Central Administrative Tribunal - Delhi
Ms Vibha Khanna vs Prasar Bharati, M/O Information And ... on 6 December, 2023
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Item No.49/ C-4 OA No. 1231/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1231/2018
Reserved on : 30.10.2023
Pronounced on : 06.12.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
1. Ms. Vibha Khanna,
D/o Mr. D.K. Khanna,
Age 36 years,
Presently working as Archive Assistant,
Prasar Bharti (Doordarshan Archives),
R/o 315, White-House Apartment,
Sector-13, Rohini, Delhi-85.
...Applicant
(By Advocate : Shri R.V. Sinha )
Versus
1. Chief Executive Officer,
Prasar Bharti,
PTI, Building, New Delhi.
2. Director General Doordarshan,
Broadcasting Corporation,
Doordarshan Bhavan,
Copernicus Marg, New Delhi.
3. Deputy Director General,
Doordarshan Archives,
Room No.1, Askashwani Bhawan,
New Delhi-110001.
...Respondents
(By Advocate : Ms. Vertika Sharma )
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Item No.49/ C-4 OA No. 1231/2018
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J):-
The applicant was engaged as an Archive Assistant on contractual basis in Doordarshan on consolidated pay of Rs.10,000/-. Her contractual engagement was revised from time to time. This engagement continued till the year 2018, when vide letter dated 05.03.2018 she was informed that her contract will not be extended beyond 31.03.2018. Aggrieved, she has approached this Tribunal, seeking the following reliefs:-
"(a) Quash and set aside the impugned order dated 05.03.2018 with all consequential benefits.
(b) Direct the respondents to continue with the applicant till a regular incumbent is posted or till the job is available in the organisation.
(c) Grant any other relief as deemed appropriate under the facts and circumstances of the case."
2. Learned counsel for the applicant submits that the applicant's services on contract were continued for 9 long years uninterruptedly and to the satisfaction of the respondents. He submits that no doubt, there was the 3 Item No.49/ C-4 OA No. 1231/2018 provision for termination of contract in the terms and conditions however it could be terminated only after giving one month's notice or pay in lieu thereof. However, vide the impugned communication dated 05.03.2018, the respondents have conveyed the unilateral decision that the contract of the applicant would stand terminated w.e.f. 31.03.2018. This is in violation of Condition No. 8, as set forth in her offer of engagement, he argues. The specific condition reads as under:-
"8. Termination of Contract : The contract could be terminated by either side by giving one month's notice or pay in lieu thereof without assigning any reason;"
3. Drawing further attention to the policy governing the contract, learned counsel for the applicant submits that the conditions which get attracted for non extension of contract are either unsatisfactory performance or lack of any requirement of contractual staff. In the instant matter, almost every officer, under whose supervision the applicant has worked, had certified that the applicant was efficient and hard working and expressed satisfaction with her performance. He submits that it is at a later stage, during the course of the pleadings in the 4 Item No.49/ C-4 OA No. 1231/2018 present matter that a criteria of attaining 70% benchmark for continuation of the contract has been disclosed.
4. Learned counsel submits that the decision of the respondents not to extend the contract of the applicant and thus terminating it w.e.f. 31.03.2018 is bad in law on account of (a) violation of their own policy governing the contract; (b) violation of the specific provisions of the contract which requires the assessment of the performance as also requirement of personnel; (c) discriminatory treatment meted out to the applicant; (d) the fact that many persons junior to the applicant have been continued on engagement on contract ignoring the bonafide claim of the applicant; (e) ignoring the fact that her performance and conduct has been certified by the Controlling Officers; last but not least, learned counsel reiterates that violation of the specific provisions with respect to termination of contract is against the principles of natural justice, which have not been followed by way of resorting to unilateral termination of the contractual engagement of the applicant. Learned counsel has drawn attention to a detailed response to the 5 Item No.49/ C-4 OA No. 1231/2018 impugned communication given by the applicant, which is placed at Annexure A-10, giving details of the tasks performed by her especially with respect to the targets and further making a request that on account of her professional performance, as also taking into consideration her personal commitments, her contract may be extended further. He further draws attention to the document placed along with the affidavit filed on behalf of the applicant on 02.08.2023, wherein this communication has been processed on the departmental file but gives no indication as to whether any decision thereon was taken or not. He states that this indicates an indifferent attitude on the part of the respondents.
