Central Administrative Tribunal - Allahabad
Smt S R Srivastava vs Union Of India on 16 February, 2023
(Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No. 966 of 2016
This the 16th Day of February, 2023.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Smt. Shobha Rani Srivastava, Working as Social Worker, Human
Reproductive Research Centre (HRRC), Indian Council of Medical
Research (I.C.MR.) Ganesh Shankar Vidyarthi Memorial Medical
College, Kanpur, R/o N.T. II/33, Ganesh Shankar Vidyarthi
Memorial Medical College, Kanpur.
...........Applicant
By Advocate: Shri Ashish Srivastava
Versus
1. Union of India through Secretary to Government, Ministry of
Health & Family Welfare, Nirman Bhavan, New Delhi.
2. Director Ganeral, Indian Council of Medical Research,
Ramalinga Bhavan, Ansari Nagar, P.O. 4911, New Delhi. 110
029.
3. Principal, Ganesh Shankar Vidyarthi Memorial Medical
College, Kanpur.
4. Office-In-Charge, H.R.R.C., Department of Obstetrics and
Gynecology, Ganesh Shankar Vidyarthi Memorial Medical
College, Kanpur.
...Respondents
By Advocate: Shri Mahendra Bahadur Singh
Page No.1
ORDER
Delivered by Hon'ble Mr. Justice B.K. Shrivastava, Member (J) This OA has been filed on 27th July, 2016 for the following relief(s):-
"(i) to issue a writ, order or direction in the nature of Mandamus directing the Respondent No.2 to regularize the services of the petitioner with effect from the date of initial appointment and not to discriminate her into the matter of regularization and to extend the benefits of judgment and order rendered by the Chennai Bench of this Hon'ble Tribunal, affirmed by the Hon'ble Madras High Courts as well as by the Hon'ble Supreme Court, within a period as may be fixed by this Hon'ble Tribunal.
(ii) to issue a writ, order or direction in the nature of Mandamus directing the Respondent No.2 to allow her all due promotions, the benefits of up-gradation under the ACP/MACP Scheme with effect from the dates when it became due from time to time with arrears thereof, within a period as may be fixed by this Hon'ble Tribunal.
(iii) to issue any other suitable writ, order or direction in the facts and circumstances of the case which this Hon'ble Tribunal may deem fit and proper.
(iv) to award the costs of the petition in favour of the petitioner."
2. It is an admitted fact that the applicant was in service on the date of filing the O.A. (i.e. 27.07.2016) but during the pendency, she has been retired from service on 30.11.2016.
3. Indian Council of Medical Research i.e. ICMR is an autonomous body, which has been established by respondent No.1 Page No.2 with a view to perform research work in the medical field. As a matter of fact, ICMR performs sovereign function. In order to facilitate the research work in the medical field, the ICMR established a network of 33 Human Reproduction Research Centres at various medical colleges in different parts of the country. The objective of the centers was to carry out the relevant research to strengthen and improve the performance of National Family Welfare Programme at the State Level. Centers were expected to play a crucial role to achieve the national goal of population stabilization and to improve the reproductive health of the people. The Reproduction Centers are a part of ICMR and they participate in nationally coordinated studies on various topics.
4. Respondent No.2 provides complete funding to the various reproduction centers to meet the operational cost including core staff consisting of medical and non-medical scientists, social workers, clerks and a Jeep with driver and contingency grant to cover charges for the vehicle travel and a misc. Expenditure. Entire project coordination is done only by the respondent No.3 through the centers located in the hospitals, which are run by the State Government. Therefore, it can be said that the entire funding as well as the supervision and control vest with the respondent No.2. (In regard to the HRRC centers as well as the employment of staff.)
5. As per the applicant's case, the open selection was initiated by respondent No.2 pursuant to the recruitment notification dated 21.04.1983. The applicant was selected and duly appointed as Social Worker in the pay scale 515-860 under the "Department of Obstetrics and Gynecology" and was posted within "Ganesh Page No.3 Shankar Vidyarthi Memorial Inter College, Kanpur" vide her appointment letter dated 21.05.1983. Thereafter, the applicant joined her duty on 24.05.1983. It is also submitted by the applicant that the aforesaid appointment order substantiate that the appointment of the applicant on the post of "Social Worker" was against a sanctioned post in the regular capacity and in the regular pay scale without any whisper of the same being contractual or for a limited period. The appointment was regular in nature. It is also submitted that as per the aforesaid appointment letter, it is clear that the appointment letter was issued by the respondent No.4 pursuant to the letter dated 30.03.1983 issued by respondent No.2, who is the Supreme Authority of ICMAR and is controlling the HRRC.
