Central Administrative Tribunal - Delhi
Arun Kumar vs M/O Health And Family Welfare on 15 February, 2016
Central Administrative Tribunal
Principal Bench:New Delhi
OA No.1655/2014
MA No.1435/2014
Reserved on :21.08.2015
Pronounced on:15.02.2016
Hon'ble Shri Sudhir Kumar, Member (A)
Hon'ble Shri Raj Vir Sharma, Member (J)
1. Arun Kumar,
Aged 46 years
S/o Late Mr. Prem Chand
Research Officer/Scientist-B,
(Non-Medical), HRRC, AIIMS,
Ansari Nagar, New Delhi
D-201, 2nd Floor Gautam Nagar, New Delhi-49.
2. Leema Maiti,
Aged 44 years
D/o Late Sachindranath Roy
Medical Social Worker,
HRRC, AIIMS, Ansari Nagar, New Delhi,
R/o C3/292 A
SFS DDA Flats, Janakpuri, New Delhi-110058.
3. Rashmi Kakwani,
Aged 35 years
D/o Mr. Jiwan Kumar Hemrajani
Lower Division Clerk,
HRRC, AIIMS Ansari Nagar, New Delhi
Residing at 68, Parmarth Apartments
D-Block, Vikaspuri, New Delhi-110018.
4. Bir Singh,
Aged 56 years
S/o Mr. Jawahar Singh
Driver, HRRC, AIIMS,
Ansari Nagar, New Delhi
160 A/1, Munirka Village,
New Delhi-110067.
5. Renu Walesha,
D/o Late Sh. A.N. Dhir,
Aged 53 years,
Research Officer(Non-Medical),
HRRC, Kasthurba Hospital,
Residing at CC-150-C,
Shalimar Bagh, Delhi-110052.
6. Dr. Chitra Tewari,
D/o Shri J.N. Tewari,
(OA No.1655/2014)
(2)
Aged 59 years,
Research Officer(Medical),
HRRC, Kasthurba Hospital,
Residing at A-63, Yogana Vihar, Delhi-92.
7. Kavita Bhuttan,
Aged 53 years
D/o Late Sh. Mangal Sain Batra
Lower Division Clerk/Typist, HRRC,
Kasthurba Hospital.
8. Subhash Chand,
S/o Mr. Harswaroop
Aged 52 years, Driver,
HRRC, Kasturba Hospital,
Residing at House No.153,
Village and post Burari, Delhi. ...Applicants
(By Advocate:Shri C.N.Kumar with Shri Parul Kumar)
VERSUS
1. Union of India,
Represented by its Secretary to Government,
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi-110001.
2. The Indian Council of Medical Research,
Represented by its Director General,
Ansari Nagar, New Delhi-110029.
3. The Officer-in-Charge,
Human Reproduction Research Centre,
Indian Council of Medical Research, AIIMS,
Ansari Nagar, New Delhi-110029.
4. Member Superintendent,
Kasturba Hospital
Human Reproduction Research Centre,
Indian Council of Medical Research,
Department of Obstetrics & Gynecology,
Kasturba Gandhi Hospital, New Delhi-2.
5. The Director,
NIRRH, Mumbai,
Jehangir Merwanji Street,
Parel, Mumbai-400012. ...Respondents
(By Advocate:Dr. Ch.Shamsuddin Khan for R-1 &
Shri R.N.Singh for R-2 to R-5)
ORDER
Per Sudhir Kumar, Member (A):
(OA No.1655/2014) (3) This OA was filed by 8 applicants along with MA No.1435/2014 under Rule 4(5) (b) of the CAT (Procedure) Rules, 1987, praying for being permitted for joining together. When notices were issued in the OA as well as MA, the MA was never allowed till the case came up for final hearing, and reserved for orders.
2. In between, on 19.03.2015, the Bench, including one of us, had partly heard the case, and recorded an order that day as follows:
"We have heard the learned counsel for the applicants and respondents for some time.
2. It has been stated in the O.A. that the applicants have been working in the project relating to Human Production since 1982, which project is under the ICMR. Learned counsel for the applicants has been asked to submit a statement indicating the following:
(i) Which applicant has been working since when and the various projects in which he/she has worked along with the period.
(ii) Copies of the appointment orders of the applicants in the projects showing the nature of employment, as stated by the respondents.
3. Learned counsel for the applicants seeks three weeks time to file the statement. Accordingly, list on 22.04.2015."
3. However, when the case came up next time before the same Bench on 20.07.2015, the applicants' counsel sought adjournment, which was allowed. Thereafter, the term of the Administrative Member of that Bench ended, and the case was later heard by the present Bench, and reserved for orders. Since the facts of the case are inextricably inter-twined with the prayer of the applicants for joining together made through the MA No.1435/2014, the orders in both are being passed through this common order.
(OA No.1655/2014) (4)
4. The applicants of this O.A. are Project Staff Members of a few Human Reproduction Research Centres (HRRCs, in short) of the Indian Council of Medical Research (ICMR, in short), and are aggrieved that their services with their HRRCs have not been regularized by the respondents, despite the fact that they are serving in their respective HRRCs for decades, without any break, and that they are also not being paid "equal pay for equal work". Their further grievance is that though they are working and doing identical work, as the work of regular employees of the irrespective organizations, where their HRRCs are located, but they are not being paid salary and wages at par with the regular employees of those host Institutions. Hence, this OA was filed with the following prayers and the interim prayer:
"(a) Direct the respondents to regularize the services of the applicants/employees from the date of their respective initial appointments with all the arrears and consequential benefits,
(b) Allow the cost of these proceedings,
(c) Grant any other relief which this Hon'ble Tribunal may deem just and proper in the facts and circumstances of the case.
Pending final decision on the application the respondents seek the following interim relief;
Direct that the applicants be paid the same pay scales as are paid to the regular employees."
5. The prayer of interim relief was never granted during the numerous hearings of the OA and, therefore, the same has become infructuous.
6. This is not the first time that these applicants have approached this Tribunal. Earlier, when their request for merger of 50% Dearness Allowance in their Basic Pay as Dearness Pay had been turned down by the (OA No.1655/2014) (5) respondents, the applicant Nos.A-5, A-6, A-7 and A-8 had approached this Tribunal by filing OA No.1757/2007. In that OA, this Tribunal had directed the respondents to accord to those applicants merger of 50% of Dearness Allowance in Basic Pay as Dearness Pay, with all consequential benefits and allowances, within a period of three months from the date of receipt of a copy of that order. Apparently, that order had been implemented by the concerned respondents.
