Central Administrative Tribunal - Chandigarh
Shweta Madaan vs Post Graduate Institute Of Medical ... on 26 September, 2024
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No. 87/2022
Reserved on : 05.09.2024
Pronounced on :
HON'BLE SH. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
1. Shweta Madaan D/O Sh. Ashok Madaan, Aged 38 years, Working As
Junior Lab Technician In The Department of Histopathology, Post
Graduate Institute Of Medical Education And Research, Sector-12,
Chandigarh, R/O H. No.1-B, Type-II, Sector 12, PGIMER Campus,
Chandigarh. PIN-160012.
2. Rajesh Kumar S/O Sh. Parshu Ram Singh, Aged 42 years, Working
As Junior Lab Technician In The Department of Nuclear Medicine,
Post Graduate Institute Of Medical Education And Research, Sector-
12, Chandigarh, R/O H. No 863, Village Mullanpur, Mohali (PB.).
PIN-140901.
3. Lalita Kumari W/O Sh. Ashok Kumar, Aged 43 years, Working As
Junior Lab Technician In The Department of Cardiovascular Thoracic
Surgery, Post Graduate Institute Of Medical Education And
Research, Sector-12, Chandigarh, R/O H. No. 586, Sector 21,
Panchkulla. PIN-134109.
4. Jay Pratap Singh S/o Rang Narayan Singh, Aged 43 years, Working
As Junior Lab Technician in The Department of Histopathology, Post
Graduate Institute Of Medical Education And Research, Sector-12,
Chandigarh, R/O H. No. 30-B, Type-II, Sector 12, PGIMER Campus,
Chandigarh. PIN-160012.
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...Petitioners
(BY ADVOCATE: SH. ROHIT SETH)
VERSUS
1. Union of India through the Secretary, Government of India, Ministry
of Health & Family Welfare, Nirman Bhavan, New Delhi-110011.
[email protected]
2. The Governing Body, PGIMER, Through its Chairman cum-Union
Minister of Health and Family Welfare, Govt. of India, Nirman
Bhawan, New Delhi.110001. [email protected]
3. The Post Graduate Institute of Medical Education and Research,
Sector 12, Chandigarh through its Director. 160012.
[email protected]
...Respondents
(BY ADVOCATE: SH. SANJAY GOYAL SENIOR CGSC)
ORDER
Per: MRS. RASHMI SAXENA SAHNI, MEMBER (A):
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief :
i) Quash the order dated 25.05.2018 (A-1) passed by Director, PGIMER Chandigarh to the extent it is 3 prospective and not retrospective as the decision of the Governing Body dated 06.08.2016 (A-14) was for retrospective regularisation of applicants by giving similar benefits as have been given to similarly placed persons namely Sh. Jatinder Singh and Ms. Davidha Sodhi.
ii) Direct the respondents to implement the approval of Governing Body dated 06.08.2016 based upon agenda placed before it read with the approval of the Director PGIMER and grant benefits of retrospective regularisation along with all consequential benefits including pay fixation and increments from 25.05.2018 onwards as well as arrears of salary on fixation and interest thereon.
2. The brief facts leading to filing of this OA are that the PGIMER, Chandigarh issued an Advertisement dated 04.01.2006 inviting applications for filling 29 Posts (UR-18 and OBC-11)of Junior Lab Technicians in scale of Rs.5000-8000 on regular basis. The Applicants applied and appeared for written examination on 5th June 2006 followed by interview on 6th June 2006. The names of Applicants were in waiting list. Against 11 notified posts under OBC category, only six candidates were selected and 5 posts remained vacant. One candidate from UR Category and one candidate from OBC category did not join. Thus, the total vacant position of OBC category came to be six. To meet the operational 4 and functional requirements, as the regular sanctioned posts of Junior Lab Technician available in the PGIMER could not be kept vacant, due to exigency of work and by carving out exception, the PGIMER in the interest of Institute and the patient care vide order dated 29.06.2006 issued adhoc appointments to the Applicants 1, 2 and 3 against the six vacant position of the OBC Category. Subsequently, vide another order dated 11.08.2006 applicant No.4 was given Adhoc appointment against vacant OBC seat. The adhoc appointments were extended from time-to-time till 26.04.2010. The applicants were granted annual increments, Casual/Medical/Earned Leave, LTC and Maternity Leave at par with other regular employees.
