Central Administrative Tribunal - Mumbai
Sejalben Bharatkumar Solanki vs M/O Home Affairs on 18 December, 2018
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1 0.4 M-3.141/2013 :0 16.2/2018, 1 73/2013, 2 _
-I 74'/201 8, 223/2018, 3 73/2 018, _
392/2018 to 403/2018,, 495/2 013 .
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-W-
Dated this \§§__the day of Pegember, 2018
CORNM: HON'BLE D BHAGWAN SAHAI, MEMBER (BJ
Rzgyrnnsn ~ UR, MEMBER (J)
Been 3 'gh'i Ba niya
figs Q yea s,,Wresently working
as_S aff Nurse in the Community
ea th Centre, Ghoghla, Diu and
res ding at House No.l962, Fafniwadi ~ '
Vam&kbara,:Diu -- 362 570. ... Applicant in
%/ 2 or Na.141/2018
Sushil Ramkaran Prajapati
Age 34 years, presently working
as Staff Nurse in the Govt.
Hospital at Diu and residing at
Hospital Quarters, Govt. Hospital, '
Diu. l L ... Applicant in
OA Nb.142/2018
Ms. Rijiya Banu Ismail Mansuri
Age 41 years, presently working
as Staff Nurse in the Govt.
Hospital at Diu and residing at
House No.629, Jai Ambe Saw Mill, -
Masjid Road, Ghoghla,
Diu * 362 540. . Applicant in
GA No.l43/2018
4
Mrs. Nitaben Kalabhai Vala -
Age 27 years, presently working as
_ -1
' 2 - OA Nos. I42'/ZOE 3 to Z62/.2918, I ?3/ZEUS,
I 71¢/201 8, 223/2013, 3 73/2018,
392/.201 8 is 403/.201 3, 495/2613
Staff Nurse in the Govt.
Hospital at Die and residing at '-
Blook No.24--A,-Gulisthan Society "
Opp. Shubham Bag, Veraval Road
Una, Diu ~ 362 560 ... Applicant in
1 GA No.l44/2018
Ms. Prabha P. Dungdung ' .
Age 43 years, Daughter of Morish
Dungdung, presently working
as Staff Nurse in the Govt.
Hospital at Daman and residing at
Flat No.304, Royal Residency E, _
Khariwad, Nani Daman
M 396 210 " ... Applicant in
1 oa.w6.145/2018
Mrs. Sejalben Bharatkumar Solanki l
Age 34 years, presently working
as Staff Nurse in the Govt.
Hospital at Diu and residing at
House No.I~216, Bhoiwada, '
Diu -- 362 520. . 'Applicant in E
3 oa sa.1as/261s
Mrs. Mary Varghese _
Age 43 years, presently working '
as Staff Nurse in the Civil/Govt.
Hospital at Daman and residing at
Flat No.205, Second Floor, Lisha _
Complex, Mashal Chowk, Airport i
Road, Nani Daman'-- 396 216 ... Applicant in
A GA No.14?/2015
Ms. Ansuya Kanji Solanki ~ ' -
Age 35 years, presently working
as Staff Nurse in the Govt. _
Hospital at Diu and residing at.
House No.1839, Gadhuliwadi,
New Life Electronic, Vanakbara,
Diu ~ 362 570. ... Applicant in
GA Nb.l48/2018
Mr. Vinod Punjabhai Bamamiya
Age 28 years, presently working
as Staff Nurse in the Govt.
Hospital at-Dis and residing at
1717(1), Dolawadi Saudwadi,
Diu. _ . Applicant in
_ - GA H.149/201$
Smt. Anuradha Nathu Kotiya
Age 36 years, presently working
-'"":--'---- --.-. -_ __-_-_-_ , -. _ - .1-;- _--_-_-- I-_--7_1-_---_---_.-.-------...;_i---------.---.---_----:----- - - ---- -- -;. _---. --- - -- - - - -- - . - - - _ . _ _. .. _ .. - _ _ _ ___ ___
. : ' Foi-
5:3
3 0,4 Nas.14I/2018 ta 162/2013, 1 73/2018,
1 74/2013, 223/2018, 3 73/.2018,
392/2018 ta 403/2018, 495/2018 "
A»
as Staff Nurse in the Govt.
Hospital at Daman and residing at
Flat No.2683, Kharvavada, ' _
_Vanakbara, Diu. ... Applicant in '
OA.No.l50/2018
Mrs. Maniben Vaja '
Age 41 years, presently working . -
as Staff Nurse in the Primary Health
Centre, Vanakbara at Diu -
residing at House No.C--6--1957,
Gandhi Para, Diu -- 362 520. ... Applicant in
- A cn.n6.151/2018
Preeti Dayabhai Adhiyol
Age 32 years, presently working
as Staff Nurse in the District
Hospital at Diu and residing at '
House No.86?/1, Gandhi Para,
Diu -- 362 520. ... Applicant in
OA No.l52/2018
W
Mrs. Jolly Joseph y
Age 39 years, presently working
" as Staff Nurse in the Govt.
Hospital at Daman and residing at
Flat No.203, Sudarshan Apartment
Sai Kripa Society No.2,
Nani Daman -- 396 210. . Applicant in
' N on w6.153/2018
Mr. Indraj Kumar Yadav
Age 37 years, presently working
. 'as Staff Nurse in the Govt.
Hospital at Daman and residing at
- 1 1 1 1 1- use
No . C1:_"?1.61.-._QQE_1,Z__1-._1_i3_¥1ILQ11_l111-11l£_____.1._1 1- 1 11 111 1 1 ,1
Farm House, Koliwad Falia, _
_Kaohigaon, Nani
Daman -- 396 210.' .. Applicant in
OA No.l54/2018
"Mrs. Neha Ramji Solanki
Age 31 years; presently working
as Staff Nurse in the Community
Health Centure, Ghoghla, Din and
residing at Vadisheri Azad Chowk,
Vanakbara, Diu. ... Applicant in
" GA wa.155/201a
4 GA Nos. I-4'}/2:918 is '1? 62/.20] 3, I ?3/2:918,
J 74/.2026, .223/.20} 8, 3 73/.2018,
39.2/2013 is 4'03/.2018, 495/2613
Mrs. Kinnari Amarohand Chudasama
Age 35 years, presently working
as Staff Nurse in the Community
Health Centre, Ghoghla, Diu
Vanakvara, Diu and residing at _
House No.1--203, Yogeshwar Niwas-
Bhoiwada Road, Diu -- 362 520. ... Applicant in
OA.Nb.l56/2018
Mrs. Molly Mathew
Age 43 years, presently working
as Staff Nurse in the Govt.
Hospital at Daman_and residing at
Flat No.202, Pranav Apartments,
Mashal Ghowk,
Nani Daman -- 396 210. .. Applicant in
GA Nc.l57/2018
r
Rakesh Lal Meena
Age 39 years, son of Phool Chand
Meena, presently working
as Staff Nurse in the Govt. "
Hospital at Daman and residing at
A-2 Type Quarters, Ground Floor
Marwad Hospital, Nani Daman
-- 396 216. .. Aplicant in
GA Nn.l58/2018
Pappu Lal Meena '
Age 35 years, presently working
as Staff Nurse in the Govt.
Hospital at Diu and residing at
Govt. Quarter No.Cm/1/3, Near
Station, Ghoghala, _
Diu W 362 520. . Applicant in
y on,m6.159/2018
Mr. Salim Vadaviya
Age 31 years, presently working
as Staff Nurse in the District
Hospital at Diu and residing at
Rajavadla, Tal. Wankanar,
District Morbi, Gujarat
Pin -- 363 621. .. Applicant in
.' GA ma 150/2013
Mrs. Hindu Joseph
Age 40 years, wife of Jobi Mathew
presently working as Staff Nurse
in the Govt. Hospital at Daman
1
5 OA Nos. 1'41/201 8 to 162/.2018 1 73/2018,
I 74/2018 223/2018, 3 73/.2018
392/2018 to 403/201 8 495/2018
and residing at House No.7/221~B
Jose Villa, Shree Yogeshwar d
Mandir Road,
Moti Daman -- 396 220 . Applicant in
OA No 161/2018
Ms. Vinjaben Bhagwan Tandel
Age 28 years, presently working
as Staff Nurse in the Govt.
Hospital at Daman, Nani Daman_
~ 396 210 and residing at
Kadyia Machhiwad, Kadyia
Nani Daman -- 396 210. .. Applicant in
GA No 162/2018
Ms. Kinjalben Ishvarlal Tandel
Aged 28 years, presently working
as Staff Nurse in the Civil/Govt
Hospital, Daman and attached to
Primary Health Centre, Community
Health Centre, Moti Daman, 3
Union Territory of Daman and Diu,
and residing at 28, Jyotinagar 1
Society, Behind Somnath Temple,
Bilimora, Taluka Gandevi,
District Navsari, Gujarat .. Applicant in
OA no 173/2018
Ms. Yogeetaben Gopalbhai Patel
Aged 25 years, presently working
as Staff Nurse in the Civil_Govt
Hospital, Daman and residing at
House No.B--1--9, Marwad Hospital
Campus, Marwad, Nani Daman. .. Applicant in
11%- 1W1 .....1____MMQAiNQMl14Z2Ql3
Mrs. Suneela John Wesley Sonty
Age 48 years, presently working
as Staff Nurse in the Govt.
Hospital at Daman attached to the
C.H.C. Daman, Moti Daman and
residing at DMC/14/145, '
A"3/T~130l/Aditya Complex
Airport Road, Nani Daman,
Union Territory of Daman
& Diu, Diu -- 396 210 .. Applicant in
GA as 223/2018
6 GA Nos. I41/2018 in Z 6.2/2018, I 73/2,-'SH 8,
J 74/2 {H 3, 2,23/2018, 3 73/2013,
392/2018 £0 4 03/2013, 495/24138
Yashvantiben Vajubhai Vaishya
Age M 29 years, presently working
as Staff Nurse, Community Health
Centre Ghoghla, Diu, Union
Territory of Daman & Diu
and residing at Shop No.3,
Shree Hotel, Near Village
Panohayat, Main Road, Vankbara, '
Diu~~ 362570. .., Applicant in
OA No.373/2018
Neha H. Solanki
Age 25 years, presently working
as Staff Nurse, (Daman & Diu)
Union Territory Administration
of Daman and Din, Office of the
Mamlatdar, Din W 362 520
and residing at House No.l529, _
Kharvawada, Vanakbara, Diu ... Agplioant in
GA no sszjzols
Varsha S. Desai,
Age 30 years, presently working
as Staff Nurse, (Daman & Din)
Union Territory Administration
of Daman Din, Office of the'
Collector, Colleotorate,
Dim and residing at House
No.l--35, Shesh Narayan Mandir,
Fudam, Din, , ,,. Applioant in
_- GA na.393/2018
Jaya Balubhai'Rathod ' .
Age 38 years, presently working
as Staff Nurse {Daman & Din) Union
Territory Administration of
Daman & Diu, and residing at
C--8~903, Vankarwas, Diu. - ..* Applicant in
GA No.394/2018
Dharmfstha Bhanabhai Patel .
Age 28 years, presently working
as Staff Nurse, Daman & Diu
Administration of Daman & Diu,
Directorate of Medical & Health
Services, Primary Health Centre,
Daman and residing at Patlara,
'-.
7 OA Nos. I41/2018 to 162/2018, I 73/2' 013, - _
'A
1 74/2018, 223/2018, 3 73/2918,
392/2018 I0 403/2018, 495/2013 1 WP
Moti Daman. .. .Applicant in
OA No;395/2018
Bhagyashri V. Charania -
Age 25 years, presently working
as Staff Nurse, (Daman & Diu)
Union Territory Administration of
Daman and Diu, Office of the Senior
Surgeon, Government Hospital, Diu _
and residing at House No.960,
Tamba Sheri, Vanakbara, Diu. ... Applicant in
+
. on Nb.396/2018
Sandip D. Solanki '
Age 27 years, presently working
as Staff Nurse, (Daman & Din) Union
Territory Administration of Daman
and Diu, Office of the Senior Surgeon,
Government Hospital, Diu, and _
residing at House No.939/2, Opp. Goa
State Bank, Main Road, '
'.Vanakbar-- Diu. ' ... Applicant in
~ QA No.39?/2019
4'
Chetna V. Solanki
Age 24 years, presently working
as Staff Nurse, (Daman & Diu) Union
Territory Administration of Daman
and Diu, Office of the Senior Surgeon,
Government Hospital, Diu, and
residingiat Nagoa Main
Opp. Govt. Higher Secondary School, _
Fafniwadi, Vanakbara, Din ... .Applidant in
rim- Mr are rl, ii- _ crranr;%%Lonrul»u,
r
r
Monika H. Fulbaria '
- Age 27 years, presently working
as Staff Nurse, Daman & Diu,
Administration of Daman & Diu :
Directorate of Medical & Health Services,
Primary Health Centre, Daman
and residing at Ho. No.73/l,
- Bandodka Colony, _
Ghoghla -- Diu. .. Applicant in
GA nm.399/2018
Kamlesh Shantilal Damaniya
Age 25 years, presently working
8 OA Nns. 14}/2018 in .362/2038, I 73/.2618,
I 74/2018, 223/2013, 3 73/2013,
392/2013 to 403/2018, 495/20} 8
as Staff Nurse, (Daman & Diu) Union
Territory Administration of Daman and Diu"
Office of the Senior Surgeon, Government
Hospital, Diu, and residing at House ._
No.l799, Pimpari Heri, Bandar Roadp
Vankbara, Diu. , ... Applicant in
OH nu.400/2018
Pooja Lallu Dhodi ' _
Age 26 years, presently working
as Staff Nurse, Daman & Diu
National Rural Health Mission,
District Health Society
(Daman), Community Health Centre,
Moti Daman e 396 220 and residing
at Zari Kantha Falia,
Moti Daman. .. Applicant in
O na.401/2019
Mayuri U. Patel
Age 28 years, presently working '
as Staff Nurse, (Daman & Diu)
Union Territory Administration
of Daman & Diu, Community Health ,
Centre, Moti Daman and residing_
at Parvati Complex, Flat No.203, _
Near Amrutalayam, Bhenslore,
Nani Daman, Daman. . .Applicant in
GA we 402/2018
Hina Rasiklal Parmar '
Age 28 years, presently working
as Staff Nurse, (Daman & Diu)
Government of India, Administration of
Daman & Diu, Office of the Mamlatdar
& Executive Magistrate, Diu "
and residing at Ghoghla, Diu. ... Applicant
in GA we 403/2018
Mrs. Sneha Shankar Varli
Age 29 years, presently working as
Staff Nurse, District Hospital Marwad
under District Health Society, Daman
and residing at H.No.635~I, Varliwad,
Jampone, Moti Daman, Daman ~ 396 220
Union Territory of
Daman & Diu ' .. Applicant in
h GA No.495/2018
( By.Advocate Shri Ramesh Ramamurthy)
7 7 7-77-%; £777:7-77-777-77-77-:7-7-7-7,-,-,-,,-,,-,-,-,,-,,-,,.,.,,.,,,,,,.,
77777777777 - - - - - - - - - - - - - . . . . . . . . 777777777777 . _7_7777777
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_ _ _ _ _ _ _7_7_7_7_7_7:
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_____________ ________________ __7," 7
U
H i 9 OA Nas.14'1/2018 tn I62/2018, 1 73/2018,
1 74/2018, 223/2 018, 3 73/2018,
392/201 8 to 403/.201 8, 495/Z01 8
VERSUS
1. Union of India through the
Secretary, Ministry of Home
Affairs, Government of India,
North Block, New Delhi M 110 011/411 O11. '
2. The Administrator, Union
Territory of Daman, Diu, Dadra
Nagar Haveli, Secretariat, Moti
Daman W 396 220. _
3. Director, Medical & Health
Services, Directorate of Medical ~
and Health Services, Administration
of Daman,& Diu, Primary Health '
Centre, Moti Daman ~ 396 220;
4. The Medical Superintendent
Government Hospital, Daman '
Administration of Daman & Din,
(UT), Nani Daman -- 396 210.
5. The Member Secretary, Staff
Selection Board, Union Territory
of Daman & Diu, Moti Daman,
Daman -- 396 220. ... Respondents
- i in all the OAs
" (3y.Advocate Shri VZS. Mhsurkar) '
ORIEH1 -
W" *****E11 i i i i iA
Vide this common order, we shall dispose
of all these above referred Original
Applications since they are based on common
facts and involve common question of law;
- 1
10 0,4 Nos. I 4'1/.20.? 8 to l 62/2038, I 73/2018
I 74/QM 8, .223/.2018, 3 73/2018
392/Z018 to 403/.2 01 3, 495/2 0.1' 3
1
The applicants in OA Nos. 141/2018
142/2018, 143/2018, 144/2018, 145/2018
146/2018, .147/2018, 148/2018, 149/2018,
150/2018, 151/2018, 152/2018, _ 153/2018
154/2018, 155/2018, 156/2018, 157/2018
158/2017,
-
159/2018, 160/2018, '4
161/2018,
162/2018, 223/2018, 173/2018 & 174/2018 have
x
prayed for the following reliefs;"
"(a)That this Hon'ble Tribunal be pleased to hold and
declare that the continuation of the applicant on contract
basis by the Union Territory Administration is illegal,
arbitrary and violative of Articles Z4, J6 and 2] of the
Constitution ofIndia;
(b) This Horfble Tribunal be pleased to "direct the
respondents to regalarise the services of the applicant in
service as staff narse in the Government Hospital in the
Union Territory ofDan/tan and Din without asking or forcing
the applicant to appear for any selection process afresh as
called ander the irnpagned Advertisement dated 29"'
November, 20] 7;
'(c) This Horfble Tribunal be pleased to direct the
respondents to in the first place regularise the services ofthe
applicant fitorn the initial date of her recruitment before
taking any farther steps under the Advertisement No.4 dated
29"' November, 2017 in so far as the recruitment to the post
ofstajfnarse is concerned,'
(a) This Hon 'ble Tribunal be pleased to direct the
respondents to treat the applicant as in regular service ofthe
respondents from her initial date of appointment andfarther
direct the respondents to grant the applicant all other
consequential benefits flowing therefrom including seniority,
fixation ofpay, arrears, promotion and all other admissible
service benefits along with interest at the rate of 18% per
annarn fiorn the dae date tillpayrnent;
___________________ 1 113$;-1 1 1 1 1 1&5-7 1 1 1714-77171717171ifZ17,e1717_717171713;-is-77171717177171;-Z_=;-;- - - - - - - - - - - -7-7-= --- -- -- -- 7 -7-7+ - - -- ---- 7 7 7 7 7 7 7 7 7 7 7 -- -~ -- -7-7-7-7-
rv-- --
11 OA Nos. J41/2018 to I62/2013, 1 73/2018,
1 74/2018, 223/2018, 3 73/2018,
392/2013 to 403/2018, 495/2013
(e) such other and further order or orders be passed as the
_ facts and circumstances ofthe case may require.
