Madhya Pradesh High Court
Ajeet Singh Chandel vs All India Institute Of Medical Sciences on 30 July, 2019
1 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19
IN THE HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
Case No. & M.P.No.4640 of 2018
Parties Name Dr. Amit Kumar Verma
Vs.
All India Institute of Medical Sciences
M.P.No.636 of 2019
Imrat Singh Kurmi
Vs.
All India Institute of Medical Sciences
M.P.No.695 of 2019
Amit Singh Bhadoria
Vs.
All India Institute of Medical Sciences
M.P.No.1009 of 2019
Ajeet Singh Chandel
Vs.
All India Institute of Medical Sciences
M.P.No.970 of 2019
Mrs. Manuradha Dahiya
Vs.
All India Institute of Medical Sciences
Date of Order 30/07/2019
Bench Constituted Division Bench
Order delivered by Hon. Shri Justice Sujoy Paul
Whether approved for
reporting
Name of counsels for parties For petitioner: Shri N.S.Ruprah,
Advocates.
For respondents: Shri Shashank
Shekhar, Shri Amit Singh, Shri Gopi
Chourasia, Advocates.
Law laid down -
Significant paragraph -
numbers
ORDER
( 30/7/2019) Per : Sujoy Paul J Regard being had to the similitude of the questions involved, 2 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 these matters were analogously heard and decided by this common order.
(M.P.No.4640/18 (Amit Kumr Verma Vs. AIIMS and ors.) The petitioners claimed regularization on the posts of Medical Officers (Homeopathy, Ayush and Ayurvedic) the Non faculty group "A" post). They filed O.A.No.200/43/2018 before the tribunal for said relief. The tribunal by impugned order dated 20.09.2018 (Annexure P/1) has dismissed the said O.A. This order of tribunal is called in question in this batch of petitions filed under Article 227 of the Constitution.
2. Briefly stated, the case of the petitioners is that petitioner No.1 and 2 are Homeopathic doctors whereas petitioner No.3 is an Ayurvedic doctor. Pursuant to an advertisement dated 22.7.2015 (Annxure A/5) issued for inviting applications for filling-up various posts on purely contractual basis, the petitioners submitted their candidature and were subjected to a selection process. They were interviewed by a Committee constituted for this purpose (experts, members names and designations are mentioned in para-5.4 of the petition). The petitioners successfully passed the selection process and came to be appointed on contract basis for a period of 11 months by order dated 14.08.2012.
3. In para-5.6 of the petition, it is averred that since the respective dates of original appointments the petitioners worked continuously without any break in service and have been paid their full salary without any deduction for the whole period, the petitioners were not given any break even for a single day after 28.02.2013. The appointments were formally renewed on 29.11.2013 (Annexure A/6 cumulatively). The Director All India Medical Sciences (AIIMS) passed an order dated 27.11.2014 (Annexure A/7) whereby status of petitioners was 3 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 changed from contractual/ adhoc to temporary appointment. The respondent No.3 wrote a letter dated 13.3.2015 to the Director AIIMS whereby request was made, subject to approval of extension of the tenure of Senior residents/ Junior residents at AIIMS, Bhopal on completion of one year of service to continue them. The Ministry conveyed that AIIMS, Bhopal should place the matter of proposed change before the Institute Body (I.B) and said body will take a decision in this regard. It is further averred that AIIMS, Bhopal wrote two letters i.e 28.11.2014 and 16.01.2015 in which all the petitioners were shown as Group-A post holders. The AIIMS, Bhopal has communicated to the Minister (who is the President of AIIMS Bhopal) the factum of continuation for a period of three months. The petitioners then preferred representations dated 16.09.2015, 13.10.2015, 31.10.2015 and 18.11.2015 with a prayer that the posts may be filled-up on regular basis as per rules and services of the petitioners be continued.