3. However, vide letter dated 25.08.2010 the HOD‟s were conveyed that technicians may not be allowed to continue beyond 29.08.2011. Aggrieved by this applicants No.1 to 3 filed an OA No. 895-CH-2011 before CAT and they were ordered to be continued on interim basis and the OA was finally disposed of vide order dated 21.09.2012 with direction to respondent No. 2 to forward the names of the applicants to respondent No. 1 for consideration on point of regularization. The applicants were also held entitled to the wages for the period they worked. The applicant NO.4 filed OA 929-CH-2011 and was granted similar benefits. However, the Respondent No.1 vide letter dated 08.01.2014 ( through internal correspondence ) conveyed 5 rejection of proposal of regularisation and called upon authorities to convey orders to the applicants
4. Prior to this, the PGIMER authorities constituted a Committee vide order dated 17/26.12.2013 under the Chairmanship of Prof. Arunaloke Chakarbati, Head, Department of Medical Microbiology, PGI to re-examine the cases of adhoc employees, who have been working continuously since several years pursuant to their appointment after due selection being eligible and qualified as per then prevalent rules, including the applicants. The Committee gave recommendations in April 2014 while noticing that since all the appointments were made in accordance with the Recruitment Rules and following proper procedure by the Selection Committee constituted by the competent authority and are continuing for more than 10 years, the claims of Jr. Lab Technician namely Sh. Rajesh Kumar, Sh. Jai Prata Singh, Ms. Shweta Madaan and Ms. Lalita Kumar may again be sent to the Ministry with full facts with request to accord approval for regularization.
5. In the meantime, case of one similarly placed employee namely "Jatinder Singh", was allowed relief by this Hon‟ble Tribunal vide order dated 13.11.2014 in OA NO. 893/CH/2013, while recording a finding that the Director of Institute is competent to appoint Group B, C and D employees as per provision of PGIMER Act 1966 and Regulations 1967 and holding that reference to the Ministry of Health and Family Welfare appears to be unnecessary. The judicial review against the above 6 order vide CWP NO.4821 of 2015 titled Union of India Vs. CAT & Anr. was dismissed vide judgment dated 18.03.2015 and thereafter, the SLP filed by the PGIMER had also been withdrawn. Accordingly vide office order dated 27.07.2015, the services of Sh. Jatinder Singh were regularized w.e.f. the date of his initial joining as adhoc employee along with other consequential benefits. Another OA No. 1097/CH/2013 of adhoc appointee for regularization from initial date of appointment, titled „Davida Sodhi vs Union of India and Others‟, was allowed by this Hon‟ble Tribunal vide order dated 10.09.2015.
6. However, PGIMER Chandigarh vide Order dated 13.12.2014 conveyed to applicants that their services cannot be regularized in terms of judgement of State of Karnataka vs Uma Devi as they were not appointed against regular vacancies. Thereafter, in letter dated 09.11.2015 by the PGIMER, the Respondent No.1 vide letter dated 07.12.2015 conveyed that matter regarding regularization of left out ad-hoc employees be placed before the Governing Body. The matter was listed in the Supplementary Agenda Item No.3 dated 06.08.2016 which was put up before the Governing Body for approval of regularization of the services of the officials at Sr. No. 1 to 9 from the date of their joining on the same post which they were working on adhoc basis for the last 15 years at par with Mr. Jatinder Singh and Ms. Davidha Sodhi
7. Consequently, vide order dated 25.05.2018, issued by office of Director PGIMER for regularizing services of applicants were 7 regularised with immediate effect. This was apparently contrary to the approval by GB i.e. to regularize the services of applicants with retrospective effect. The applicants submitted a joint representation to Director dated 26.09.2018 and 31.01.2019 seeking regularisation with retrospective date. Vide letter dated 26.07.2019 Respondent No.1 referred the matter as to why the Institute issued order of regularization with immediate effect instead of from retrospective date as approved by the Governing Body.