ffl That costs ofthis Original Application be providedfor. "
The applicants in OA Nos.373/2018
392/2018, 393/2018, 394/2018, 395/2018
396/2018, 397/2018, 398/2018, ~ 399/2018,
400/2018, 401/2018, 402/2018, 403/2018
\-
495/2018 have prayed for the following reliefs --
"(a) That this Hon 'ble Court be pleased to hold and declare
that the advertisement dated 29"" November, 20l 7 (Annexure
A-ll) issued by the Stafl Selection Board, Union Territory of
Damon dc Diu for filling up the post of stajj' nurse is
contrary to the Recruitment Rules 201 I for the saidpostiand
this Horfble Court be pleased to hold that the said
advertisement is liable to be quashed and set aside; ~
(b) This Hon 'ble Court be pleased to quash and set aside the
advertisement dated 29"' November, 2017 (Annexure A-1)
and the consequent provisional merit list dated 23"", April,
2018 (Annexure A-2) issued pursuant to the said
advertisement by the Stafl Selection Board, Union Territory
ofDamon & Diu;
(c) This Hon'ble Court be pleased to direct the respondents
to in the first place regularise the services of the applicant
as stafl nurse in the Union Territory of Damon & Diu
without recourse to the Stafi'Selection Board and onlyfill -up
the balance available vacancies, any, by the requirement
or-procedureprescribed-by the-Recruitment Rules," ' ' ' ' ' "
(a) This Hon'ble Court be pleased to direct the respondents
to regularise the services ofthe applicant as stafi'nursefrom
the first date of her appointment in pursuance of prayer
clauses (a) to -(c) above and treat the applicant as regular
holder of the said post from the said date and also to grant
the applicant all consequential service benefits flowing there
fiom including the seniority, continuity of service, due
promotions, proper fixation ofpay, payment of diyjferential
amount ofwages and all other admissible service benefits on
that basis including interest at the rate of 18% per annum on
the arrears of the difierential wages fiom the due date till
payment;
(e) such other andfurther order or orders be passed as the
12 OA Nos. .34'1/20} 3 to I62/21918, .3 Z?/262' 8,
I 74/2013, 2.23/2013, 3 73/2013,
592/2013 to 403/.2018, 495/2013
facts and circumstances cfthe casc may require,' _
Q9 That costs ofthis Original Applicaz';-:'0;a be prcvidedf0r,'
3. .The applicants in following OAs were
selected and appointed as Staff Nurses in
the Government Hospital at.[knmn1 & Diu on
the following dates :--
V. OA Nos. ipatcg ofAppciagfmcsa oraler |
-1I
145/Z018
140/201s
£29/03/2006
24/10/2005
2
cc 2 2 ttt 1 tttttttttt
147/201s
weeeeeeeeeeeeeea»W
'20/03/2000 _ pp
153/1018 20/03/2006
..-
154/201:0 _, I,
29/11/2000
__ _ ..-... ..................
156/2018 28/01/2005 1
I_,,,, ___,,,,, __ ,,,, ,, |'
_ ______ ssss,, ___::___,,, H" W__ _______
| I
ii
;;_..._-...»
15 7/2018 .. ______.. ......._.
=
29/03/2006
......i:=».»_ ......» » » »
- -
.150/201s - 29/03/2006 _%
1
150/201s 20/03/2000- A
" '_ " ""'
1
1___»__
101/201s -.-._....a»» > »»»»»» »» _»
' 020/03/2000
__ _ .;
» __ ;»»»
.223/2018 f 29/0'3/2006
3.1 The applicants in OA Nos.l43/2018,.
151/2018 and l55/20l8- were selected and
appointed as Staff'Nurses in District Hospital,
Diu w.e.f. 01.11.2008. '
3.2 The applicants in following OAs were
selected and appointed as Staff Nurses on the
following dates:--
________-2 ..........____-iare......2:............a-l-l-i-l-l-i-L-L-la:L-l-_-l-_-_-_-i-l-i-l-l-_-l-l-it1-l-l-l-l-is--...;-_-:21-is-i-or--l-_-a:,#:,;,_-s..........:,--...:,;,;r... -_-_-#.............. ____ _._.......... ________________....___________...1-_-;1----.........____________.........l _________ ...... ____ __ 7
--- - = ---- 1?-.-------1 :-:.-='-
U |-
Q.
13 OA Nos. 141/2018 to 162/2018 I 73/2018
I 74'/2018, 223/2018 3 73/2018
'*1
392/2018 to 4'03/2018 495/2018
OA Nos. Date0fAppoi1f111ocr1tgog1*dcr
i
I 60/201' 8 24/O9/2002'
13/20180 E13/01/2010
1 140/201s 0?/Z9111'?.. .
. l309/20100
'"403/20010 10/05/20188108
3.3 The applicants in following OAS were
8 selected and appointed as Staff Nurses on the
following dates:~
0,4 N0. {Date ofAppointment order
114]/2018 I 7/O9/201 L
26/02/2013 1
1144/.2018 26/02/2013
1-. -- -- ----- -
148/2018 E 19/O8/201]
E2/2018
102/201s 13/10/2012
73/2018 l 19/0s/2011
93/2018 f 18/O4/2013
394/201 8 I8/04/2013 g ggggggggggggggggggggggggggggggggggggggpg
135/101822 2 2 15193/2013 .__..i. ..._..... . .. .. .. . . .
401/2018 $1808/0s/13
1403/2018 13/10/2012
402/201 8 1s21*1131>13
"">"*""""> " " "" >"-">""---- > " _ ___ ....____.__-9 --------~ _. __ __ __
The applicants in following OAs were
selected and appointed as Staff Nurses on the
following dates:+
0,1 No 1211011.»5f1L1pp01k1me1l;130081
'302/201s 12s/09/2013
5--------~ -- .. -- -- __.'___ .
14 OA Nos. 1 41/281' 8 10 1 62/2818, 1 2'3/2018,
1 74/2818, 223/.2018, 3 73/201'8,
392/2018 to 403/Z018, 495/.2018
1396/2018 128/09/2015 . '
to 11, twat 111,
ttt 2 1 1
[M397/2018 28/O9/2015
300/2018 23/09/2015
1400/2013 /2s/09/20153
1.. ......... . ....... . ____.._. ___.. ........ .1
4. The common facts are. that in OA
Nos.145/2018, 146/2018, 147/2018, 150/2018,
153/2018, 154/2018,, 156/2018, 157/2018,
158/2018, 159/2018, 161/"2018 and 223/2018 the
applicants have worked as Staff Nurses for a
period of 12 years and more whereas in other set
(ME Oas bearing Nos,143/2018, 151/2018 and
155/2018 they have worked as Staff Nurses for a
period of 10 years and more. In the third set of
OAs _bearing Nos 160/2018, 173/2018, 149/2018,
399/2018 and 495/2018, the applicants have
worked as Staff Nurses for a period of 8 years
and nmae. IU1 fourth set cflf OAs bearing
Nos,141/2018, 142/2018, 144/2018," 148/2018,
152/2018, 162/2018, 373/2018, 393/2018,
394/2018, 395/2018, 401/2018, 403/2018 and
402/2018, time applicants Iwnma worked ems Staff
Nurses in time Government Hospital for as period
of 5 to 7 years. In the fifth set of OAS bearing
Nos.174/2018, 313/2018, 392/2018, 396/2018,
397/2018, 398/2018 8 400/2018, the applicants
15 OA Nos.14'1/2018 to I62/2818, I 73/2018,
' I 74/2818, 2.23/2018, 3 73/201 8,
392/201 8 to 403/2 01 8, 495/201 8
have "worked an; Staff 'Nurses :U1 the aforesaid
hospital for a period of two to three years.
4.1 In all these OAs, the applicants have
challenged iflws Advertisement Dkami dated
29.11.2017 and. have ~claimed. that though they
have been shown txalme working on contract basis
since the date of their initial appointment but
in fact they are regularly working for the
period as mentioned above. It is claimed that
now the respondents have issued Advertisement
dated 29.11.2017 whereby they are taking steps
to fill up 52 posts of Staff Nurses in the Union
Territory of Daman & Diu in the Government
Health Services. Nkae cm: less, the common case
as made out by the applicants in these OAs is as
follows:
4.2 It is claimed that the applicants
fulfilled the educational qualification and age
for being appointed to the post of Staff Nurse
in the Government Hospital at the time of their
initial recruitment. The Competent Authority,
Development Commissioner :U1 the exigencies of
service had relaxed the provisions of the
Recruitment Rules in regard. to the selection
procedure. However, the other qualifications
. _ 1| _ 1 1 L
16 0/1 Nos. 141/2018 to 1' 62/201'8, I 73/2818,
1 74/.2018, 223/2 018, 3 73/.2818,
392/2018 to 483/2818, 4'95/2018
were not relaxed. It is claimed that their
appointments were iJ1 fact regular appointments
for all intents and purposes with the full
knowledge, consent and. prior approval of the
Competent Authority i.e the Development
Commissioner. The method of filling up the said
posts by van; of only" 3"Walk~in~Interview'
amounted ix) relaxation (IE normal rmxka of
recruitment by the Competent Authority in the
erigency of service and therefore these
appointments were for all purposes regular
appointments. The applicants had applied under
the relevant advertisement and had competed with
many other candidates from tima<nnn1 market and
after the said selection process, they were
selected to be appointed in the Civil
Hospital/Government Hospital en; Daman. The
applicant have relied upon the Recruitment Rules
i.e. Goa Government Directorate, Health
Services, Non*Ministerial, Non--Gazetted Class
I11 Recruitment Rules, 1967 (Annexure AW3),
which were in force at the relevant time.