4. The petitioners, at this stage, filed W.P.No.17956/15 seeking a direction to extend the period of contract. The petition was disposed of on 04.11.2015 and Ministry was directed to take into account the proposal of respondent No.2 who allegedly made recommendation for extension of contract of the petitioners. The order of this court is filed as Annexure A/11. The AIIMS, Bhopal passed an order dated 30.12.2015 (Annxure A/12) communicating its recommendation in favour of the petitioner by stating that "the services of Medical Officers are very essential". After some deliberations between respondents, the petitioners were granted fresh appointment by order dated 11.3.2016 for a period of three months. The AIIMS, Bhopal by letter dated 21.04.2016 recommended in favour of the petitioners. The petitioners also submitted representation 4 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 dated 16.04.2016 and 18.04.2016 for their regularization. The petitioners again filed W.P.No.9441/16 wherein an interim order was passed to continue them in employment. Later on, the writ petition was disposed of 17.05.2017 by directing the petitioners to submit the representation and, in turn, the department was directed to take a final decision regarding continuation of petitioners. The petitioners then preferred a representation dated 29.05.2017 seeking extension of tenure. The petitioners services were ordered to be continued till 31.12.2017 by order dated 11.11.2017.
5. The AIIMS, Bhopal issued an advertisement dated 29.5.2017 inviting applications on various posts including the posts which were held by the petitioners. The age limit prescribed in the advertisement is 35 years. The rules of AIIMS were circulated by letter dated 21.08.2015 Annexure A/21. By this time, a notification under section 14(2) of Administrative Tribunal Act, 1985 was issued by the government notifying the tribunal as adjudicatory body for service matters of AIIMS employees. The petitioners filed instant O.A before the tribunal and by order dated 18.01.2018 (Annx.P/5), the tribunal directed the parties to maintain status quo.
6. Shri N.S.Ruprah, learned counsel for the petitioners submits that claim of petitioners for regularization was under
active consideration of the Ministry. After completion of pleadings, O.A was finally heard and decided by the impugned order. Criticizing this order, learned counsel for the petitioners submits that petitioners were selected pursuant to a regular selection mode and they cannot be treated as back door entrants hence judgment of Supreme Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi and three others- (2006(4) SCC-1 is not applicable and the tribunal has 5 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 committed an error and dismissed the O.A. based on the said judgment. Shri Ruprah submitted that the Selection Committee which interviewed the petitioners was a duly constituted Committee and, therefore, selection of petitioners is regular in nature.
7. The petitioners were continuously working since 14.08.2012/25.09.2012 against clear vacancies of Medical Officers. As per Para 53 of the judgment of Supreme Court in Uma Devi (supra) if an employee is appointed by way of regular selection process which was completely transparent, the appointment will be treated as "irregular" and not as "illegal". Such service can be regularized. This aspect has not been considered by the learned tribunal.
8. Shri Ruprah, learned counsel for the petitioners in support of his contentions relied on 2018(3) SCC 680 ( Upendra Singh Vs. State of Bihar) and urged that in the said case since there was no advertisement and appointment of Selection Committee, the relief was not granted whereas in the instant case the petitioners were subjected to a selection process in furtherance of an advertisement.
9. The next reliance is on 2018(8) SCC 238 ( Narendra Kumar Tiwari and others Vs. State of Jharkhand and others) wherein it was held that regularization rules must be given a pragmatic interpretation and if employees have worked for 10 years, they should be regularized. Thus, emphasis is laid to adopt a liberal approach in favour of the employees. 2018(13) SCC 432 (Sheo Narain Nagar and others Vs. State of U.P. and others) was cited to contend that if no recruitment rule exists, the appointment cannot be termed as illegal and in contravention of rules. The petitioners cannot be treated as backdoor entrant in the light of this judgment.
6 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19
10. Similarly, 2015 (14) SCC 382 (Surendera Kumar Vs. Greater Noida Industrial Development Authority) is referred wherein it is held that a liberal approach needs to be adopted while dealing with cases of regularization. 2015(11) SCC 255 (Prem Ram Vs. Managing Director Uttarakhand Pey Jal & Nirman Nigam) is referred to contend that there is no qualitative difference between daily wager and employee engaged in work charge establishment.
11. Per contra, Shri Amit K. Singh, learned counsel for the respondents relied on the advertisement dated 21.07.2012 (Annexure-A/5) and stated that its number 11/8/2012/AIIMS/BPL/69 is important. This advertisement was not modified pursuant to corrigendum dated 27.11.2014 (Annexure-A/7). The nature of employment from "contractual" or "ad-hoc" is modified as "temporary appointment" in pursuance to six advertisements mentioned in Annexure-A/7 which does not cover the advertisement (Annexure-A/5) pursuant to which present petitioners were selected. Thus, contention of present petitioners that their status stood modified from "contractual" to "temporary" is without any basis.
