Central Administrative Tribunal - Ernakulam
Preetha Thomas vs The Secretary Ministry Of Human ... on 4 April, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00552/2019
Monday, this the 4th day of April 2022
CO RAM:
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Preetha Thomas,
W/o.Shyju.M.Varghese,
Aged 49 years,
Erstwhile Computer Operator-cum-Programmer,
National Technical Manpower Information System,
NTMIS Nodal Centre for Kerala,
Cochin University of Science and Technology,
Kalamassery, Cochin - 682 022.
Residing at VB Springs, A Block 103,
CSEZ P.O., Kakkanad, Cochin - 682 037. ...Applicant
(By Advocate Mr.M.R.Hariraj)
versus
1. Union of India represented by Secretary,
Ministry of Human Resource Development,
Department of Higher Education (T),
C Wing, Shastri Bhawan, New Delhi - 110 115.
2. All India Council for Technical Education,
represented by its Chairman, Nelsonmandela Marg,
Old JNU Campus, Vasantkunj - 110 070.
3. Cochin University of Science and Technology (Abstract),
represented by its Registrar, Cochin - 682 022. ...Respondents
(By Advocates Mr.V.A.Shaji [R1]
Mr.V.Sajithkumar [R2] and Mr.Vipin.D.G [R3])
This application having been heard on 24 th March 2022, the Tribunal
on 4th April 2022 delivered the following :
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ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant was posted as a Computer Operator-cum-Programmer (COCP) in the National Technical Manpower Information System (NTMIS), Nodal Centre for Kerala located at the Cochin University of Science and Technology (CUSAT) in Kalamassery. She has filed this O.A as she is aggrieved by the inaction to permanently absorb her in the service of the 1st respondent, (Secretary, Ministry of Human Resource Development (MoHRD), Department of Higher Education [T]) or in any institutions under the MoHRD. The 1st respondent had initiated a scheme called the National Technical Manpower Information System for the generation, maintenance and disbursement of a National Data Base of Technical Manpower in 1993. Under the scheme, 20 Nodal Centers were established using the infrastructure of various technical institutions across the country. The fund for running the scheme was provided by the 2 nd respondent - All India Council for Technical Education (AICTE). In Kerala the Nodal Center was located at the CUSAT in Kalamassery. The 1 st respondent had sanctioned various posts, including the post of COCP, in every Nodal Centre. It is submitted that after due procedure of selection, the applicant in the O.A was appointed as a COCP at the Nodal Centre at the CUSAT, vide order dated 09.07.1999 produced at Annexure A-1.
2. The respondents have drawn attention in this connection in their reply that one of the conditions of Annexure A-1 was that the post was temporary and co-terminus with the project at NTMIS and may be terminated by the -3- University during its currency. It appears that the project was continuing for some time and finally in 2012, vide the orders produced at Annexure A-2, it was declared that the services of all contract/temporary staff engaged for theNTMIS Nodal Centre was being terminated with effect from 01.04.2012. Accordingly the service of the applicant working as COCP on temporary basis in the NTMIS Nodal Centre was also terminated with effect from the same date ie., 01.04.2012. The applicant then challenged the order of termination in W.P.(C) No.11040/2012 filed in the Hon'ble High Court of Kerala.
3. The applicant submitted that since the All India Council for Technical Education had stopped funding for the project, all issues relating to the NTMIS were considered by a Committee headed by a Professor I.K.Bhat appointed for the purpose. The Bhat Committee took a decision in its meeting held on 04.08.2012, minutes of which have been produced at Annexure A-3, regarding identification of the actual number of permanent regular staff of the Nodal Centres of NTMIS based on appointment letters etc., The Committee did this to explore the possibility of adjusting them in their respective Institute or nearby Institutes of the MHRD or AICTE. As per the information provided to the Committee relating to each Nodal Centre under the NTMIS Scheme, the Committee examined at the possibility of absorption of the staff. It was of the opinion that only those staff members who have more than five years of uninterrupted service on any of the four sanctioned project positions (COCP being one of them) should only be considered for any possible absorption at the respective -4- Institutes where the Nodal Centre exists. The Committee was also of the view that due to their long association with the scheme many of the staff of the NTMIS might have crossed the age limit for consideration in any other government job. As such, the Committee recommended that these candidates should be considered for absorption at appropriate levels in the respective institutions/organizations where these Nodal Centres were operating against vacant positions. In case, such positions were not available, the institutions could get additional positions created and consider such candidates. The Committee looked at the case of each individual staff member. It is submitted that it has been recorded in the case of the applicant, against the Nodal Centre at CUSAT, that she too has been recommended for absorption.