6. The applicant again submitted that the scale 515-860 was replaced by the 4th CPC (Annexure A-3) and thereafter, by the 5th CPC (Annexure A-5) and lastly by the 6th CPC (Annexure A-6). From time to time, several revision of pay has been sanctioned. As per the applicant, right from the date of her initial appointment, she got the allowance apart from the basic pay from time to time as admissible under the Rule.
7. It is submitted by the applicant that one OA No.1332/2000 was filed before the CAT, Madras Bench by Dr. Shyamala Balasubramanium and 05 other applicants. The aforesaid OA was allowed by the CAT Madras Bench and the direction was issued to consider the case of the applicants for regularization on the basis of observation made in the aforesaid order. The order was challenged by ICMR before the High Court of Madras but the High Page No.4 Court of Madras dismissed the writ petition and modified the order issued by CAT by directing to consider the case of the respondents/ employees for regularization from the date of their respective initial appointments. The aforesaid order was also challenged before the Supreme Court but the Supreme Court dismissed the SLP.
8. The applicant again submitted that the contempt petition was also filed because of non-compliance of the Madras High Court order. Thereafter, the Ministry of Health and Family Welfare, Department of Health Research issued an order on 14.01.2011 whereby as many as 20 posts were sought to be created with retrospective effect at HRRC, ICMR in terms of Department of EXP. O.M. dated 15.03.1961 Annexure A-8. On 31.01.2011, ICMR issued an Office Memo whereby 20 posts were created referable to 08 posts of Research Officer in this regard by Annexure A-9.
9. As per the applicant, several orders were passed against the ICMR and got approved Temporary Status Scheme from the government to regularise the project staff working under different HRRCs. Approval of the implementation of Scheme, namely HRRC Project Staff (Absorption and Grant of Temporary Status) Scheme, 2010 w.e.f. 01.07.2010 along with the copy of the said scheme was communicated to the director Incharge of all the ICMR Centres vide circular dated 11.05.2011 Annexure A-11.
10. For the smooth and efficient functioning of the project, review and restricting of HRRC was proposed whereby all the Page No.5 HRRCs would be converted into field units of ICMR under the overall control of National Institute of Research in Reproductive Health, Mumbai for administrative purposes. Local administration was to continue to be handled by medical colleges where units were located. The proposal along with the request seeking consent was communicated by the respondent No.2 to all the officers in-charge of HRRC vide circular dated 16.11.2011 Annexure A-12. The consent of the applicant was also sought by that letter dated 19.03.2012 issued by respondent No.3. As per the applicant, because the reference made to ICMR orders to grant temporary status to existing HRRC project employees, who have completed 10 years of service as on 01.07.2010, the applicant did not give her consent.
11. On 26.09.2015, the applicant preferred a representation to respondent No.2 for regularization of her services instead of granting temporary status which was duly received by hand, by the controlling officer of the applicant and was duly forwarded to respondent No.2. The copy of representation is Annexure A-15. The representation was pending for a long time and in the meantime, the benefit of ACP/MACP, as allowed to the other employees, were not extended to the applicant despite request on the ground that she is not a regular employee and further that she has been working in HRRC which, according to the respondents is a project.
12. It is also submitted by the applicant that another employee Naveen Kumar, Research Officer of the same medical college also Page No.6 filed the representation but his representation was rejected. Upon the basis of the judgment passed by the Chennai Bench, he preferred the OA which was allowed by the Tribunal Bench at Allahabad. The aforesaid order duly complied because the ICMR did not file any appeal. Therefore, it is submitted by the applicant that she is entitled to benefits available to the regular staff under the ICMR rules 2007 including promotions, pensions, Leave Travel Concession etc.
13. As per the applicant, she is entitle for parity accorded to similarly placed project staff of NIMR and HRRC with regard to regularization with consequential benefits given by the Madras High Court and the Tribunal of Madras.
14. The applicant also submitted that various CAT Benches passed the order in favour of the similarly placed employees and the benefit should be given to the applicant because the applicant is also on the same footing and the fact of the case are the same with other OAs filed before the other Benches of CAT.
15. The respondents opposed the claim of the applicant by filing counter reply. It is submitted that in the light of Uma Devi's case, the claim of the applicant cannot be considered. It is also submitted that the applicant was appointed on a temporary basis. The cases of the applicants before the Madras High Court, M.P. High Court and Delhi High Court were different from the applicant. The applicant cannot be claimed the parity with the aforesaid applicants. In counter reply some rulings are also cited. Page No.7 The respondents also submitted that the Scheme namely HRRC project staff (absorption and grant of temporary status scheme, 2010) has been implemented but the applicant did not give her consent. Therefore, she cannot claim any relief from this court.