7. The grievance of the 8 applicants in the present OA is that even though they were initially appointed on a temporary basis, but had put in service for periods ranging from 11 to 32 years, and yet their services have not been regularized by the ICMR, because of which they are being denied the benefits which are available to the regular employees, such as, Leave Travel Concession, Time Bound Promotion, Selection Grade, Bonus, Medical Reimbursement, Gratuity and Pension. They are also aggrieved that in their cases, the recommendations of the Pay Commission have also been only partly implemented.
8. In a related development, some Project Staff of the HRRCs of the ICMR at its Madras (Chennai) projects had approached the Hon'ble High Court of Madras in Writ Petition Nos. 25490 to 25493 & 25574 to 25577 of 2002, and the High Court had, vide its order dated 25.08.2006, directed for regularization of those Project Staff. The respondents filed SLP Nos. 14953- 14960/2007 before the Hon'ble Supreme Court against the directions of the Madras High Court, which SLPs came to be dismissed on 26.10.2009. Thus, the directions of the Madras High Court for the regularization of the concerned staff had attained finality. Consequent to that, the ICMR had (OA No.1655/2014) (6) notified a Scheme for considering absorption and appointment of the Project Employees of its various country-wide HRRCs, and absorption and appointment orders were issued to the Project Staff of the HRRC, Madras, in obedience of the Madras High Court's Order dated 25.08.2006.
9. In another related development, in respect of HRRC Project, Baroda, consequent upon the order of the Ahmedabad Bench of this Tribunal in OA Nos. 487 to 492/2005, the respondents issued appointment letters to regularize the posts of the Project Staff of HRRC, Baroda, also.
10. The present applicants are aggrieved that though they have also put in long years of service, for various periods, starting from 1982, and they are on the same footing as of the Project Staff of HRRCs, Madras and Baroda, and they are also entitled for similar regularization/absorption of their appointments, yet they are being discriminated against, in violation of their rights of equality under the Constitution, and the respondents are even denying their responsibility under Article 39(D) of the Constitution to pay "equal pay for equal work" to bring their pay at par with the employees of the Institutions which have hosted their respective HRRCs.
11. In respect of limitation, the applicants have taken the ground that the O.A. is within the limitation period, as prescribed under Section 21 of the Administrative Tribunals Act, 1985.
12. The facts of this case are that ICMR had established a network of 31 HRRCs, at various host Medical Colleges, throughout in India, with three HRRCs being at Delhi, and the applicants of this O.A. belong to HRRC Centres at the All India Institute of Medical Sciences(AIIMS, in short), and the Kasturba Gandhi Hospital.The objectives of all these 31 HRRC Centres (OA No.1655/2014) (7) was to carry out relevant research to strengthen and improve the performance of National Family Welfare Programme at the State level, and to thereby achieve the national goal of population stabilization, and improvement of the reproductive health of the people. The ICMR provides complete funding to the host Medical Institutions to meet operational costs of the HRRCs hosted by them, including core staff consisting of medical and non-medical scientists, social worker, clerk, and a jeep with driver, and contingency grant to cover the running charges for the vehicle travel, and miscellaneous expenditure, and that the entire project co-ordination of the HRRCs is done only by ICMR, though the HRRCs function as independent field units at the Hospitals run by the State Governments, and they are under the administrative control of the respondent no.5, an Officer of the ICMR, R-2.
13. The applicants claim to have been appointed to their posts after completion of the due process of recruitment, like advertisement, interview and issuance of appointment letters.
14. The Applicant No.1 is a Research Officer/Scientist-B (Non-Medical) in the HRRC at AIIMS, who had joined on 08.07.1995, after applying in response to an advertisement, followed by an appointment letter having been issued. Details of the Bio-data of the applicant no.1 had been given at pages Nos.8 to 17 of the paperbook of the OA. The Applicant No.2 is a Medical Social Worker, who joined the HRRC at AIIMS through similar process on 19.08.1996. The Applicant No.3 is working as a Lower Division Clerk, who had joined the HRRC at AIIMS on 05.05.2003, after an interview, and her term was extended on yearly basis. The Applicant No.4 is a Driver, who was appointed in the HRRC at AIIMS in February, 1988, through (OA No.1655/2014) (8) appointment letter dated 08.02.1988. The Applicant No.5 is a Research Officer (Non-Medical), who had joined the HRRC, Kasturba Hospital initially on 01.04.1982 as a Medical Social Worker, and worked till 11.06.1987 without break. On 11.06.1987, her services were terminated, as the post of Medical Social Worker was abolished at that HRRC. However, within one month thereafter, she again joined the same HRRC project, this time as Research Officer (Non-Medical)/Demographer, and has continued as such since then. The Applicant No.6 is a Research Officer (Medical), who had been issued appointment letter on 10.12.1997, and had joined HRRC, Kasturba Hospital, on 14.12.1997. The Applicant No.7 is a Lower Division Clerk/Typist, who had joined HRRC, Kasturba Hospital on 29.11.1989, though the appointment letter was issued to her subsequently on 26.12.1989, through Annexure A-8. The Applicant No.8 is a Driver, who had joined HRRC, Kasturba Hospital, on 01.02.1987.
15. As Annexure A-13 the applicants have filed a typed copy of the document which purports to have originated from the ICMR, containing a Scheme for Absorption of HRRCs' Project Staff all over the country, called "HRRC Project Staff (Absorption and Grant of Temporary Status) Scheme, 2010", which came into force with effect from 01.07.2010.
16. The applicants have also filed as Annexure A-14 a copy of order dated 26.08.2010 passed by the Madras Bench of this Tribunal in OA No.1115/2009, filed by 14 applicants, which order was upheld by the Division Bench of the Madras High Court in its judgment dated 19.03.2012 vide Writ Petition No.22609/2011 Annexure A-15. However, it is seen that both the Order of the Madras Bench of this Tribunal and the judgment of the (OA No.1655/2014) (9) Madras High Court, do not relate to HRRC staff, but are related to the Project Staff in a different Project called the Integrated Disease Vector Control Project, which was also funded by the Government of India, as well as ICMR, and the applicants in that OA had been appointed in the Malaria Research Centre, Madras Branch, which is now known as National Institute of Malaria Research, Madras Branch. It was submitted that, thereafter, similarly placed Malaria Research Centre Employees' Welfare Association had approached the Delhi High Court also, in W.P.(C) No.1554/2003, in which, through its judgment dated 20.03.2013, the High Court had adopted the law as declared by the Madras High Court in the above cited Writ Petition.
