Central Administrative Tribunal - Cuttack
Ashoke Ghosh vs Sports Authority Of India on 24 September, 2024
1 O.A.No. 260/00732 of 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00732 of 2012
Reserved on 29.08.2024 Pronounced on 24.09.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Ashoke Ghosh, aged about 40 years, S/o Chittaranjan
Ghosh, at present working as Archery Coach, Sports
Authority of India, SAG Centre, At/PO/Dist-
Sundargarh.
......Applicant
VERSUS
1. Union of India, represented through its Secretary,
Ministry of Sports, New Delhi.
2. Director General, Sports Authority of India, New
Delhi-110001.
3. The Director, Sports Authority of India, Netaji Subhas
Eastern Centre, Salt Lake City, Kolkata-98.
4. Deputy Director, Sports Authority of India, Barabati
Stadium, Cuttack.
5. Assistant Director, Sports Authority of India, Special
Area Game Centre, At/PO/Dist-Sundargarh.
......Respondents
For the applicant : Mr. N.R.Routray, Counsel
For the respondents: Mr. B.K.Mohapatra, Counsel
2 O.A.No. 260/00732 of 2012
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
This matter was heard and reserved by the previous Division Bench of this Bench on 22.02.2022 and final order was pronounced on 22.04.2022 dismissing the OA on merit. Applicant challenged the said order before the Hon'ble High Court of Orissa in W.P.(C) No. 16429/2022. The Hon'ble High Court of Orissa vide order dated 22.02.2023 quashed the order of this Tribunal and remitted the matter back for disposal afresh since the order was passed beyond the period of three weeks from the date of reserve as provided under Rule 105 of Chapter-XVII of Central Administrative Tribunal Rules of Practice, 1993. In compliance of the order of the Hon'ble High Court of Orissa, the OA was restored to file and listed for hearing and final disposal afresh.
2. The relief sought by the applicant in this OA is as under:
"to issue notice for show cause and call for the records and on perusal of causes shown and upon insufficient causes shown be pleased to direct the respondents to impart regular scale of pay as admissible and as is being given to the similarly situated employees in SAI SAG centers without dispensing with services of the applicants and further be pleased to quash the impugned letter by email dtd. 09.09.2020 under Annexure-A/12 and direct 3 O.A.No. 260/00732 of 2012 the respondents to grant consequential service and financial benefits.
And may pass such other order/orders as deemed just and proper....."
3. According to the Ld. Counsel for the applicant, the applicant is entitled to the relief sought in this OA because although the applicant was selected through regular process of selection to the post of Archery Coach he was given appointment on contractual basis with a consolidated pay per month in the time scale of pay Rs.5500 + DA @ 52% Rs.2860+ Rs.500 against TA/HRA/CCA= Rs.8860/- initially for a period of six months vide Office Order dated 04.04.2003 and the same was extended from time to time. Subsequently, by virtue of interim order passed by this Tribunal, he was continuing as such. It is submitted that since the applicant completed 240 days in a calendar year, he was entitled to regular scale of pay as admissible and is being given to similarly situated employees in SAI SAG centers without dispensing with his service after quashing the letter dated 09.09.2020 dispensing with his service w.e.f. 01.09.2020. Further case of the applicant is that respondent issued advertisement afresh for filling up of various posts including the post in which the applicant was selected 4 O.A.No. 260/00732 of 2012 and appointed on contractual basis but the applicant could not avail the opportunity to apply and appear as he was over-aged. It is alleged that similarly situated person had approached this Tribunal in OA 354/1996 which was disposed of on 18.4.2002 giving liberty to make representation. Accordingly the said applicant submitted representation and on consideration of his representation his services were regularized. Although the present applicant is similarly situated and submitted the representation, no action was taken to grant him the benefit as was given to the applicant in OA 354/1996 and on the other hand, the respondents issued order dated 09.09.2020 discontinuing the applicant from contractual engagement w.e.f. 01.09.2020 retrospectively, which is bad in law. Next contention the applicant is that the Govt. of India in order to avoid undue financial hardship, if any such contractual, causal or outsourced employees stayed away from working place due to lockdown and restrictions imposed by the Govt. for Covid 19 pandemic, they shall be treated as on duty during such period of absence entitling them their wages, thus, the order of disengagement issued on 09.09.2020 is highly illegal.
4. On the other hand, the respondents by filing counter contested 5 O.A.No. 260/00732 of 2012 the case of the applicant and the stand taken therein has been reiterated by the Ld. Counsel for the respondents in course of hearing. The respondents stoutly denied the very stand of the applicant that he was appointed through any regular process of selection as per rules. It has been stated that on the date of his initial engagement on contractual basis, i.e. on 04.04.2003, he was already overaged. He was engaged on contractual basis without even following due process of rules to man the work. His contractual engagement was extended from time to time till 30.09.2013. Since, his very entry (on contractual basis) was without following due process of rules and law, and beyond the statutory provision of age limit, the contention of the applicant of completion of 240 days in a calendar year is of no consequence. In order to buttress their stand, they have taken the support of the decision of the Hon'ble Apex Court in the case of State of Karnataka Vs. Uma Devi & Ors, 2006 (4) SCC 1 and, accordingly, prayed for dismissal of this OA being devoid of any merit.