16. OA No.1332/2000 was filed before CAT Madras by Dr. Shyamala Balasubramanium and 5 other applicants for their regulrisation in ICMR, HRRC with effect from the date of original appointment. The CAT Madras passed the order on 04.12.2021 (Annexure A-6) in favour of applicants and said in para 16:-
"The fifth respondent is directed to consider the case of applicants for regularisation on the basis of the observation made above and pass final order within a period of three months from today."
17. ICMR filed writ Nos. 25490/2002 to 25493/2002 and 25574/2002 to 25577/2002 against the order passed by CAT Madras. High Court of Madras vide order dated 25.08.2006 modified the order passed by the CAT, Madras and observed in Para 17 and 18:-
"17. T̀herefore, applying the above ratio to the facts of the present case, we are of the view that the services of the respondents/employees have to be regularised from the date of their respective initial appointments. Accordingly, to that extent, we modify the order of the Tribunal.
18. In the result, these writ petitions are dismissed. However, the first petitioner is directed to consider the case of the respondents/employees for regularisation from the date of their respective initial appointments and pass appropriate orders within a period of 12 weeks from the date of copy of this order. No costs. "Page No.8
18. Against the aforesaid order dated 25.08.2006 passed by Madras High Court, the ICMR filed the S.L.P. No.14953 to 14960/2007 before the Supreme Court, which was dismissed on 26.10.2009 (Annexure A-10):-
"Order Heard learned counsel for the parties.
In the facts and circumstances of the case, we are not inclined to interfere with the impugned order.
The special leave petitions are, accordingly, dismissed."
19. In the case of Dr. Shyamals (OA No.1332/2000), the applicants who approached the Tribunal were working HRRC Project. When the case of employee working in this project was regularized, applicants G.R. Shriniwas and 13 others claimed parity in OA No.1115/2010 filed before Madras Bench of C.A.T. and the Judgment was passed on 26.08.2010 and CAT Madras granted benefit to employees working in IDVC Project (Integrated Disease Vector Control Project) and directed the respondens to consider the case of employee before it at par with the project staff working in HRCC project and take a decision. This order dated 26.08.2010 passed in (OA No.1115/2010 (G.R. Shrinivasan and 13 others vs. Union of India and Others) by Madras Bench of CAT was challenged by filing the writ No.22609/2011, but the said writ was dismissed on 19.03.2012 by the Madras High Court. Thereafter, the S.L.P. was also dismissed by the Supreme Court.
20. An "association of Malaria Research Centre Employees"
(which was an association of employees who were working in the IDVC Project) approached the Principal Bench of the CAT, New Page No.9 Delhi and claimed Regularization with regard to members of the associations by filing OA No.228/2000 and CAT granted benefit and directed for regularization of the employees by a detailed order.
Aforesaid order was also challenged before the Delhi, High Court in W.P.(C) No.1554/2003 and the High Court Delhi in the order dated 20.03.2013 took note of various aspects of the matter and allowed the prayer of employees for regularisation and applied the same principle that was upheld by the Madras High Court in the case of G.R. Shrinivasan and 13 others vs. Union of India and others, OA No.1115.2010 decided on 26.08.2010. The High Court of Delhi held that the law laid down by the Madras High Court in the case of G.R. Shrinivasan (Supra) squarely applied to the employees working in IDVC Project. The S.L. filed against the order dated 26.08.2010 was also dismissed by the Supreme Court.