17. The applicants have also produced a copy each of two appointment letters issued in pursuance of the Orders of this Tribunal's Ahmedabad Bench in respect of some Project Staff of HRRC Baroda.
18. The applicants have submitted that they have crossed the maximum age limit for getting jobs in any Government Department, or in any Public Sector Undertakings, and, in spite of having worked for upto 32 years, they are working under the constant risk and apprehension of termination of their services. It was submitted that there is no justification for the respondents not to regularize their services, and to deny them wages and other benefits at par with the regular staff of the Central Govt./ICMR.
19. Claiming the reliefs as above, the applicants have taken the following grounds in their OA:-
a) That they have put in regular service without break, and have yet been denied regularization/absorption, which is discrimination under the Constitution;
(OA No.1655/2014) (10)
b) That they have been allowed to continue on year to year basis, and in view of the fact that the projects undertaken by the HRRCs were allowed to be continued for years together, the applicants have yet to acquire the status of permanency;
c) That in the case of Indian Council of Medical Research, New Delhi and Others vs. K.Rajalakshmi and Another (2005) IILLJ 647 Mad, it has been held by Madras High Court that when a post being held by a person continues to be held by him for more than a certain limited period, it cannot be said that it is a temporary post, and that even if the project, or department, or whatever the name be, can function on yearly renewal basis, but the services of the persons working in such project, or any department, cannot be kept as temporary for more than a certain limited period, because the renewal of the project or department on yearly basis would not affect its functions and objectives, whereas if the services of the persons working in such project or departments are not regularised, if they are working for more than a certain limited period, this would not only affect their career but also their entire life;
d) That it is well settled that if work is taken by the employer continuously from its employees for long number of years, without regularizing them as against their legitimate claim, it would amount to unfair labour practice;
e) That because the HRRCs have remained in existence for more than 30 years, it can be held that the various projects undertaken by the HRRCs are perennial in nature, and they cannot be taken as (OA No.1655/2014) (11) temporary, and the persons working there cannot be kept as temporary for more than a certain limited period;
f) That because the project staff members are discharging the same duties as that of the regular employees, therefore, they are entitled to "equal pay for equal work", as they had been initially engaged after following the due recruitment procedures, like advertisement, interview and issuance of appointment letters;
g) That during the course of continuation of their services, the applicants were given pay and allowances more or less on par with the regular employees, such as DA, CCA, HRA and certain percentage of pay commission recommendations etc., and also revised scales of pay on par with the Central Government and for higher ranks such as Research Officers, non practicing allowance was also granted and, therefore, these factors support and enable the applicants to claim for regularization of their services;
h) That since the services of HRRC Project Staff of the ICMR at its Madras Project have been regularized due to the order of the Madras High Court, and the SLP filed against the order of Madras High Court also getting dismissed on 26.10.2009, and the appointment orders were also issued to those Project Staff, and when 2nd Respondent even formulated a Scheme for Regularization for Project Staff of all HRRCs, the applicants cannot be discriminated against, and, therefore, they are also entitled to similar reliefs;
i) That though the 2nd respondent/ICMR is said to be considering the regularization of services of all staff engaged in HRRCs, as well as (OA No.1655/2014) (12) its other Research Projects, no positive response for their regularization has been received so far, because of which, the applicants had sought the relief of their regularization from the date of their respective initial appointments.
20. The respondents filed their counter reply on 03.11.2014. They took a preliminary objection that no cause of action had accrued to the applicants to file the present OA, as no fundamental, statutory or legal right of the applicants has been infringed by any order/action of the respondents, and, therefore, the OA deserves to be dismissed.
21. It was further submitted that merely because for implementation of orders of this Tribunal, or of the High Court, certain persons were regularized, does not automatically make the applicants herein entitled for regularization, de hors the relevant rules/policy on regularization. In saying so, reliance had been placed upon on the law as laid down by the Apex Court in the cases (i) Secretary, State of Karnataka vs. Uma Devi, 2006 AIR SCW 1991, (ii) State of Punjab vs. Jagdip Singh, AIR 1964 SC 521, and
(iii) State of Madhya Pradesh vs. Y.C.Dube, 2006 (9) SCALE 73.
22. They had further submitted that the OA is not maintainable for being hopelessly barred by limitation, delay and latches. In doing so, they had placed reliance an Apex Court's judgment in D.C.S. Negi vs. Union of India dated 07.03.2011 in SLP (Civil) CC No.3709/2011.
23. The respondents have taken a further preliminary objection that the eight applicants of this O.A. are seeking regularization to different posts from different dates, having different qualifications, different class of posts, and different rules and eligibility conditions were applied to their (OA No.1655/2014) (13) appointments. It was, therefore, submitted that though the eight applicants of this O.A. have filed an MA under Rule 4(5) of CAT (Procedure) Rules, 1987, for joining together in filing this O.A., on these grounds of dissimilarities in their cases as well, the OA is not maintainable.
24. In the para-wise reply to the OA, it was submitted that the respondent no.2 was responsible for releasing the grant on year to year basis to respondents no.3 and 4, and that they have not had any further role in setting up the HRRCs, and advertising and recruiting the applicants, and the posts where they were working are purely temporary posts sanctioned for the duration of the Research Project/Scheme assigned to the HRRC concerned. It was submitted that in the appointment letters issued to the applicants itself it was mentioned that their appointments will be on purely adhoc basis, for a period of three months only, and that such appointments would not entitle them to any regular appointment, in the regular cadre of the host Institute, or in this or any other Schemes, and that their services may be terminated at any time, without any prior notice, and without assigning any reasons. It was submitted that the staff employed in such Schemes were never meant to be ICMR's employees, but for all purposes they were to be treated as employees of the Host Institute of the HRRC concerned, and were to be subject to the rules and administrative control of the Host Institute only, and were to be appointed in accordance with normal recruitment rules and procedures of the host Institute. Even the scales of pay and allowances etc. applicable to the staff of the HRRC concerned were to be the same, as admissible under the rules of the grantee Host Institute.
