Central Administrative Tribunal - Chandigarh
Wing Commander Satbeer Singh Sandhu vs Union Of India on 11 September, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH. O.A.No.060/00221/2015 & Date of Decision : 11.09.2015 M.A.No.060/00842/2015 Reserved on: 09.09.2015 CORAM: HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER HONBLE DR. BRAHM A. AGRAWAL, JUDICIAL MEMBER Wing Commander Satbeer Singh Sandhu, son of Shivdev Sandhu, aged 62 years, resident of 26 Bank Colony, Near Canal Colony, Hisar Road, Sirsa, Haryana. Applicant Versus 1. Union of India, through Secretary, Ministry of Defence, North Block, New Delhi-110011. 2. Central Organization of ECHS, Adjutant General Branch, Army Headquarters, Maude Lines, Delhi Cantt. 3. The Station Commander, Air Force Station, Sirsa. . Respondents Present: Mr. Karambir Singh Kahlon, counsel for the applicant Mr. Sanjay Goyal, counsel for the respondents O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, impugning advertisement on the ECHS website for the post of OIC, Polyclinic, Sirsa, as being against the policy and seeking direction to the respondents to renew the contractual service of the applicant. When the OA was filed, interim order was sought that fresh appointment for the post of OIC, Polyclinic, be stayed during the pendency of the OA and when the matter was taken up for hearing on admission on 17.03.2015, it was directed that the applicant may not be removed from the position of OIC, Polyclinic, till the next date of hearing. This position continues till date.
2. MA No.060/00842/2015 has been filed on behalf of the respondents seeking the vacation of the interim order dated 17.03.2015.
3. It is stated in the OA that the applicant is aggrieved for the reason that he was appointed as OIC Polyclinic w.e.f. 06.03.2014 on contractual basis for one year with a provision for renewal (Annexure A-2). The term of the applicant was to end on 05.03.2015 as per the agreement and after this term has expired, and after the mandatory break of 2 days i.e. for 6th and 7th March, 2015 and 8th March being Sunday, the applicant has rejoined from 9th March, 2015 which is evident from the copy of the attendance register of ECHS Polyclinic for the month of March, 2015 (Annexure A-3). The applicant has also duly submitted his application for renewal of contract on 05.03.2015 (Annexure A-4). The impugned advertisement (Annexure A-1) on the ECHS website for the post of OIC Polyclinic is against the spirit of law and principles of natural justice and also in contravention with the prevailing terms and conditions of the policy of appointment and renewal for the post of OIC, Polyclinic, Sirsa. The applicant had earlier served the ECHS as OIC Polyclinic for the term of 10.02.2007 to 02.11.2009 and he fulfills the criteria for renewal of contractual employment as per the policy and he has not attained the age of 65 years which is the upper age limit for serving in the ECHS.
4. In the grounds for relief, it has been stated that the applicant fulfills the criteria for renewal of contractual service for the post of OIC Polyclinic as his services are satisfactory and he has not violated any of the conditions mentioned in para no.11 of the agreement of service (Annexure A-2). Moreover, he has not attained the age of superannuation and as a policy matter the renewal clause has been kept for the benefit of the organization to save on funds, effort, and to get better work from more experienced person who has manned the post for almost 4 years. Moreover, it has been observed by the Honble Supreme Court in Hargurpartap versus State of Punjab that a contractual employee cannot be replaced by another contractual employee unless his performance or work is not satisfactory. In the present case, the applicant is aggrieved and dismayed by the approach adopted by the respondents by advertising for the post of OIC Polyclinic despite the applicant being most eligible serving candidate for the post and also not responding to his offer for renewal of contract which is evident from Annexure A-4, which shows that the acts of the respondents are against principles of natural justice and their own policy (Annexure A-5).
5. In the written statement filed on behalf of the respondents, preliminary objection has been taken that the CAT does not have jurisdiction in the matter as the applicant was engaged as a contractual appointee for a period of only one year as per the agreement dated 06.03.2014. The applicant is not a permanent employee of ECHS and the mere status of ECHS being a body constituted under Govt. of India does not entitle him to enjoy of status of a Govt. employee as he has been contracted for an agreed duration only. It has further been stated that the contractual period of the applicant had expired on 05.03.2015 on completion of 12 months contract period. On completion of the contractual period, the services of the employees automatically get expired, if not extended further. The applicant neither applied for extension of his service nor did he submit fresh contract in this regard. The request for further extension was received on 10.03.2015 which was 5 days after the completion of the previous contractual agreement and the applicant had remained absent without any notification of his whereabouts to the respondents. A representation was also received from the ex servicemen of the area regarding the working of MO and OIC, Polyclinic, Sirsa (Annexure A-2).