21. In OA No.129/2011 Dr. S.K. Chand and others vs. Union of India decided on 03.10.2013, applicants were appointed in the establishment of Malaria Research Centre, Indian Council of Medical Research, New Delhi during the year 1986-87. Applicant No.1 was appointed as Assistant Research Officer, applicant No.2 and 3 were appointed as Assistant Research Scientist. The Jabalpur Bench of CAT found that the employees are entitled to similar benefits as has been granted by the Madras Bench of CAT in G.R. Srinivasan's case (supra), therefore CAT Jabalpur allowed the O.A. and directed for consideration of the case of applicants according to the directions issued by Madras Bench in the case of G.R. Shrinivasan (supra). Against the judgment dated 03.10.2013, Writ Petition No.9660 of 2014 was filed before High Court of M.P. Page No.10 The Divison Bench of HIgh Court of Madya Pradesh, by an order dated 17.11.2016 dismissed the writ and said in para-6:-
"6. We have heard learned counsel for the parties at length and on going through the records we find that similar arguments with regard to regularization of project employees working in IDVC project as was canvassed before us today were canvassed by the same petitioner deparment with the reference of the same project before the Madras High Court in the case of G.R. Shrinivasan (supra) and subsequently before the Delhi High Court in the case of Malaria Research Centre Employees' Welfare Association and similar arguments have been rejected by a detailed order which are placed before us and we see no reason to take a different view. We are convinced that in both the cases of G.R. Shrinivasan (supra) and Malaria Research Centre Employees' Welfare Association (supra) 7 the legal objection as was raised by Shri V.S. Shroti, Senior Advocate stands rejected and we have no hesitation in rejecting the same as was canvassed before us."
In the last para the Division Bench of M.P. High Court said:-
" ................... it is clear that after orders were passed by the Delhi High Court and the Madras High Court, various employees similarly situated and working in the same project have been regularized and there is no reason as to why now we should venture into any other area of dispute and allow this petition when identically situated employees working in the same project have been regularized........... "
22. It appears that after the rejection of representation, Navin Kumar Gupta and Dr. Roli Srivastava of the same project filed OA No.1172 and 1173 of 2012 before this Tribunal. The D.B. of this (Allahabad) Tribunal passed the judgment on 17.11.2017. The applicant of O.A. No.1172/2012 named Navin Kumar Gupta was joined as "Statistical Assistant" under the Indian Council of Medical Research (ICMA) New Delhi from 28.11.1983 to 31.12.1989. Page No.11 Thereafter, he was appointed as Statistical Assistant under HRRC Schyeme of ICMR in the Department of obstetric and Gynaecology, Sardar Patel Medical College and Associate Groups of Hospital, Bikaner w.e.f. 16.01.1988 up to 20.06.2018. Thereafter, he was retrenched and then was appointed as "Research Officer"
(Demographer) under Human Reproductive Research Centre (HRRC) a project under ICMR, under the Department of Obstetrics and Gynaecology, G.S.V.M. Medical Colege Kanpur vide appointment order dated 209.10.1989. The applicant claimed the regularization in the light of Dr. Shyamala Balasubramanium's case (supra). But the representation of the applicant was dismissed by the respondent on 18.05.2012 upon the ground that the decision in OA No.1332/2000 (Dr. Shyamals's case) is applicable only to those applicants and with respect to the other employees the council had decided to grant temporary status to the employees as per the scheme for absorption of HRRCs project-staff and grants of temporary status.
23. In the OA No.1173/2000 which was filed by applicant Dr. Roli Srivastava, the applicant was appointed as Research Officer (Medial) by ICMR and who posted under the Medical College Kanpur in the HRRC project under ICMR vide appointment Letter dated 10.12.1997. Facts of this OA No.1173/2000 were similar to the OA No.1172/2012 filed by Navin Kumar Gupta.
24. It is proper to mention here that ICMR/Government approved a Temporary Status Scheme to regulate the project staff working under different HRRCs in different states, vide "HRRC project Staff (Absorption and Grant of Temporary status) Page No.12 Scheme, 2010" w.e.f. 01.07.2010. ICMR sought the consent of the applicants, Navin Kumar and Dr. Roli Srivstava but they did not give the consent and represented to ICMR for regularization of services in view of the order passed by CAT Madras which was subsequently confirmed by the Supreme Court vide order dated 26.10.2009.
25. This Tribunal passed the combined judgment in both OA No.1172/2000 and 1173/2000 on 17.11.2017. The D.B. of this Tribunal considered Dr. Shyamals case, (supra), Dr. G.R. Shrinivasan case (supra) in detail and also considered the following cases:-
(i) order dated 02.07.2008 passed by Ernakulam Bench of CAT, in OA No.865/2006 with OA No.65/2007 (V. Nirmala Kumari and ors. Vs. ICMR and Ors.)
(ii) Order dated 26.02.2007 passed by Ahmedabad Bench of CAT in OA Nos. 487/2005 to 492/2005 (Smt. Anuradha S. Barwe & Ors vs. Union of India & Ors.)
(iii) Order dated 03.03.2016 passed by Calcutta Bench of CAT in OA No.1298/2013 (Dr. Arunaangshu Chakroborty & Ors Vs. Union of India & Ors (M/o Health and Family Welfare and Ors.)
