Central Administrative Tribunal - Delhi
Smt. Aruna Kumari vs Union Of India Through Secretary on 6 February, 2009
Central Administrative Tribunal Principal Bench, New Delhi T.A.No.33/2008 This the 6th day of February 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Smt. Aruna Kumari Wife of Shri Mahesh Sharma R/o 2428, Sector 3, Faridabad Haryana ..Applicant (By Advocates: Shri G.D. Gupta, senior counsel and Shri S.K. Sinha, counsel for applicant along with him) Versus 1. Union of India through Secretary, Ministry of Health & Family Welfare New Delhi 2. National Institute of Health & Family Welfare through its Director Munirka, New Mehrauli Road New Delhi 3. Deputy Director, Administration National Institute of Health & Family Welfare Munirka, New Mehrauli Road New Delhi ..Respondents (By Advocate: Shri Mukul Gupta) O R D E R
Shri Shanker Raju:
By virtue of this TA-33/2008, applicant has impugned respondents order dated 30.12.1994 whereby she had been relieved as Lower Division Clerk (LDC) working on ad hoc basis w.e.f. 31.12.1994. Reinstatement and regular appointment as LDC without break in service is also prayed for in this TA.
2. National Institute of Health & Family Welfare (NIHFW) has been notified under Section 14 of the Administrative Tribunals Act, 1985 for the purpose of jurisdiction of the Central Administrative Tribunal.
3. Engagement of applicant, who was working on daily wages since 1988 as LDC, has been extended from time to time by the respondents. This appointment was through proper channel vide letter dated 15.7.1988. Pursuant upon a selection by a duly constituted Selection Committee in NIHFW, an interview was held for recruitment of Group C posts as per Byelaw 17 C of NIHFW Rules & Regulations.
4. In the year 1992, respondent No.2 constituted a panel out of LDCs working on daily wages for filling up the regular vacancies. Out of 30 LDCs, 9 were selected and designated as LDC on ad hoc basis for which a departmental examination before the Selection Committee was held. Applicant was taken on the roll of the Institute and was appointed w.e.f. 1.4.1993 as LDC on ad hoc basis by an order dated 26.4.1993 with a stipulation that ad hoc appointment will not confer any right to claim any further promotion. The aforesaid was continued till 31.12.1993. Applicant got due wages in the scale of Rs.950-1500 with increments added to the salary. A GPF account number was allotted and regular deduction was also made vide memorandum dated 16.9.1993. However, vide letter dated 13.12.1994, applicant was reverted from the post of LDC and was relieved of her duties w.e.f. 31.12.1994, which has been assailed in CW-144/1995 before the High Court of Delhi. Notices were issued to the parties. In the order passed on 27.2.1996, on the contention of the applicant that one Anita, who was shown at Sl.No.41 in Annexure A-19, was appointed as LDC, an affidavit has been sought from the respondents to disclose the reasons under which any LDC appointed after the applicant has been retained in service and also to disclose the vacancy position. This vacancy position was ultimately filed by the respondents through an affidavit, yet a notification for direct recruitment as LDC when issued in 1995 was stayed by the High Court.
5. Meanwhile, by filing CW-3033/1995, Virender Singh Rawat & others got an interim order from High Court of Delhi for their continuance as LDC. Their grievance was that once they have been appointed as LDC on regular basis in the panel for future vacancies, dispensation of their service and non-appointment on regular basis is not accordance with law. An order passed on 23.3.2004 in the said petition directed the respondents to consider their claim for appointment against regular vacancies. An LPA filed against the same was withdrawn, as the order passed by the High Court stood implemented by regularizing these petitioners against vacancies of 1996-97 by an order passed on 31.8.2004.
6. Shri G.D. Gupta, senior counsel appearing for applicant assailed the order dispensing with the services of the applicant on the ground that the applicant was appointed on regular basis in 1989 and was placed in the panel for future vacancies by an order dated 1.2.1989. As such after following the due process of selection procedure and interview, which is stipulated under the Rules & Regulations, treating her appointment on ad hoc basis when the clear vacancies existed right from 1996, which is apparent from the fact that in compliance of WP-3033/1995, the vacancies existed in the past, which have now been sought to be abolished on revival and the others have been regularized, applicant who is figuring in the merit list, her claim is to be processed being similar to the petitioners in WP-3033/1995. As such, the order dated 31.8.2004 implementing the directions, mutatis mutandis applies in all fours to her. As such applicant on a methodology adopted by the respondents on getting the post revived should be given appointment from 1997 with continuity.
