Central Administrative Tribunal - Delhi
Dharmendra Singh vs Dr. Rajiv Bahl Director Genral, Icmr ... on 18 March, 2025
1
CP No.469 /2024 in OA 2163/24
Court No.2 (item No.77)
Central Administrative Tribunal
Principal Bench, New Delhi
CP No.469/2024 in OA 2163/2024
Reserved on:10.01.2025.
Pronounced on: 29 .01.2025.
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Dharmendra Singh, Aged about 42 years
S/o Sh. Late Jeet Ram
Working as MTS in ICMR Headquarters, New Delhi
Residence of H No.45, Village Mohammadpur,
R.K. Puram, New Delhi -110066
- Petitioner
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Dr. Rajiv Bahl,
Director General,
Indian Council of Medical Research
V. Ramalingaswami Bhawan,
Ansari Nagar, New Delhi -110029.
-Respondents.
(Through Advocate: Mr. Jasbir Biduri, Mr. Shashwat
Sharma, Ms. Gayatri Jamwal)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
This Contempt Petition has been filed by the petitioner alleging non-compliance of the order dated 21.05.2024 passed in OA No.2163/2024 by the Tribunal, the operative part whereof reads as under: -2 CP No.469 /2024 in OA 2163/24
Court No.2 (item No.77) "12. In view of the facts precisely recorded hereinabove and the judgment of the Hon'ble High Court and of this Tribunal referred to hereinabove, as an interim measure, respondents are directed not to disengage the applicant from the post of MTS and to continue him as such till the next date of hearing.
Learned counsels for the respondent seek and are allowed 3 weeks time to file counter reply. Applicant shall be at liberty to file rejoinder, if any, within 10 days thereafter."
2. It is contended that inspite of the aforesaid directions of the Tribunal, not to disengage the applicant till the next date of hearing, the respondents disengaged the applicant on 31.05.2024 with further directions to the security guard not to allow the applicant to enter in the building w.e.f. 1.6.2024. Aggrieved with the same, the applicant sent a legal notice on the same day in evening through email and by post on next day, but no reply has been received so far.
3. In rebuttal, learned counsel for the respondents stated that the present Application is liable to be dismissed on the ground that the Applicant has no locus standi available in approaching this Hon'ble Tribunal. The tenure of the project 'Application of New Tools for Molicular Diagnosis and Surveillance of Post Kala Azar Dermal Leishmaniasis (PKDL) and Cutaneuos Leishmaniasis in India' in which the Applicant was working was till 31.05.2024 and so the tenure of the Applicant. The Applicant is well aware about the Letter dated 23.02.2024 (Annexure A/5, page 31 of the Original Application). They state that the Applicant has failed to submit the engagement letters against which the 3 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) Applicant is claiming to have worked in the organization before 2017. The Applicant has referred to the experience certificates which is not sufficient to establish his claim. In the engagement letter of 2017 (page 24 of the Original Application), it is specifically mentioned that the tenure of engagement is for twelve months only in the project 'Technology to Grow Non-Xenogenel CEA Using Human Dermal Fibroblasts as Feeders'. The document dated 27.11.2020 (page 26 of the Original Application) is not an extension letter of the tenure of the Applicant beyond twelve months. It is not a case of termination of the services of the Applicant. The engagement of the Applicant vide letter dated 01.04.2021 (Annexure A/4 of the Original Application) is a fresh engagement in a different project namely, "Application of New Tools for Molicular Diagnosis and Surveillance of Post Kala Azar Dermal Leishmaniasis (PKDL) and Cutanenos Leishmaniasis in India" under a different Principal Investigator. The tenure of the project was till 31.05.2024 and not beyond. Therefore, there is no availability of work for the Applicant as the said project has been closed. Once the project is over or closed, the tenure of the corresponding staff also comes to an end. At para 6 of the Original Application, the Applicant has stated that the Applicant would be disengaged w.e.f. 31.12 2023 and on the 4 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) other hand, the Applicant has stated at para 8 (ii) that the Applicant will be disengaged w.e.f. 01.06.2024. The Applicant has submitted misleading statements before the Hon'ble Tribunal only with the intention to mislead the Hon'ble Tribunal. It is further submitted that at the time of engagement in 2021, the Applicant has agreed to the terms and conditions of the engagement vide Letter dated 01.04.2021 (Annexure A/4 of the Original Application) and subsequently, the applicant has signed an undertaking dated 22.06.2021 so far legal disputes are concerned.