(iv) Order dated 08.12.2006 passed by Principal Bench of CAT (New Delhi) in OA No.2358/2015 (Sh. Khageshwer & Ors. Vs. The Secretary Ministry of Health and Family Welfare and Ors.)
(v) Order dated 13/08/2011 passed by CAT Allahabad in OA No.54/2011 (Dr. Smt. Rita Shukla vs. Union of Idnai through Secretary).
(vi) Indian Council of Medical Research and ors. Vs. K. Rajyalakshmi (2007) 2-SCC 332.Page No.13
(vii) Order dated 11.08.2016 passed by High Court Madras (Union of India and ors. Vs. K. Asaithambi and Ors) and finally allowed both the OAs and said in 35 and 36 as under:-
"35. The Scheme approved by the ICMR for giving temporary status to the contractual staff in HRRC projects has been challenged in these OAs, but we do not find adequate reasons or grounds for such a challenge. On the other hand, the respondents have submitted that the Scheme intends to earmark 30% of regular posts in ICMR to be filled up through the absorption of temporary/contractual projects staff and hence, it has been formulated keeping the interest of the contractual project staff best interest in view. There is a provision for according temporary status to the contractual employees/project staff with effect from 01.07.2010 and also provision for relaxation of age while considering absorption or project employees who have completed more than 10 years of service against earmarked regular posts to the extent of 30% of the posts likely to be created in the future and falling under direct recruitment quota. We do not file any inadequacy in the Scheme, hence, the Scheme is considered to be in order.
36. In view of the above discussions and taking into account the orders of different Benches of this Tribunal, HOn'ble High Courts and Hon'ble Supreme Court in similar matters relating to the staff of HRRCs as discussed in the preceding paragraphs, we direct the respondents No.1 and 2 to reconsider the cases of the applicants in these two OAs for regularization in the light of the orders of different Benches of this Tribunal in case of other employees of HRRCs who are similarly placed as the applicants as discussed in this order wiothin four months from the date of receipt of a certified copy of this order, provided the applicants are found to eligible as per rules with regard to qualifications and other criteria for the posts they are holding."
26. It is an admitted position that the aforesaid order of this D.B. has been complied and applicants Navin Kumar Gupta and Dr. Roli Page No.14 Srivastava have been regulrized. The contempt proceedings (No.206/2018) have been dropped on 13.02.2023.
27. It is submitted by the respondent Advocate that in the light of the Hon'ble Supreme Court judgment passed in "Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors, 2006 SCC 753, AIR 2006 SC 1806 by a Bench of 5 Judges, the prayer of the regularization of applicants cannot be considered.
28. But in view of this court aforesaid arguments cannot be accepted because in para 43 of the judgment, there is a direction to undertake one time exercise to regularize the temporary/contractual/casual staff, who have worked for more than 10 years and who are recruited with required qualifications fulfilling eligibility criteria against the duly sanctioned posts. In para 53 the court said:-
"53. One aspect needs to be clarified. There may be cases where, irregular appointments (nor illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of Tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Government and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned Page No.15 posts that require to be filled up, in case where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date."
29. In this case, respondents are unable to show whether the one-time exercise, as per the direction given in Uma Devi's case (supra) has been undertaken in respect of ICMR Project and if so, whether the case of the applicant was considered or not?
30. It is also submitted by respondents that ICMR/Govt. approved a Temporary Status Scheme to regulate the project staff working under different HRRCs in different states vide "HRRC/Project Staff (Absorption and Grant of Temporary Status Scheme 2010" with effect from 01.07.2010.
31. The counsel for the applicant submitted that the Scheme formulated by ICMR is meant for absorption of the project staff w.e.f. 01.07.2010 and it does not provide for the regularization of the project employees of various HRRCs from the date of initial appointment with consequential benefit. The procedure for absorption under the said scheme is applicable to the project staff of HRRCs in more than 10 years of service. In para 25 of O.A. the applicant mention that her consent was sought by respondent No.3 vide letter dated 19.03.2012. But she did not give her consent thereto, because in the ICMR letter dated 06.03.2012, there was a reference made to the ICMR order dated 11.05.2011 to grant temporary status to existing HRRC project employees, who have completed 10 years of service as on 01.07.2010. It is also mentioned in para 45 of O.A. that the aforesaid scheme does not provide for Page No.16 the regularization of project employees of various HRRCs which are permanent in nature from the date of initial appointment with consequential benefits. Para 4 of the scheme 2010 also reproduce by the applicant in Para 46 of the O.A.