8. With regard to the claim of applicants for grant of regularization from date of initial date of joining as referred to PGIMER authorities by the respondent No.1, the PGIMER authorities sought the advice from the office of the Chief Legal Advisor cum Asst Solicitor General of India on 21.09.2020. However, in the meantime, since the authorities were not releasing the salary, increments the applicants submitted representations dated 16.06.2020 to the Director PGIMER stating that that their file which was kept pending to await the decision in CWP No.26482 of 2018 titled Union of Inda vs Dr Neelam Aggarwal and others, should be considered, as the SLP has been dismissed
9. The applicants even served a legal notice dated 05.08.2021 (Annexure A-23), to the respondents. The Respondent No.1 vide letter dated 12.10.2021 (Annexure A-24) forwarded the copy of the Legal Notice to the PGIMER authorities for prompt 8 action. However, the issue is still pending and according to applicants this action is harsh, arbitrary, discriminatory and violative of Article 14,16 and 21 of Constitution of India. Hence the present OA
10. MA 242/2022 has been filed by all the applicants seeking permission to prosecute the OA jointy. The said MA has been allowed vide order dated 12.12.2022. We have perused the facts on record and the case laws relied upon by the parties. Respondents in their reply dated 10.10.2022 have confirmed that the applicants were issued appointment letters to the post of Junior Lab Technicians on adhoc basis in the year 2006. Their appointments were extended from time to time till 26.04.2010 and thereafter, CAT, Chandigarh Bench in 2011 stayed the relieving orders of all adhoc employees. Respondents in their reply in para 4(11) have categorically stated that the service benefits were allowed to Sh. Jatinder Singh in compliance to order dated 13.11.2014 passed by CAT in OA No. 893/CH/2013 and decision dated 18.03.2015 of Hon‟ble Punjab and Haryana High Court in CWP No 4321 of 2015. They have also stated that the agenda for regularisation of services of Ms. Davida Sodhi was placed before the Governing Body in its meeting on 13.10.2015 and was approved by GB.
12. In accordance with the recommendations of the committee under the Chairmanship of Prof. Arunaloke Chakraborti, case of regularisation of left out adhoc employees was sent to the 9 Ministry. The Ministry vide letter dated 30.11.2015 conveyed to PGIMER to reconsider the regularisation of left out adhoc employees and directed that Institute place the matter of regularisation of adhoc employees before the Governing Body (GB) for consideration as per rules and regulations applicable to the Institute. Accordingly, after approval of GB of the Institute, competent authority ordered regularisation of services of Chowkidars, Mortar mates who were initially appointed on Work Charge contract/ daily wage contract basis and were working for last more than 20 years in the Engineering Department and similar order has also been issued in respect of the present applicants on 25.05.2018 (A-1).
13. It may be recalled that the following officials were issued appointment letters for the post of Jr. Laboratory Technician on adhoc basis in the year 2006 against existing vacancies ( para 2 supra ). The details of their regularisation are tabulated below:
Sr.No Name ( Mr./ Detailes of Date of joining Date of Remarks Mrs.) appointment Regularisation, letters issued if any
1. Vinkesh Memo no. F- 07.07.2006 11.08.2006 Regualrised with Kumar 3(R)-EII(2)- immediate effect PGI-2006 vide office order dated Endst. dated 29.06.2006 11.08.2006
2. Shruti Memo no. F- 03.07.2006(AN) 11.08.2006 Regualrised with Sharma 3(R)-EII(2)- immediate effect 10 PGI-2006 vide office order dated Endst. dated 29.06.2006 11.08.2006
3. Shweta Memo no. F- 04.07.2006 25.05.2018 Regualrised with Madaan 3(R)-EII(2)- immediate effect PGI-2006 vide office order dated Endst. dated 29.06.2006 25.05.2018
4. Rajesh Memo no. F- 11.07.2006 25.05.2018 Regualrised with Kumar 3(R)-EII(2)- immediate effect PGI-2006 vide office order dated Endst. dated 29.06.2006 25.05.2018
5. Charanjit Memo no. F- 07.07.2006 N/A Appointed as Singh 3(R)-EII(2)- regular JLT vide PGI-2006 appointment letter dated dated 14.05.2010 29.06.2006 and joined on 17.05.2010
6. Jay Pratap Memo no. F- 07.07.2006 25.05.2018 Regularized with Singh 3(R)-EII(2)- immediate effect PGI-2006 vide office order dated endst. Dared 29.06.2006 25.05.2018
7. Lalita Kumari Memo no. F- 14.08.2006 25.05.2018 Regularized with 3(R)-EII(2)- immediate effect PGI-2006 vide office order dated endst. Dared 11.08.2006 25.05.2018 11 Anshu