12. Shri Amit K. Singh relied on the document dated 28.02.2013 (Annexure-R/2) to show that the services of the petitioners were terminated w.e.f. 28.02.2013. The petitioners were then reappointed after 09 months by order dated 29.11.2013 (Annexure-A/6). This reappointment of the petitioners was not pursuant to any selection process. No advertisement was issued. No selection procedure was adopted and petitioners were given fresh contractual appointment on 29.11.2013 (Annexure-A/6). It is urged that there was only one post in the faculty of Homeopathy whereas the two persons were appointed on these posts. The document dated 13.03.2011 7 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 (Annexure-A/8) shows that it relates to approval for extension of tenure of senior resident/junior resident at AIIMS, Bhopal. Admittedly, none of the petitioners were holding the said post and, therefore, this document is of no assistance to the petitioners.
13. The next reliance is on document dated 22.01.2015 (Annexure-A/9) whereby the petitioners were given extension for a period of three months. Annexure-A/10 is the representation of one of the petitioners wherein it is admitted that his contractual service has come to an end on 31.08.2015. The representation dated 31.10.2015 (Page 99) is a joint representation by the petitioners wherein they have admitted that their appointment was only for 11 months on contractual basis and in September, 2015, they were directed to discontinue.
14. In the background of aforesaid facts, Shri Amit K. Singh placed reliance on Para 5.6 of the petition and contended that the petitioners have not approached this Court with clean hands. They have made a false and misleading declaration in Para 5.6 of the petition that they are working continuously without any break from the date of their initial appointment. Then joint representation (Page 101) shows that they were already discontinued from the employment. In addition, reliance is placed on the order of this Court dated 04.11.2015 passed in W.P. No.17956/2015. It is submitted that in this case also petitioners were claiming extension of period of contract. The petitioners were given extension of three months by communication dated 11.03.2016 (Annexure-A/13). This was a backdoor entry and petitioners were not subject to any selection process. The petitioners again filed W.P. No.9441/2016, which was decided on 17.05.2017. Emphasis is laid on the following finding of this Court.
8 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 "In case as per the desirability their services are required they may appoint on contract basis or renew their contract till regular appointment ."
15. Shri Singh urged that this Court also directed to consider whether the contractual period can be renewed. This Court made it clear that such continuance shall be till appointment on regular basis.
16. The stand of the respondents is that the petitioners joined the service with clear understanding that their appointments are on contract basis and it will not create any right whatsoever to occupy the posts on regular basis. The recruitment rules subsequently came into being. Pursuant to recruitment rules, a new selection process was adopted. The candidatures from open market were invited. Many persons who were co-petitioners before the Tribunal even got selected in this selection and they withdrew their petition from this Court. On 03.11.2018 (Annexure-R/5) all the posts in Ayurveda, Unani and Homeopathy have been filled up by regularly selected incumbents. The petitioners never worked for more than ten years. Their selection was on contract basis and was not regular in nature. For same period, they worked because of judicial interference.
17. Shri Ruprah in his rejoinder submissions placed reliance on Para 2.54. In addition, it is urged that petitioners are still working, but for last few months no salary has been paid to them. In MP-1009-2019, [Dr. A.S. Chandel vs. AIIMS, Bhopal] the policy of absorption is filed as Annexure-A/13. The respondents should pay the remaining salaries and absorb the petitioners.
18. Faced with this, Shri Amit Singh fairly submits that whether or not the petitioners succeed in this petition, they are entitled to get salary for the period they have rendered services 9 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 with the department. The absorption policy filed in the case of A.S. Chandel (supra) could not be translated into reality. Since, recruitment rules came into being, the appointments were made as per rules.