8.3 It is stated that a hospital requires
Doctors, Nurses, Para*Medical Staff,
technicians, Class IV Staff and other technical
-I"
17 OA Nos.141/2018 to 162/2018, I 73/2018,
1 74'/2018, 223/2018, 3 73/2018,
392/2018 to 403/2018, 495/2018
and supporting staff, all of which are essential
I 1
¢
requirement of running' a hospital whether in
private sector cm: inf Government sector. They
have stated that when the' proposal for
construction of the hospital is mooted, the UT
Administration has to as per the procedure in
Government. put inn a comprehensive proposal
pointing cnn: the cost chi construction cm? the
hospital .buidling, staffing' pattern .indicating
the categories of personnel required to run the
>
_ 'I
hospital, the number of posts and the pay scales
for each post are all part of the said proposal
r
and which has to be approved in the first place
before the construction of the hospital -is
started. It is further stated that mere absence
of an order for creating regular posts as per
the approved proposal does not deprive the
applicants from being treated as a regular
appointees on a permanent basis on the posts of
Staff Nurses.
4.4 In the case of applicant . in OA
No.l45/2018, her initial appointment was on
29.03.2006. Thereafter her appointment continued
till 13.04.2018 vide separate orders passed at
different intervals enui these orders sums dated
13 0.4 N051]41/.20.2' 3 to 162/2018, 1' 73/2018,
1' 74/2018, 223/2013, 3 73/201' 3,
392/2013 1'0 403/2013, 495/2013
06.11.2006, 30.04.2007, 07.11.2007, 17.07.2008,
17.11.2008, 14.07.2009, 21.12.2009, 14.07.2010,
25.11.2010, 20.05.2011, 14.12.2011, 15.06.2012,
12.ll.2012,' 14.05.2013, 24.05.2014, 31.12.2014,
31.03.2015, 19.11.2015, 30.09.2016, 11.03.2017
and 17.10.2017 which are collectively .A--4 on
record._ Similarly, all the other applicants
after their initial appointments were issued
further' orders (H1 regular' intervals EHK1 their
appointments continued.
_ 'I
4.5 IN: is stated 137 the applicants that ijua
respondents had issued Advertisement for filling
up the posts of Staff Nurses on regular basis
through Advertisements dated 28.01.2011 and
02.12.2015 but all the selections were cancelled
by the Administration without- assigning any
lT€&SOf1. .
4.6 The applicant in. (H1 No.145/2018 and
similarly' placed cflfimn: applicants luui applied
for selection in pursuance to the Advertisement
dated 02.12.2015 but the respondents had refused
to grant age relaxation by taking into account
their continuous service from 2006 cowards. It
is observed that they did not challenge this act
of refusal by the respondents at that time
19 OA N0s.141/2018 tn 162/2013, "1 73/2018,
_ 1 74/.2013, 223/2018, 3 73/2018,
.~ 392/201 8 to 403/2018, 495/2018
though they had sufficient cause of action to do
so.
4.7' OA No.660/2015 was filed by Smt Prabha P.
Dungdung alongwith bung; Varghese (now kxfifii the
applicants in OA Nos.145/2018 and 147/2018)
seeking <direction ix) the respondents ix) allow
them to, appear in the said selection with age
relaxation and. the same was allowed. by this
Tribunal vider judgment dated 05.07.2016.
However,_ since the selection itself was
cancelled, therefore, the said judgment was nbt
given effect to (Annexure A--6).
4.8 IN; is stated kn? the applicants that the
Recruitment Rules 1967 were replaced by New
Recruitment Rules cflf 2012 which prescribe
holding of written examination for filling up
the posts of staffi nurses in the Government
Hospital in the Union Territory and copy of this
rule is Annexure_A*7. It is claimed that the New
Recruitment Rules cannot be retrospectively
applied to the initial recruitment of the
applicants.
a.9 It is further stated that now the present
selection has been taken up under Advertisement
dated. 29.11.2017 ix) fill in) the _posts <xE 52
20 OA Nns. 141/2013 2'0 I62/2013, 1 73/20.? 3,
- I 74/.201 8, 223/.2013, 3 73/2 01 8,
392/2013 £0 403/2013, 495/2018
staff nurses and the prescribed age limit is 30
years besides other qualifications as mentioned
in. the .Advertisement.. It ii; claimed. that the
applicants fulfilled ifina educational anwi other
qualifications but if the age limit is applied,
the applicants who have been so engaged on
contract basis in the exigency of services for
more than 10 'years, as the' posts were not
sanctioned or it was not' possible for some
reason ix) fill them L$><m1 regular basis, ting;
all will be excluded from the said selection.?It
is also stated that when some of the applicants
were recruited. more iflun1 10 years Iback, the
rules in force were 1967 Rules, which prescribed
time age limit cflf 35 years anwi the educational
qualifications were the same and both these
requirements were fulfilled by some of the
applicants. However in time 2012 Rules Tina age
limit has been reduced to 30 years and this
requirement <xf age of time applicants will be
fulfilled only if they were given the benefit of
their service already rendered on contract
basis.
4.10 iflna applicants lnnma further stated ijnfiz
those who had been appointed prior to the
Q _______.______ _______ _.-.... m m _._____ . _ _ _ _ . _......__._____ ......
21 OA Nos. 141/2018 to 1 62/2018, 1 73/2018,
1 74/2018, .223/2018, 3 73/2018,
392/201 8 to 403/2018, 495/2 018
introduction of Recruitment Rules of 2012, they
were appointedfi by time Competent .Authority' by
following the pmocedure which amounted to
relaxation of. Recruitment Rules by the
Competent Authority, thus adj. these applicants
have to be treated as regular for all purposes
at the time of their initial entry. It is also
claimed that even after New Rules of 2012 came
into force, if the Competent Authority decides
ix: deviate from.tflna procedure laid.cknn1 in the
. I
Rules for the Recruitment to the post of Staff
Nurse in the exigency of service, the same would
amount to a deemed relaxation of the requirement
of the-Recruitment Rules and such an appointment
would be a regular appointment. -
4.11 The applicants have also claimed' that
they fulfilled the criteria of age and
educational qualifications at time time of
initial appointment auui were selected pmrsuant
to public advertisement and in competition with
other persons who had applied from the 'open
market and an appropriate selection process was
followed at that time with prior approval and
consent of the Competent Authority.
22 OA Nos. 14.!/2618 £0 I62/2018, I 73'/.2613,
I 74/21913, 223/2013, 3 73/2013,
' y 392/.?§18 is 4'03/2018, 495'/2028
4.12 Regarding the impugned Advertisement No.4
dated 29.11.2017, it is stated that the same was
issued kn; staff selection iBoard (ME the Union
Territory for fil1ing_52 posts of staff Nurses
and the applications were required to be made
online with the last date as 02.01.2018 and
selections were required to be made on the basis
of written examination/computer 0 based
examination with provision of negative marking.
The total marks were 100 out of which 80 marks
i
4
were fixed for written test and 20 marks f.or
domicihe of the Union Territory which would be
added to the marks of the candidates if they
secured rdnimum 33% 1&1 the smitten/computer-
based examinatione The age limit was shown as 30
years viil relaxation <1f upto I5 years ix) the
4
Government servants. However, there was no
provision for service rendered by persons like
the applicants who Ihad gnu; in several years
continuous service in the hospital, some of them
being there for more than 10 years.
4.13 The applicants who "were not fulfilling
the age cmiteria ens per impugned Advertisement
have claimed that as per the circular issued on
02.01.2015 by the Union Territory. the age
23 OA 1905.141/2018 to 162/2018, 1 73/2018, \,_~
I 1 74/2018, 223/2018, 3 73/2018,
392/2018 to 4'03/2018, 495/2018
vcv
1 .
relaxation' also applies ix) direct recruit
workers inn: are run: overaged fin: regular
appointment on the date of initial engagement to
the extent of the total service spent on
contract basis. However, this benefit was not
given under the impugned Advertisement. All the
applicants have claimed that their appointments
were in exigencies of service with the knowledge
of the Competent Authority and. thus all the
appointments so made have to be treated as legal
and valid from the date of their 1" appointments
and all the applicants are required to be
regularised from the initial dates without
having to undergo any fresh selection process in
terms 'of the impugned .Advertisement. The
applicants have challenged the riders stipulated
in the initial appointment letters and later
continuation letters (IE time said. appointments
relating to creation of posts and to fill up the
same (M1 regular basis ens invalid. It iii stated
that 1M1 the appointment letters, ii; was
mentioned that appointment is on contract basis
till creation of posts and till they are filled
up cni regular basis inn: this cannot deprive or
prevent the applicants from claiming
24 GA Nos. E41/2 0} 8 In I62/2818, I 73/2018,
I 74/2018, 223/2818, 3 73/2818,
39.2/.20} 8 In 4'63/.2018, 495/2818
regularisation from fins initial date (Hf their
appointments. That now the applicants cannot be
asked.1x> appear :fixr selection cu:-written test
under the impugned advertisement as it is likely
tx> cause pmejudice ix) them. Ens per the
applicants, the respondents first have to
regularise the applicants against the posts
available and only thereafter, if any posts are
lying vacant, they should issue an Advertisement
1
calling for applications from the open market to
fill up the said posts on regular basis. .
4.14 It is also stated by the applicants that
they cannot be classified as causal labourers
or temporary workers since the nature of duties
I
and responsibilities shouldered by staff nurses
in ea hospital are ijua essentialy regular' and
necessary' functions. of E1 hospital auwi without
this categoryi of staff as stated earlier no
hospital (EH1 function. Time appointments (Hf the
applicants on contract basis are itself not
proper and a clear case of exploitation of the
services of the applicants who have no power of
bargaining in the matter. -
4.15 The action of the respondents are claimed
by the applicants to be arbitrary.
