Madras High Court
Union Of India vs Dr. Kaipash Ben T. Solangi ...1St on 26 March, 2013
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.11.2014
DELIVERED ON : 21.11.2014
CORAM:
The Honourable Mr.Justice SATISH K. AGNIHOTRI
AND
The Honourable Mr.Justice K.K.SASIDHARAN
W.P.Nos.7672 and 7673 of 2014
& M.P.No.1 of 2014
1. Union of India
rep. by the Government of Puducherry
through the Chief Secretary to Government
Chief Secretariat
Puducherry.
2. The Director
Directorate of Health & Family Welfare
Puducherry. ...Petitioners in both W.Ps.
versus
Dr. Kaipash Ben T. Solangi ...1st respondent in W.P.No.7672/2014
Dr.R. Selvi ...1st respondent in W.P.No.7673/2014
The Secretary
Union Public Service Commission
New Delhi.
The Registrar
Central Administrative Tribunal
Chennai. ...2nd and 3rd respondents in both WPs
Prayer in W.P.No.7672 of 2014
Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records on the file of the third respondent relating to the impugned order dated 26 March 2013 in O.A.No.378 of 2011 and to quash the same.
Prayer in W.P.No.7673 of 2014
Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records on the file of the third respondent relating to the impugned order dated 26 March 2013 in O.A.No.577 of 2011 and to quash the same.
For Petitioners : Mr.Syed Mustaffa
Government Pleader (Pondicherry)
For Respondents : Mr.R.Thiagarajan
Senior Counsel
for Mr.V. Ajay Kumar for R.1
Mr. R. Priya Kumar for R.2
-------------
COMMON ORDER
Introductory:
Two medical officers engaged on contract basis though applied more than four times later for direct recruitment through Union Public Service Commission (hereinafter referred to as "UPSC") miserably failed in the selection process, but now passed the Judicial Review Test conducted by the Central Administrative Tribunal and obtained an order for retrospective regularisation from the date of initial engagement making mockery of selection process by UPSC by way of direct recruitment envisaged under Article 320 of the Constitution of India.
The case in summary:
2. The contesting respondents in these two writ petitions were engaged on contract basis along with others as General Duty Medical Officers by the process of walk-in-interview initially for a period of 120 days as a stop gap arrangement. The Medical Officers engaged along with them on contract basis were all subsequently appointed on regular basis after undergoing selection process conducted by UPSC. The contesting respondents (hereinafter referred to as "Contract employees") also applied for direct recruitment from the year 1997. However, they failed in the examination conducted by UPSC. Thereafter they have filed original applications before the Central Administrative Tribunal for regularisation. The Tribunal directed the Government of Pondicherry to regularise their services notwithstanding their failure on several occasions to clear the examination and selection process undertaken by UPSC. Feeling aggrieved, the Government of Union Territory of Pondicherry is before this Court.
Background:-
3. The Government of Pondicherry framed Recruitment Rules under Article 309 of the Constitution of India for appointment to the post of General Duty Medical Officer (hereinafter referred to as "Medical Officer"). The Rule called Pondicherry Health Service (Allopathy) Rules, 1998 provides the manner and method of recruitment. The post is a Group "A" post and as such recruitment could be done only by UPSC.
4. Since regular selection would consume time, the Government engaged the services of Medical Officers on contract basis without the knowledge or approval of UPSC. It was a stop gap arrangement. The appointment was not made by following regular selection process. The Director of Medical Services issued a local advertisement and conducted "walk-in-interview". The contract employees herein were engaged along with others as a stop gap arrangement for 120 days.
5. The order appointing the contract employees contains the following conditions:
(a) The engagement is on contractual basis on a consolidated remuneration of Rs.7000/- per month for a period of 120 days.
(b) On expiry of 120 days, contract will automatically stand terminated.
6. The contract employees were directed to sign a copy of the order in token of acceptance of conditional appointment on contractual basis. The appointees have accepted the terms and conditions and accordingly contractual appointment came into force. After the expiry of initial period, they were re-engaged.
7. In the meantime, Government of Pondicherry through UPSC initiated steps for direct recruitment.
8. The contract employees have all applied for regular selection. The contesting respondents herein also have undergone the selection process on many occasions between 1997 and 2010.
9. As many as 47 contract employees successfully completed the selection process and got appointments as Medical Officers on regular basis through UPSC. The contract employees herein failed to pass the test in spite of appearing for written examination on several occasions. It was only thereafter they have invented a novel device of regularisation de hors UPSC by approaching the Tribunal.