19. No other point has been pressed by the parties.
20. We have heard the parties at length and perused the record.
21. In the instant case, the petitioners were appointed pursuant to an advertisement dated 21 st July, 2012. A plain reading of this advertisement shows that it was made clear that posts were intended to be filled up on short term basis through contractual appointments. Thus, when petitioners submitted their candidatures with eyes open, the nature of employment was absolutely clear to them. They preferred various representations for extension of period of contract. Interestingly, in WP-9441- 2016 decided on 17.05.2017 this Court also made it clear that as per desirability, the department may appointment the petitioners on contract basis or renew their contract till regular appointment. In the aforesaid factual backdrop, one more thing is crystal clear i.e., the petitioners are not continuing pursuant to their initial appointment made as per advertisement dated 21 st July, 2012. On the contrary, their services were discontinued and, thereafter, they were reappointed. Thus, the averments mentioned in Para-5.6 of writ petition are factually incorrect and amounts to misrepresentation. This is equally admitted position that the posts against which petitioners were appointed are now filled up on regular basis. After framing and introducing the statutory recruitment rules, a fresh advertisement was issued inviting candidature of candidates from open market. Since petitioners have worked for sometime with AIIMS, provision of age relaxation was made so that even if they have crossed the maximum age they may get age 10 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 relaxation. Certain contractual employees who were co- petitioners before the Tribunal submitted their candidature and were dully selected and appointed pursuant to new selection process. Thus, it is not in dispute that initial appointment of petitioners was on short term basis as a contractual employment. The Apex Court considered this aspect in the Constitution Bench judgment in the case of Secretary, Stat of Karnataka & others vs. Uma Devi reported in (2006) 4 SCC 1 . Para- 47 reads as under:
" 47. 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 recognised 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 cases concerned, 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. "
(Emphasis supplied)
22. The law laid down in Uma Devi (supra) makes it clear that argument of Shri Amit Singh, learned counsel for the respondent has substantial force. The petitioners admittedly entered contractual appointment with clear understanding about the nature of employment and, therefore, the doctrine of legitimate expectation cannot be pressed into service. Apart from this, the constitution of selection committee mentioned in Para-5.4 of the petition does not tally with clause-5 of executive instructions dated 04.04.2013 relied upon by Shri Ruprah. The petitioners have not completed 10 years of service 11 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 uninterruptedly or without intervention of the Court. At the cost of repetition, the important fact needs to be remembered that although petitioners' initial appointment on contract basis was pursuant to an advertisement, they were later on discontinued and, thereafter, were appointed afresh without there being any advertisement and transparent selection process as per the public policy. In this view of the matter, the contention of Shri Ruprah that petitioners' appointment can at best be said as "irregular" and not "illegal" cannot cut any ice. Putting it differently, the petitioners initial appointment on contract basis was pursuant to an advertisement but said appointment came to an end. They were discontinued and, thereafter, they were appointed afresh without subjecting them to any selection process. In this background, the judgments cited by Shri Ruprah in the cases of Upendra Singh, Narendra Kumar Tiwari, Sheo Narain Nagar, Surenddra Kumar & Prem Ram (supra) are of no assistance.
23. Interestingly, in a case arising out of AIIMS i.e., Yogesh Mahajan vs. Professor R.C. Deka, 2018 (3) SCC 218 the Supreme Court held that a contractual employee has no right to have his/her contract renewed in absence of any statutory or other right in his favour. At best, employee can only claim due consideration for extending his contract which was actually done in that case. Later on decision not to continue him was taken. After considering the judgment of Uma Devi (supra) the Apex Court came to hold that no right accrued in this favour for regularization of his service. Thus, no case is made out by the petitioners for regularization.
24. Before parting with the matter, it is directed that if petitioner have performed their duties with the respondents and any salary arising thereto is still unpaid to them, it will be 12 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 lawful for the respondents to pay the remaining salary of petitioners to them within 30 days from the date of communication of this order.
25. In view of aforesaid analysis, no fault can be found in the impugned order of the Tribunal and in the action of the respondent-Department. The petition fails and is hereby dismissed.
W.P.No.636 of 2019 (Imrat Singh Kurmi Vs. AIIMS and ors)
26. The factual backdrop of this matter is almost same. The petitioner has placed reliance on a particular paragraph of the petitioner to contend that his selection was made by a duly constituted Selection Committee consisting of senior officers and, therefore, he cannot be treated as back door entrant. The petitioner was selected on 15.11.2013. He was appointed on 04.12.2013. He was given temporary status on 27.11.2014. The statutory recruitment rules came into force on 21.08.2015. Thus, he has right to be regularized because his selection was made through a transparent procedure.