.1: .
._;:
'.-.- .
K
Z5 OA N0s.141/2018 In 162/2018, I 73/2018,
I I 74'/2018, 223/2018, 3 73/2018,
392/2 018 to 4'03/201 8, 495/201 8-
w'\
discriminatory and violative of fundamental
rights under Articbe 14, 16 and 21. It is once
agairx reiterated ifiuH:_selection an: appointment
of the applicants was made after due
/'"
consideration of all eligible persons in an open
selection in a manner as approved prior in point
of time by the Ckmpetent Authority. Therefore,
the applicants have to be regularised in service
once, the [posts were sanctioned and the
1
respondents have to treat the posts as
sanctioned from inn: tine: the applicants were
initially appointed in service.
5. The respondents Innmi contested these
present OAs and have filed detailed affidavit in
reply. It is submitted that the applicants were
appointed on short term contract basis and
therefore there was no question of_ regular
selection against sanctioned posts, consequently
their prayer for regularisation in services is
not maintainable. It is further claimed that the
tmnmus of offer of appointment were accepted by
the applicants when y they submitted their
joining' reports. Their appointments "were with
specific condition that the appointment will not
confer any right for regularisation of the same
Z6 0A Nosiél/2018 in Z62/2018, I 73/20} 3,
I 74/2018, 223/.2018, 3 7'3/2018,
392/20l3 in 403/2018, 495/2018
or benefit such as seniority, etc. and that the
Administration reserves iflne right txn terminate
the contract without assigning any reason or
giving notice. It is admitted by the respondents
- 1
that from time to time they were appointed on
shortwterm contract basis. The details of all
these orders are mentioned in reply affidavit in
each of the OA. It is asserted that all these
orders were accepted by the respective
r
0
applicants and not challenged even in the
H'
iresent OAs. r
5.1. The respondents have relied upon the
1 Q!
judgment of Hon'ble Apex Court in the case of
rspfifisd in 395 9 J
S€K?é§7, claiming that 1jna applicants UMHKE well
aware that their respective appointments were
clearly a stopsgap arrangement and not following
<fins, process of lifif as envisaged ii} the
Constitution Bench Judgment in the case of
Slrsrewm Siaie fife Umadevi medic Qiiarrs
reported M2006 SC€ (L&yS)+ 75.1
5.2 The respondents have stated that they
issued an Advertisement dated 29flll,20l7 for
filing up the regular posts" The said
1
27 OA Nos. 141/2018 ts 162/2018, I 73/2013,
1 74/.2018, 223fi018, 3 73/2013,
392/2018 to 403/201 8, 495/2013
advertisement was given wide publicity. It was
published in Newspaper dated 01.12.2017,
Employment News dated 30.11.2017, and also on
the website of the~ [IL- so that eligible
citizens/candidate cxni compete for time posts on
all India basis. r
5.3 The respondents inane further stated that
the applicants have made online applications as
stipulated JU1 the advertisement alongwith. the
relevant .certificates and. also stated. therein
. T
that they are working on contract basis in the
[IF Administration. They lemma also appeared for
the written examination held on 27.02.2018. That
the applicants are well aware of the tact that
their demand for regularisation from the initial
date of appointment is neither valid nor in
compliance of the Constitution Bench judgment of
the Hon'ble Apex Court in the case of Umadevi
(supra). _
5.4 Regarding the impugned advertisement, it
is submitted that" the respondents have
considered the -issue of age relaxation as per
the laid down guidelines for direct recruitment
as detailed jJ1 chart vHU1fi1 is placed cni record
alongwith the reply. The emmdicants would also
1 K _ _ . .
|.
Z3 OA N05. 14.?/202' 3 In I r62/2{H 3, I 7.5'/2 0.18,
I 74/20} 8, 223/2018, 3 73/.201 3,
392/2013 In 403/202 3, 495/2613
be entitled for domicile marks as per the policy
,of the UT Administration. Further that when the
applicants were considered for the first time
1
for short--term contracts, there was only
interview and no written test was conducted and
by the local Advertisement, names from
employment exchange were called for. In
pursuance ix) the impugned advertisement, ii; is
stated tfinn: for filling Lg) the regular posts,
5305 numbers of applications were received by
tins Administration. Written test inns conducted.
1
I
That the procedure followed for filling up the
regular posts and procedure for contractual
posts are different and distinct, and the
applicants were aware of this fact, thus applied
for inns posts rflf staff :nurses anmi also- have
appeared in the examination. It is claimed that
the impugned action of the respondents is
strictly 311 accordance moth. Una provisions {If
Article 14 and.1£5<1f the Constitution of_India
and also in accordance with the law laid down by
the Hon'ble Apex Court in the case of Umadevi
(supra).
5.5 _ It is further claimed that the applicants
were well aware that they had been appointed on
|_ 1-_-a-A-A-i..........._... _____ .........................___....___ _________ _................___._.....1-1-i -_-_-a-_-2...-_-_-r-a-1-_-_-_-_-i -1-1-A-_-1-2...";-1-a 1-_-1-_-i......:11-_-J1-;=;-i-i-J;-_-_?;:;:=:.......r-1-i-arm-i-a-a -_--_-a-_-_-_-1__________________________ _..... 7 ......
29 OA N0s.141/2013 to 162/2018, 173/2018, 7
I 74/2018, 223/2018, 3 73/2018,
392/2618 to 403/2018, 4'95/2013
1-
short~tern1 contract .basis anui fed? this reason
they have applied for regular posts on the basis
of the public Advertisement and appeared for the
written examination. Thus now they are estopped
from changing the stand for contract employee to
seeking regularisation in service. Further that
the_ terms and conditions of the contract of
service are well defined and stipulated in
simple language in the appointment orders issued
to the applicants. If the applicants were not
satisfied with the said action, they should have
I-
challenged the same in accordance with the law.
However, none (Hf these orders know: been
challenged vide present OAs. It is also claimed
that at the time of appointment on short term
contract, the applicants were not subjected to
written \
examination since _
it was a 1
stop~gap
arrangement as procedure involved in regular
selections is lengthy.
5.6' _ The respondents have also stated that the
Directorate of Medical & Health Services, PI-IC,
Moti Daman vide letter dated 23.10.2017
(Annexure R----22' of OA No.l46/2018) has notified
regular vacancies of the different posts. So far
as staff Jnurses are_ concerned, there "were 52
_3 U oe Noel 41/2018 to I 6.2/201 8, 1 73/2013,
I 74/.2013, 223/2018, 3 73/2918,
39.2/201 3 to 403/201 3, 495/2013
posts. The break up given was 26 for General.
OBC--l4, SCrO8, E¥P%%4@ Accordingly, time regular
posts were advertised in the employment
newspaper by respondent No.5. Then 5305
candidates applied for the same and 3088
candidates appeared [for written examination
conducted on 27 . O2 . 2018 . That all the present
applicants have also appeared in the
examination.
5.? The respondents in support of -their claim
8'
to rely upon the following jodgments:--
~ (1) Official Liquidator Vs. Dayorzcmd" and Others reported
ire 2008 (10) SCC J. .
(ii) Mohd. Asif Gfld Others Vs. S/0. Bihor reported in .20] 1
flGSZJ@KD]34
(iii) State ofRojosthort Vs. Doyo Lei and Others reported in
20.32 (J) SCC (L&S) 349
(iv) Chottor Sirigh Vs. ZGNOU reported in 2002 (3) SL]
(Eeihi High Court) .295 - - .
(v) Rom Sirzgh Vs. UT ofChondigorh reported in 2004 SCC
(Z&fi)14 _
(vi) Mohendro L. Joiri Vs. Indore Dev. Authority reported in
2005 (1) SLR (SC) 39
(vii) Pritish Rorijarz Roy Vs. S/o. Trzpura reported in 2005 (5)
SLR (Gmvahoti) Z54 ' ' - '
(viii) MP. Housing Board Vs. Monoj Srivastavo reported in
2006 SCC (L&S) 422.
(ix) Secretory S/0. Korrzotoko Vs. Umodevi & Ors. Reported
in 2006 SCC (L&S) 753
(x) Notiorzol Fertiliser Ltd. Vs. Somvir ' Sirigh reported in
.2006 (Z) SCSLJ U2
(xi) Szireridro Prosod Tiwori Vs. Uprkzi reported iri .2006
SCC (L&S) 174.5
(xii) S/o. Korrzotoko Vs. G. V Choridroshekor reported irt
31 OA Nos_.l41/2018 to 162/2018, 1 73/2018, ,_-
1 74/2018, 223/2818, 3 73/2018,
392/2018 to 403/2018, 495/2018
2009 (4) SCC 5'42. .
(xiii) U01 Vs. Kortik Chandra Mondol reported in 2010 (1)
SCC (L&S) 385 V --M - V
(xiv) Hormirzeer Kour Vs. UOI & Orsi' -reported in 2009 (13)
SCC 90. ' -
(Xv)
1-
6. We have heard the the oral submissions of
learned counsels tin: the parties euui carefully
gone through the case laws cited by counsel for
both the parties.
7. The applicants have relied. upon
Recruitment Rules, 1967 zfimr Non~Gazetted Class
_III posts. These Rules came into effect from the
date of the Notification and related to the
appointment to the Various posts made on or
after Tina date nxf Notification. ZM1 appointment
made prior to this date through a duly
constituted Staff Selection 'Board/Departmental
Promotion Committee will be deemed to "be a
regular appointment, notwithstanding any
provisions contained in these rules. .