(OA No.1655/2014) (14)
25. It was further submitted that the Respondent No.2/ICMR being a Society registered under the Societies Act, 1980, engaged in research activities in the field of medicine, and carries out various research activities through various schemes/projects through the respondents no.3 and 4 Institutes, on the basis of the Central Government grants/grand-in-aid, on year to year basis. It was submitted that all such HRRCs have since been renamed as field units, vide letter dated 11.05.2011, and are under the administrative control of respondent no.5, but it was submitted that still the status of all the employees of the HRRCs remains the same, as being with the host Institutes.
26. It was submitted that many projects are undertaken by the respondent no.2 in order to achieve certain goals and objectives related with a particular disease, and these disease wise research projects are at times limited to a particular geographical region, and the projects are also time bound in nature, and the aims and objectives of these projects are aimed at a particular population group, and are run only on need basis. It was also submitted that by their very nature, these projects can never attain the character of permanency; rather they have their limited roles, with respect to the set objectives, for undertaking which types of projects the HRRCs were set up. It was further submitted that the respondents never had any intention of these projects attaining the character of permanency, and were they meant for undertaking certain research projects with set objectives within a limited time span and period, and by no means of any imagination, they could ever attain the nature of permanency, even if they were funded regularly, but on any yearly basis, keeping in mind the aims and objectives to be achieved, and the tasks to be performed. It was submitted that that (OA No.1655/2014) (15) such persons, who were appointed for undertaking such projects were well aware of the facts that these are time bound individual projects, and that they were working on an adhoc basis, though for some reasons or the other, some projects continued for a long time.
27. The respondents had sought shelter behind the Apex Court's judgment in Secretary, State of Karnataka vs. Uma Devi (supra), in which it was held that a mandamus could not be issued in favour of the employees, directing the government to make them permanent, when the employees cannot show that they have an enforceable legal right to be permanently absorbed, or that the State has a legal duty to make them permanent. Paras 38 to 43 of the said judgment have laid down the law as follows:
"38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
39. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or (OA No.1655/2014) (16) salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
40. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional (OA No.1655/2014) (17) scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
41. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
42. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of (OA No.1655/2014) (18) other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."
(OA No.1655/2014) (19)
28. It was submitted that the 31 HRRCs established at various medical Colleges as Host Institutions conducted research in Family Planning, Maternal and Child Health Safety, including the studies on newer contraceptive technologies, to improve the reproductive health of the local populations, and also safety, efficacy and acceptability of newer contraceptives. These HRRCs also conduct operational and clinical research on Reproductive Health, Safe Motherhood, Abortion, Infertility etc. It was submitted that the project implementation by any HRRC was the full responsibility of the Officer-in-Charge and staff appointed by the Host Institute, as the respondent no.2 was only the funding agency, while all HRRCs were governed by the rules and regulations of the Host Institutes only. It was submitted that the answering respondents had no intent of making any of its projects permanent, and as such the persons, who had been appointed in such projects were told categorically and specifically about the time bound nature of the projects, because of which, persons working under those HRRCs were only adhoc, and appointed on such adhoc basis till their contracts were continued.
29. In reply to para 4.11 of the OA, the respondents submitted as follows:
"It is respectfully submitted that for the benefit of temporary and contractual persons who had worked for ten years or more in HRRC projects, the ICMR has devised a scheme and submitted to Govt. for approval. However the same is pending for consideration before the Govt. of India."
30. It was further submitted by the respondents in reply to para 4.14 of the OA as follows:
"4.14 The contents of the corresponding para of the OA are wrong, and misleading and misconceived and hence vehemently denied. I further say that the appointment of (OA No.1655/2014) (20) the applicants are purely on adhoc basis only for the limited period, for which the project is in existence, and cannot be continued beyond the project period. The orders of appointment issued to the applicants clearly stipulated all these conditions and having accepted the same, the joined the services on temporary basis which were renewable, they are not entitled for regularization even though they worked for years together, and any point of time, they can be terminated by giving one month's notice."
31. It was further submitted that in the case of Indian Council of Medical Research Vs. K. Rajyalaxmi, (2007) 3 SCC 332" the Hon'ble Apex Court had allowed the appeal of the petitioner, and held that the Tribunal, and consequently the High Court also, had committed a manifest error in entertaining the question as to whether the project should have been made a permanent one or not, and keeping in view the fact that the project could not have been directed to be made a permanent one at the instance of the appellant, the question of invoking the doctrine of fairness did not arise. It was submitted that in service jurisprudence, it is well known that creation or sanction of a post is essentially an executive function. It was, therefore, submitted that the OA is devoid of any merit, and the same deserves to be dismissed with costs.
32. The applicants filed a rejoinder on 14.11.2014, which was sworn to only by the applicant no.5. It was pleaded that the applicants had filed an appropriate application under Rule 4(5) of the CAT (Procedure) Rules, 1987, seeking permission to join together in filing a common application.
33. It was again submitted that the applicants are relying upon the orders of Madras Bench of this Tribunal dated 26.08.2014 in OA No.1457/2012, and dated 04.04.2015 in OA No. 348/2011, copies of which were enclosed. It (OA No.1655/2014) (21) was, therefore, once again prayed that the OA may be allowed with costs, and the respondents may be directed to regularize the services of the applicants from the dates on which the respective applicants had been appointed.
34. Thereafter, on 07.04.2015, the applicants filed an additional affidavit through Applicant No.5, in compliance with the direction of the Tribunal dated 19.03.2015, already reproduced in para-2 above. The details of the dates of joining of the eight applicants, in various HRRC projects, in which he/she had worked along with the period, and some of the copies of the appointment orders of the applicants in the various projects were enclosed through Annexures A-18 to A-29.
35. Heard. During the course of arguments, a one page sheet was produced by the learned counsel for the applicants, giving details of regularized employees of a few HRRC Centres as follows:
"DETAILS OF REGULARIZED HRRC CENTRES BY INDIAN COUNCIL OF MEDICAL RESEARCH (ICMR) Permanent Date of No. of Office Memo CAT Order HRRC Units regular employees no. no.
appointment
1. Institute 27/7/2012 Total=20 No.5/10/HRRC 1332/2000-
of Obs. & /2005-RHN Madras
Gynae, Bench
Egmore
2. Stanley
Medical
College,
Royapuram
3. Govt.
K.G.
