission of representation before Grievance Redressal Committee for redressal of long term grievances- regularization of service and fixation of pay under 7th CPC-Requested-reg.37 OA No. 760/2021
Ref: 1. My petitions/Representations Dated.
19.03.2018, 12.06.2018, 25.04.2019 and 10.07.2019
2.NHAI HQ New Delhi Letter no 11019/53/2010 dated 20.09.2018
3.NHAI HQ New Delhi Letter no 11041/45 1/2019-Admn Dated 19.08.2019 I submit that I have made several representations in view of regularization of my service and fixation of pay under 7th CPC. I have served in National Highways Authority of India from 29.06.2012 (date of joining) and completed more than 5 years of service. The grievances experienced by me which gave me mental worries in my life are furnished below:
1. Service regularization has not been considered even after completion of 5 Years of service.
2. Fixation of Pay under 7th CPC has not been granted. The same has been due on 01.01.2016.
These are all the basic requirements which an employee on Long Term Contract Basis is entitled to as per appointment letter issued by your good self. But I was denied these basic requirements. Despite of all these mental strain, I am performing all my duties to the fullest satisfaction of all my superiors, even during this critical situation (COVID-19). I request your good self for favour of kind consideration and favourable orders.
The kindly request the reconstituted Grievance Redressal Committee may be kind enough to consider my case with mercy and pass such suitable favourable orders and enlighten my service path in National Highways Authority of India at the earliest.
Thanking you in anticipation.
Yours faithfully, 38 OA No. 760/2021 (Nanda Yadwad) Accountant NHAI-PIU-Mangalore Copy to: Shri B.M.Rao, General Manager, Finance, NHAI, New Delhi.‖
17. The representation dated 11.05.2020 was followed by reminder dated 11.01.2021, which have not been adjudicated till date. To the contrary, the impugned order dated 31.03.2021 had been issued which reads as under:
―No. 11041/249/2008-Admn. (E-74555) 31.03.2021 OFFICE MEMORANDUM With reference to the letter No. 11041/249/2008-Admn. (Vol.III) dated 14.05.2019, whereby your contract was extended upto 31.03.2021, it is informed that it has been decided with the approval of the Competent Authority not to extend the present contract of Ms. Nanda Yadwad, Accountant (on contract) beyond 31.03.2021.
2. In case Ms. Yadwad is willing to serve as Accountant on short term contract through the outsourced agency, she may give her consent to Regional Officer-Bengaluru, who may consider engaging her on short term contract basis through outsourced agency after following prescribed procedure and guidelines, in this regard.
3. This issues with the approval of the Competent Authority.
(Lt. Col SS Dhindsa) GM (HR/Admn.)-IIC‖ 39 OA No. 760/2021
18. It is also borne out from the record that an interim order was passed in the OA No.2736/2017 on 17.08.2017, relevant part of which is as under:
―..... In the meanwhile, respondents are directed to continue the services of the applicants, if there is work and in preference of their juniors/freshers/outsourced employees.‖
19. Further, it is also seen that as an interim measure on 07.04.2021, following order was passed:
―.... In view of the facts and circumstances, as an interim measure, it is ordered that acceptance of the terms and conditions of office memorandum dated 31.03.2021 by the applicant shall be subject to outcome of the present OA......‖
20. In the case of Official Liquidator vs. Dayananad & Ors. decided on 4 November, 2008, the Hon'ble Apex Court has held as under:-
―93. Notwithstanding our conclusion that the directions given by the Calcutta and Delhi High Courts for absorption of company paid staff against Group C posts and grant of monetary benefits to them at par with regular employees of the Department of Company Affairs are legally unsustainable, we are inclined to accept the contention of the respondents that failure of the Government of India to frame scheme for absorption of Group D posts has resulted in invidious discrimination qua one section of the company paid staff. The appellants have not placed 40 OA No. 760/2021 any material before this Court to show that the finding recorded by the learned Single Judge of Delhi High Court that a number of persons were employed by the Official Liquidator in 1985 and thereafter who could be considered for absorption against Group D posts. This means that at the time of framing of the 1978 Scheme the existing company paid staff did not include the employees who could be absorbed on Group D posts Jand this appears to be the reason why the said scheme was confined to absorption of company paid staff against Group C posts. Since the employees who could be eligible for absorption on Group D posts were appointed in 1985 and thereafter, the Government of India should have, while framing the 1999 Scheme, taken cognizance of their presence and made appropriate provision for their absorption. Its failure to do so has certainly resulted in unintended discrimination qua one section of the company paid staff. It is, therefore, appropriate to direct that the Government of India should frame a scheme for absorption of eligible and suitable employees against Group D posts. The scheme should be modeled on the 1999 Scheme. The needful be done within six moths. Thereafter, eligible and suitable members of the company paid staff should be absorbed against Group D posts.