8. It is the claim of the applicants that
their appointment on contract basis is governed
by this rule and they are not subject to the new
Recruitment Rules, 2012. That the qualifications
prescribed in the Advertisement were the same as
for regular appointment as a staff nurses as per
32 OA Noni 41/2018 to I 62/2018, I 73/2018,
1 74'/.2018, 223/2018, 3 73/28f 8,
39.2/2818 to 403/2818, 495/2818
time Recruitment luflxmn 1967. Tfina Advertisement
was issued with the prior approval of the
Competent Authority and in the case of their
appointments, 'these: Recruitment lRules "were
relaxed in tine exigencies (Hf the services and
these posts were filled in by way of only 'walk~
in--interview', so= far all purposes their
'H
appointment were regular appointments. However,
this argument of time learned. counsel for 'the
applicants is without any force or merit and is
not substantiated by any document, any evidence.
To the contrary, the appointment letters of the
applicants which have been placed on record
clearly znxnfir otherwise. One innfii appointment
order/letter ckuxni 06.11.2006 issued ix) Prabha
Prafulit. Dungdung, _applicant. in (Hi No.l45/2018
is reproduced below to understand the nature of
appointment of the applicants as all the
appointment letters issued to the applicants are
similar in nature:--
"NO.DMHS/DD/Posts~STC/2006~O 7/2896
Administration ofDamon & Din (UT)
Directorate ofMedicaZ & Health Services,
Primary Health Centre,
flfiflilkonan.
Dated :6/I I/2006
33 OA Nos. 141/2013 to 162/2018, 1 73/2018,
I 74/2018, 223/2018, 3 73/2018,
392/2018 to 403/2013, 495/2018
ORDER
- The Secretary(Health)/Head of Department of Daman and Diu is pleased to appoint the following Stajj' Nurse purely on Short Terrn Contract Basis for a period of six months or till the post is created and filled up on regular basis, whichever is earlier, at consolidated fixed pay of Rs.9,675/- p.m. (Rupees Nine thousand Six hundred Seventy Five only) with effect from the date of appointment as shown against their names under Accident cum Trauma Unit. Govt. Hospital, Damon.
Sr. Name ofStafl'Nurse Date of appointment to
1 'Melly Mathew s s s s s s s s s s s s s is 0/06 s s s s s s
Elwnrs-Malryratghm so 09/were ? ? ? ? - ,
l :Pral:1ha Dungdung t O4/I 0/O6 L .
H Q The isppisitntuataizi satiety
ngiiyet regularisation
I, of the same or benefit such as seniority etc. The Administration reserves the
~. right .to terminate the contract without assigning any reasons or gifiing
notice. The appointee will not be entitledfor any kind ofleave. » . ' The expenditure is debitable to following Budget Head ofAccount:
Department ofHealth (PLAN) 2210 -- Medical & Public Health ' 01 - Urban health Service Allopathy
01. 1 10 --- Hospital & Dispensaries _ 30 - Govt. Hospitals
30. 00. 01- Salaries This issues with the approval of the Secretary (Health), Head of Department, Damon and Diu vide diary No.384 dated 01.11.2006.
sd/--
(P-1.'. Bamania) Deputy Secretary (Health) "
9. The above appointment order/letter clearly finds mention that the applicant was appointed as staff nurse on short--term contract basis for a period of six months or till the
-post is created and filled up on regular basis, whichever is earlier. Appointment letters issued . '1» "
34 on amiss/sets to 162/sets, i rs/2013, 1 74/2012s, 2.23/201s, srs/201s, P 39.2/2018 to ms/eats, 495/201s to different applicants in these Ohs are similar in nature. Thus it is crystal clear that as-on the date axf issue of time initial. appointment letters, there were no posts created and thus there was no question of same being filled on regular basis and the question of relaxation of recruitment rules also does not arise. ' 4
10. Ihi the appointment letters, it inns also specifically mentioned that the said appointment will not confer any right for regularisation of the same or benefit such as seniority, etc. and also that the Administration reserves the right to terminate the contract without assigning any reasons or_giving notice.
ll. The respondents have placed on record the
minutes of the meetings of Departmental
4
l
Selectiru1 Committee cni different. dates ill all
the OAs whereby the selections of the applicants were made for the posts of staff nurses. In each of these udnutes, ii; is specifically mentioned that time post Vfififi advertised in time employment news and local daily newspapers and names were also called for time local employment exchange.
The candidates who applied, were called for oral interview and after assessing their 35 OA Nos.141/2018 to 162/2018, 1 73/2018, -~ 1 74/201,8, 223/2018, 3 73/2018, 392/201 8 to 403/2018, 495/2018 qualifications, experiences and performance, the Departmental Selection Committee selected the candidates for the gxnmns in question, on short-
term contract basis for a gmmticular period as mentioned in each of these minutes of the meetings. They have also placed on record _' the relevant advertisement. On the top of the advertisement, ii; is clearly mentioned as "ADVERTISEMENT FOR WALK IN "INTERVIEW" and the Directorate (M? Medical znui Health. Department, Daman & Diu is conducting a 'walk~in~interview' for time posts cm? Medical Specialists, Medical Officer, Staff Nurses and ANM on short~term contract. In View of the advertisement referred
to above, the applicants had qualified in 'walk-
in--interview' and were selected for the posts of staff nurses on short--term contract basis. 4,-
The applicants thus were well aware before they appeared.:fiir 'walk--in--interview' that ting; had 1' applied for the post of staff nurses on short"
term contract basis. -
12. The appointment letters issued to the
applicants are also placed on record and one
such" letter which is forming part of OA
No.l45/2018 'Us understand time contents cxf the
i
36 OA Nos. I dl/26} 3 to 162/2013, I 73/2013,
Z 74/2013, 223/2 (ll 3, 3 73/201 8,
39.2/2018 to 403/2 M 3, 495/2018
some is reproduced as underzr
"NO.DMHS/DD/Posts--STC/2U05-06/6207 Administration ofDamon & Din (UT) Directorate ofMedical & Health Services, Primary Health Centre, ' Mott Damon.
Dated :29/03/2006 ORDER The Development Commissioner/Appointing Authority of Dan/tan & Din is pleased to appoint the following Stafl'Narse parely on Short Terrn Contract Basis for a period ofsix months or till the post is created andfilled up on regular basis, whichever is earlier, at consolidatedfixed pay of.Rs.9 ,O75/~ p.rn. (Rupees Nine thousand Seventy Five only) with effectjrom the date of joining the post and posted at Govt. Hospital, Darnan tinder Accident cant T __ St.No. 5 Name of the Staff Nurse 1 + --- -- -'-- -- - - - , , , , ,,,.,__. .. ____._ ___. _--.-;w==--_-um -- _ 1 'Molly Mathew 2?" ""'""""""""""_["""' ' ' ' ""'""""'"""'-:*'"""*"""'"'""'=*' -- -- _ ' 2 fg1'~/its-Marry Verglwse gggggggggggggggggggg 3 i@11y1oseph D DD i L4 g g g g PrabhaPrafulit_Donggdngog l5 NileDe}/ebhai Ajudia 6 iotaAnitaben Govindbhei The above appointment will not confer anyiright for regularisation of the some or benefit sach as seniority etc. The Adniinistration reserves the right to terrninate the contract without assigning any reasons or giving notice. The appointee will not be entitledfor any kind ofleave.
The expenditure is debitable to following Budget Head ofAccoant:
Department ofHealth (PLAN) 2.210 - Medical & Public Health 0.7 ~ Urban Health Service Allopathy 01.110 -- Hospital & Dispensaries 30 - Govt. Hospitals 30.00.01--- Salaries ' This issues with the approval of the Development Cornnzissioner/Appointing Aathority, Damon and Dia vide diary No.3829 dated .22/O3/2006.
sd/-
(Pi Ban:-zania) Depaty Secretary (Health) "
|_w.........
. -|
1|
'L
37 OA Nos.141/2018 to I62/2018, 1 73/2018, W
, 1 74/2018, 223/2018, 3 73/2018,
392/201 8 to 403/201 8, 495/2018
This letter iii dated 29.03s2006 issued ix) the
applicant. in (Hi No.l45/2018 alongwith E5 other
persons for ifina posts cflf staff nurses. 11; is
clearly mentioned ll} this order that the
Development Commissioner/Appointing Authority of Daman & Diu was pleased to appoint them purely on short term contract basis for a period of six months or till the posts are created and filled up on regular basis, whichever is earlier. It is also mentioned therein that this appointment will not confer any right for regularisation,of the same or benefit such as seniority etc. It further' finds fimnujrna that time Administration reserves the right to terminate the contract without assigning any reasons or giving notice.0
This offer of appointment was accepted by all the applicants without raising any objections or without challenging the same at any appropriate forum. t x
13. It is contended by learned counsel for the applicants that when the applicants were given appointments on short%term contract basis, at that time there were sanctioned posts for the staff nurses and.cn1 account (Mi exigencies this recruitment rule were relaxed and the applicants . .-|- -1 _* .-.33 GA Nos. 14'}/2018 to I 62/2013, 1 73/281 3,
I 74/2018, 225'/2013, 3 73/2013, 392/2013 to 403/.201 8, 495/201 3 were just called for 'walk--in--interview' to fill up the posts at the earliest and therefore all the rules and regulations were followed, their appointments can be termed merely as irregular but not illegal. It is submitted that in view of the judgment of the Hon'ble Apex Court in the case of Umadevi (supra), they are entitled to be w regularised, He has also been pointed out that there are several applicants before us who have been working as staff nurse on contract basis for a period of more than 1O yearsa r
14. The respondents have relied upon the following judgments:-- ' (2) Herrrzirzder Kaar and Others Vs. Union of India & Ors.
reported irz (2flG9) 13 SCC §0 " (£2) Naiiarzef Feriiiizers Ltd. and Others Vs Somvir Siagh reported ire (2006) .5 SCC 493.