4. It is submitted that the recommendations of the Bhat Committee at Annexure A-3 were later accepted by the 1st respondent (Ministry of HRD, Department of Higher Education [T]). The 1 st respondent decided that staff of the Nodal Centre would be considered for absorption in the host institution, and that, in case the host institution was not funded by the Ministry of HRD, then they could be absorbed in the nearby MHRD institutions, if necessary by creating supernumerary posts. In this connection, minutes of the meeting held on 22.01.2013 under the Chairmanship of the then Secretary, MHRD (Shri.Ashok Thakur) has been produced at Annexure A-4. As per this meeting the following decisions relating to the staff were taken at Para III :
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(a) The staff engaged in the earlier Nodal Centers in the project NTMIS should be considered for absorption in the host institution against suitable posts based on their Educational Qualification and Experience, as recommended by the Bhat Committee. The existing employees may be given an age relaxation for the vacant posts existing in the host institutions for which they shall be considered.
(b) In case the host institution is a state funded institution (not Centrally Funded Institution), the nearby MHRD Institution may be requested to consider for absorption of the staff.
(c) If no suitable post is vacant/available in such an Institution supernumerary post may be created.
(d) If any staff could not be absorbed by the Host/MHRD Institution, they will be engaged in the new scheme by IAMR.
This provision would be specifically mentioned in MoU of NISTCHR.
(e) Necessary approval from IFD of the Ministry shall be taken for deployment of such staff in case supernumerary posts need to be created.
5. The applicant submits that the above minutes exhibit a clear commitment on the part of the MHRD to absorb people like her in a suitable posts, if recommended by the earlier Committee headed by Prof.I.K.,Bhat. However, the matter remained unresolved even though she was one of the recommended candidates. Later some employees of the Nodal Centre in Mumbai approached the Mumbai Bench of this Tribunal in O.A.No.268/2015. The Tribunal, after referring to the meeting indicated above, and also after referring to the orders passed by the Chandigarh Bench and the Principal Bench of this Tribunal in similar matters, finally directed as follows (orders produced at Annexure A-5) :
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"48. We find that in these cases, the Respondent No.3 being a state funded Institute, their omission or commission is not amenable to the jurisdiction of Central Administrative Tribunal. As such, in spite of recommendation of Bhat Committee, inter alia, to absorb the applicants in Nodal Centres, we cannot give any direction to the Nodal Centre run and funded by State of Maharashtra. However, the Ministry of Human Resource Development may take appropriate steps in this regard to comply with the recommendations of Bhat Committee.
49. Having regard to the facts and law as discussed herein above the Respondent No.2 is directed (a) to release all arrears of salary and allowances extending the benefits as recommended by the 6th Pay and in terms of Revised Pay Rules payable with effect from 01.01.2006 till 31.03.2013. (b) The Respondent No.1 - MHRD and the Respondent No.2 - AICTE are directed to take steps to absorb these applicants immediately in any of the Institutes of MHRD or AICTE, in the event the replaced scheme NISTECHR is not operating from the Nodal Centre at Mumbai."
6. It is submitted that the above orders of the Tribunal, though relating to the Nodal Centre employees in Maharashtra, also apply to the applicant herein as she is similarly situated. The applicant further submits that the AICTE went on appeal against this order in W.P.(C) No.305/2017 before the Hon'ble High Court of Judicature at Mumbai. The Hon'ble High Court of Judicature, Mumbai dismissed the W.P against orders of the Tribunal in its judgment dated 21.03.2018 produced at Annexure A-6. The judgment upheld the findings recorded by the Tribunal and did not find any reason to interfere with it. It was noted that the Ministry of HRD had not filed any petition against the Tribunal's order. Later, the matter was taken to the Hon'ble Supreme Court by the AICTE in S.L.P.No.12599/2018. However, the said S.L.P was dismissed, as the orders of the C.A.T., Mumbai Bench of the Tribunal had since then been already implemented. The matter -7- was dismissed as having become infructuous by the Hon'ble Apex Court in its judgment dated 17.07.2018, produced at Annexure A-7. It is further submitted that the Hon'ble High Court of Kerala also similarly disposed of the Writ Petition W.P.(C) No.11040/2012 filed by the applicant in this O.A in its judgment dated 06.04.2017. A copy of the judgment has been produced at Annexure A-8 and paragraph 16 of the same reads as follow :
"16. A survey of the pleadings guide me to conclude inescapably that the most appropriate authority to consider the petitioner's claim would be the Secretary of the third respondent Ministry. This is because all the above mentioned recommendations make it obligatory on the third respondent to consider the claims of persons like the petitioner for absorption or re-employment. I am fortified in my view by a judgment of the Gauhati High Court in W.P.(C)No.395/2016 dated 17.01.2017 wherein the said Court has already directed that persons like the petitioner be absorbed or appointed by the Ministry of Human Resource Development even by creation of supernumerary posts in the host institutes. Even though I notice the directions of the Gauhati High Court to be peremptory, I deem it appropriate that instead of issuing such orders, I grant liberty to the petitioner to approach the third respondent with a representation detailing her claims so that it can be considered by the competent authority in a suitable manner.