94. We also feel that the salaries and allowances payable to the company paid staff should be suitably increased in the wake of huge escalation of living cost. In Jawaharlal Nehru Technological University vs. T. Sumalatha (Smt.) and others (supra), a two-Judges Bench, after taking note of the fact that emoluments payable to the Investigators appointed in the Nodal Centre at Hyderabad had not been revised for six years directed the Union of India to take expeditious steps in that direction.
Keeping that judgment in mind, we direct the Official Liquidators attached to various High Courts to move the concerned Court for increasing the emoluments of the company paid staff. Such a request should be sympathetically considered by the concerned Courts and the emoluments of the company paid staff be suitably enhanced and paid subject to availability of funds.
41OA No. 760/2021
95. In the result, the appeals are allowed. The impugned judgments and orders are set aside subject to the direction for framing of scheme for absorption of eligible and suitable employees against Group D posts and implementation thereof and increase in the salaries and emoluments payable to the company paid staff.''
21. In Sheo Narain Nagar vs. The State Of Uttar Pradesh decided on 13 November, 2017, the Hon'ble Apex Court has held as under:-
―8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 42 OA No. 760/2021 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra).
9. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants. However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by learned counsel for the respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms. 43 OA No. 760/2021
10. The High Court dismissed the writ application relying on the decision in Uma Devi (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Uma Devi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 2.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today.
11. Impugned judgment and order and also order terminating the services are hereby quashed. The appeal is, accordingly, allowed. Pending application, stands disposed of.‖
22. In the case of Pandurang Sitaram Jadhav vs. The State Of Maharashtra decided on 25 September, 2019, the Hon'ble Supreme Court has held as under:
―8. We may also notice the gravamen of the reasoning of the Division Bench is the judgment of this court in Secretary, State of Karnataka & Ors. v. Umadevi & ors., (2006) 4 SCC 1. However, the ratio of that judgment has to be understood in its perspective. The directions issued by the High Court under Article 226 of the Constitution of India 44 OA No. 760/2021 for absorption, regularization of permanent continued status in the absence of recruitment was frowned upon as the recruitment was not in terms of the Constitutional scheme. Thus, if an employee is continuing under the cover of an interim order granted by this Court it would not entitle any right of absorption to make the service permanent.
9. The aforesaid aspect and the judgments stand further clarified and elucidated in Maharashtra State Road Transport Corporation, (2009) 8 SCC
556. The said judgment of this Court deals with a State Act and opined that the powers of the Industrial and Labour Court are wide which concludes the issue of according permanent employment affected by the unfair labour practice.
Such power was not to be affected by Umadevi's case (supra) as that was a case limited to the scope of powers being exercised under Articles 32 and 226 of the Constitution of India for regularization and matter of public importance. Thus, the power to take affirmative action under Section 30 (1) (b) remained intact. Section 30(1)(b) is extracted hereunder:
―Section 30. Powers of Industrial and Labour Courts (1) Where a Court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may in its order-
(a) xxx xxx
(b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act;‖
10. Thus the finding of unfair labour practice of engaging persons on contract basis over a long period of time was held to be an aspect which could be enquired into by the Labour Court.45 OA No. 760/2021
11. Our attention was also drawn to the earlier judgment of this Court in U.P. State Electricity Board v. Pooran Chandra Pandey & Ors. (2007) 11 SCC 92 which propounds the same proposition albeit in a different factual and regulatory framework.
12. In view of the aforesaid facts as also the legal pronouncements made subsequently, we have no doubt that these appellants before us would be entitled to the benefit of regularization and mere delay in preferring the claim would not come in their way except that the benefit of regularization would arise from the date the complaints were filed.
13. The finding of an unfair labour practice by the Tribunal has in fact been confirmed by the learned Single Judge in the present case and the only two reasons for interference by the Division Bench relating to Umadevi's case (supra) have already been explained in the aforesaid subsequent judgments.
14. We thus, direct the respondents to regularize the appellants accordingly and the necessary orders be issued within three months from the date of the order.
15. The benefits which the appellants would be entitled should also be remitted to the appellants within the same period from the date of the complaints, though the earlier period would be counted for the purpose of calculation of benefits without the appellants being monetarily entitled for that period.‖
23. In view of the above proposition of law as well as factual scenario, the record reveals that vide order dated 13.11.2017 the applicant was granted financial upgradation in PB-2 Grade Pay Rs.4800/-46 OA No. 760/2021
w.e.f. 01.07.2017. Thereafter, vide order dated 23.03.2018 the pay of the applicant was fixed, the relevant part of the order reads as under:
―With the approval of the Competent Authority, the pay of Smt. Nanda Yadwad, Accountant (On Long Term Contract) is hereby fixed as under:
Sl. Particular Amount (Rs.)