14. Memo no. F- 17.08.2006 N/A Submitted Barnwal 3(R)-EII(2)- resignation w.e.f.
PGI-2006 22.08.2009
dated
29.06.2006
15. We find that there were 6 vacant posts of OBC against which these three applicants were given adhoc appointments ( refer para 2 supra ) It is thus clear, that the applicants were not regularised from the date of their initial joining but at a later date i.e. 25.05.2018 after a gap of almost 12 years. We find that 2 of the colleagues similarly situated in the same list were made regular on 11.08.2006 itself but we find that the same treatment has not been given to applicants despite vacancies. The statement of respondents is therefore incorrect. Thus it cannot be said that they have been appointed against posts which do not exist. Nor is Neelam Aggarwal‟s case relevant to applicants as it relates to direct recruits in grade of Professor and their pension issues and opening of GPF account from the date of joining with all benefits. Similarly the case of stenographers cannot be compared with the applicants as they were appointed on adhoc appointments and were regularised within one year of joining. The Uma Devi case relates to irregular appointments against sanctioned posts and where employees should have worked for 10 years without intervention of Tribunal or Courts. 12 This is also not relevant in this case as they were appointed against existing vacancies following the due selection process
16. We have also perused the supplementary agenda item no. 3 dated 06.08.2016 (A-13) relating to regularisation which was put before the Governing Body of PGIMER for consideration and approval. It is seen that the proposal for the regularisation of adhoc appointments of remaining candidates namely Ms. Shweta Madan, Sh. Rajesh Kumar and Ms. Lalita Kumari, Sh. Jay Partap Singh was put before the authority for taking decision in the month of May 2010 but as stated by respondents the said file went missing and did not reach the competent authority. It was not traced until May 2011 and then was subsequently put before the Appropriate Authority for its decision. In the meantime, the authority vide orders dated 25.08.2010 decided that the concerned HODs may be informed that the services of these technicians was approved till 26.04.2010 and their continuation beyond this date is unauthorised. In the circumstances, the fact that file was missing is very unfortunate. All the adhoc appointees field an OA before CAT, Chandigarh in year 2011 and CAT, vide its order dated 21.09.2012 (A-8) stayed the relieving orders of all the employees. It was held in para 5 of the order that "In the peculiar circumstances of the case, we would accordingly allow this OA with a direction that respondent No. 2 shall forward the names of applicants to respondent No. 1 for consideration on point of regularisation in accord with the policy in currency. In that process 13 of consideration, though, it is to state that obvious, the competent authority shall have unfettered discretion to take a view in the matter. We would however, expect the competent authority to take into the observations made by us in the course of preceeding para of this order into consideration"
17. The matter was referred to the Ministry and in response, the Ministry conveyed the decision on 30.11.2015. Accordingly the following approval was sought from GB Board vide supplementary Agenda Item No. 3 ( Annexure A-13). The relevant portion of which is as follows:
"Regularisation of the services of officials at Sr. No. 1 to 9 from th date of their joining on the same post on which they are working on adhoc basis for the last 15 years at par with Mr. Jatinder Singh and Ms. Davida Sodhi so as to ensure equitable treatment to these employees and as such they have become overage to seek employment elsewhere. They were recruited by the same Selection Committee which recommends the candidates for appointment on regular basis and possesses all the educational qualifications and experience prescribed in the recruitment rules". It was only with reference to services of Serial No. 10-16 that prospective regarlisation was sought. As seen from A-13 the applicants figured at Sr. No. 3,4,5 and 6 i.e. within first 9 names and were to be treated on par with Mr. Jatinder Singh and Ms. Davida Sodhi 14 As evident from A-14 vide letter dated 23.09.2016, said approval of governing body was conveyed regarding regularisation. In the meeting held on 06.08.2016 (A-14) and the governing body approved as under:
"The Governing Body approved the proposal in Principle However, before regularisation each case be thoroughly examined strictly as per the Judgement passed by Hon‟ble Supreme Court of India in case of Uma Devi."
18. As already stated the case of applicants is not covered by Uma Devi‟s judgement and as per the approval of supplementary agenda item no. 3 (Annexure A-13), their services should be regularised from the date of their joining at par with Ms. Davida Sodhi and Mr. Jatinder Singh.
Having considered facts on record, sequence of events and various orders. We find the shifting stand of respondents in building the narrative against the regularisation of services of applicants from the original date of joining is regrettable and unjustifiable. We find merit in OA. The regularisation of the applicants as approved by the Governing Body vide order dated 23.09.2016 (A-14) must be retrospective i.e. from the date of their joining on adhoc appointment. It is settled law that similarly situated employees should get similar benefits. Hence this retrospective regularisation should be at par with Mr. Jatinder Singh and Ms. Davidha Sodhi ( 15 the applicants in whose case retrospective regularisation was granted ).
19. Hence the order dated 25.05.2018 (A-1) passed by Director, PGIMER to the extent that it is prospective and not retrospective is quashed. The respondents are directed to grant the benefit of retrospective regularisation to the applicants and while granting them regularisation retrospectively, all consequential benefits including pay fixation and increments from 25.05.2018 onwards in continuation as well as the arrears of salary of fixation of pay shall be granted to the applicants. The necessary action shall be completed within 8 weeks of issue of this order.
20. No interest is to be granted on the arrears. OA is allowed. No order to costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA)
Member (A) Member (J)
DB*