6. In the rejoinder filed on behalf of the applicant, it has been stated that the service of the applicant is in the ECHS Polyclinic which is the Central Government Organization under the Ministry of Defence sanctioned by the President of India vide Govt. of India letter bearing no.24(6)/03/US(WE)/D(RES), dated 22.09.2003 (Annexure A-6). The service of the applicant was in the category mentioned in sl.no.14 in the list of Central Government post on the website www.centralgovernmentemloyeesnews.in the contract workers find mention at sl.no.272. The services of the applicant are governed by the CCS (Temporary) Rules, 1965 and since the applicant is holding a civil post under the Defence Service Estimates under the Govt. of India, it is incorrect to say that the CAT does not have jurisdiction in the matter. It has further been stated that the period of contract as per (Annexure R-2) was one year but with reference to para 2 of the agreement which states for a period of twelve months initially and thereafter renewal for 12 months at a time upto subject to attaining maximum age prescribed as indicated in Appendix A to Government of India, Ministry of Defence letter dated 22nd September, 2003 bearing No.24(6)/03/US(WE)/D(RES) is attached as Annexure A-6. The renewal of contract will be subject to continued good conduct and performance of the engaged person during the preceding twelve months and existing of the requirement for the services of the engaged persons at ECHS Polyclinic. In pursuance of this, the applicant had well in time applied for renewal of his contract vide application dated 05.03.2015 (Annexure A-4). The term of the applicant was to end on 05.03.2015 as per the agreement and the mandatory breaks of two days i.e. for 6th and 7th March, 2015 was made and 8th being Sunday the applicant rejoined on 9th March, 2015 which is evident from the copy of the attendance register (Annexure A-3). There is nothing on record till date that the services of the applicant were not satisfactory as the material which has been furnished by the respondents only suggests that the services of the applicant are satisfactory as all referrals are correct as per ECHS policy. There is no iota of evidence against the applicant as evident from perusal of the documents annexed by the respondents. The absence alleged by the respondents shows the callous approach of the respondents. As per the attendance register (Annexure A-3), the applicant was present on 9th and 10th March, 2015 as 8th March was Sunday and 6th and 7th March was the mandatory break required for renewal of the fresh agreement as provided in the policy guidelines on the tenure of contractual employees. The same finds mention in letter given by the Central Organization ECHS dated 18th September, 2014 (Annexure A-7). The extract of para-2 of this letter is reproduced as under:
2. The contractual employee on yearly basis with a clear gap of two days between each successive employment. Since the CAT Chandigarh Bench had vide order dated 17.03.2015 directed continuation of the applicant on the post of OIC Polyclinic, he did not occupy the office unauthorizedly but was legitimately continuing to function as OIC.
7. Arguments advanced by the learned counsel for the parties were heard, when learned counsel for the applicant reiterated the content of the OA and the rejoinder. He stated that the service of the applicant as OIC, Polyclinic, was satisfactory. Perusal of Annexure R-2 referred to by the respondents in the written statement would show that the complaint was mainly against the Medical Officer and not against the OIC. The applicant had replied to the complaint vide letter dated 08.01.2015 (Annexure R-3). The applicant was only responsible for the administrative work relating to the Polyclinic, ECHS, Sirsa while the aspects regarding medical treatment of persons visiting the ECHS were to be dealt with by the Medical Officer. Learned counsel further stated that if the performance of the applicant was not satisfactory, the respondents should have issued a show case notice to him under para 11 of the agreement between the contractually engaged persons but no such notice had been issued to the applicant.
8. Learned counsel for the respondents stated that as per para 2 of the contract regarding appointment of the applicant, the appointment was for a period of 12 months only. It could be renewed for further 12 months at a time, but the renewal was subject to continue good conduct and performance of the engaged person. Since the competent authority did not consider it appropriate to renew the contract of the applicant, the authorities were well within their rights to issue fresh advertisement seeking applications for the post of OIC, Polyclinic, Sirsa.
9. We have given our careful consideration to the matter. From the content of the agreement between contractually engaged person and Area Officer Commanding / Station Commander for rendering service to ECHS Polyclinic Sirsa (Annexure R-1), it is evident that the duration of the contract is for a period of 12 months and renewal would depend upon good conduct and performance of the engaged person and fresh contract would be executed for each renewal. It is also seen that vide letter dated 15.09.2014 complaint was made against Medical officer and OIC ECHS Sirsa by a large number of ex-servicemen and this complaint was replied to by the OIC, Wing Commander Sandhu (Retd.), on 08.01.2015. If the competent authority was of the view, after receiving the response of Wing Commander, Sandhu (Retd.) on 08.01.2015, that his work and conduct was unsatisfactory, the appropriate course of action would have been to issue show cause notice as per para 11 of the agreement (Annexure R-1). No such action was taken nor was any warning or any other communication issued to Wing Commander, Sandhu (Retd.) regarding his performance as OIC, ECHS. Hence, the applicant had legitimate expectation that his contract would be extended for further period of one year as per para 2 of the agreement. It appears that he submitted the fresh contract in this regard to the authorities. 6th and 7th March, 2015 were the days of mandatory break and thereafter the applicant attended duty on 09th and 10th March, 2015 as per entry in the Attendance Register (Annexure A-3).
10. In view of the above, we conclude that the applicants request for renewal of his contract as OIC, Polyclinic, Sirsa for a further period of one year from March 09th, 2015 merited proper examination. The respondents are therefore directed to consider the matter regarding renewal of the contract of Wing Commander Sandhu (Retd.) as OIC, Polyclinic, Sirsa, for a further period of one year. Action in this regard may be completed within a period of four weeks from the date of receipt of a certified copy of this order being served upon the respondents. MA No.060/00842/2015 stands disposed of accordingly.
11. No costs.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER (DR. BRAHM A. AGRAWAL) JUDICIAL MEMBER Place: Chandigarh Dated: 11.09.2015 sv:
8(OA.No.060/00221/2015 & MA No.060/00842/2015)