32. Aforesaid argument was also advanced in the OA No.1172 and 1173/2012 decided by D.B. of this Tribunal on 17.11.2017 (Navin Kumar vs. Union of India with Dr. Roli Srivasvata vs. Union of India). The D.B. considered in para 35 (supra).
33. The respondents also submitted that there is no post available, therefore regularization cannot be made. But in this regard para 7 of M.P. High Court order passed on 17.11.2016 passed by D.B. in W.P. No.9660/2014, will be useful in which descriptions of posts have been given as under:-
"7. That apart, the subsequent development that have taken place and brought on record vide I.A. No.10284/2016 indicates that in the project in question the total number of posts were 330 posts, i.e. employees working in the project, thereafter, after the order of Chennai High Court 14 employees working in the project were regularized, as a result 316 employees remained, of this 46 posts, i.e. employment again came to an end due to resignation, termination and absconding of employees. Consequent thereof, 270 posts remained to be regularized. For regularization of these 270 posts, 190 posts were created and after creation of these 190 posts, 80 more posts are yet to be created and the matter is pending before the Union of India. With regard to the 190 posts created in December 2015, in compliance of the order passed by the Delhi High Court, on 29.2.2016 and 19.5.2016, 118 and 68 employees were regularized. Cases of four persons were pending consideration and now after regularization of all Page No.17 these employees only 80 employees are to be regularized for which posts are to be created, 36 employees who became Members of the Association, which agitated the matter before the Delhi High Court, were regularized after they became Members of the Association and of these 19 employees working in Jabalpur Field Station were also regularized after they became Members of the Association. The final status as it remain today are that out of the original 330 employees, who were working only 44 remain to be regularized, out of which 7 employees have left on retirement and, therefore, as on date with regard to the project in question only 37 employees are required to be regularized which includes the three respondents herein from Jabalpur, 24 employees working in Rourkela and 10 employees working in Goa, in whose cases matter is pending before the Central Administrative Tribunal of their respective States."
34. Counsel for the applicant also draws attention towards an order passed by D.B. of Madras High Court on 11.04.2019 in Contempt Petition No.234/2018 related to the order dated 14.02.17. It appear from the aforesaid order that the Assistant Director General (Administration) ICMR, New Delhi filed an affidavit on 21.07.2018 indicating that the decision was taken to regularize the service of the petitioner w.e.f. The date of his original appointment with all consequential benefits and it was forwarded to the Government of India for approval. Paragraph 8 of the above affidavit has been quoted in the order which is as under:-
"8. That it is submitted that in compliance of the order dated 14.02.2017 passed by the Hon'ble High Court in W.P. No.7597 of 2015 and keeping in view the larger interest of the staff working under the HRRC project in various HRRC centers in the country (including the petitioner), the matter has not been referred to the requisite approvals from the concerned Ministries/Departments with inter-ministerial consultation for regularizatioin (with effect from the date of Page No.18 original appointment with all consequential benefits, as given to other similarly placed employees in OA No.1332 of 2000 etc.) of 116. HRRC staff (including the petitioner) in all the HRRC centers, which may take time."
35. The respondent counsel cited the judgment passed on 24.03.2022 by the Supreme Court in the case of State of Gujrat and others vs. R.J. Pathan and others, Civil Appeal No.1951/2022. In para-8 the Supreme Court said:-
"8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand.
The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme. 8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a case of irregularly appointed employees. Even otherwise, in view the facts and circumstances of Narendra Kumar Tiwari (supra), the said decision shall not be applicable to the facts of the case on hand. The case before this Court was with respect to the employees working with the State of Jharkhand which was created only on 15.11.2000 and therefore it was contended on behalf of the irregularly appointed employees that no one could have completed ten years of service with the State of Jharkhand on the cut-off date of 10.04.2006, which was the cut-off date fixed under the relevant rules of the State of Jharkhand."
Page No.19
36. Respondent also cited para 17 of the judgment dated 18.11.2020 passed by CAT Bench of Cuttak in OA No.451/2015- Radhakanta Rao vs. U.O.I. & Others. The CAT observed in the aforesaid para:-
"17. Regarding the claim for same benefit as per a Court judgment in another case, Hon'ble Apex Court has laid down the law in the case of State of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors., (2015) 1 SCC 347. In the said judgment, after examining a the decisions on the question whether similarly situated government employees should be granted the benefit of an order passed by a Court in another case, had examined the issue in the context of discrimination and equal treatment under Article 14 of the Constitution with reference to the principles of delay and laches and it was held by Hon'ble Apex Court as under:-
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well- recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They Page No.20 would be treated as fence- sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim."
