Central Administrative Tribunal - Chandigarh
Dr Gaurav Ahluwalia vs Sports Authority Of India on 17 February, 2025
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A. No. 1013/2022
Reserved on: 16.01.2025
Pronounced on: 17.02.2025
HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Dr. Gaurav Ahluwalia (PT) Late of Late Sh. Inderjeet Singh
Ahluwalia, Physiotherapist, Sports Authority of India, resident of
#111 Rose Avenue, Patiala, Punjab. 147001 (Group-B)
...Applicant
(BY ADVOCATE: Sh. Harish Chandra)
VERSUS
1. Union of India through the Secretary, Ministry of Youth Affairs And
Sports, Room No. 401, C-Wing, Shastri Bhawan, New Delhi, Delhi
110001
2. Sports Authority of India through the President, SAI (Head Office),
Jawaharlal Nehru Stadium, Lodhi Road, Delhi, India.
3. National Centre for Sports Science & Research (NCSSR), Room No.
41, Indira Gandhi Stadium, New Delhi.
...Respondents
(BY ADVOCATE: Sh. Vishal Aggarwal along with Sh. Aayush Sharma)
ORDER
Per: SURESH KUMAR BATRA, MEMBER (J):
1. The applicant has filed instant O.A under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief:
(I) "Direction to the respondents to regularize the services of applicant as Physiotherapist and grant him benefit of regular pay scale of the post from due date, with all the 2 consequential benefits including arrears of salary and allowances for same or equivalent posts in Central Government and at least grant him the increased remuneration of Rs.1,05,000/- from due date with interest @ 18% per annum from the date the amount became due to the actual date of payment.
(II) Direction to declare that the applicant (contractual Physiotherapist) cannot be replaced with fresh appointee pursuant to the Notification/Advertisement dated 05.08.2022 (Annexure A-3) and quashing thereof to that extent."
2. Brief facts of the case are that the applicant has done Bachelor in Physiotherapy in 2004 from Subharati Physiotherapy College, Meerut, U.P. and Master in Sports Physiotherapy in 2008 from Guru Nanak Dev University, Amritsar, Punjab. He has done Orofascial Trauma in Boxing from Aspetar in Doha, Qatar in 2015, AIBA Team Cutman from AIBA in Tashkent, Uzbekistan in 2017, Neuromuscular Dry Needling from Physiohelp in Delhi in 2017 and Theraband & Ball from Sports Physio World in Amritsar in 2018.
3. The applicant has worked as Sports Physiotherapist in District Cricket Association, Meerut and U.P. State Cricket Association from 03.08.2007 to 09.06.2010, Wushu Association of India from 09.06.2010 to 15.06.2011, Swimming Federation of India from 15.06.2011 to 12.12.2011, Table Tennis Federation of India from 12.12.2011 to 01.02.2013, Weight Lifting Federation of India from 01.02.2013 to 20.02.2014 under Sports Authority of India. The applicant has also held the position of Medical Personal in CWG, Glasgow, Scotland in 2014, Team official in Asian Games, Incheon, 3 South Korea in 2014, CWG, Gold Coast, Australia in 2018 and as LOC, Medical Manager in 2018 in AIBA Women World Boxing Championship, New Delhi.
4. The applicant by way of an open selection conducted by the respondents was appointed vide order dated 01.03.2021 as Physiotherapist Grade II on contract basis with monthly remuneration of Rs.70,000/- for a period of three years, further extendable by two years for a maximum period of five years on the basis of satisfactory performance and with the increment of 7% annually. The engagement is on full time basis and he would not be permitted to take up any other assignment in any manner during the contract period. He is governed by CCS (Conduct) Rules, 1964.
5. The respondents during the currency of employment of applicant have advertised 138 posts of High Performance Analyst including (Physiotherapist etc.) on contract basis in SAI NCOES vide letter dated 05.08.2022. The number of post of Physiotherapist are 42 with consolidated monthly remuneration @ Rs.1,05,000/- with 10% annual increment. The qualification for this post is Bachelors degree in Physiotherapy/or equivalent from any recognized University/Institution with 5 years of experience in relevant filed or 3 years of experience with Masters in relevant filed or Ph.D in relevant filed. The desirable qualification is Masters' or higher Degree in relevant field from any recognized University/Institution and 1 year experience in the field of sports science/medicine.