4. The learned counsel for the respondents has placed reliance upon the three similar cases: -
'(1). CP No. 400 of 2022 in OA No. 1906 of 2022 (Dr. Ravindra Nath & Others vs. ICMR);
(2). CP No. 402 of 2022 in OA No. 1907 of 2022 (Kamal Singh vs. ICMR) and (3) CP No. 281 of 2023 in OA No. 3718 of 2022 (Anish Kumar Gautam vs. Union of India & ICMR)' He further stated that though the Tribunal initially vide order dated 25.07.2022 in OA No. 1906 of 2022, OA No. 1907 of 2022 and 3718 of 2022, was pleased to issue interim directions to the respondent (ICMR) to continue the contract/ temporary services of the applicants initially, however, the project in which the applicants were working was over on 14.08.2022 and so the tenure of the contract of 5 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) the applicants came to an end on 14.08.2022, there was no availability of work for the applicants and therefore contract services of the applicants of OA No. 1906 of 2022 could not be extended beyond 14.08.2022.
5. It is further stated that the Tribunal, vide common order dated 04.07.2023 closed all the three aforesaid CPs. The applicants have not challenged the aforementioned directions of the Tribunal. The copy of the order dated 04.07.2023 is annexed as Annexure R/2. He further placed reliance on a similar case of the erstwhile HRRC project of ICMR, in which the Mumbai Bench of this Tribunal in its order dated 11.08.2023 passed in OA No.297/2016 (Dr. Sunil Lata vs. Union of India & Ors.), wherein it was held that the contract/ temporary project services cannot be regularized. In other similar cases before the Principal Bench of this Tribunal at New Delhi vide order dated 10.05.2023 passed in OA No. 1374 of 2023 (Ms. Madhu vs. ICMR) and the Lucknow Bench of this Tribunal vide order dated 28.08.2023 passed in OA No. 338 of 2023 (Ranjeet Kaur & Ors. vs. ICMR & Ors.) did not agree to regularize the temporary/contract engagements in the project and disposed off the Original Applications. 6 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77)
6. In another two similar cases of the HRRC project of ICMR, Chennai Bench of this Tribunal vide order dated 02.01.2024 passed in OA No. 887 of 2016 (M. Nirmala Devi vs. ICMR & Ors.) and OA No. 888 of 2016 (B. Sarala vs. ICMR & Ors.) have categorically stated that the contract /temporary project services cannot be further continued after the project in which they were working has come to an end and also the contract services cannot be regularized.
7. The Applicant cannot seek directions from this Tribunal or any other Court of law for continuation of his contract engagement in the Respondent establishment. No cause of action arises in favour of the Applicant to file the present Original Application. The Applicant has worked as a project staff, with considerable gap period from one engagement to another, on project position and was well aware about the terms of his engagement as well as his nature of engagement. Therefore, keeping in view the aforesaid, the Applicant cannot seek directions from this Tribunal or any other Court of law for continuation of contract work beyond the tenure of the contract in the Respondent establishment and that too, after the project is over or otherwise the same would result into a back door entry which is impermissible in view of "Umadevi" (supra) 7 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) and catena of judgments laid down subsequently by the Hon'ble Supreme Court. The project in which the Applicant was working was over on 31.05.2024 and so the tenure of the Applicant. It is not a case of termination of the engagement of the Applicant.
8. The respondents have further stated that nothing stopped the Applicant from applying to regular post/vacancy, with the Respondent and/or any other Government Department. However, the Applicant wilfully chose to remain as a project staff, with an ulterior motive to seek continuation of project work from the court of law dehors the rules, which is not permitted as per the settled law.
9. The Applicant, as an interim measure has prayed for restraining the Respondent ICMR from terminating the services of the Applicant during pendency of the present Original Application, which relief he is not entitled as the project in which the Applicant has worked has come to an end on 31.05.2024. Further, the Applicant cannot seek interim protection from a Court of law and thereby continue to work beyond the tenure of the contract which is against the law settled by the Hon'ble Supreme Court of India in "St. of Uttar Pradesh & Ors. Vs. Sandeep Kumar Balmiki & Ors. 2009 (17) SCC 555".
8CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77)
10. It is submitted that in the case of "Secretary, State of Karnataka and Ors. Vs. Uma Devi and Ors. 2006(4) SCC 1 pg. 197, it has inter-alia been categorically settled by the Constitutional Bench of the Hon'ble Apex Court that regularization cannot be a mode of recruitment and to accede to such a proposition would be to introduce a head of appointment in defiance of rules. Further, if the Hon'ble Supreme Court had earlier directed regularization or to frame policy for regularization, the said decision cannot be said to lay down any law that all those engaged on daily wages, casually, temporary basis when no sanctioned posts or vacancies exist and without following rules of selection should be made permanent or absorbed. Creation and absorption of posts is prerogative of executive and State, is controlled by economic and financial implications of any employment. It is further held by the Apex Court that if someone continued for some years on temporary basis, one does not get any enforceable right for regularization or made permanent and no mandamus can be issued by the Courts to that effect.
11. It was further held in the said case that "a temporary employee cannot claim to be made permanent on the expiry of his term of appointment, merely temporary employee or casual wage worker is continued for time beyond his term of 9 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) employment, he would not be entitled to be absorbed in regular service, if original appointment was not made by following due process of selection as envisaged by relevant rules. It is further observed that when rule framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. It has been clarified that merely because of temporary employee of casual wage worker is continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed on regular service or made permanent, merely on the strength of such continuation if the original appointment was not made as per the relevant rules.
12. In the said judgment at Para 43, it is held that "Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the state or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decisions of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the 10 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) Nalanda College [(1962) supp.2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the principal of a college. The Court held that in order that a mandamus may be issued to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. The classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the state has a legal duty to make them permanent.
13. As per the settled law in Secretary, Uma Devi, (supra) no back door entry is permitted to any temporary/adhoc/project employee and the courts cannot interfere with the matters relating to regularisation, being a matter of Government policy decision. That the Hon'ble Apex Court in the matter of "State of Karnataka & Ors. Vs. ML Kesari & Ors (2010) 9 SCC 247", re-clarified the legal position on the issue of regularisation and observed as follows:
"4. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to 11 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
14. Therefore, the respondents submitted that in view of the aforesaid judgment and law settled thereof, the Applicant herein is barred from seeking continuation of contract services from this Hon'ble Tribunal or any other court of law. That the Hon'ble Supreme Court, subsequent to Uma Devi and ML. Kesari (Supra), in the matter of State of Tamil Nadu v Singamuthu [(2017) 4 SCC 113], on the issue of regularisation has observed as follows:-
"8 Part-time of casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer." (emphasis given)."12 CP No.469 /2024 in OA 2163/24
Court No.2 (item No.77) Therefore, in view of the aforesaid judgments and the law settled thereof, the Applicant herein is barred from seeking continuation of contract services, though the project has been closed, from this Hon'ble Tribunal or any other court of law.
15. It is also contended that the Hon'ble Supreme Court has recently on the issue of regularization observed that no direction for absorption/regularization can be passed by any court of law, if appointment is for a fixed term even if extended, on a fixed salary in a temporary unit, and any direction to Government for creation of supernumerary post is unsustainable and bad in law.
16. It is submitted that nothing stopped the Applicant from applying against a regular vacancy/post with the Respondent and/or any other Government Department. Therefore, Respondent cannot be blamed if the Applicant himself chose to work as a temporary staff for all this time, and did not join a regular post of a Government Department/Organisation. The Applicant has claimed that the Applicant was engaged since 2007. However, the Applicant has not approached this Hon'ble Tribunal since last 17 years to file the present Original Application which is 13 CP No.469 /2024 in OA 2163/24 Court No.2 (item No.77) an inordinate delay in filing the present Original Application.
17. We have gone through the submissions made by the respondents in their counter affidavit and hold that there is no wilful defiance of the order dated 21.05.2024 passed in OA No. 2163/2024 by this Tribunal. Accordingly, present Contempt Petition is closed. Notices stand discharged. OA No. 2163/2024
18. In view of the order passed in the CP, list the main OA No.2163/2024 alongwith MA No.3409/2024 for hearing on 20.03.2025.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/mk/