7. Learned senior counsel would contend that the plea of the respondents with regard to the leave vacancy of one Susheela on ad hoc basis and thereafter her repatriation to the Department as a result of which applicants services have been dispensed with, cannot be countenanced, as once there are vacancies existed in 1994 and the others have been continued, there has to be a presumption that vacancies were available but the applicant had not been continued.
8. Learned counsel while referring to the decision of High Court in WP-3033/1995 states that the applicant being similar as after 12000 candidates who applied in pursuance of an advertisement, a panel formed against future vacancies refers to a regular post and a distinction between panel and merit sought to be drawn by the respondents is misconceived, as regular vacancies were intended to be filled up and at the same time it was intended to have a list of eligible persons to be readily utilized. Respondent No.2s intention was to effect a merit selection by subjecting all the applicants to the required tests as per prescribed qualifications and prepare a merit list thereafter. The petitioners therein were not back door entrants and having been subjected to a process of regular selection, they found employment initially as daily wagers but later on ad hoc basis as senior. As such, there has to be a presumption of existence of regular vacancies. The directions were issued in the above backdrop, it is stated that no cogent reasons have been accorded that the applicant was not given the same treatment.
9. Learned counsel has cited the example of one Vimal, who has been appointed on ad hoc basis and is continuing till date.
10. Learned counsel with regard to regular selection states that there is an admission in the synopsis filed by respondent Nos.2 & 3 wherein pursuant upon the advertisement for regular vacancy, a selection process was initiated and thereafter the applicant was appointed on ad hoc basis. It is also admitted that after the selection, a merit list was drawn and there were 13 posts of LDC. In this backdrop, it is stated that not acting on the merit list and thereafter the contention that future vacancies are subjected to a fresh selection cannot be countenanced, as a fresh advertisement issued in 1995 calling of selection of LDCs against the vacancies arose subsequently when stayed and since a ban is there, which has not come in the way of petitioners in WP-3033/1995 and also the posts were revised, applicant, who has been in the merit list as the petitioners in WP-3033/1995 and the applicant has not come before the judicial forum for her regular appointment, she has a valid right to be considered against those available vacancies.
11. Learned counsel also states that the admission of the respondents in their affidavit dated 24.3.2007 that as on 31.3.2006 total cadre strength of LDC is 19 and as these posts are still lying vacant since 1997, applicants claim has become more reasonable for implementation.
12. Learned counsel has invoked Articles 14 & 16 of the Constitution of India to contend that there cannot be an invidious discrimination between similarly circumstanced and equally situated persons and as such the Institute when funded by the Government, they are bound by the rules of the Government.
13. Shri Gupta, learned senior counsel states that the appointment of the applicant in 1993, i.e., precisely on 26.4.1993 on ad hoc post as LDC does not refer to any leave vacancies. As such one Mukesh Kumar, who was also similarly circumstanced, has been regularized vide order dated 31.8.2004 on the directions of High Court in WP-3033/1995 (supra) where he was a party.
14. On the other hand, Shri Mukul Gupta, learned counsel for respondents vehemently opposed the contentions and stated that as per the decision in Secretary, State of Karnataka & others v. Umadevi & others, 2006 (4) SCALE 197, irregularly appointed persons if had continued for 10 years only one time measure they should be regularized but when the applicant had not worked on ad hoc basis and even on daily wages, exception would not be attracted in this case. It is also stated that a litigious continuance is not to be counted towards this period and those decisions, which run counter to the principle laid down shall be denuded of their status as a precedent.
15. Learned counsel has filed an affidavit on 24.3.2007 whereby it is stated that any vacancy by way of open selection on non-technical posts lying vacant over six months cannot be filled up, except after obtaining exemption from the Ministry of Health & Family Welfare and Ministry of Finance. As there is no proposal before NIHFW to fill up vacant post of LDC, this direction to fill up the post would amount to creation of posts.
16. Synopsis filed by the respondents have been relied upon to contend that pursuant to selection process in 1989, no panel was prepared but a merit list was prepared where the name of the applicant was at Sl.No.43. As such, only 9 posts under the regular cadre were directed to be filled up and no one was engaged against the regular cadre from the merit list. However, in the absence of one Smt. Susheela Bhalla, who was on deputation, applicant was appointed on ad hoc basis but as soon as she joined the parent cadre, ad hoc engagement was terminated.