No.
1 Pay as on 29.06.2012 8560+2800
(Notional basis)
2 Actual Pay as on 05.09.2014 9260+2800
3 Pay as on 29.06.2016 10010+2800
4 Pay as on 01.07.2017 10800+4800
5 DNI 01.07.2018
2. This issue with the Concurrence of Pay Fixation Committee (constituted vide office order No. NHAI/11041/128/2014-Admn-II dt. 28.07.2017 is subject to post audit and recovery of excess payment, if any.
3. While fixing the pay every care has been taken to fix pay correctly, yet there is a possibility of some discrepancy. The payment of salary as a result of fixation of pay with retrospective effect is subject to adjustment from any amount due from him subsequently in light of discrepancy noticed later.
4. It is mentioned that the arrears/pay released till the date of fixation/option will be adjusted before release of pay. DA as applicable will be effected by the concerned DDO.‖
24. Further, the applicant was also granted annual increment vide Office Order dated 24.07.2020 w.e.f. 01.07.2020. Vide office order 47 OA No. 760/2021 dated 14.05.2019, the contract of the applicant was extended upto 31.03.2021 and the said position continued. The said position is on the basis of executive instructions, which cannot overrule notification/Rules/Regulations, being altered to the detriment of the applicant. It is also not disputed that vide notification dated 07.01.2015, the respondent authority made an amendment to the Regulation thereby incorporating one time scheme for regularization of long term contract employees, even though in the present facts and circumstances, the applicant may not be entitled to the benefit of the said scheme as on the cut off date of i.e. 30.06.2015. However, this Tribunal cannot ignore the fact, even though, she had not completed five years continuous service w.e.f. 29.06.2012 till 30.06.2015, but by way of executive instructions (impugned order), but other benefit could not be taken away by the impugned Order. The applicant is entitled to pay protection and other benefits as 48 OA No. 760/2021 accrued to her till the date of Impugned Order dated 31.03.2021. Neither, it is the case of the respondents that the notification dated 07.01.2015 has lost its significance nor has been repealed thereto in Second Amendment Regulation 2016. It is also not a matter of dispute that the applicant was initially appointed with the respondent after due process of selection. Furthermore, it is pertinent to note that even otherwise two contractual employees were adjusted against sanctioned post for direct recruitment. Total sanctioned posts were 88 in number.
25. CONCLUSION:
In the peculiar facts and circumstances of the present case, applicant is entitled to continuation with pay protection as on 31.03.2021 and the same ought to be extended from time to time in terms of Clause 13 (C) of the Second Amendment Regulation, 2016. There is no merit in so far as 49 OA No. 760/2021 plea of regularization is concerned, as the applicant does have vested right to same as on date except in accordance with law. However, till such time the sanctioned vacancies are not filled through regular mode, the services of the applicant shall not be terminated without following the due process of law. At this stage, in the event in future, any process of regularization initiated against any sanctioned post including that of the Accountant, the applicant shall be considered for regularization.
Needless, to say that regularization shall have prospective effect from the date of orders of regularization and shall be made strictly on the basis of seniority, subject to fitness and fulfillment of eligibility prescribed in the Regulation.
(a) The impugned office communication dated 31.03.2021 for engaging the applicant through authorized contractor is unsustainable and is hereby quashed and set aside qua applicant. Since Clause 13 (C) of Regulation 2016 also contemplate ―appointment on contract‖, the respondents ought 50 OA No. 760/2021 to consider the case of the applicant for appointment on contractual basis directly without outsourcing, more so, in the light of the fact that the Second Amendment Regulation 2016 still in force, wherein Clause 13 (C) for appointment on contract was incorporated. The said clause has neither been rescinded nor substituted/amended in so far as the appointment on contract is concerned. The same is also apparent from the explanatory memorandum to the Second Amendment Regulation 2016 wherein it is stipulated that anything done or omitted to have been done prior to notification of the said amendment shall not be affected by promulgation of this amendment. The Regulation, as notified on 04.03.2021, is also silent on the said issue. Clause 18 of the new Regulation 2021, which is in addition and not in derogation to the Second Amendment Regulation 2016 itself, provides for a saving clause in so far as relaxation of age limit and other concessions are concerned.51 OA No. 760/2021
(b) In the event, there is any proposal or scheme of regularization or advertisement for direct recruitment by the respondents on the post of Accountant, the applicant shall be considered for the same by giving the applicant preference, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age as per Rules.
(Manish Garg) Member (J) /sd/