(fir) Uperzdra Sirzgh Vs. State of Bihar & Ors. reported in (2018) 3 SCC 680. L
(iv) Yogesh Tyagi and Anr. Vs. State 0fHaryana and Others reporfed in 2013 (3) SLR (Pb&Hry) 923 (11) Mrs. Seems Bczrzsaf Vs. University 0fDeZhz' & Ors. reported in 2017 (6)SLR (Delhi) 77
(vi) Smt Solarzki Geeta Ganpatsingh and Ors. Vs. UT 0fD&NH_. CAT, Mumbai Bench, OA N0.862/2010 and others, decided on 15.09.2017 _"
(vii) HM Patel 0°: Ors. WP N0.13963/Z017, KC. Thakor & Ors.
WP No. 1419]/20] 7, Bombay High Court decided or: 24. 07.2018
15. All these judgments have followed the principles laid down by the Constitution Bench judgment of the Hon'ble Apex Court in the case |_ ....-.... 7 i i*i if 39 OA Nos. 141/2018 to 162/2018, I 73/201 8, 1 74/2018, 223/2018, 3 73/201 8, 392/2018 to 403/201 8, 495/2018 1 -.
- of Secretary, State of Kamataka and Others Vs. Umarlevi and Others reported in 20o6sc'c(1.&s) 753.
16. The following observations made in the case of Umadevi(supra) and the relevant paras of the same are reproduced herein below:--
2. A sovereign government, "considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular' point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
3. But, sometimes this process is notadhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without . reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the roles adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts.
Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently -in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 2% of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and _from 40 OA Nos. 1 4'1/2018 to 16.2/2613, I 73/2613, Z 74/2013, 223/2018, 3 73/201 8 392/2618 to 403/2018, 495/20.13 issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 2.26 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or irnproprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the_ guardian of equal rights protection should not be forgotten.
4. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public ernployrnent. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to vvhoin'? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the vvay open to any court of lavv or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
-v C 1.0. In addition to the equality clause represented by Article l4 of the Constitution, Article l6 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrurnentalities that come vvithin the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of Public Service Commissions and mandates consultation with the Cornrnission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirrnative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the mernbers of the scheduled castes and scheduled tribes for employment. The States have rnade Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set dovvn therein.
__;......_;___;,_,.____;_.. .... .. .. -_-L-:2-_-_----H _______.........-.... _ _ _ _ _ _ _ ____ 7 _________ ____ __ 7 _ _ _ _ _ _ _ _ _ _ _ _ 7 7 _ _ ---------- ------------------------------ -- ---- 7 41 0A Nos.I41/2018 to 162/2018, 1 73/2018 I 74'/2018 223/2018, 3 73/2018 392/201 8 rd 4'03/ZOI8, 495/2018
14. .. ...... .§ ...................... ..If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized.
"Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non- compliance with procedure or manner which does not go to the root of the appointment. Regularizationcannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
In B.]§§,,,jYagarajan Vs. State o_f'Kamotaka & Ors. [(1979) 3' " SCR 937], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article _?@i 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. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. * 'PI-
20* I I t 0 0 I O I i I I Q t r D I t t O I I ¢ ¢ I U 1 D Q o o o 1 I \ 1 I I I Q Q n n n A ll _-"'-
With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts'? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and rnaking permanent, was not emphasized here --- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Sirigh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoe, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent. _,_-
_ I' '
42 OA Nos. 14']/2018 to 16.2/.2013, I 73/2613
I 74/2013, 223/20.18, 3 73/201%
_ 392/21913 to 403/20.18, 495/2013
22. In Director, institute ofllfanagemenr Development, U.P. Vs. Pnshpa Srivasmvtr (Sms) (1992 (3) SCR 712), this Court held that since the appointment was on purely contractual and ad hoe basis on consolidated pay for a fixed period and tenninable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the concerned calendar year was issued. This Court noticed that when the appointment was purely on ad hoe and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.
250 on Q Q \ I Q J I Q Q I Q v Q u I Q Q o Q I I 1 I q Q 0 Q I I v Q I I Q Q 0 v I Q I I I Q I I I Ii ' " In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoe basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a. long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoe basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules regulations governing such recruitment."
26. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law 43 OA Nos.14I/2018 to 162/2018, I 73/2018, rt M I 74/2018, 223/2018, 3 73/2013, W 392/2018 to 403/2018, 495/201 \ to that effect, after discussing the constitutional scheme for public employment.
3'! ¢ l 1 l 1 | I I i 0 Q 0 I 0 0 o - u u i a n q | Q Q I - I I Q Q Q Q | Q 1 Q y | - - ; ' Q ; ; ; ¢ Q ¢ q q Q {Q Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article l6 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term _ of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if ' they original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 2260f the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in-._;such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that i ' ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is . really not required. 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 or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. It may be 44 GA Nos. Z4}/2613 to E 6.2/2618, I 73/.2013 1 74/2 OZ 8, 223/2018, 3 73/2013 392/2023 to 463/.262 3, 495'/291 3 true that he is not in a position to bargain -- not at arms length -- since 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 teniporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor 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. lt is in that contest 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 l<_nows' the nature of his employment. It is not an appointment to a post in the real sense of the terrn. 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 id of the Constitution of India.
44. Que aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in STATE OF MYSORE Vs. S.V. NARAYANAPPA H96? (1) S.C.R. 128]," R.N. NANJUTQDAPPA Vs T. Tl-IIMMIAH & ANR. [(1972) 2 S.C.R. 799] , and B.N. NAGARAJAN (supra), and referred to in paragraph l4 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrurnentalities should take steps to regnlarize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process rnust be set in motion within six months from this date. We also clarify that 45 OA No.52}41/201 8 to 162/2018, 1 73/2018, 1 74/2018, 2.23/2018, 3 73/2018, 392/.2018 to 4'03/2018, 495/2 01 8 regularization, if any already made, but not subjudioe, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or, niaking permanent, those not duly appointed as per the constitutional scheme.
17. The issue iJ1 the jpresent. cases whether the posts to which the applicants were appointed were advertisad and whether these were regular posts.
1for regular appointment/permanent appointment. If the post was a regular post and
the applicants were selected as per due process only' then they' would. have a 'valid-~claim for regularisation. JIZ however, time advertisement ' 4.
I
wast only i for short~term contract/ad"
hoc/temporary post, then the applicants cannot
seek regularisation of their service. The
advertisement placed on record clearly shows
that the applicants were invited for 'walk"in~
interview" for" the jposts of staff nurses on
short term contract. The minutes of the meeting
of the Departmental Selection Committee referred to above also show that the 'walk--in~interview' for selection. of suitable candidates for the posts of staff' nurses on short--term. contract basis in the DTE of Medical and Health Services, Daman & Din for specific period, were conducted.
l?A. hhs discussed above, ennui the appointment
46 OA Neale}/2018 to I 62/202 8, I 75'/.2018,
1 74/2018, 223/.2018, 3 73/2018,
- 3'92/2018 In 403/2018, 4'95/2018
orders issued.tx) the applicants snmnt that they
were all appointed only on short--term contract.
Before the applicants can get the benefit of the ratios of various judgments of the Hon'ble Apex Court; that. the applicants worked" continuously for seeking regularisation, it is necessary that the post should have been advertised for regular appointment/permanent appointment i.e. existing vacancy in a regular/permanent post. Therefore, even. assuming" that time recruitment. rules 'were relaxed in the case of the applicants due ,to exigencies and. due process of selections was followed, since the posts advertised were not for appointment cni permanent/regular basis, the applicants in our opinion cannot claim regularisation of their contractual appointments, The persons who are not appointed to regular posts but are appointed on temporary, ad--hoc posts cannot get regularisation.
18. If advertisement to a post is for a contractual period, persons who are appointed to such posts cannot seek regularisation, The Honlble Fawn; Court in time case cu? Umadevi(3) (supra) had made it abundantly clear that before appointing (IE persons (n1 a regular/permanent |_ w._....-_-i-_-......--------- 'Fl _.._|___.i.. .
-0 *1-.
47 O}! Nos. 141/2018 to 162/2018, I 73/2018,|'\-an MIM-
I 74/2018, 223/2018, 3 73/2018, 392/2018 to 403/2018, 495/2018 basis there have to exist recruitment rules,-or specific eligibility criteria laid down forthe appointments, there must be sanctioned posts, there must be vacancies of the sanctioned posts and finally there must be issued advertisements for filling up the _posts; _not as temporary/contractual posts but as permanent posts; so that there should be a level playing field of competition with respect to prospective appointees.
1.9. The I-1on'ble Apex Court in the case 'of
Umadevi(supra) [has laid down the following
ratios:~ -
"(I) The questions to be asked before regularization are.'-
(a) (Q Was there a sanctioned post (court cannot order creation ofposts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualzfied persons and (ii) are the appointments through regular recruitment process of
(b) A court can condom-2 an irregularity in the appointment procedure only fthc irragularuy docs not go to the root of the . matter. ' (ll) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc is violated.
(Ill) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, bur, such persons form a class in themselves and they carmor claim ' squall!)/(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim lcgiumare expectation of 1 .~1 '. ,'..
48 014 Nos. I 4}/26] 8 to E 62/2:913, i 73'/201 3,~ l 1 74'/2018, .223/2013, 3 73/20] 3, 392/.2018 to 403/301 3, 4'95/2018 absorption/regularization as they lcnew when they were appointed that they were temporary inasmuch as the government did not give and nor. could have given an assurance of regularization without the regular recruitment process being followed Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointedpersons who claim regularization.