Hospital for
Women &
Children,
Triplicane
HRRC- 19/12/2013 6 No.37/Legal 487 - 492 /
(OA No.1655/2014)
(22)
Baroda Cell/2013 2005 Baroda
SSGS Bench
Medical
College,
Baroda
HRRC - 18/6/2014 6 No.5/10 865/ 2006
Thiruvanath /HRRC / 2005 65/ 2007
apuram -RHN Eranakulam
SAT Medical Bench
College
HRRC- Under process 5 348 /2011
Puducherry Madras
JIPMER, Bench
Pondicherry
36. Learned counsel for the applicants took us through portions of the judgments relied upon by him, and pointed out, in particular, two paragraphs of the counter reply in reply to paras 4.11 and 4.14 of the O.A., which we have reproduced in para 29 and 30 above. He submitted that when the ICMR had devised a scheme has submitted it for consideration of the Government of India, the OA should be allowed, and a direction should be issued accordingly. He emphasized that the respondents should regularize the services of the applicants from the date of their respective initial appointments, with all the arrears and consequential benefits.
37. On their part, the learned counsel for the respondents had filed a comprehensive compendium running into 234 pages of the case laws relied upon by him, as follows:
i) Ms.Shakuntala Sharma vs. Govt of NCT through Lt. Governor of Delhi & Others.: 2006 (1) ATJ 239 (Full Bench P.B. New Delhi).
ii) D.C.S. Negi vs. UOI: SC Judgment dated 07.03.2011.
iii) Surendra Prasad Tiwary vs. U.P. Rajya Krishi Utpadan Mandi Parishad & Others, 2006 (7) SCC 684.
(OA No.1655/2014) (23)
iv) Secretary, State of Karnataka vs. Uma Devi (3) & Ors.: 2006 (4) SCC 1.
v) Post Master General Calcutta vs. Tutu Das, 2007 (5) SCC 317.
vi) Indian Drugs and Pharmaceuticals Ltd vs. Workmen, Indian Drugs and Pharmaceuticals Ltd., JT 2006 (10) SC 216.
vii) State of M.P. vs. Lalit Verma, AIR 2007 SC 528.
viii) Hindustan Aeronautics Ltd vs. Dan Bahadur Singh, 2007 (6) SCC
207.
ix) NHRC vs. Sheenu Saxena W.P.(C) No.1268/2012 decided by High Court of Delhi on 01.06.2012.
x) National Institute of Health and Family Welfare vs. Ramjee Lal, 2002 VII AD (Delhi) 240.
xi) Union of India vs. Sheela Rani, 2007 (15) SCC 230.
xii) Gangadhar Pillai vs. Siemens Ltd., 2007 (1) SCC 533.
xiii) Official Liquidator vs. Dayanand, 2008 (10) SCC 1.
xiv) S.I.Roop Lal vs.Lt. Governor, Delhi, AIR 2000 SC 594.
38. Relying upon portions of these cited judgments, he pointed out that the prayers of the applicants' for seeking regularization of their services from the dates of their respective initial appointments were hopelessly time barred, in view of the time periods mentioned by the applicants themselves. He also invoked the protection of paras 38 to 42 of the Supreme Court judgment in Uma Devi (Supra). He also emphasized that the appointments made were related to the individual HRRC projects and that the projects themselves were different in the case of the 31 HRRCs, though the applicants were allowed to continue on a year to year basis.
(OA No.1655/2014) (24)
39. We have given our anxious consideration to the facts of the case. The first order behind which the applicants have sought shelter was passed by the Madras Bench of this Tribunal on 26.08.2014 in OA No.1115/2009, which OA was regarding to the Malaria Research Project. It is clear that the Malaria project of the respondent/ICMR could not have been different on year to year basis. Therefore, there was uniformity in respect of nature of employment of the 8 applicants in that OA No.1115/2009, over a number of years, in respect of research work related to Malaria only. In that order, the case regarding the staff of HRRC, Madras, had also been discussed in passing in Paras 10 and 11 of that order as follows:
"10. It is the case of the applicants that an identical matter involving staff of all the HRRC of the Indian Council of Medical Research, a similar contention was taken by the ICMR that they cannot be regularized since they were only project staff. This contention of the ICMR was rejected and a direction was given to consider those cases of the applicants for regularization and passed final order within a period of three months by this Tribunal on 4.12.2001 in OA 1332 of 2000(Annexure A-2). Similar directions were given in connected matters in OA 307.00 dated 5.12.2001, OA 370/00 dated 3.4.2001, OA 303/01 dated 11.2.2002 OA 367/00 dated 3.4.2001. Aggrieved with such orders of this tribunal the respondents have preferred writ petitions on the file of the Hon'ble High Court of Madras and the batch writ petitions were dismissed by common judgment dated 25.8.06(Annexure A-6). While dismissing the Writ Petitions filed by the ICMR, a larger relief was granted to the petitioners in OA 1332/00, OA 302 and 303 of 2001.
"17. Therefore, 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 regularized 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 Regularization from the date of their respective initial appointment and pass appropriate orders within a period of 12 weeks from the date of copy of this order. No costs.
(OA No.1655/2014) (25)
11. Aggrieved by this Order, Union of India and others filed Special Leave Petitions and by order dated 26.10.2009, (Annnexure A-8) the special leave petition were dismissed and the orders of the Hon'ble High Court became final and as a result of the said order, the said persons are entitled to be regularized in service with effect from the date of initial appointments with all consequential benefits. It is the case of the applicants that they stand on identical footing of the persons in the said litigation and they are also entitled to the very same benefit of Regularization with effect from the date of their initial appointment with all consequential benefits."
40. When this matter was carried by the respondents before the High Court of judicature at Madras vide Writ Petition No.22609/2011, the High Court, vide its order dated 19.03.2012, held as follows:
"9. As far as the other judgment viz.,(2007) 2 SCC 332 (Indian Council of Medical Research & Others Vs. K.Rajyalakshmi), relied upon by the learned senior counsel appearing for the petitioners are concerned, the respondent therein was appointed on 01.04.1975 and though the post was on year-to-year basis as the grant-in-aid of the Central Government in relation to the said project was on that basis, yet, the project continued for a long time. Therefore, the respondent therein sought for regularization of her services, which are rejected. She approached this court and this court gave a direction to regularize her services with retrospective effect. In the Special Leave Petition filed by the Indian Council of Medical Health before Supreme Court, the Supreme Court, while setting aside the order passed by the High Court directing regularization of the services of the respondent therein, held that the project, being on year-to-year basis, the post cannot be sanctioned on a regular basis and that the "Doctrine of Fairness" cannot be invoked in that context."
