Delhi High Court
Narinder Singh Ahuja And Ors. vs The Secretary, Ministry Of Health And ... on 3 November, 2014
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.10.2014
Pronounced on: 03.11.2014
+ W.P.(C) 1741/2014, C.M. NO.3645/2014
NARINDER SINGH AHUJA AND ORS. ..... Petitioners
Through: Sh. K. Venkatraman, Advocate.
versus
THE SECRETARY, MINISTRY OF HEALTH AND FAMILY
WELFARE AND ORS. ...... Respondents
Through: Sh. Ajay Digpaul, CGSC.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT %
1. In these proceedings under Article 226 of the Constitution, the petitioners are aggrieved by an order of the Central Administrative Tribunal (CAT) dated 10.01.2014 in OA No.1016/2013. Their application for a direction to continue them in the respondents' employment was dismissed by the said impugned order.
2. The applicants were aggrieved by the non-extension of their contractual appointment. They complain that the respondents' action in discontinuing such contracts is contrary to the decision to appoint all contractual employees for one year at a time with annual renewal every year till the project existed. Contractual appointments could be discontinued for non-performance/under performance/abolition of the post. This was to be preceded by show-cause notice and in case no satisfactory response was W.P.(C) 1741/2014 Page 1 received during the previous contract period, there could be termination of contract. The petitioners represented for continuation of their contracts but no decision was communicated to them. Their contracts thus expired on 31.03.2013. They have urged that there has been violation of the terms and conditions mentioned in the appointments letters and ignoring the cases of the applicants, respondents took a decision to conduct a meeting on 21.03.2013 for selection of contractual employees against the guidelines mentioned in their own letters and in disregard of the Financial Budget decision without any justification. No justification was given for discontinuing their contracts. The petitioners had also relied on the judgment of the Punjab and Haryana High Court in C.W.P. No.5269/2012, dated 21.03.2012 in similar circumstances.
3. The respondents initially appointed persons (including the petitioners) with approval of the Central Ministry of Health and Family Welfare for hiring the services of Data Entry Operators and Secretariat Assistants on purely contractual basis for the World Bank/GFATM assisted Revised Nation T.B. Control Programme (RNTCP) project at the Central T.B. Division. In terms of the office Memorandum dated 23.10.2002, respondents issued an appointment letter in favour of the first petitioner with certain stipulations, including that the contract could be terminated by either side on fifteen days' notice. The basis of the applicants' initial contractual appointment was to handle the work under the said programme for one year. The petitioners' contracts were extended by the competent authority from time to time for a further period of one year. The extension letters contained conditions of contractual engagement such as that they would be treated as Non-Official and would be neither entitled to any other service benefit of the Central Government nor could claim regularization. The contractual appointment was subject to the execution of an Agreement between the CTD and the employee as per the TOR. This was a full time W.P.(C) 1741/2014 Page 2 engagement and the contract could be terminated by either side at fifteen days' notice. Reliance was placed on the Budget and Financial Management too, to say that the condition for appointing contractual staff was a time period of one year at a time, with annual renewal every year to be done till the project existed. It was alleged by the Petitioners that during transition from RNTCP II to RNTCP 2012-2017, all contractual staff shifted on the post on new salary norms, retaining the actual increments amount received after the last revision of salaries. The respondents issued the order dated 04.01.2010, consequent upon approval of the Cabinet Committee on Economic Affairs to the proposal of RCC (GFATM) assisted RNTCP, with financial norms from 01.04.2009 to 31.03.2015.
4. The Petitioners secured the information under RTI Act, 2005 that two new persons, namely Mr. Zubar and Mrs. Gyan Prakash were posted as Executive Assistant on 28.04.2011 and that these two contractual staff were hired through the agency of DGHS/Ministry because of which two contractual employees had lost their jobs, despite the assurance being given by the Ministry that outsourcing policy would never get implemented and that petitioners would be exempted from that decision. However, a decision for outsourcing was taken resulting in discontinuance of the petitioners' contracts, as on 31.03.2013. The petitioners alleged that this was arbitrary, and in violation of Articles 14 and 16 of the Constitution of India. They also argued that the respondents violated the DOP&T instructions dated 11.12.2006, issued in compliance with directions Supreme Court in Secretary, State of Karnataka & Ors v. Uma Devi and others 2006 (4) SCC
1. The policy of outsourcing was made in the year 2010 whereas its implementation in 2013 was discriminatory, because the outsourcing policy had been exempted as far as the petitioners were concerned in 2011.