10. Before the Tribunal in O.A.Nos.378 of 2011 and 577 of 2011, Government of Pondicherry contended that contract employees were working in different places, wherever vacancies are available and whenever the service of a Doctor is required in various Hospitals like General Hospital, Pondicherry, Government Maternity Hospital, Pondicherry, Government General Hospital, Karaikal and that too in different units/departments in those institutions. The Government of Pondicherry demonstrated that contract employees were not engaged against regular and permanent vacancy. The Government also produced materials to show that it was a pure and simple contractual appointment, without reference to UPSC. The Selection Committee was not constituted as per Recruitment Rules. The selection was by the method of walk-in-interview. In short, selection was not in accordance with the Recruitment Rules framed under Article 309 of the Constitution of India.
11. The Tribunal without considering the nature of engagement, and the failure of these contract employees to pass the recruitment test conducted by UPSC on many occasions, issued a positive direction for regularisation. The Tribunal followed the directions given by this Court in W.P.Nos.7398 of 2003, 16402 of 2004 and 17823 of 2010 treating it as a binding precedent.
12. The contract employees in their counter affidavit filed in these writ petitions admitted that they have made applications along with others on several occasions for direct recruitment pursuant to the notification issued by UPSC. According to them, they were forced to compete with fresh candidates and ultimately failed on several occasions.
Submissions:
13. The learned Additional Government Pleader for Pondicherry made the following contentions:
(i) Since the appointment was on contractual basis without following the Recruitment Rules, contract employees have no right to claim regularisation.
(ii) The direction given by the High Court in the cases of some of the lecturers in Government Colleges for one time regularisation cannot be treated as a binding precedent.
(iii) Since it is a medical profession dealing with public, only qualified candidates could be appointed. The contract employees proved that they are not fit for functioning as Doctors on account of their failure in the examination conducted by UPSC. The Tribunal was therefore not correct in directing regularisation.
14. The learned Senior Counsel for the contract employees justified the impugned order and submitted:
(i) The appointments were made against regular vacancy and following a regular selection process. Therefore it cannot be said that appointments were not as per Rules.
(ii) The Government of Pondicherry regularised the services of Lecturers pursuant to the direction issued by the High Court. The Tribunal was therefore correct in issuing a similar direction in the case of medical officers.
The Issue:
15. The moot question is whether the continuous engagement of contract employees without following the mandatory selection process would give them a right to claim regularisation. It also raises an important question whether a contract medical officer, in spite of failing in the regular selection, is entitled to an order of regularisation.
Analysis:
16. The factual matrix very clearly shows that engagement was contractual in nature. Even though engagement was made after notifying the Recruitment Rules, the fact remains that all these engagements were not made in accordance with the statutory Rules. The UPSC alone is the statutory authority to hold selection. The engagement in question by stop gap arrangement was made by Government of Pondicherry in the interest of general public. Selection was not made by giving wide publicity. It was on the basis of a local news paper publication. Anybody can participate by attending the walk-in-interview. The contract employees accepted the engagement with eyes open. They were re-engaged periodically making it clear that such measure would not give them a right to claim permanent status.
17. The UPSC conducted recruitments atleast on five occasions for selecting Medical Officers in the Union Territory of Pondicherry. The following is the list containing the year of recruitment and appointments made.
1997 - 72 Posts 1999 - 79 Posts 2004 - 41 Posts 2006 - 81 Posts 2010 - 92 Posts
18. Even according to the contract employees they have participated in the regular selection, but were not selected.
19. The Tribunal applied the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006) 4 SCC 1 without appreciating the fact that the post herein is Group "A", governed by Recruitment Rules framed under Article 309 of the Constitution of India and UPSC is the constitutional body to conduct selection.
20. The Supreme Court in Umadevi was primarily concerned with illegal appointments made by the Executives without resorting to a regular and transparent selection process. The direction for one time regularisation in Umadevi has to be considered in the light of the ratio of the said decision. It was not a blanket direction for regularisation of all those temporary employees who have completed 10 years of service. The Tribunal misconstrued the direction in Umadevi and issued a general direction for regularisation of contract employees, who were not appointed in duly sanctioned post and by following the Recruitment Rules.
21. The Supreme Court time and again deprecated the practice of bypassing UPSC by adopting the process of adhoc / consolidated / contractual / daily rated appointments in respect of posts earmarked for selection through UPSC, and subsequent regularisation of such illegal appointments.