(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to. absorb or regularize persons appointed to such posts without following the regular recruitment process.
(V) At the instance ofpersons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not . pass interim orders to continue employment ofsuch irregularly Y appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.
(Vi) ifthere are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, ' then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.
(Vii) The aforesaid law which applies to the Union and the States will also apply to all instrurnentalities of the State governed by Article 12 ofthe Constitution ".
20. In the present cases, it is observed that it is only on account of exigencies that the applicants were appointed as 'short~term contract employees and they were well aware of their such status at the time of their appointments which is crystal clear from the advertisement issued and the appointment M... -_-i-_-n -_--------------------------------------------------------------------------------------------------------------------------------- " 7 49 OA N0.s'.141/2018 to 162/2018, 1 73/2013, l'€"' 1 74/2 018, 223/2018, 3 73/2018, 392/2018 to 4'03/2018, 495/2018 letters.
21. - The. applicants thus formed. a class in themselves and cannot cflaim regularization merely for the reason that many of the applicants have worked on such- short~term contract Ibasis [for IMOIG: than 10 jyears. They were well aware at the time of their appointment that they" were temporary and no assurance was given to them by the respondents for regularisation without regular recruitment process being followed. - '
22. The applicants themselves have admitted in their applications that there were no sanctioned posts when they had been appointed on contract basis and thus the posts which were sanctioned at any time later cannot be deemed to have been sanctioned as on the date of their initial appointments. As Iheldykqy the Hon'ble Apex Court in the case of Umadevi(supra) if the appointment his ea contractual. appointment, "the appointment comes to an end at the end of the contract. It is also clarified that merely because as temporary employee or ea casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to 50 as we-5.141/201$ a 262/2033, 1 73/2013, 1 74/2013, 223/2013, as/2018, 392/2013 In 403/2018, 495/2018 be - absorbed ix» regular service .cn: made n permanent, merely on the strength of such continuance, if the ,original appointment was not rmnka by following a. chm: 'process of I selection as envisaged by the relevant rules.
23. In the present cases also, the applicants' appointments on short--term contract i .
basis cannot be termed to have been made by a.
due process of selection as envisaged by the relevant rules and thus they cannot claim the right for regularisation. To seek regularisation cxf appointment, inns recruitment itself should have kx%n1 done regularly and iJ1 terms of cmmstitutional scheme. The applicants
at the time of their appointment on contractual basis were aware of the -nature of their employment and had accepted the same with open eyes. As observed by the Hon'ble Apex Court in the case of Umadevi (supra), it may be true that the applicants were not lfléi position to bargain as they might have been searching for employment so ens to earn their livelihood and accepted inns appointment (N1 contractual jbasis but merely for this reason the respondents cannot be directed to regularise their |_ --M 7 _________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ __ ___________________________________________________________________________________________________________ __ 51 OA N0s.141/2018 to 162/2018, 1 73/2018, I 74/201 8, 223/2018, 3 73/2018, 392/2 013 to 403/2018, 495/2 018 services. As by doing this, it will be creating another mode of public appointment which is not permissible. Chum; the applicants have accepted the employment (n1 contractual basis fully knowing the nature of it, they have to bear the consequences of the same. ' - -
24. As referred. above, the respondents had not given any assurance to the applicants while making their Wappointments on contract basis that tine status conferred cu1 them will run: be withdrawn until some rational reason comes into existence for withdrawing it.
25. It is observed that vflmniea person enters as temporary employment (n: gets engagement as a1 contractual or casual worker and the engagement is not based on proper selection as recognised by the relevant rules and procedure, he is aware of the consequences of the appointment. being temporary, casual cm: contractual jJ1.nature and he cannot invoke the theory of legitimate expectation for being confirmed in the post when an_appointment to the post could be made only by following a proper procedure for selection.
26. .As held by the Hon'ble Apex Court in the case of Umadevi(supra), the applicants who were .' .| P _1 _ r . _ , - .
52 OA N0s.141/.2013 I0 162/20,38, I 73/2913,
I 74/2013, 225'/2018, 3 73/2013,
392/2018 I0 403/2013, 495/2013
appointed on contractual basis have no
-H
fundamental right to claim that they have to be regularised in service, as they cannot be said to be holders of posts, since a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and. 16 of the Constitution. The applicants. have run: been. able ix; establish. a legal right ix) be regularised to-inns posts to which ijuqz are appointed.<n1 contract basis as they have never been appointed in terms of the relevant rules cu: in adherence ix) Articles 14 and 16 of the Constitution.
2?" The Constitution as one of its basic
\
features has included Articles 14, 16 and 309 so
as tx>_ensure 'that gnuflnxz employment is; given
only ill a fair anui equitable manner kg; giving
all those who are qualified an opportunity to
seek employment.
28. .Admittedly, there are several persons who
are waiting Jim: employment and eni equal
opportunity for competing for employment and in
these circumstances, the applicants whose
appointments were not as per the rules and
against the sanctioned posts but only on account 53 OA N0s.l41/2018 to 162/2018, 1 73/2018, ..
1 74/2018, 223/2018, 3 73/2018,
" 392/201 8 to 403/201 8, 495/201 8
-U _
of exigencies (H1 contractual basis, their
services cannot kma regularised at inns cost of
large number of aspirants who are waiting for an opportunity ix) compete for kiwi posts or employment. The persons who have got' employment casually cm: those inn) have come ijnxnmfli back door cannot be given preference over such large number of aspirants. ' .
29. fflua appointment to as post jJ1 Government service can only be by way of a proper selection in ,1jna manner recognised~ kn; the relevant legislation in lthe context of the relevant provisions of the Constitution.
30. The contention of learned counsel for the v applicants that many of the present applicants are working continuously on contract basis for a period of more than 10 years and they need to be regularised is of no consequence as at the time they were appointed to the post of Staff Nurse (n1 contractual basis, iflmmxa were rm) sanctioned posts and they were not appointed as per the relevant rules prevalent at that time.
31. The Hon'ble Apex Court in the case of Umadevi (supra) has held that question of regularisation in any service including any 54 0/=3 N03. I41/2 M 3 to I 62/2628, I 73/2&3 8, I 74/20] 3, 223/2018, 3 73/202 8, 392/2 M 8 '£0 403/2013, 495/2013 Government service neg: arise iJ1 two contingencies. "f%w%% if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily"
wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise 'required by the institution which employs them, a time may come in the service career of such employees who are continued cw1 ad IMM: basis flit a. given substantial length of time to regularize them so 4 that the employees concerned can give their best by being assured security of tenureq fin; M255 wank?1
I lv raqnire ans prscandifinn inni the inifiai army sf such rm empiayea
-n mnsz' be §?'3(I(§€_ against an nvaiiabie sanctioned vacancy by faflawing the rules and regulations governing such entry.
32¢ The samnd type of situation in which the question <xf regularization rmqr arise nnnflri be when the initial ennx3r<1f the employee against an available vacancy ii; found to lemma suffered from some flaw in the procedural exercise though
55 OA N0s.141/2018 In I 62/2018, I 73/2018, 1 74/2018, 223/2018, 3 73/2018, 392/.2018 to 403/2013, 4'95/2013 the person appointing is competent to effect such initial recruitment enui has otherwise followed thus procedure ifiir such recruitment. zx need may then arise in the light of the exigency of administrative requirement for waiving such irregularity' in the initial appointment by a competent authority' and. the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even ill such a case tine initial entry must not be found to be totally illegal-or in blatant disregard "of all the established rules and . regulations governing such recruitment." '
33. fflua cases of time applicants fall iJ1 the first contingency referred. above. The initial entry of all the applicants in the present cases was not against the sanctioned vacancy and thus it was not following the rules and regulations governing snnfi1 entry; jHence, <nuxa the initial entry itself inn; unauthorised and run; against any sanctioned vacancy, question of regularising the applicants on zmnfln IKH1 existing "vacancies vunflri never survive jib: consideration auui even if such purported regularisation or confirmation 56 OA Nos. 141/2018 to Z 62/2013, l 73/2013, i 1 7d/2013, 223/201 3, 3 73/2013, 392/2018 to 403/201 3, 495/2013 is given, it would be an exercise of futility as held by the I~lon'ble Apex Court in the case of Ashwani Kama? and others Vs. State of Bihar and Others (1996 Supp. (10)SCR120). At the cost of repetition the observations made by the Hon'b-le Apex Court in the case of Umadevi (supra) are reproduced as below:--
"Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and afler a proper competition among qualified person, the some would not confer any right on the appointee. flit is a contractual appointment, the appointment . comes to an end at the end of the contract, it were an engagement or appointment on daily wages or causal basis, the same would come to an end when it is discontinued. ".... _ "It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term ofhis appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment 'mas not made by following a due process of selection as envisaged by the relevant rules. "
3d. Also we note that as pointed out by the respondents, all the present applicants have already applied for and competed in the examination conducted on 27.02.2018 for their
employment against the sanctioned posts of staff "nurses in pursuance of the Advertisement dated 23.10.2017. In view of this also, the applicants now have no merit in their claim for *1.
Q-
57 OA Nos. 141/2018 to 162/2018, I 73/2018,
1 74/2018, .223/2018, 3 73/20-18,
392/201 8 to 403/2018, 495/2018
regularisation of their services from the dates
of their initial appointments _g short~term
contract basis. '
35. In Vi€W of/the abo
// di cus ions, all the
present Originaiihppli at ns are devoid of any
merits and are tihus ismissed. No order as to
costs i ,5 '
1 T
(Ravindei Kafiiii K (Dr. Shagwan SaHgi§ R.
Member (J) Member (A)
H153.