W.P.(C) 1741/2014 Page 3
5. The petitioners relied on the fact that National Strategic Plan (NSP) and revised salary had been approved by the Central Government from 2012 to 2017 and sanction/funding had been received from the Departmental Budget. Therefore, the contracts should have been extended, which was not done in their cases. Having regard to the fact that the respondents are bound by DOP&T instructions dated 11.12.2006, those having 10 years of service should be considered for regularization without any condition. Some of the petitioners with more than 10 years continuous services without any break, are legally entitled for regularization in terms of DOP&T instructions dated 11.12.2006.
6. The respondents argued the RNTCP was started in 1993 as a Pilot Project and funding was obtained from various international sources including the Global Fund against AIDS, TB and Malaria (GFATM) for different periods of time for different areas. Phase II RNTCP of the World Bank Project was approved by the CCEA for the period from October 2006 to September 2011 and the World Bank support to the Programme was extended up to September 2012. The funding from GFATM was approved up to March 2013. Thereafter, no funding support from any external agency was available for RNTCP. Under the RNTCP scheme/project, there was provision for some contractual (non-official) positions for Central level monitoring unit of the RNTCP project. Different persons were engaged on purely contract basis on yearly/half yearly basis on mutually agreed terms and conditions. In the meanwhile, the terms and conditions of the contracts were revised in tune with the terms of financial assistance of the donor agency and some persons who agreed on revised terms and conditions were again engaged on fresh yearly/half yearly basis. The petitioners' services were hired on contractual basis from time to time by entering fresh contract each time for a specific period, the last contract of each petitioner being for 9 months w.e.f. 01.07.2012 to 31.03.2013. The petitioners were aware that W.P.(C) 1741/2014 Page 4 they would be treated as Non-Official and would be neither entitled to any service benefit of the Central Government nor could claim regularization. Their contracts could be terminated by either side after giving fifteen days' notice. The payment of salaries of such staff till 31.03.2013 from October 2012 was paid from the Domestic Budget in order to honour the contract, instead of terminating the contract simultaneously with the expiry of World Bank support. The contract of two of the petitioners continued till 31.03.2013 co-terminus with funding with the support from GFATM.
7. The respondents urged that the National Strategic Plan for 2012-17 for RNTCP is a Plan document. A decision to engage contractual staff for Central Level Monitoring Unit of RNTCP under GFR 2005 i.e. GFR-178- 185 was taken, through outsourced agency of the Directorate General of Health Services (DGHS). DGHS finalized an agency for providing contractual staff. The remuneration of such outsourced staff for contractual service was much less than that which was being paid under the World Bank/GFATM assisted project RNTCP. Thus, the respondents engaged contractual staff from the outsourcing agency because of the lower remuneration payable to such staff. Once the petitioners' contracts ended on 31.03.2013, they had no right to continue their services. They had agreed to and accepted the terms of the contract up to 31.03.2013 on mutually agreed terms. There are no sanctioned regular posts of DEO or Secretarial Assistants for implementation of the project RNTCP, to enable the petitioners to claim regularization.
8. The CAT, by its impugned judgment, was of the opinion that the decision of the respondents not to continue the contractual employment of the petitioners could not be held to be illegal. The CAT held that the argument about violation of the ratio in Uma Devi (supra) was not sound W.P.(C) 1741/2014 Page 5 and that the decision of the respondents was based on a policy, which was not arbitrary. The CAT held that:
"The decision of the respondents to engage contractual staff for Central Level Monitoring Unit of RNTCP under FIR 2005 through outsourced agency of Directorate General of Health Services is a policy matter. Apart from the consideration of reduction of cost because of lower remuneration being paid under the outsourcing scheme, it is also to be considered whether in such matters of judicial review, there should or should not be any intervention in matters relating to "policy" of the respondents. We would feel that in all such policy matters the competent authority is to take a decision regarding the modality of implementation of the scheme. There can be no intervention in such matters by the Tribunal. One of the considerations in the present case for submitting to the outsourcing scheme is a lower cost involved in implementing the project by way of reduced remuneration to contractual employees. We are not, therefore, impressed with the argument of the applicant that the outsourcing policy for engaging employees on contract should not be implemented."