22. The Supreme Court in P.Ravindran and others vs. Union Territory of Puducherry and others (1997)1 SCC 350 held that Court cannot adopt hybrid process of direction to regularise the services bypassing the process of selection envisaged under the Constitution. The Supreme Court deprecated the practice of Government for exercising the power under Article 320 of the Constitution of India, taking out posts from the purview of UPSC and regularising services de hors the Union Public Service Commission. The Supreme Court made it clear that the process of recruitment through UPSC as provided under our Constitution cannot be given a go bye by issuing direction for regularisation.
23. The Tribunal is expected to follow the law laid down by the Supreme Court in its letter and spirit. Unfortunately the Tribunal failed to follow the law laid down in P. Ravindran.
24. The Tribunal for the purpose of issuing direction for regularisation placed reliance on similar directions issued by this Court in W.P.Nos.7398 of 2003, 16402 of 2004 and 17823 of 2010 . The Tribunal misconstrued the direction given in those cases as a binding precedent and issued similar direction for regularisation. A simple direction without laying down any law would not amount to a binding precedent. Reference may also be made to the decisions of the Supreme Court in Municipal Committee, Amristar vs. Hazara Singh, 1975 (1) SCC 794, (ii) Delhi Administration vs. Manoharlal, 2002 (7) SCC 222 and Jammu and Kashmir Public Service Commission vs. Dr.Narinder Mohan, 1994 (2) SCC 630.
25. The Tribunal erred in treating the direction for regularisation as a one time measure as the law laid down by this Court and in issuing similar direction for regularisation of contract employees as a routine measure.
26. The question regarding absorption, regularization of temporary, contractual, casual, daily wage and ad hoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment was considered by the Supreme Court in its path breaking judgment in Secretary, State of Karnataka and others vs. Uma Devi, [2006(4) SCC 1].
27. The Supreme Court in Uma Devi, held that issuing direction for regularization on the basis of sentiments would perpetuate illegalities. The Supreme Court said :-
13. What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions."
28. The Supreme Court in paragraph 45 of the judgment in Uma Devi, said:
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargainnot at arms lengthsince he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
29. The Supreme Court in State of Rajasthan vs. Daya Lal, 2011 (2) SCC 429 held that the High Court in exercise of power under Article 226 of the Constitution of India will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization has been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
30. The Supreme Court in a recent judgment in Secretary to Government, School Education Department, Chennai vs. R.Govindawamy and others, 2014(4) SCC 769, made it very clear that temporary, ad hoc or daily wage services for a long number of years will not entitle such employee to claim regularization if he is not working against a sanctioned post.
31. The State in the subject case has taken up a contention on the basis of financial implication also. We cannot lose sight of the fact that the Government requires money for undertaking welfare measures for the people. By giving a direction for retrospective regularization, the Government would be compelled to pay a considerable amount to the contract employees by way of differential wages. It is useful to extract the observation made by the Supreme Court in Uma Devi, with regard to the financial burden on the State by issuing direction for regularization :-
19. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter- productive.
32. The petitioners have taken up a contention that regularisation like this would affect the service conditions of direct recruits who have undergone the regular selection process. The contract employees on the strength of the order of retrospective regularisation would claim time bound promotion. The Tribunal appears to have not considered the financial and promotional aspects of the problem on account of retrospective regularisation.
33. In order to claim retrospective regularisation or to count seniority from the date of initial appointment, the employee must prove that his appointment was in accordance with Rules. The contract employees miserably failed to prove that they were appointed initially as provided under the Recruitment Rules. The Government have demonstrated clearly that it was only an engagement made as a stop gap arrangement, without following the Recruitment Rules and de hors UPSC. Such being the position, the Tribunal committed a jurisdictional error by directing retrospective regularisation.
34. In case initial appointment is not according to Rules and made as a stop gap arrangement the officiation of such post cannot be taken for considering seniority. (See Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra and others, 1990 (2) SCC 715, State of West Bengal and others vs. Aghore Nath Dey and others, 1993(3) SCC 371, Dr.Anuradha Bodi and others. vs. Municipal corporation of Delhi and others, 1998(5) SCC 293 and Vireshwar Singh and others. vs. Municipal corporation of Delhi and others, 2014(10) Scale 52.)
35. The Tribunal was expected to follow the decision rendered by its Coordinate Bench. The Tribunal earlier considered the case of Lecturers for regularisation in O.A.Nos.290, 292, 293 and 702 of 1995. The Tribunal rejected the request for regularisation. The Tribunal held that no direction could be issued to the Government of Pondicherry or UPSC to consider the case of temporary employees for regularisation. The said order dated 20 February 1996 was upheld by the Supreme Court in SLP No.20933 of 1996 to 20936 of 1996. The judgment is reported in P.Ravindran and others vs. Union Territory of Puducherry and others. 1997(1) SCC 350. In spite of this binding decision in the matter of regularisation of employees in Group "A" post, the Tribunal issued a contrary direction in the subject cases.