In such circumstances, I order this writ petition granting liberty to the petitioner to approach the competent Secretary of the third respondent Ministry by making an appropriate representation detailing all her claims on the strength of Exhibits P14 to P16 recommendations within a period of two months from the date of receipt of a copy of this judgment. If such a representation is received by the competent Secretary of the third respondent Ministry within the time granted herein, the same shall be considered by the Secretary in its true perspective and taking into account the specific and singular recommendations contained in Exhibits P14 to P16 and to issue orders thereon as expeditiously as possible but not later than three months from the date on which such representation is received by him/her."-8-
7. As a follow up to the above orders of the Single Bench of the Hon'ble High Court of Kerala, the applicant submitted a representation detailing her claim on the strength of Exhibits P-14 to P-16 in the judgment (Annexure A-3 and Annexure A-4 in this O.A). She requested the Secretary, Ministry of HRD in the representation to direct her absorption to regular service with effect fom 01.04.2012 onwards, the date on which her services as COCP at the Nodal Centre for State of Kerala attached to the CUSAT, was terminated. She also requested the granting of pay and allowances, including service benefits as per the existing Central Pay Commission norms, as done in the case of similarly situated employees in other States. She indicated in the representation that she could be considered for appointment in any of the MHRD Institutions in the State of Kerala at Cochin, namely, National Institute of Open Schooling (NIOS), National Council for Teacher Education (NCTE), Kendriya Vidyalaya Sangathan (KVS), Navodaya Vidyalaya Samithi (NVS), All India Council of Technical Education (AICTE) and Indira Gandhi Open University. In case of non availability of vacancies in any of these institutions, she prayed that her case be considered for creation of a suitable supernumerary post for her absorption into regular service, as directed by the Hon'ble High Court of Kerala. A copy of this representation dated 20.07.2017 has been produced in this O.A at Annexure A-9. However, it appears that it has remained unanswered or without any action taken on it so far, inspite of the directions of the Hon'ble High Court.
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8. Subsequent to this there were some follow up meetings held in MHRD regarding status of absorption of NTMIS staff, as brought out by the applicant at Annexure A-10 where efforts for absorption of similarly placed employees were considered. However, the applicant's case was not considered in Annexure A-10. Later, as indicated by letter at Annexure A-11 the Ministry of HRD wrote a letter to the Chairman, AICTE on 02.07.2019 that cases of 15 employees of NTMIS were yet to be settled, as per the list enclosed. The applicant's name figures at Sl.No.10 in the said list. In view of the above, the applicant submits that she has every right to be considered for absorption. She, therefore, prays for the following reliefs in the O.A :
1. To direct the Respondents 1 & 2 to absorb the applicant in accordance with Annexure A-3 and Annexure A-4 with effect from the date of Annexure A-4 with all consequential benefits including arrears of pay and allowances.
2. To grant such other relief as this Hon'ble Court may deem fit to grant.
3. To grant costs of this Original Application.
9. We heard Mr.M.R.Hariraj, learned counsel for the applicant, Mr.V.A.Shaji, learned counsel for the Respondent No.1, Mr.V.Sajithkumar, learned counsel for the Respondent No.2 - All India Council for Technical Education and Mr.Vipin.D.G, learned counsel for the Respondent No.3 -
CUSAT. Learned counsel for the Respondent No.2 filed a statement in which he has submitted that a perusal of the Annexure A-1 appointment order of the applicant would reveal that her appointment to the post of -10- COCP in the CUSAT was clearly a temporary one. The appointment order states that the post is temporary and is co-terminus with the project on NTMIS or may be terminated by the University during its pendency and was in a pay scale of Rs.2000-3500. Further, the Annexure A-2 order issued by the 3rd respondent - CUSAT - also has unambiguously stated that the services of the contract/temporary staff engaged for the NTMIS Nodal Centre were to be terminated with effect from 01.04.2012. Hence, the services of the applicant who was just a temporary staff, had been terminated vide Annexure A-2. It is also submitted that the reference of the Committee headed by Prof.I.K.Bhat was only with regard to the possibility of absorption of the permanent regular staff of the Nodal Centres of NTMIS only. This has also been clearly stated in the Annexure A-3 minutes of the meeting of the said Committee, wherein in the beginning, the relevant portion of the minutes state that the terms of reference of the Committee were to identify the actual number of permanent regular staff of the Nodal Centres of NTMIS, based on appointment letters etc., and to explore the possibility of adjusting them in their respective Institutes or nearby Institutes of the MHRD or AICTE. In addition, the 3 rd respondent, CUSAT, also vide its letter dated 09.05.2019 had informed the applicant that her services had been terminated with effect from 01.04.2012. It was confirmed in the said letter that the appointment had been temporary and was co- terminus with the project and the question of absorption did not arise. This letter has been produced at Annexure R-2(a).
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10. Drawing from the above, the learned counsel for the Respondent No.2 submits that from a perusal of the documents annexed by the applicant herself it is evident that being a staff on temporary basis till the date of her termination, she has no right to be considered at par with the recommendation of the Bhat Committee and the subsequent recommendation of Ashok Thakur Committee, which were meant specifically for employees on permanent rolls of NTMIS. The learned counsel also relies on Madhyamik Shiksha Parishad, U.P vs. Anil Kumar Mishra (2005) 5 SCC 122, in which the Hon'ble Apex Court had held that if the engagement was made in a particular work or in connection with a particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and that the High Court cannot direct they be continued or absorbed elsewhere. The said dictum was also appreciated and confirmed by the Constitutional Bench of the Hon'ble Supreme Court in Secretary, State of Karnataka vs. Umadevi & Ors. (2006) 4 SCC 1. Hence, in view of the circumstances of the case, the applicant who is only a temporary employee has no right for absorption or regularization.
11. Another reply statement has also been filed by the 3 rd respondent, CUSAT, through Mr.Vipin.D.G, learned counsel. It is submitted that as per the University Order dated 09.07.1999 the applicant had been appointed purely on temporary basis against the post of COCP, co-terminus with the project. The post could be terminated by -12- University during its currency. It is submitted that since the University had been facing acute shortage of finance, the services of the contract/temporary staff engaged for the Nodal Centre were terminated with effect from 01.04.2012 vide University Order dated 27.03.2012, as a remedial and corrective measure. The other permanent staff working in the Centre had been transferred back to their parent institutions. It is submitted that since the post of COCP was purely temporary, the University had the liberty to terminate the post during its currency. As per the appointment letter dated 21.10.1999 issued to the applicant, she had no preferential claim for any future appointment in the University. Further, the host institution, namely, CUSAT, being a state funded institution (not centrally funded), only the nearby MHRD institutions have to consider the absorption of staff of the Nodal Centre, subject to acceptance of the recommendations of Anneure A-3 minutes of meeting dated 04.08.2012. It is submitted that the CUSAT was not represented in the said meeting at Annexure A-3.
12. We have considered all these contentions. The AICTE has tried to emphasise that the appointment of the applicant to the post of COCP being temporary, she is not covered by the recommendations of either the Bhat Committee (minutes brought out at Annexure A-3) or by the subsequent Ashok Thakur Committee (minutes brought out at Annexure A-4). It is stated that these recommendations were meant specifically for employees on permanent rolls of NTMIS. It is contended that there is no right of the applicant to be considered for absorption as it was only in the case of -13- permanent regular staff of the Nodal Centre of NTMIS that these Committees had made their recommendations. Further, the CUSAT has also submitted that being a state run institution, it is not covered by whatever decisions were made at Annexure A-3 and Annexure A-4 minutes of these Committees. However, notwithstanding the orders of the Hon'ble Apex Court in the matter of temporary project employees, brought to notice by learned counsel for the AICTE, it is also to be noted that the Hon'ble High Court of Kerala in its judgment dated 06.04.2017 in W.P.(C) No.11040/2012 (at Annexure A-8) filed by the applicant had accepted that the appropriate authority to consider the applicant's claim in this regard was the Secretary of the Ministry of HRD (Department of Higher Education [Technical]). The Hon'ble High Court had observed in its orders that the recommendations of the minutes produced at Annexure A-3 and Annexure A-4 in this O.A., make it obligatory on the concerned Secretary to consider the claims of the persons like the applicant for absorption or re-employment. The Hon'ble High Court had relied on a judgment by the Hon'ble Gauhati High Court in W.P.(C) No.395/2016 dated 17.01.2017, wherein the said High Court had directed that persons like the applicant should be absorbed or appointed by the Ministry of Human Resource Development, even by creation of supernumerary posts in the host institutes. The Hon'ble High Court of Kerala had granted liberty to the petitioner (applicant in this O.A.) to approach the Secretary of the MHRD by making an appropriate representation detailing all her claims on the strength of Exhibits P-14 to P-16 (Annexure A-3 and Annexure A-4 in this O.A) within a period of two months from the date of receipt of a copy of the judgment. It had been also -14- directed that in case her representation is received by the competent Secretary of the MHRD within the time granted, the same would be considered by the Secretary in its true perspective, taking into account the specific and singular recommendations contained in Exhibits P-14 to P-16 (Annexure A-3 and Annexure A-4 in this O.A). The concerned Secretary was directed to issue orders, thereon, as expeditiously as possible but not later than three months from the date on which such representation is received by him/her.