17. Learned counsel would rely upon the decision of Apex Court in Secretary, A.P. Public Service Commission v. B. Swapna & others, (2005) 4 SCC 154 to contend that the merit list holders were required to be considered against the future vacancies even then the employer could have scrapped the merit list and resort to the fresh selection against the future vacancies is to be made. It is also stated that fresh advertisement dated 28.6.1995 was issued for selection of LDC and while relying on plethora of cases, including K. Shekhar v. Indiramma & others, (2002) 3 SCC 586, it is stated that even in panel, one does not acquire any indefeasible right to be appointed against the future vacancies.
18. It is also stated that reliance on a decision in WP-3033/1995 is misplaced, as the petitioners therein, who were in the higher merit than the applicant, continued to work till 1995 under interim order by the Court, as such a little difference in fact leads to a different conclusion for which a decision of the Apex Court in Union of India v. Chajju Ram, (2003) 5 SCC 568 is relied upon.
19. Lastly, learned counsel would contend that a wrong decision in favour of some would not entitle others to claim similar relief, as ruled by the Apex Court in State of Bihar v. Kameshwar Prasad, (2000) 9 SCC 94.
20. We have carefully considered the rival contentions of the parties and perused the material placed on record.
21. Appointment by back door entry and also dehors the statutory rules has been held to be unconstitutional in Umadevis case (supra). However, the only exception is that those employees, who had been irregularly appointed but continued for last ten years as one time measure, their claim for regularization is to be processed by the Government.
22. As regards the proposition of irregular and illegal appointment, if any appointment is made following the process of law and a panel is prepared against future vacancies, then non appointment, despite availability of vacancies, a legal mala fide and arbitrariness on part of the Government is to be presumed and in such an event, a judicial review is open.
23. To fill up the vacancies is the prerogative of the Government and one has no indivisible right on appointment but appointment on an equally settled principle is that it is only on justifiable reasons that Government can keep the post vacant, as has been ruled in Batiarani Gramiya Bank v. Pullab Kumar & others, 2004 SCC (L&S) 715.
24. Mere announcement of vacancy does not give an indivisible right to claim that the same shall be filled up but non-filling the vacancies for a long time, an adherence to strict time schedule is the dicta ruled by the Apex Court in Malik Mazhar Sultan & another v. U.P. Public Service Commission & others, 2006 (4) SCALE 1. No doubt, any vacancy left over from previous selection automatically is included in subsequent selection, as ruled in Madan Mohan Sharma v. State of Rajasthan, (2008) 3 SCC 724 and no interference is permissible by the Government.
25. With the above clear position of law, one aspect, which has to be dealt with is that the respondents have nomeclatured the decision in WP-3033/1995 as a wrong law, benefit of which to the applicant has been treated as extension on principle of negative equality.
26. In our considered view, an order when passed by judicial fora and against which LPA has been rejected and there is no further challenge to the order before the Apex Court and rather implementation thereto, there has to be a legal presumption in law that the decision was correct in law and it has a precedent value to be applied to the similarly circumstanced.
27. Applicant admittedly is mutatis mutandis situated in all aspects with the petitioners in WP-3033/1995, except that they had continued to work by an interim order passed by the High Court but the services of the applicant were dispensed with. The original order of putting them as LDC on daily wages was pursuant upon a selection process, as prescribed under the rules by the Selection Committee with jurisdiction and a panel thereafter formed is not only against the existing but also against future vacancies.
28. In that backdrop, the High Court of Delhi in a Single Bench observed as under:-
10. Writ petition came up for preliminary hearing on 22.8.1995. Notice to show cause was issued. Interim orders were passed that services of the petitioners would not be terminated. The interim orders continue to operate till date. Position as of today would be that the persons who were promoted as UDCs and against their resulted vacancies petitioners herein were appointed as LDCs on ad hoc basis, continue to work as they are. The regular LDCs who were granted ad hoc promotion to UDC have not been reverted and continue to work as UDCs. The resultant vacancy to the post of LDC continues to exist.
11. Petitioners are not back door entrants. Petitioners were subjected to the process of regular selection in the year 1989. They found employment under respondent No.2 initially as daily wagers and then on ad hoc basis because of being senior enough in the merit list which was prepared.
12. Petitioners 1, 2, 3 and 5 continue to work under respondent No.2. It is not disputed that petitioner No.4 left for United States of America by availing leave for 6 months in the year 2001. Sanctioned leave in her favour has lapsed but she has not re-joined. She is sending applications from the United States of America seeking extension of leave. Leave has not been extended to her. She is unilaterally continuing to send applications seeking extension of leave.
13. Services of the petitioners came to be converted into ad hoc appointments in the year 1992. Petitioners would have had to offer themselves for regular selection in the year 1995 but for the interim orders passed by this court.