37. The respondent also referred para 12 of "State of Rajesthan and Ors. vs. Daya Lal & Ors (2011) 2 SCC 429, which has been quoted in order dated 07.10.2021 passed by the Supreme Court in Union of India vs. ILMO Devo & ors., Civil Appeal No.5689-90 of 2021:-
"12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and Page No.21 sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right."
38. It appears from the record that the applicant was appointed by order dated 21.05.1983, Annexure A-1 page-26 . It will be useful to refer the aforesaid order as it is:-
"कार्यालय विभागाध्यक्ष, स्त्री एवं प्रसति ु रोग विभाग: गं0श0वि0स्मा0 चिकित्सा, महाविद्यालय : कानपरु संख्या /स्टे नो/ओ0ए0 एण्ड जी0/ आईसीएमआर/83 दिनाँक मई 21-1983 :: आदे श ::
कु0 शोभारानी श्रीवास्तव पत्र ु ी श्री डी0 पी0 वर्मा, 10/311, खलासी लाइन, कानपरु की नियक्ति ु भारतीय आयर्वि ु ज्ञान अनस ु ध ं ान परिषद, नई दिल्ली-11 स्वीकृत ह्यम ू ेन रिप्रोडक्शन रिसर्च सेंट्रस के लिए सोशलवर्क र सोशल वर्क र के पद पर वेतनमान 425-15-500 द0रो0- 15-560-20-700 तथा इस चिकित्सा महाविद्यालय में उक्त वेतनमान में कार्यरत कर्मचारियों के समान भक्तों पर उनके द्वारा कार्यभार ग्रहण करने की तिथि से निम्नलिखित शर्तो पर की जाती है 1- कु0 शोभा रानी श्रीवास्तव की नियक्ति ु पर्ण ू रूपेण अस्थाई है । और उनकी सेवाओं की बिना किसी पर्व ू सचू ना के समाप्त किया जा सकता है ।
2- कु0 शोभा रानी श्रीवास्तव को इस बात का लिखित पत्र दे ना होगा कि वह 6 माह से पर्व ू कार्यभार ग्रहण करने की तिथि से सेवाओं को नहीं छोड़ेंगी।
3- वरिष्ठ चिकित्सा अधीक्षक, ए0एच0एम0 डफरिन अस्पताल, कानपरु के द्वारा स्वास्थ्य परीक्षा में सफल घोषित होने का प्रमाण पत्र।
4- राज्य एवं केंद्र सरकार की सेवा में कार्यरत दो राजपत्रित अधिकारियों अथवा लोकसभा/विधानसभा के सदस्यों का चरित्र प्रमाण पत्र जो कि उनके व्यक्तिगत जीवन से पर्ण ू रूप से विदित हो, लेकिन न शैक्षिक योग्यता प्राप्त करने के समय का हो और न तो उनके संबध ं ी हो अथवा अंतिम शिक्षा केंद्र के मख् ु य अधिकारी का चरित्र प्रमाण पत्र।
5- अपनी जन्मतिथि तथा शैक्षिक योग्यात एवं प्राविधिज्ञ योग्यता तथा रजिस्ट्रे शन का प्रमाण पत्र।
6- यदि विवाहित हो तो एक से अधिक पति/ पत्नी न होने का घोषणा पत्र।Page No.22
7- इस कॉलेज या इससे संबधि ं त चिकित्सालयों/संस्थाओं में यदि कोई निकट संबध ं ी सेवारत हो तो उसका पर्ण ू विवरण।
8- किसी राज्य अथवा केंद्र सरकार के द्वारा पदचय ु त ू न होने का घोषणा पत्र।
9- अनस
ु चि
ू त जाति/ जनजाति/ पिछड़ी जाति का प्रमाण पत्र एवं किसी भी प्रकार की चल अचल संपत्ति का पर्ण ू विवरण।
यदि आपको उररोक्त शर्तों पर नियक्ति ु स्वीकार हो तो अधोहस्ताक्षरी को इस बात का घोषणा पत्र दें गी कि उन्हें उपरोक्त शर्तों पर नियक्ति ु स्वीकार है । यदि उनके द्वारा दिनांक 29.05.1983 तक कार्यभार ग्रहण नहीं किया जाता है तो उपरोक्त आदे श स्वता ही निरस्त हो जाएंगे।
(प्रतिभा रोहतगी) विभागाध्यक्ष"
Therefore, it appears from the aforesaid order that the applicant was appointed on "temporary basis". The appointment was against the regular vacancy. Order dated 24.10.1983 (Annexure A-2), dated 23.09.1991 (Annexure A-3), dated 17.02.1998 (Annexure A-4), the fixation order dated 08.12.2008/ March, 2010 (Annexure -5) shows that time to time the benefits of revision of pay also granted to the applicant and her fixation was also done by the respondents. Therefore, it can be said that the applicant was continued in service till her retirement. There was no break in her service. She completed the long tenure of her service. It also appears that Shri Navin Kumar Gupta and Dr. Roli Srivastava were also working in the same project and the order in their favour was passed by this Tribunal and the aforesaid order has been complied, the respondents did not prefer any appeal against the aforesaid order. In the contempt petition the reply was filed and it is found that order has been complied, therefore both contempt petitions were dismissed. Details are already given in previous paras.
Page No.23
39. The applicant having parity with the aforesaid two employees of the same project. The case of Madras, Delhi and Madhya Pradesh are also similar to the applicant, therefore the applicant is entitled for similar relief as granted in the aforesaid cases of other Tribunals. The ruling cited by the respondents' counsel does not support the respondents because the respondent himself stated before the court (transpirs from interim order dated 29.03.2022) is as under:-
"Ms. Vijeta Singh holding brief of Shri M.N. Singh, learned counsel for respondent No. 2 at the outset points out that the applicant is not strictly an employee of ICMR. She was appointed as a temporary social worker in HRRC which is actually a project centre of ICMR and in this case it was to run by a Medical college of Kanpur. The appointment to the applicant was issued by the Head of Department of the Gynecology and Obstetrics Department of that medical college and not by any governmental authority or by the ICMR. She submitted that as the applicant was never directly employed by the ICMR, hence no relief can be sought qua the respondent No. 2. However, she draws attention toward a document which the applicant has herself filed alongwith the rejoinder affidavit which indicates that the competent authority of the ICMR has taken a liberal and compassionate view of the matter and recommended the case of the applicant alongwith several other similarly placed employees of HRRC for regularization so that benefits of a regular employee can be awarded to them. She points out that this recommendation had been sent to the Ministry of Health and Family Welfare, Government of India which is the competent authority to take a decision on this proposal. She submits that since the ICMR i.e. respondent No. 2 after sympathetic, consideration, supported and recommended the case of the applicant, the right course for the applicant is to approach Ministry i.e. respondent No. 1. She concludes her arguments that the relief sought by the applicant should be addressed to the respondent No. 1 only. Since the learned counsel for respondent No. 1 i.e. the Union of India through the Ministry Page No.24 of Health and Family Welfare is not prepare to argue the matter on as he considers the notice to be short, he seeks adjournment to allow him an opportunity to him to submit his arguments. "
40. The applicant also filed the rejoinder affidavit. It is submitted in the aforesaid affidavit that in contempt petition No.206/2018 (filed by Navin Gupta and Dr. Roli Srivastava), the respondents filed compliance affidavit in which it has been stated that "in compliance of the direction of the Hon'ble Tribunal with the approval of competent authority of Indian Council of Medical Research, a consolidated proposal to regularize the contractual services of HRRC project staff has been forwarded to the government for inter-ministerial consultation and approval. The copy of the aforesaid order has also been annexed as Annexure R-1. The document shows that the name of the applicant is also included in the aforesaid list at Sl. No.43. The applicant also submitted that in order to regularize the services of the saff working at different HRRCs under ICMR, a committee was constituted in order to find the suitability of the candidates. Based upon the recommendation of the committee the aforesaid proposal was prepared and the name of the applicant was included at Sl. No.43. The concerned committee has found that the applicant fulfilled the criteria of selection/appointment for the post of social worker and the applicant's name has been recommended as a fit candidate for the regularization.
41. In the light of the aforesaid proposal any argument of the respondents' counsel does not have any force, because the Page No.25 respondent himself found the suitability of the applicant and also forwarded the name of the applicant for regularization.
42. Therefore, it appears that the applicant having parity with the other applicants Dr. Roli Srivastava and Navin Kumar Gupta and also having parity with the other applicants who have filed the different OAs before different Benches of CAT as well as the High Court of M.P., Madras and Delhi. Accordingly, the OA is allowed and respondent Nos.1 and 2 are directed to consider the case of the applicant for regularization in the light of the observation made in this judgment within a period of 04 months from today and grant her all monetary benefits as per her entitlements. No costs.
(Mohan Pyare) (Justice B.K. Shrivastava)
Member (A) Member (J)
Sushil
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