M.P.No.695/19 (Amit Singh Bhadoriya Vs. AIIMS and ors.) M.P.No.1009/19 (Ajeet Singh Chandel Vs. AIIMS and ors.)
27. These petitioners were also appointed pursuant to advertisement dated 18.06.2013. They were subjected to interview in November/ December, 2013 by a duly constituted Committee. Pursuant to their selection, they were appointed on 22.1.2014 and 04.12.2013 respectively. They were also given temporary status on 27.11.2014. Same recruitment rules of 21.08.2015 holds the field in respect of the posts against which they were appointed.
28. These petitioners are also sailing in the same boat. They 13 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 were selected pursuant to an advertisement dated 18.06.2013. Subjected to same kind of selection process and were given appointment on 04.12.2013. They were conferred temporary status on 27.11.2014.
29. Shri Ruprah advanced almost similar contentions which were advanced in the case of Dr. Amit Verma (supra). In the considered opinion of this court, the detail analysis made in the case of Dr. Amit Verma (supra) will squarely apply in these matters also. Pertinently, respondents have advanced same contentions which were advanced in the case of Dr. Amit Verma (supra). No doubt, in the case of Dr. Amit Verma (supra), advertisement was dated 22.7.2012 whereas in these matters advertisement is dated 18.6.2013. However, said difference and the difference that petitioner of M.P.No.695/19 had also cleared a written examination will not make any difference so far legal rights and outcome is concerned.
30. As noticed, AIIMS Bhopal was a newly established organization. At the time of establishment of AIIMS, no recruitment rules were framed. In the administrative exigency, the posts were filled-up on contract basis. The petitioners submitted their candidature with eyes open about the nature of employment. The constitution of Committee which selected them was not in consonance with the executive instructions dated 04.04.2013. They have not worked for ten years. The Apex Court in State of H.P. and others Vs. Surinder Singh Banolta-(2006) 12 SCC-484 has held as under :-
"4. It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the 14 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said posts for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employees or on contract basis. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation, etc."
(Emphasis supplied) In the light of foregoing analysis, in our considered view, no legal, statutory or fundamental right of petitioners are infringed if their claim for regularization was turned down. We are unable to hold that the tribunal has committed any error in rejecting the prayer of regularization. Thus, M.P.No.636/19, M.P.No.695/19 and M.P.No.1009/19 are also dismissed. In the interest of justice, it is observed that if any of the petitioners have performed duties and any salary arising thereto is still unpaid to them, it will be lawful for the respondents to pay such unpaid salary to the petitioners within thirty days from the date of communication of this order.
M.P.No.970/19 (Mrs. Manuradha Dahiya Vs. AIIMS)
31. This petitioner's case was dismissed by the tribunal on the basis of order dated 23.1.2019 passed in O.A.No.200/391/18 (Ms. Sarita Pathak Vs. AIIMS).
15 M.P. Nos.4640/18, 636/19,695/19,1009/19,970/19 During the course of hearing, learned counsel for the parties fairly admitted that petitioners were selected pursuant to same advertisement dated 18.06.2013. Shri Ruprah argued that they were also subjected to same selection process.
32. We have considered this aspect in great detail. Indisputably, the main petitioner in the said case was Ms.Smita Pathak. She was also selected with this petitioner Ms. Manuradha Dahiya on contract basis. Since, recruitment rules came into being on 21.8.2015 and new selection process started, many petitioners submitted their candidature including Ms. Smita Pathak. She was subsequently selected and appointed pursuant to the said regular selection method. Accordingly, such candidates who were selected, withdrew their petitions from the courts. As noticed, in similar cases also, petitioners were also given contractual appointment awaiting the regular selection. This stopgap arrangement did not bestow any right of regularization. The constitution of Committee was not as per the instruction dated 04.04.2013. This petitioner has also not completed ten years of service. Thus, the fate of this petitioner must be same. Accordingly, this petition is also dismissed. However, In the interest of justice, it is observed that if the petitioner has performed duties and any salary arising thereto is still unpaid to her, it will be lawful for the respondents to pay such unpaid salary to the petitioner within thirty days from the date of communication of this order.
(Sujoy Paul) (B.K.Shrivastava)
Judge Judge
MKL/Biswal/s@if
Digitally signed by
MANOJ KUMAR LALWANI
Date: 2019.07.30 13:49:54
+05'30'