13. Accordingly, it appears that the applicant had given a detailed representation to the concerned Secretary, MHRD, which has been produced at Annexure A-9 in this O.A. She has in her representation relied on the minutes of the meeting of the Bhat Committee constituted by the MHRD which specifically recommended her case for absorption in regular service. This apparently was followed by a similar decision taken by the Secretary, MHRD in a meeting held on 22.01.2013, a copy of which is produced at Annexure A-4. Thus, she had prayed for the consideration of appointment in any of the MHRD institutions in the State indicated earlier. It appears that the said representation is pending inspite of the directions of the Hon'ble High Court to issue orders on the same as expeditiously as possible, but not later than three months from the date on which such representation was received. The representation is dated 20.07.2017 and it has been almost five years since the same had been submitted. The sole indication of follow up steps being taken by the respondents in the matter is the Annexure A-11 letter addressed to the AICTE from the MHRD, wherein it has been stated -15- that at least 15 cases of employees of NTMIS are yet to be settled inspite of the comprehensive decision in the matter taken by the then Secretary (Higher Education) in the meeting held on 22.01.2013 regarding absorption of NTMIS staff. The name of the applicant is shown at Sl.No.10 in the list attached to the letter dated 02.07.2019.
14. All these indicate that there still appears to be some sporadic efforts being made to absorb some of the NTMIS staff, notwithstanding the fact that they were appointed on a temporary basis or otherwise. We find that the applicant too has the right to be considered in the light of the directions of the Hon'ble High Court of Kerala in her case. We, therefore, direct the Respondent No.1, Union of India represented by its Secretary, Ministry of Human Resource Development, Department of Higher Education (Technical) to immediately consider the representation submitted by the applicant at Annexure A-9 and pass necessary orders in line with the directions of the Hon'ble High Court in W.P.(C) No.11040/2012 at Annexure A-8. The Respondent No.1 should take into account the fact that the applicant is being regularly considered for absorption, as evidenced in the Annexure A-3 and Annexure A-4 minutes, as well as the letter produced at Annexure A-11. Thus, we direct the Respondent No.1, the Secretary to take a proper decision in her case by passing a speaking order, within a period of three months from the date of receipt of a copy of this order.
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15. The O.A is disposed of with the above directions. No order as to costs.
(Dated this the 4th day of April 2022)
K.V.EAPEN P.MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00552/2019
1. Annexure A-1 : True copy of the order No.P1(UGC)3/19107/83 dated 09.07.1999.
2. Annexure A-2 : True copy of the order No.NC/1/2011-12 dated 30.03.2012 of 3rd respondent.
3. AnnexureA-3 : True copy of the minutes of the meeting held on 04.08.2012 along with its Annexure.
4. Annexure A-4 : True copy of the minutes of meeting dated 22.01.2013.
5. Annexure A-5 : True copy of the final order dated 17.08.2016 in O.A.No.268/2015 and connected cases on the files of Mumbai Bench of Hon'ble Tribunal.
6. Annexure A-6 : True copy of the judgment dated 21.03.2018 in W.P. (C) No.305/2017 and connected cases on the files of High Court of Judicature, Mumbai.
7. Annexure A-7 : True copy of the judgment dated 17.07.2018 in S.L.P.No.12599/2018 on the files of Hon'ble Supreme Court of India.
8. Annexure A-8 : True copy of the judgment dated 06.04.2017 in W.P. (C) No.11040/2012.
9. Annexure A-9 : True copy of the representation dated 20.07.2017.
10. Annexure A-10 : True copy of the minutes of meeting held on 06.06.2019.
11. Annexure A-11 : True copy of the letter No.33/02/2015-TS.II(pt) dated 02.07.2019.
12. Annexure R-2(a) : True copy of the Letter dated 09.05.2019 issued by the 3rd respondent to the Director (Admn.), AICTE.
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