6. It has been pleaded that the applicant is working as Physiotherapist under the respondents since 2021 and having requisite qualifications mentioned in the notification dated 5.8.2022 but after new selection sought to be carried out by respondents, he is most likely to be shunted out and is also 4 being paid lower salary of Rs.70,000/- whereas in the new advertisement the salary/remuneration has been increased to Rs.1,05,000/- with 10% annual increment and as such denial of this higher salary and regularization to the applicant is illegal, arbitrary, discriminatory, harsh, void ab initio, violative of articles 14 and 16 of the Constitution of India.
7. The applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of Daily Rated Casual Labour Employed under P &T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India and Ors. 1988(1) SCC 122, and in the case of Jagrit Mazdoor Union and Ors. v. Mahanagar Telephone Nigam Limited and Anr. including All India Postal Employees' Union Class III, Bombay etc. 1990 Suppl. SCC 133.
8. The respondents have filed reply contesting the claim of the applicant and submitted that as per the appointment order as well as the other annexure including advertisement etc. the applicant had been appointed on contract for a fixed period having fixed remuneration with a clear understanding that the services can be terminated at any time without assigning any reason. The appointment being purely contractual, the respondents are at liberty to continue with the services of the applicant or to dispense with the same. The applicant was well conveyed about the said terms and conditions of the engagement being on contract basis and therefore, does not bestow any right to claim for any regular appointment in SAI during the period of appointment and after the expiry of contract, which can be terminated at any point of time without any reason.
9. It has been submitted by the respondents that the existing staff has been given due opportunity by applying afresh for the same and therefore, the applicant should not have any grievance. Further, updating the skill is the primary duty of every expert and once updated, the said expert would 5 never shy away from competing with other experts. The present petition is nothing but an attempt to avoid competing with other experts. Moreover, keeping in mind the duties of the expert and their skills, the remuneration has been increased to attract the best talent from India. On one hand the applicant is shying away from applying afresh and competing with the other experts or on the other hand is seeking remuneration at par with the said experts, which cannot be done.
10. The applicant has filed the rejoinder to the reply filed by the respondents reiterating its earlier stand.
11. We have heard learned counsel for the applicant as well respondents and gone through the material available on record.
12. Admitted facts of the case are that the applicant vide order dated 01.03.2021 was appointed as Physiotherapist Grade-II on contract basis with monthly remuneration of Rs. 70,000/- per month for a period of three years, which can be extended by two further years for a maximum period of 5 years. The service of the applicant is governed by CCS (CCA) Rules, 1964 as indicated in Annexure A-2 offer of appointment issued by the respondents. During the currency of employment of applicant, the respondents have advertised posts of High Performance Analyst (HPA) on contract basis in SAI, NCOEs, vide Annexure A-3 dated 05.08.2022. We have perused the advertisement dated 05.08.2022 and find that total 138 vacancies of High Performance Analyst, at the consolidated monthly remuneration of Rs. 1,05,000/- were advertised by the respondents, wherein, 42 posts are reserved for Physiotherapist. The reservation quota in total 138 vacancies has also been applied. The criteria for short listing of the candidates, for interview, who fulfills the essential qualification, has also been prescribed. The tenure of contractual engagement of High 6 Performance Analyst (including Physiotherapist) is for one year with further extendable in cycle of one year upto the maximum of 8 years on the basis of performance. Having seen the sequence of events, we find that the respondents, during the contractual engagement of applicant, initiated process of engagement of Physiotherapist with the change of nomenclature as HPA on contractual basis, whereas the nature of the duties and responsibility of both are same. The respondents have not taken any plea that these posts are regular posts of HPA govern by the Recruitment Rules.
13. The plea of the applicant is that he has been working with the respondents since, 2021 but despite having requisite qualification and essential experience in terms of advertisement dated 05.08.2022, he will be ousted having been replaced by the another contractual employee. Per Contra, the contention of the respondents is that the appointment of the applicant is purely on contract basis with a fixed remuneration having clear understanding that the services can be terminated at any time without issuing any reason. On the basis of advertisement dated 05.08.2022 as well as contention of the respondents in their written statement we find it evident that the respondents started the process of engagement of Physiotherapist with new nomenclature of High Performance Analyst (HPA), on contract basis and wanted to replace the applicant with other contractual employee, which is neither justified nor permissible under the law. It is a settled legal proposition that one set of contractual employee cannot be replaced with another set of contractual employee. The action of respondents is tantamount to the infringement of legal rights of the contractual employees, who has not completed his contractual period. We find no averment in the reply that the performance 7 of applicant is below benchmark, therefore, the action of the respondents is held to be arbitrary. In the case of Piara Singh (supra) the Hon'ble Supreme Court held as follows:
"45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/temporary employee.
46. Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."
It is evident from the issuance of advertisement of vacancy of 42 posts of Physiotherapists, the services of Physiotherapist are required by the respondents to run SAI, NCOEs.
14. The respondents have also taken the defence that in view of the decision of Hon'ble Supreme Court in the case of Secretary State of Karnataka vs. Uma Devi 2006 (4) SCC, the instant petition is not maintainable. The arguments of respondents is misconceived and contrary to the ratio of latest judgment of Hon'ble Apex Court in the case of Jaggo vs. UOI, wherein the Hon'ble Supreme Court held as under:
"26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny 8 legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular"
appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."
(Emphasis supplied)
15. We are of the considered view that the applicant has been appointed by the respondents as Physiotherapist vide order dated 01.03.2021 on 9 contractual basis, but his claim for regularization is pre-mature as he has even not completed the contractual period of three years. Therefore, the prayer for direction to the respondents to regularize the services of applicant lacks merit.
16. Learned counsel for both the sides has placed reliance on the order dated 04.11.2023 passed by the Principal Bench in O.A No. 597/2023, wherein the similarly situated persons posted at NCSSR, New Delhi have challenged the circular dated 09.02.2023 as well as sought quashment of advertisement dated 05.08.2022. The Principal Bench of this Tribunal vide aforesaid order allowed the O.A, with the direction to the respondents as under:
"29. In the facts and circumstances of the case, the OA is allowed with direction to the competent authority amongst the respondents to consider the applicants as 'Initial Constituent' as per 2022 (4) Rules notified on 03.08.2022 and pass an appropriate reasoned order in this regard as expeditiously as possible and in any case within 8 weeks of the receipt of a copy of this order and till, service of such order(s), the applicants will not be terminated. Consequently the termination orders dated 09.02.2023 and 10.02.2023 are quashed. No costs."
17. The order dated 04.11.2023 of the Tribunal was assailed by the respondents before the Hon'ble High Court of Delhi in WP (C) No. 2920/2024 and WP (C) 2955/2024, which was disposed of by the Hon'ble High Court vide order dated 28.02.2024. Thereafter, the respondents preferred review application before the Hon'ble Delhi High Court seeking recall of order dated 28.02.2024. The Hon'ble Delhi High Court, vide order dated 26.11.2024 declined to grant the prayer of recall of order dated 10 28.02.2024. Therefore, the applicant is entitled for the same protection as has been granted to the similarly situated persons.
18. The another limb of argument of the respondents is that, the existing staff has also been given opportunity to apply afresh against the advertisement dated 05.08.2022. It is a settled proposition that things which cannot be done directly are not allowed be done indirectly. Since, the intention of the respondents is to replace the services of applicant with another set of contractual employees by way of fresh advertisement, the same cannot be allowed. There is no iota of doubt that the respondents are entitled to appoint regular staff by way of selection to the regular post governed by the recruitment rules, but they cannot be allowed to replace the contractual employee with another set of contractual employee. During the currency of contractual employment of the applicant, the replacement of applicant with another contractual employee with higher remuneration appears to be unreasonable and unjustified.
19. Once the applicant has been engaged by the competent authority for a period of three years, then prima facie there is no reason to allow/compel the applicant to participate in further selection process for the same contractual employment. We do not find any strong reason, that, if the applicant had been selected and engaged by the Competent Authority through a valid selection process and his contractual period still exists, the respondents should initiate action to re-place his service by another contractual employee.
20. The claim of applicant to increase remuneration at the rate of Rs. 1,05,000/- per month is not acceptable as the applicant is bound by the terms and conditions of his contractual engagement dated 01.03.2021 11 (Annexure A-2) as he had accepted the offer of contractual engagement with monthly remuneration of 70,000/-. Therefore, the prayer for regular pay scales of similar or equivalent post in central government is meritless.
21. In view of the discussion hereinabove, the O.A is disposed of with direction to the respondents not to replace the services of applicant with another set of contractual employees till the regular appointment is made as per RRs. No costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA)
Member (A) Member (J)
ms*