36. The Supreme Court in Union of India v. Col.GS Grewal (2014) 7 Scale 498 held that a Coordinate Bench of a Court cannot pronounce judgment contrary to judgment passed by another Coordinate Bench.
37. The earlier orders relied on bythe Tribunal in its order dated 26 March 2013 in O.A.Nos.378 of 2011 and 577 of 2011 were passed by this Court by following the cases of R. Srinivasan and L. Malini (W.P.Nos.30268/2004, 26384/2009 and 38033 of 2005) . We have already held in the connected cases in W.P.Nos.14954 to 14957 of 2013 that R. Srinivasan and L. Malini suppressed the earlier order passed by the Tribunal rejecting their prayer for regularisation and the related order passed by the Supreme Court dismissing the Special Leave Petitions. No reliance could be placed on a direction obtained by playing fraud on Court.
38. It is trite that a judgment obtained by playing fraud on court is a nullity and it can be challenged in any court even in collateral proceedings. Principles of natural justice are not required to be complied with for setting aside the orders obtained by playing hide and seek, suppression of material documents or fraud. (See S.P.Chengalvarayan Naidu v. Jagannath (1994) 1 SCC 1 and Ganapatbhai Mahijibhai Solanki v. State of Gujarat, (2008) 12 SCC 353).
39. The direction in the earlier cases ( W.P.Nos.7398 of 2003, 16402 of 2004 and 17823 of 2010 ) following R. Srinivasan and L. Malini would not constitute a precedent. It is more so on account of the fact that earlier directions were obtained by the concerned employees by misleading the Court and by playing fraud.
40. The contract employees herein wanted to function as Medical Officers. Even though they worked for years together, both of them failed in the examination conducted by UPSC on several occasions. The patients wanted only expert Doctors for treatment. Similar is the case of Teachers. Half-baked Teachers and Medical Officers would be a threat to the society. While considering the question of regularisation the Tribunal should bear in mind the nature of post. The casual manner of issuance of direction for regularisation out of sympathy would be counter productive. The Courts and Tribunals should not be swayed by the fact that the person concerned had worked for some time. A vast majority of people are waiting for opportunity to compete for public employment. The acceptance of the claim for regularisation by Courts and Tribunals would negate the right of others conferred under Article 21of the Constitution of India.
41. Accordingly, by following the judgment in P.Ravindran [1997(1) SCC 350], we hold that Tribunals and Courts cannot by-pass UPSC and no direction could be issued for regularization of services in respect of posts and services earmarked for direct recruitment by UPSC, as envisaged under the Constitution.
42. We make the position once again clear that the direction in R.Srinivasan and L.Malini and similar other matters for one time regularization would not operate as binding precedent. In short, Courts and Tribunals should not treat these directions as law declared by the Court. The Tribunal henceforth shall not issue direction for regularization/ retrospective regularization on the basis of the direction in R.Srinivasan, L.Malini and other cases. Each case should be decided on its own merits and independently, taking into account the law declared by the Supreme Court and without reference to R.Srinivasan and similar other cases.
Conclusion:
43. The Tribunal without considering the background facts including nature of appointment and legal position regarding the scope of a simple direction for regularisation without laying down any law directed regularisation of contract employees. The order is legally unsustainable. We are therefore of the view that the contract employees, who are the applicants in O.A.Nos.378 of 2011 and 577 of 2011 are not entitled for regularisation.
Result:
44. In the result, the common order dated 26 March 2013 on the file of Madras Bench of Central Administrative Tribunal is set aside. The Original Applications in O.A.Nos.378 of 2011 and 577 of 2011 are dismissed.
45. In the upshot, we allow both the writ petitions. Consequently, the connected MP is closed. No costs.
[S.K.A.,J] [K.K.S., J.]
Index: Yes/no 21.11.2014
Internet: Yes/no
Tr/
To
1. Union of India
rep. by the Government of Puducherry
through the Chief Secretary to Government
Chief Secretariat
Puducherry.
2. The Director
Directorate of Health & Family Welfare
Puducherry.
SATISH K. AGNIHOTRI, J
and
K.K.SASIDHARAN, J
Tr
Pre-delivery order in
W.P.Nos.7672 and 7673 of 2014
21.11.2014