41. The High Court thereafter went on to hold in the case of Malaria Research Centre's Employees Welfare Association, the Supreme Court judgment cannot be applied, and provided relief to the Malaria Research Centre's Employees Welfare Association. When similar Malaria Research Centre's employees approached the Delhi High Court, through its order (OA No.1655/2014) (26) dated 20.03.2013 in W.P.(C) No.1554/2003, the Delhi High Court held as follows:
"10. Thus, any mandamus/direction issued would have to be treated as a mandate against the Union of India. Meaning thereby, such codal or procedural formalities or decisions/approvals which are required would have to be taken/given effect to by the Union of India.
11. As regards the Malaria Research Centre and Indian Council of Medical Research the maxim : "Impotentia excusat legim"
would be a complete defence, as long as they are able to show that they have taken all reasonable means and requisite steps to comply with the mandamus/direction issued.
12. The petition stands disposed of declaring as above in paragraph 6 above."
42. It is seen that the applicants have not filed a copy of the judgment of the Madras Bench of this Tribunal dated 04.12.2002 in OA No. 1332/2000, relating to HRRC Madras employees. It seems similar directions were issued by the Madras Bench in the connected matters in OA No.307/2000 dated 05.12.2001, OA No.370/2000 dated 03.04.2001, OA No.303/2001 dated 11.02.2002, OA No.367/2000 dated 3.4.2001, which have been reproduced in the Madras Bench's Order in OA No.1115/2009, decided on 26.08.2010. The cited judgments of the Madras Bench of this Tribunal, as well as Madras and Delhi High Courts were related to the Malaria employees, and they do not directly impinge upon the HRRC case.
43. For the first time when the applicants of this OA filed a judgment relating to the HRRC, along with their rejoinder, after dismissal of the SLP by the Apex Court in the Malaria Research Centre Employees Welfare Association's case through Annexure R-2, they had filed a copy of the order of Madras Bench in OA NO.1457/2012 dated 26.08.2014 in S.Padmanaban (OA No.1655/2014) (27) vs. Union of India & Others, which is related to HRRC. Relevant portion of that order reads thus:
"Scheme for Regularization
22. Generally when a category of staff has been working on a casual or contract basis continuously for several years without being appointed to a regular post, the Department may come up with a scheme for their absorption in vacancies on regular basis, quite often at the instance or direction of the Court, e.g. in Railways in the case of Inder Pal Yadav & Ors. vs. UOI & Ors. Again, in the case of Commission Bearers/Vendors, the Hon'ble Supreme Court in their order in WP No.191/86 dated 08.09.87 modified their earlier orders with direction to the Respondents to progressively absorb the Commission Bearers/Vendors in Group 'D' posts against vacancies in catering units/other Departments and held that Commission Bearers/Vendors so absorbed would be eligible for salary from the date of their absorption only and not from initial engagement. In the instant case, there appears to have been no direction of Court to formulate a scheme for absorption of those working in HRRC projects.
23. The Respondents in their reply have indicated that they have drawn up a scheme whereby 30% of the posts likely to be created in future and falling in direct recruitment quota in the relevant grade/category of posts as per the recruitment cycle would be used for absorption purposes. In addition, eligible HRRC staff could apply for posts advertised as per Health Research Scientist Cadre Rules, 2007. Further, as per the Temporary Status Scheme, the benefit of the same would be granted once the Applicant was regularized on fulfilling the requisite criteria. The Applicant's name was under consideration for grant of Temporary Status to him with effect from 01.07.2010 and orders in this regard would be issued once all the formalities were completed and the service records made available.
24. The Applicant is said to have been working continuously for 25 years in HRRC project. There may be several others like the Applicant who did not get the benefit when 20 supernumerary posts were created to (OA No.1655/2014) (28) accommodate only the applicants/respondents in OA No.1332 of 2000 etc./ WP Nos. 25490 to 25493 and 25574 to 25577 of 2002 in the Hon'ble Madras High Court. However, absorption of the Applicant and others similarly situated in regular posts may take considerable time with only 30% of the direct recruitment vacancies in future being earmarked for the HRRC staff. The Respondents should accordingly consider earmarking 2/3rd, if not 100% of the direct recruit vacancies for the HRRC staff, till all those who have put in more than 10 years of service in that capacity get adjusted in regular posts, and take further action accordingly.
25. With the above direction and observations, the OA stands disposed of. No order as to costs."
(Emphasis supplied)
44. Along with the rejoinder, the applicants have also filed a copy of the order of the Madras Bench of this Tribunal in OA No.348/2012 dated 04.04.2015. Relevant portion of that Order reads thus:
"6. Learned counsel for the applicants submitted that the case of the applicants is similar to the one decided by this Tribunal as early as on 4.12.2000 in OA 1332 of 2000 which has been confirmed by the Hon'ble High Court in a batch of Writ Petition Nos.25490 to 25493 and 25574 to 25577 of 2002 dated 25.5.2006 and further confirmed in SLP by the Apex Court. Hence, the orders of the High Court has attained the finality.
7. Per contra, learned counsel for the respondents 4 and 5 submitted that the applicants herein are not similarly placed employees before the Tribunal as well as before the Hon'ble High Court.
8. It is seen that as against the orders of this Tribunal in OA 1332 of 2000, the ICMR have filed W.P.No.25574 of 2002 before the Hon'ble High Court which allowed the said Writ Petition along with similar matters in the following terms:
"17.Therefore, 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 regularized from the date of their respective initial appointment. Accordingly, to that extent, we modify the order of the Tribunal.
(OA No.1655/2014) (29)
18. In the result, these Writ Petitions are dismissed. However, the first petitioner is directed to consider the case of the respondents/employees for regularization 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."
9. The said order has been unsuccessfully challenged by the ICMR in the Apex Court.
10. We find that the applicants herein are working for the last 30 years and the respondents have not considered their request for regularization for all these years so as to get the benefits as that of the regular employees. We also find that the applicants herein are similarly placed employees like that of the applicants in OA 1332 of 2000 wherein the Tribunal gave a direction to consider the applicants in that case for regularization and which order has been confirmed by the Hon'ble High Court which we cited supra, we are of the view that similar benefits has to be extend to the present applicants also.