9. The petitioners argue that the CAT fell into error in holding that the decision to discontinue their employment and employ some others instead on contractual basis, by paying lower salary is arbitrary. Reliance is placed on Uma Devi (supra) to say that one set of contractual employees cannot be replaced by others. It was also submitted that the reply to queries made under the RTI Act amply clarify that the funding to the TB project would continue till 2017 and therefore, the impugned action is arbitrary. Counsel also relied on the decision in Babita Rani and Ors. v. Govt. of NCT of Delhi and Anr. 124 (2005) DLT 97.
10. Learned counsel for the respondents argued that the contractual employment of the petitioners was on consciously agreed terms; when the tenure of employment ended, they had no enforceable right to insist on extension or continuance. It was urged that the decision of the Central Government was that though the project might continue in modified form, W.P.(C) 1741/2014 Page 6 the structure of contractual employment was to be different; the DGHS had outsourced the task to an agency that provided employees on contractual basis. This eliminated its (DGHS) function in engaging its contractual employees.
Analysis and Conclusions
11. The above facts would reveal that the petitioners were initially engaged on contractual basis to man a project for eradication of TB. The project received renewed funding from foreign donor agencies, including World Bank. The nature of contractual employment was that the initial tenure was for nine months or one year, renewed from time to time annually. The last renewal was sometime in 2012. Their grievance is that though the TB eradication project continues and even receives funding, the latest policy to discontinue their employment and instead leave it to a contractor (i.e. outsourcing agency) to provide employees to do the same work is arbitrary.
12. To appreciate the controversy better, it would be useful to extract the relevant queries made to the respondents, by the Petitioners, under the Right to Information Act (RTI) together with the answers furnished. The same is reproduced in a tabular form, as follows:
RTI QUESTIONS RTI ANSWERS
Q. For how long, Revised The Revised National TB
NO.16 National TB Programme Control Programme has
will continue? Government's commitment
and planning
Commission's projection
currently indicate that the
Programme will be funded
W.P.(C) 1741/2014 Page 7
at least till XII Plan period
(2012-17).
Q. By when (kindly mention Eradication of
NO.17 year) Tuberculosis Tuberculosis can not be
Disease will get predicted, as it is an
Eradicated? infectious disease, with a
large reservoir of infection.
Q.NO. Will this Tuberculosis Yes, the Revised National
18 Programme continue to TB Control Programme is
run, in the interest of also supported by the
citizens of India even if Government, and it is likely foreign funding from that the Programme will World Bank, GFATM, continue. At the current USAID or other foreign planning Commission's donor agencies will got projections, Program will stopped? Yes or No? be funded at least till XII Plan period (2012-17).
Q.NO. Has the World Bank Yes, the World Banks loan
19 funding or loan from to the Revised National TB
World Bank to run Control Programme was
Tuberculosis Programme tenured till September
got stopped in September 2012.
2012? Yes or No?
Q. Will the RNTCP will run Yes, the Government of
NO.20 after funding/loan got India is committed to run
stopped in September the RNTCP using Domestic
2012? If yes, will it be Budgetary Sources, as also,
from GOI (Government of the Government's funds are
India) funds now? If no, supplemented by funding
kindly inform the source from GFATM (Global
of funding, if programme Fund Against Aids
will get run, if not from Tuberculosis, and Malaria) GOI funds. as well.
Q. If the RNTCP will run Yes, the approval of budget
W.P.(C) 1741/2014 Page 8
NO.21 from GOI funds has the outlay for 2012-17 been
sanctioning of funds been done in principle by
made by Ministry of Bureau of Planning, the
Health till year 2017? Yes actual financial approval
or No? are done from year to year
basis, depending on the
current fiscal year.
Q. If DOPT guidelines in r/o The question is hypothical,
NO.22 contractual employees applicant is requested to
will get breached by seek information on factual
Division. Is Tuberculosis questions. However, all
Division, what action government employees are
could be taken against subject to departmental
negligent on duty part regulations under the CSS
official in this regard and (Central Secretariat
who will be held Services) Rules. The rules
responsible for same in can be found on the Dept.