5. We have considered the rival submissions of the respective parties and perused the materials on record. As regards the first relief claimed in this OA by the applicant, viz. to direct the respondents to 6 O.A.No. 260/00732 of 2012 impart regular scale of pay as admissible and as is being given to the similarly situated employees in SAI SAG centers, is concerned, it may be recorded that the initial engagement of the applicant was on contractual basis with specific conditions as under:
"Approval of DG, SAI is hereby conveyed to appoint Shri Ashoke Ghosh as Archery coach on contract basis for a period of six months from the date he joins his duty at Archery Academy, Jamshedpur on the following terms and conditions:-
1. He will be paid a remuneration of Rs. 8860/- per month (Basic Rs. 5500.00 + DA @ 52% Rs.2860.00 Rs.500.00 against TA/HRA/CCA Rs.8860/-) for working on six days a week.
2. He will be entitled to avail casual leave for 8 days in a calendar year. Other kind of leave will be admissible as per provisions in CCS (Leave) Rules.
3. If he is required to proceed on tour on official duty he will be entitled to TA/DA as admissible under the normal rules by a Grade III coach of SAI.
4. The appointment can be terminated at one month notice from either side.
5. He will not be entitled to the facilities like reimbursement of Medical expenses and Leave Travel Concession.
6. This appointment does not bestow any right upon the coach for a regular appointment in SAI.
If, the above terms and conditions are accepted by Shri Ashoke Ghosh, he may convey his acceptance along with 7 O.A.No. 260/00732 of 2012 his joining letter to the Regional Director Incharge, SAI, Eastern Centre, Kolkata and a copy to the undersigned (Emphasis added).
6. The applicant accepted the conditions with open eyes and joined on contractual basis and continued with the terms and conditions as stipulated till his contractual engagement was dispensed with from 01.09.2020. The applicant has claimed that he should be paid the regular scale of pay as was given to similarly situated employees but no document has been produced to state that any person was engaged on contractual basis after being overaged de hors the statutory provision with the specific conditions as in his case had ever been paid the regular scale of pay. Rather, law is well settled that parties are estopped under law to wriggle out from the terms and conditions of engagement. This is more acceptable because had the applicant not accepted the conditions and reported to duty, there might be other person who could have agreed and joined in the said post. The applicant has placed reliance on the decision of the Hon'ble Apex court in the case of State of Punjab & Os Vs. Jagjit Singh & Ors., (2017) 1 SCC 148, to state that the applicant is entitled to regular pay scale since he is discharging similar duties to that of a regular employee against 8 O.A.No. 260/00732 of 2012 sanctioned post and the OM of the DoP&T dated 04.09.2019 and 07.10.2019. We have gone through the decisions. The facts and issues involved in the case relied on by the applicant and that of the instant OA are completely different and distinct. Hence, the case, relied on, is not applicable in the present case because, in the instant case, the prayer of the applicant is to give him regular scale of pay as is being given to similarly situated employees in SAI SAG but no record has been produced to substantiate that any of the similarly situated employee like the applicant has been granted regular scale of pay but he was denied the same. Furthermore, the decision relied on is not for payment of scale of pay to contractual employee. Similar is the situation in so far as the OMs relied on by the applicant and, therefore, on the face of the said OMs, the same are not applicable. Therefore, this assertion of the applicant does not sound to appeal and is not acceptable under law.
7. Insofar as the prayer to direct the respondents not to dispense with his contractual engagement is concerned, since his services had already been dispensed with and in absence of any such prayer for his regularization, the prayer is axiomatically made redundant. Insofar as 9 O.A.No. 260/00732 of 2012 the prayer of the applicant for quashing of his order of disengagement retrospectively vide order dated 09.09.2020 w.e.f. 01.09.2020 is concerned, according to the applicant, in terms of the GoI memo dated 23.03.2020 issued during Covid 19 pandemic it has been clarified that wherever any contractual, casual and outsourced staff of Ministries/Department and other organization of GoI is required to stay at home, they shall be treated as "on duty" during such period of absence and necessary pay/wages would be paid accordingly. This circular has no application at all to the case in hand because a contractual appointee does not have any accrued right to claim for his continuance when such appointment was made de hors the rules, especially beyond the maximum age limit fixed by the GoI for entering into government service. Admittedly, the contractual engagement of the applicant was extended from time to time, obviously, taking into consideration the need of the hand of the department. No document has been produced by the applicant to substantiate that although his contractual engagement was in force when he was disengaged retrospectively during lockdown. The applicant has also not produced any document to show that the lockdown imposed by the GoI/State of 10 O.A.No. 260/00732 of 2012 Odisha due to Covid 19 pandemic was in force during his disengagement rather this Tribunal have come across with the orders of the Govt. of India dated 29.08.2020 and Govt. of Odisha dated 31.08.2020 when the process of unlocking had started. The dispensation of service of the applicant from his contractual engagement was not due to remaining absent from duty for the lockdown due to Covid 19 imposed by the Govt. The dispensation of engagement of the applicant was purely administrative in nature and was ordered from 01.09.2020 vide order dated 09.09.2020. It is not the case of the applicant that he was in service from 01.09.2020 to 09.09.2020. Therefore, the stand of the applicant that the order dispensing with his contractual engagement retrospectively is not sustainable does not appeal to the judicial conscience.
8. It is also well settled law that there is no vested right of a contractual employee to claim for his continuance or regular scale of pay. The applicant is well aware that he does not have any right to seek regularization in view of the discussions made above, therefore, he has made an endeavour to virtually get the said relief alternatively in case any such direction is issued for granting him regular scale and his 11 O.A.No. 260/00732 of 2012 continuance on contractual basis notwithstanding the well settled law that what cannot be done directly, cannot be done indirectly [Ref:
Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458].
9. In view of the discussions made above, we find no merit in this OA, which is accordingly dismissed by leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS