Central Administrative Tribunal - Kolkata
Dr M C Jyothi vs Health on 1 December, 2023
1 OA 724/2017/AN
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
(Circuit Sitting at Port Blair)
O.A. 351/00724/2017/AN
DATE OF JUDGMENT: 01.12.2023
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
Dr. M. C. Jyothi, Daughter of Sri M. c. Balakrishna, working as a
Medical Officer, residing at Primary Health Centre, Gara charma
and resident of Junglighat, VIP Road, Port Blair, Pin- 744103.
.............Applicant
VS.
1. Union of India, service through the Secretary, Ministry of
Health and Family Welfare, Government of India, New Delhi-
110001.
2. Lieutenant Governor, Andaman & Nicobar Island, Port
Blair-744101.
3. The Secretary , Union Public Service Commission, Dholpur
House, Sahajahan Road, New Delhi-110001.
4. The Secretary (Health), Andaman & Nicobar
Administration, Port Blair-744101.
5. Director of Health Services, Andaman & Nicobar
Administration, Port Blair-744101.
.........Respondents
For The Applicant(s): Mr. C. S. Yasir, Counsel
For The Respondent(s): Mr. D. Chowdhury, Counsel
2 OA 724/2017/AN
ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a. To direct the respondent authorities to regularize the service of the applicant from the date of first ad-hoc appointment i.e., from the date of assuming duty on and from 20.02.1989 instead of 11.06.1997; b. To direct the respondent authorities to rectify the seniority list dated 09.06.2016 by placing reliance of the Order passed by the Hon'ble Tribunal dated 23.08.2004 and in view of the Order passed on 30.10.2012 by the Hon'ble Supreme Court and in view of the recommendation of the UPSC.
c. To direct the respondent authorities to produce all the records forming the impugned seniority list order and to certify the same and on being so certified to quash the same for the ends of justice. d. To pass such other order or orders and/or direction or direction as to this Hon'ble Tribunal may deem fit and proper."
2. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
2.1 The applicant joined the Andaman & Nicobar Administration on ad-hoc basis as a Doctor on 20.02.1989. She was regularized in her post vide Administration's Order dated 23.12.2014 along with fourteen other Doctors appointed on ad-hoc basis. She has been placed at sl. no. 15 in the seniority list of the fifteen doctors whose services were regularized vide order dated 23.12.2014. According to the applicant, in the earlier seniority list, she was placed above all the fourteen Doctors who were regularized along with her.
She submitted representations to the authorities which were rejected. 3.1 Learned Counsel for the applicant submits that the applicant joined as an ad-hoc Doctor on 20.02.1989, whereas the other fourteen doctors who have been placed above her, joined service later than her. Therefore, she was rightly placed above all the fourteen doctors in the earlier lists. Learned 3 OA 724/2017/AN Counsel further submits that the Authorities took up the process of regularization as per this Tribunal's order dated 23.08.2004 in OA no. 149/2001/AN which was upheld by the Hon'ble Supreme Court vide its order dated 30.10.2012 in SLP no. 3265/2006. As per the order of the Tribunal, the authorities were directed to regularize the services of the ad-hoc doctors engaged before 1997 on the basis of interviews by UPSC. 3.2 Learned Counsel submits that the UPSC held personal talks with the ad- hoc Doctors and on the basis of their performance as well as the results of the personal talk, UPSC recommended regularization of fifteen doctors including the applicant. However, UPSC on the basis of its assessment, assigned relative seniority to these fifteen doctors which was completely different from the earlier relative seniority of these doctors. Learned Counsel for the applicant submits that the UPSC should have conducted interviews for the purpose of regularization of the Doctors. UPSC has, instead, recommended the regularization based on personal talk with the candidates. Learned counsel submits that personal talk is not the same as personal interviews and the recommendations of UPSC based on personal talk with respect to the interse seniority of the Doctors whose services were regularized is not sustainable under law. Learned Counsel submits that the decision of the Andaman & Nicobar Administration to assign seniority to the applicant is based on the recommendations of the UPSC, therefore, the seniority list dated 13.06.2016 is also not sustainable. Learned counsel prays for quashing the seniority list dated 13.06.2016 and restore the applicant's earlier seniority.
4. Per contra, Learned Counsel for the respondent submits that the Administration is bound by the advice of the UPSC in this matter. Seniority list dated 13.06.2016 is based on the recommendations of the UPSC which was 4 OA 724/2017/AN arrived at after assessing the performance, APARs and personal talks with the candidates. UPSC, after making their assessment on the basis of the performance of the candidates, their APARs and the result of the personal talk held with the candidates, made recommendations to regularize the services of the fifteen doctors and assigned them seniority relative to each other. Andaman & Nicobar Administration following the recommendation of the UPSC has regularized the services of the fifteen ad-hoc doctors and published a list of their names indicating their relative seniority based on the recommendations. As per the recommendations, the applicant's name is 15th in the list of Doctors whose services have been regularized.
5. Heard the parties at length. Perused materials on record. 5.1 The applicant worked as an ad-hoc doctor in the Government since 1989. Her services were regularized by the Andaman & Nicobar Administration following the recommendations of the UPSC which was required to recommend regularization on the basis of interview. UPSC recommended their regularization on the basis of personal talk. Although the reason for using the term 'personal talk' instead of 'interview' by the UPSC is not clear, in our opinion, by interacting with the candidates UPSC has substantively followed the due procedure.
5.2 No affidavit-in-reply has been filed by the UPSC. Andaman & Nicobar Administration have relied upon the recommendation of the UPSC, a copy of which is available on file.
5.3 The applicant's services were regularized w.e.f. 11.06.1997 whereas it is her claim that since she was working since 1989, her services should be regularized from that date. The process of regularization of the applicant and 5 OA 724/2017/AN others deemed to have started in 2001 with the publication of a vacancy notice based on the vacancies as in 1997. This vacancy notice was the subject matter of litigation before this Tribunal, the Hon'ble High Court and the Hon'ble Supreme Court. Services of the applicant were regularized as a culmination of this process in 2014. Her regularization was made effective from 11.06.1997 i.e., the date on which vacancies were identified. Since her services were regularized against vacancy determined in 1997, we find no error in the order of the respondents' regularizing her services w.e.f. 11.06.1997.
5.4 The applicant has further claimed that in the seniority list published after her regularization, she has been placed below the doctors who were otherwise junior to her. She has relied on the letters of the Administration extending the tenure of the ad-hoc doctors from time to time to prove that the doctors who were placed above her in the impugned seniority list were junior to her.
5.5 We have perused these letters which merely convey the Administration's decision to extend the tenure of ad-hoc Doctors including of those who were eventually regularized. These letters do not mention or indicate that the name of doctors are placed in order of their seniority. In other words, the letters relied upon by the applicant are not formal seniority lists. The applicant and the other fourteen doctors were serving on ad-hoc basis before the order dated 23.12.2014. There is nothing on record to prove that these doctors were assigned seniority relative to each other at any time before their services were regularized. It therefore follows that based on the assessment of a candidate's performance, APAR and the personal talk, UPSC ranked the candidates in order of merit and made recommendations for their 6 OA 724/2017/AN regularization. These recommendations were accepted by the Andaman & Nicobar Administration as per rules.
In our considered opinion, the procedure followed by the respondents in assigning seniority is as per rules. We find no legal infirmity in the impugned seniority list issued by the respondents.
6. OA is dismissed being devoid of merit. No costs.
(Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl 7 OA 724/2017/AN