11. In the result, the applicants have made out a case for the relief sought for by them. Therefore, the respondents are directed to regularize the services of the applicants with effect from the date of their initial appointment and pass appropriate orders with all consequential benefits. The above exercise shall be completed within a period of two months from the date of receipt of a copy of this order. The OA is allowed accordingly. In the circumstances, there shall be no order as to costs." (Emphasis supplied)
45. On his part, learned counsel for the respondents had relied upon the 14 cases, as mentioned in para 37 above. Through Ms.Shakuntala Sharma (supra), he pointed out that the law laid down by the Full Bench of this Tribunal on 25.08.2005 was that when preliminary objections regarding maintainability of OA are taken, it is the formal duty of the Court/Tribunal to decide the preliminary objections first, and then only to proceed to decide the case on merit. We bow down before this judgment and intend to follow it. Through D.C.S. Negi vs. Union of India (supra), he had pointed out that the Apex Court has itself laid down the law that the aspect of delay and latches ought to be considered by the Tribunal first, and that this Tribunal (OA No.1655/2014) (30) cannot entertain and decide an application filed under Section 19 of the A.T. Act, which is in complete disregard of the mandate of Section 21 regarding limitation.
46. Through Surendra Prasad Tiwary vs. U.P. Rajya Krishi Utpadan Mandi Parishad & Others (supra), learned counsel for the respondents pointed out that the Apex Court has held that such employees appointed without following the due procedure laid down under Articles 14, 16 and 309 of the Constitution, cannot be considered to be regularized in service, because of which, the dismissal of Writ Petition filed by the appellant contractual employee, seeking a direction for his regularization, was proper, and the High Court's judgment had been upheld.
47. The case of Uma Devi (supra) had already been relied upon by the respondents in their counter reply. In this Constitution Bench judgment, it has been clarified that merely because a temporary employee or a casual worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service, or made permanent, and it was held that it would not be essential to consider the claims of only a handful of people who have approached the Court with a claim, against equity for the teeming millions of this country seeking employment, and seeking a fair opportunity for competing for employment. It was further held that the Courts or Tribunals must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State, or its instrumentalities, or lend themselves the instruments to facilitate the bypassing of the Constitutional and statutory mandates.
48. In the case of Post Master General, Kolkata & Ors. Vs. Tutu Das (Dutta) (supra), the Supreme Court had held that the regularization of (OA No.1655/2014) (31) appointment should not be made contrary to the statutory provisions, governing the recruitment rules framed in that behalf. It was further held that the equality is a positive concept. Therefore, it cannot be invoked where any illegality has been committed, or where no legal right is established.
49. In the case Indian Drugs and Pharmaceuticals Ltd vs. Workmen Indian Drugs and Pharmaceuticals Ltd.(supra), it was held that the rules of recruitment cannot be relaxed, and the Court/Tribunal cannot direct regularization of temporary appointees de hors the rules, nor can it direct continuation of their service. It was further held that "Regularization cannot be a mode of recruitment by any "State", and any appointment made in violation of the mandatory provisions is illegal.
50. In the case of State of M.P. vs. Lalit Verma (supra) it was held that when the appellant as daily wager was not appointed in terms of statutory rules, he was not entitled to be classified as permanent employee, nor can he be directed to be regularized.
51. In the case of Hindustan Aeronautics Ltd vs. Dan Bahadur Singh (supra), it was held that the employees of the Government Company are not civil servants, and, therefore, their claim for permanency had to be adjudged from a different angle. It was further held that in the absence of a post such an employee is not entitled to claim for permanency through absorption as a regular employee.
52. In the case of NHRC vs. Sheenu Saxena (supra), the Delhi High Court had held as follows:
(OA No.1655/2014) (32) "17. We have also examined the other decisions, copies of which have been submitted by the learned senior Counsel for the respondents but none of them lays down any such proposition of law which may be of any help to the respondents. We cannot while deciding this petition lose sight of the fact that a vast number of persons, who would not be eligible at the time vacancies were notified vide advertisement dated 16.7.2003 must by now have become eligible to apply for the post of LDCs in NHRC. It would mean denial of their fundamental rights, guaranteed to them under Article 14 & 16(1) of the Constitution, if they do not get any opportunity to compete for the posts which have fallen vacant in NHRC, and are now sought to be filled by making regular appointments. No vested right for regularization or regular appointment has accrued to the respondents on account of their ad hoc appointment to these posts. It would be an improper exercise of jurisdiction on our part to direct regularization of the respondents at the cost of vast number of persons, who are entitled to apply for these posts pursuant to the advertisement issued by NHRC to fill up these posts on regular basis. It would also be conducive to the efficiency of administration, if, only the best persons are appointed to the public offices. We see no good reason for the respondents not competing with the other persons in seeking appointment to these posts. If they are better than others, they would be appointed against these posts and if other candidates are found to be better than them there would be no reason for not appointing those persons.
We are conscious of the fact that some of the respondents may have become overage by this time. However, during arguments before us, the learned counsel for the petitioners stated, on instructions, that if the respondents apply pursuant to the advertisement issued by NHRC, the requisite age relaxation would be granted to them. This concession, on the part of the petitioners, would adequately meet the ends of justice and satisfy whatever equities the respondent have in their favour on account of their engagement on ad hoc basis.
18. For the reasons stated hereinabove, the writ petition is allowed and the impugned order dated 1.2.2012 passed in OA No. 3469/2011 is hereby set aside. However, if the respondents apply pursuant to the advertisement issued by NHRC, within 04 weeks from today, requisite age relaxation shall be granted to them by the petitioners. In the facts and circumstances of the case, there shall be no order as to costs."
(OA No.1655/2014) (33)
53. In the case of National Institute of Health and Family Welfare vs. Ramjee Lal (supra), the Delhi Court had held as follows: "LPA No.462/2002
This Letters Patent has been directed against the judgment and order dated 26.04.2002 by learned Single Judge of this Court in the writ petition filed by the respondents herein seeking regularization on the ground that they were working for several years. The learned Single Judge having regard to the fact that the respondent had been regularized in the meantime, after relying on the decision of the Apex Court reported in Registrar General of India & Anr. vs. Thippa Setty & Ors., (1998) 8 SCC 690 directed that such regularization should be from their initial date of appointment.
2. The question in our opinion which should have been addressed to was as to whether the initial appointment of respondent were in compliance with the mandatory provisions of Recruitment Rules and Article 14 and 16 of the Constitution of India. Only in the event it is held that initial appointment was in terms of recruitment rules, the question of grant of seniority from the said date would arise. This aspect of the matter was dealt with by a three Judge Bench of Apex Court in B.N.Nagarajan & Ors vs. State of Karnataka & Ors. And also in R.N.Nanjundappa vs. Thimmaiah & Anr.
AIR 1972 SC 1767.