14. Considering the fact that the petitioners have already undergone the process of regular selection and have continued to work to the satisfaction of respondent No.2 and there existed regular vacancies to the post of LDC, in the special facts of the present case, relief must ensure to petitioners No.1, 2, 3 and 5. Relief is being denied to petitioner No.4 as her status was that of an ad hoc employee whose tenure having come to an end she continued to be in service under interim orders passed by this Court. The fact that she has proceeded to the United States of America in the year 2001 and since then she has not joined her duties, in spite of no leave being due to her and none being sanctioned, disentitles her to the grant of any relief.
15. Writ petition is allowed qua petitioners No.1, 2, 3 and 5. Mandamus is issued to the respondent to treat the services of the petitioners Nos. 1, 2, 3 and 5 as regular employee with effect from the date they were first appointed on ad hoc basis as LDC. Counsel for the petitioners state that the petitioners have earned their yearly increments and in that view of the matter, no arrears or difference of back wages or re-fixation of wages has to be ordered. No costs.
29. Having regard to the above, the question of law, which has been settled, is not on the basis of factual situation and continuance of the petitioners in WP-3033/1995 on ad hoc basis but on the ground that once the petitioners therein have already undergone a selection of regular process and there existed a regular vacancy to the post of LDC, denial of appointment on regular basis and treating the services as regular employees from the date they have been placed on ad hoc basis as LDC is the ratio decidendi.
30. How far is it applicable in the case of the applicant is the question posed before us, which has to be answered?
31. From the records, including the synopsis and affidavit filed by the respondents, it is no more res integra that 19 posts of total sanctioned cadre of LDC were lying vacant since 1997 and as these posts were lying vacant for such a long time, while complying with the directions of the High Court of Delhi in a Single Bench, an order passed on 31.8.2004 whereby Virender Singh Rawat and Mukesh Kumar, who particularly was appointed along with the applicant, it is not indicated that the appointment is made against leave vacancies. The said Mukesh Kumar has been regularized w.e.f. 12.1.1998, i.e., the date of accrual of vacancies and also has been treated regular on getting the post revived by a methodology adopted by the respondents. Merely because the applicant was not protected by the High Court and by way of an interim order, as she had been relived, yet the fact of existence of vacancy cannot be denied. Applicant, who was appointed on ad hoc basis without any indication as to being appointed against leave vacancy, when all these persons right from 1994 to 1995 on the stay orders, have not been disturbed on account of reversion to their substantive post of LDC, an isolated stand of the respondents as to appointment of the applicant against leave vacancy cannot be countenanced in law and in fact when a common order has been passed appointing them on ad hoc basis, there has to be a presumption that the applicant was appointed against them, who have been promoted as UDC and in such an event, there subsequent reversion would not claim the appointment of the applicant, who has since been appointed on following the due process of law.
32. As a juxtaposition, on one hand respondents have implementing the directions of the High Court by giving appointment to Virender Singh Rawat and others on 31.8.2004 when their continuance was litigious but at the same time they are not following the dicta in Umadevis case (supra) talks volume of their reasonability of action.
33. Be that as it may, right in the year 1997 and before that there existed regular vacancies of LDC, which had not been filled up and those were future vacancies, as indicated in 1989 by the respondents and also a merit panel prepared by them when after the appointment of Virender Singh Rawat & others and also other persons, who had not come before the Court, it was incumbent upon the respondents to have considered the applicant as per her merit and appointed her on regular basis on the same methodology as adopted in Virender Singh Rawats case (supra). We are satisfied that the applicant was identical in question of law for its applicability in the present case as per the decision of the High Court. Non-extending the benefit would not only amount to invidious discrimination and violative of Article 14 of the Constitution of India but also a piece of unreasonableness and arbitrariness in action of the respondents.
34. Equity may not be considered a legal ground as part of law but when law is to be applied, one of the factors of consideration would be equity. Applicant, who continuously worked from 1985 till 1994 after following due selection process, non-appointment on regular basis without any justifiable grounds, implies an act of mala fide, which as per the Constitution Bench decision in Shankarsan Dash v. Union of India, (1991) 3 SCC 47 cannot be countenanced in law.
35. In the result, for the foregoing reasons, we partly allow this TA and order dated 30.12.1994 is quashed. As a result thereof, respondents are directed to consider the claim of the applicant for regular appointment as LDC against the vacancies of 1997 at par with Virender Singh Rawat and others (petitioners in WP-3033/1995). In such an event, applicant would be deemed for the purposes of seniority and continuity of service as regular appointee of 1997. She, however, shall not be entitled to back-wages but other benefits shall be bestowed upon her. The above exercise shall be completed within a period of two months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/