Tuberculosis Division? of Personnel and Training
Kindly provide copy of website.
rule informing Action http://www.persmin.nic.in/
Taken on negligence in DOPT/CSWing/CSDivision
r/o breaching DOPT /CSS/CSS%20RULES-
guidelines? 2009.pdf
Q.NO. After World Bank stopped
23 funding in September 12
The Budget head for
from which Budget, Head,
releasing salaries in
salaries of contractual
aforementioned period was
employees got released
Domestic Budgetary
till 31st March 13 whose
Sources (DBS), prior to
salaries were
this period the salaries
reimbursable through
were accounted to
world Bank earlier till
Externally Aided
Sept 2012 but whose
Component, since the
service contracts were till
tenure of World Banks loan
31st March 2013. Kindly
was completed in
indicate the Budget Head
September 2012, it was
W.P.(C) 1741/2014 Page 9
of releasing their salaries done to honor the st from Oct 2012 to 31 contractual obligations to March 2013. Was the employees.
Budget Head belongs to Government of India.
Q.24 Was Budget Head from The budget head for which salaries of salaries of contractual contractual employees employees is 'major head-
(Secretarial 2210'.
Assistant/DTOs) filed
court case in Hon'ble
CAT in March 2013,
whose salaries are/were
being paid from their
recruitment in TB
st
Division till 31 March
2013 from the Budget
Head is or GOI? Yes or
No? If yes, kindly indicate
the Budget Head.
Q.25 After World Bank funding The funds have been
got stopped in Sept 2012 sanctioned on 1st of on which date further October 2012.
Sanctioning of funds was made under GOI and who has sanctioned the same till year 2017.
Q.31 As mentioned in "Budget Yes, the National Strategic and Financial Plan is applicable to all.
Management of National strategic Plan 2012-2017 which has been approved by Ministry of Health is it true "During transition from Revised National TB Control Programme W.P.(C) 1741/2014 Page 10 (RNTCP) to RNTCP 2012-17, all the contractual staff shifts on new salary norms and retaining all actual increments amount received after last revision of salaries" Yes or No? If yes, is this extract applicable on all the contractual employees (including Data Entry Operators and Secretarial Assistants) mentioned in Budget and Financial Management of NSP placed before Ministry of Health for approval and which got approved by Ministry from 2012-2017.
If no, mentioned reasons for not being applicable.
Q.32 As per the reply provided
under RTI Approval dated
COMMON ANSWER TO
7.5.2013 (copy enclosed), Q.NOS.32,33,34, 35, 45
it was informed that AND 46:
outsourcing policy vide
circular No.I-
17014/7/2009-IWSU It has been a considered
dated 12.1.2010 is policy that the contractual
available for Data Entry staff including the Data
Operators, Stenographer, Entry Operator and
Secretarial Assistants are
routine secretarial
to be replaced by the
Assistance and basic regular employees, over a
accounting functions etc, period of time.
however, only secretarial Accordingly, regular
staff and Data Entry employees have been
W.P.(C) 1741/2014 Page 11
Operator were to posted at the Division.
replaced which is why
secretarial staff and Data
Entry Operators took help
of Judiciary (Hon'ble
CAT) in March 2013 and
judgment of which is
pending. Kindly
provide/mention reasons
or copy of sanctioning for
not implementing
outsourcing policy (I-
17014/7/2009-IWSU
dated 12.1.2010) on basic
Accounts functioning staff
who were again given
extension of Direct Basis
w.e.f. 20.5.2013 (copy
enclosed).
Q.33 If sanctioning for not
implementing outsourcing
policy (I-17014/7/2009-
IWSU) dated 12.1.2010
has been taken in r/o
basic accounting staff
working CTD, kindly
provide copy of
sanctioning including
notings since it is subject
to "Audit" and action on
negligent on duty part
officials could be
recommended in this
regard to high authorities
including Central
Vigilance
Commission/CBI as
W.P.(C) 1741/2014 Page 12
inspite of policy
(outsourcing) available,
the contract of staff doing
routine accounting work
got renewed from 20.5.13
onwards on direct basis.