3. This issue was also considered by the Apex Court in V.Sreenivasa Reddy & Ors. Vs. Govt. of Andhra Pradesh & Ors. AIR 1995 SC 586 wherein it has categorically been held that the period during which the employees were on ad hoc service, their seniority cannot be counter and such seniority should be counted from the date of regularization only. Yet again in Registrar General of India & Anr. vs. Thippa Setty & Ors., (1998) 8 SCC 690, the Apex Court has clearly held that normally regularization of service should not be from the date of appointment.
4. This position in law is reiterated in a recent case in Md. Israil & Ors. Vs. State of West Bengal & Ors. Reported in AIR 2002 SCW 68.
5. In this view of the matter the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to appropriate Bench for consideration of the matter afresh."
(OA No.1655/2014) (34)
54. In the case of Union of India vs. Sheela Rani (supra), the Supreme Court had held that the claim of the applicant for regularization with retrospective effect, i.e. from the date of initial appointment, was not maintainable, and regularization, if done, should only be prospective. Paras 11 and 12 stated as follows:
"In Registrar General of India & Anr. Vs. V. Thippa Setty & Ors. (supra), the Tribunal's direction was to regularize the respondents w.e.f. the date of promulgation of the recruitment rules or from the date of their appointment depending on the seniority list. In pursuance of the said direction, on the new recruitment rules being promulgated on 11.5.1985, the regularization was given effect from that date. However, in the subsequent order passed by the Tribunal on 19.2.1993, the Tribunal has directed that they should be treated as having been conferred regular status w.e.f. 5.2.1981 i.e. the date of their entry into service as Investigators. This Court held that the employees had entered as ad hoc appointees and the question was whether they should be regularized in service since they had worked as ad hoc employees for a sufficient long time. If the ad hoc service is regularized from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularization must take effect prospectively and not retrospectively. This Court ordered that care must be taken to see that regularization do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularization should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked.
We, therefore, allow the appeal and set aside the judgment and order passed by the High Court and restore the order of regularization passed by the Tribunal. However, there shall be no order as to costs."
55. In the case of Gangadhar Pillai vs. Siemens Ltd. (supra), a case arising out of the Industrial Disputes Act, it was noted that the requirement to employ employees on a temporary basis is writ large on the face of the nature of the project undertaken by the Respondent-Company, and the period of employment had all along been commensurate with the period of (OA No.1655/2014) (35) work undertaken by Respondent under the respective contracts. It may have been a small contract, or it may be a big one. Period of contract in each case was, therefore, indeed bound to be different. Each site office of Respondent Company is also a separate establishment, and in such a situation, it was held that the object of such temporary employment was bona fide, and the object was not to deprive the concerned employee of the benefit of a permanent status.
56. In the case of Official Liquidator vs. Dayanand (supra), the Supreme Court was dealing with the question of judicial review of the aspect of creation and abolition of posts. It was held as follows:
"Creation and abolition of posts, formation and structuring/ restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and lay down the qualification etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides."
57. Through the case of S.I.Roop Lal vs.Lt. Governor, Delhi (supra), learned counsel for the respondents had relied upon para-12 of the judgment to emphasise that the precedent law must be followed.
58. In this case, the Coordinate Bench order passed at Madras Bench in its O.A. No.1457/2012 dated 26.08.2014 (para 43/above) had appreciated the law, concerning the issues relating to HRRCs in detail, and had analyzed the various judgments. In the present case, the applicants were specifically (OA No.1655/2014) (36) directed on 19.03.2015 by the Bench to provide the details of the particulars of the numerous projects, on which they had worked, in response to which directions an additional affidavit had been filed on 07.04.2015, but the details were never furnished in a proper/tabular form in respect of the various project employments of all the eight applicants of this O.A. over the years.
59. From the entire discussion of the facts of the case, it is clear that the 31 HRRCs established by the respondent No.2/ICMR, are all independent of each other, and, over the years, each has been assigned different projects from time to time, for undertaking the research work relating to different items related to reproductive health, on different occasions. It is very clear that at no point of time have the applicants been on the permanent establishment of any of the organizations, i.e., R-2, R-3, R-4 or R-5. They were always the employees of the HRRC, by which they were engaged on contractual basis.
60. It is also clear that whatever may be the total length of their engagements, from 11 to 32 years, as stated, but the applicants have never worked on a single project, like the Malaria workers, with whom they have sought to be equated. Over the years these HRRCs conducted research work on different projects, on different subjects, and region-wise, and geographical area wise, related to reproductive health and population control, and the applicants had always been engaged against those projects only on year to year basis. In fact, as mentioned above, the applicants have not even produced the details of the work attended to by them in a proper /tabular form against the various projects for which they had worked over the years.
(OA No.1655/2014) (37)
61. We are bound to apply the law as laid down in the judgments of the Hon'ble Apex Court in the cases (i) to (iv) of para 37 (supra), in which it has been clearly held that when there were no sanctioned posts against which the applicants could have been engaged even on the contractual basis, the applicants cannot seek regularization to the posts, as the posts themselves do not exist.
62. The present applicants have themselves submitted & admitted that they have been engaged in their respective HRRCs on different projects over the years, and have been getting almost full salary and emoluments, as compared to the permanent Central Government employees, even though they are not holding any substantive posts. Therefore, in the light of the judgment of the Apex Court in the case of Official Liquidator vs. Dayanand (supra), it is clear that the applicants have not been able to prove their case, specially so because they were employed without following the due procedure as laid down under Articles 14, 16 and 309 of the Constitution. Their engagements on a year to year basis were made without there being any sanctioned posts, and they have not been able to deny that conditions were attached and their having accepted their engagements on temporary basis, when their services may have been terminated by giving one month's notice. Such being the case, we do not find that the applicants can be allowed to seek regularization against any posts, because there are no sanctioned posts in these HRRCs for doing any regular research work. Projects are assigned to these HRRCs for limited periods of time, and the HRRCs do not even undertake research work related to a single aspect, or disease, like in the cases of Malaria Control in the cases which they have cited.
(OA No.1655/2014) (38)
63. Therefore, we do not find that the applicants have been able to make out any case, and there is even no explanation about the numerous projects for which the applicants were recruited or employed on contract basis. In fact there is no similarity in the cases of the eight applicants of the O.A., and if their M.A. for joining together in filing this O.A. had been considered separately first, even that MA may not have succeeded.
64. Therefore, there is no merit in the OA and the MA, which are dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) /kdr/