13. The relevant part of the RNTCP, which contains the structural guidelines for operation of the project, in regard to contractual employment reads as follows:
"10. Contractual Service : Central Level monitoring unit strengthening is to include Technical officer and Technical assistants to each function of the technical unit, five data entry operators and four secretarial assistants and one statistician. The administrative section is to have one post of administrative officer and two administrative assistant. Finance section is to have three consultant finance, one finance manager, four accountants and one account officer. The procurement and logistics management section is to have one consultant, one logistic manager, one supply chain manager and ten assistants. Each NRL can be provided upto three microbiologists and four senior LTs for EQA. The national institute for tuberculosis to have one HR officer, two training facilitators, two epi-centre experts (one filed expert and one computer expert), one epidemiologist, two research officers, one librarian and one documentation assistant with a view to strength and promote research and its dissemination.
xxxxxx The existing contractual staff posts and persons, if in line with the above norms will continue as per the guidelines. The relocation of posts and person is to be undertaken as per the need and approval by appropriate authority. All the contractual staff will be appointed for 1 year at a time and annual, renewal every year to be done till the project exists, except discontinued for non-performance/ under-performance/ abolish of the post/show-cause notice issued and satisfactory response not received during previous contract period. During transition W.P.(C) 1741/2014 Page 13 from RNTCP II to RNTCP 2012-17, all the contractual staff shifts on the posts on new salary norms and retaining all the actual increments amount received after last revision of salaries."
14. The respondents' clear stand - apart from the petitioners not possessing any right to claim extension of contract, is that the changed policy no longer enables the Central Government to enter into contract with individuals, even if work exists, but that such contracts are to be entered through an "outsourcing" agency (read contractor). This is apparent from the following averments in the counter affidavit filed before CAT:
"7. The National Strategic Plan (NSP) for 2012-17 for RNTCP is a plan document. All relevant rules/ instructions are required to be followed for each activity/expenditure for implementing the NSP. It has been decided to engage contractual staff for Central Level Monitoring Unit of RNTCP under GFR 2005 i.e. GFR-178-185 through outsourced agency of Directorate General of Health Services (Dte.GHS), GOI. Dte.GHS/GOI has finalized an agency for providing contractual staff viz. Administrative Assistants, Stenographers & Typist-cum- DEO w.e.f. 01.01.2013. The remuneration of Rs.10942/- & Rs.11461/- per month per person for contractual staff being provided by outsourcing agency of Dte. G.H.S. is much less than that was being paid i.e. Rs.16500/- per month per person under World Bank/GFATM assisted project RNTCP. The Respondents are bound to take contractual staff from outsourced Agency of the Dte. G.H.S. as they are provided on lower remuneration than was provided under World Bank/GF funding. The decision economises as public exchequer.
8. Once the contract with applicants came to an end on 31.3.13, right of applicants to continue their contract also ended. No orders/ Rules/ regulations in this case have been violated. The contract which was up to 31.3.13 was signed on mutually agreed terms and conditions and the applicants have accepted the terms and conditions of hiring of their services on contract basis with open eyes. Their services cannot be continued after 31st March, 2013 as all these applicants were working under a project funded by World Bank/ GFATM. The World Bank Project ended on 30th Sept, 2012 and GF support ended on W.P.(C) 1741/2014 Page 14 31.3.13 and therefore Central TB Division (CTD) can not engage any contractual staff on World Bank/GF remuneration which is much higher than the remuneration charged by outsourcing agency. Even for World Bank/GFATM support, the remuneration of contractual positions is to be lowest. There are no sanctioned regular posts of DEO or Secretarial Assistants for implementation of the project RNTCP and therefore, the request of applicants for regularization does not arise. Further as per last agreement with the applicants which ended on 31.3.2013, the applicants cannot demand for regularization of their services."
15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the petitioners' engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to "outsource" engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners' contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the "outsourced" or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners' employment is not their replacement with regular appointees, but instead, with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended.
W.P.(C) 1741/2014 Page 15
16. For the above reasons, this court is of opinion that the CAT erred in law, in holding that the petitioners could not complain against the discontinuance of their contractual employment. Accordingly, a direction is issued to the respondents to continue the petitioners in contractual employment on annual renewal basis, till the currency of the RNTCP scheme/project in 2017. An appropriate consequential order shall be issued by the respondents within eight weeks from today.
17. The impugned order of the CAT is accordingly set aside; the writ petition is allowed in terms of the above directions.
S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) NOVEMBER 3, 2014 W.P.(C) 1741/2014 Page 16