5. Continuing the arguments, Mr. R.V. Sinha, learned counsel for the applicant submits that the applicant was duly selected to the post of Archive Assistant through Broadcast Engineering Consultants India Limited (BECIL), which is a Government of India Enterprise. Since the appointment was recommended after interview, it is presumed that the applicant was selected on merit. He further submits the applicant's performance and conduct ought to be considered good and there has been 6 Item No.49/ C-4 OA No. 1231/2018 nothing adverse against her. The order impugned, vide which, she has informed that the contract has not been extended, is a cryptic order. Learned counsel for the applicant argues that the order having adverse civil consequences upon the applicant cannot be sustained as this non-speaking and non-reasoned order has been issued without putting the applicant to notice. He further draws attention to documents on record, highlighting that there is nothing therein, which casts any doubt or shadow upon the work and conduct of the applicant and responsibility should be casted on the respondents to justify their decision of not extending the contract especially against the background of consistent satisfactory performance of the applicant.
6. Learned counsel, in support of his pleadings as also the arguments he has put forth, places on record a list of judgments of various courts, which are as follows:-
"1. East Coast Railway & Anr. Vs Mahadev Appa Rao & Anr., reported as (2010) 7 SCC 678.
2. Central Inland Water Transport Corporation Limited & Anr. Vs. Brojo Nath Ganguly & Anr., reported as (1986) 3 SCC 156.
3. State Bank of India & Ors. vs. Rajesh Aggarwal & Ors, reported as (2023) 6 SCC 1.7
Item No.49/ C-4 OA No. 1231/2018
4. Union of India & Ors. vs. Central Administrative Tribunal Additional Bench & Ors, reported as 2013 (7) SLR 442 (All).
5. Gurdial Singh Fijji vs. State of Punjab & Anr., reported as (1979) 2 SCC 368.
6. State of U.P. Vs. Yamuna Shanker Misra & Anr., reported as (1997) 4 SCC 7.
7. Sukhdev Singh vs. UOI & Ors., reported as (2013) 9 SCC 566.
8. Prabhu Dayal Khandelwal vs. Chairman, UPSC & Ors, reported as (2015) 14 SCC 427.
9. Rukhsana Shaheen Khan vs. UOI & Ors., reported as (2018) 18 SCC 640.
10. Mohan Lal vs. Management of M/s. Bharat Electronics Ltd., reported as (1981) 3 SCC 225.
11. Anoop Sharma vs. Executive Engineer, Public Health Division No. 1, Panipat (Haryana), reported as (2010) 5 SCC 497.
12. All India Radio vs. Santosh Kumar & Anr., reported as (1998) 3 SCC 237.
7. Concluding the arguments, Mr. R.V. Sinha, learned counsel for the applicant emphatically states that in the event of performance standing in the way of extension of contract, it was obligatory on the part of the respondents to convey the same to the applicant and obtain her response before acting upon the same, especially as it has acted as an impediment for extension of her contract. 8
Item No.49/ C-4 OA No. 1231/2018
8. Pursuant to notice, the respondents have filed their reply. Reiterating their stand as made in the counter reply, Ms. Vertika Sharma, learned counsel for the respondents submits that the relief as sought for vide para 8 (b) is not maintainable nor can such relief even be considered. She submits that what the applicant seeks is to continue in the position till a regular incumbent is posted or till the job is available in the organization. She clarifies that the engagement of the applicant was not against any regular vacancy or post or job. Hence, the question of posting of a regular incumbent does not arise. She further clarifies that the applicant was engaged through the man power sourcing agency in accordance with the Comprehensive Policy for Contractual Engagements, a copy of which has been placed on record. She particularly draws our attention to para II of the said policy which is titled as "Need based contractual engagements". She further elaborates that the applicant, herein, was engaged on 'need based' post and her contract was extended from time to time only when such a need was felt by the organisation. She submits that the policy is very elaborate and lays down the conditions 9 Item No.49/ C-4 OA No. 1231/2018 which will govern the extension of contract and one of such condition is the appraisal of performance of the persons so engaged. To that extent, the policy is both fair and transparent. She submits that the engagement of the applicant is not only strictly in accordance with the policy but also in terms of the contractual agreement entered into by the Prasar Bharti with the applicant. She further argues that what the order impugned states is purely that the contract of the applicant shall not be extended on its culmination on 31.03.2018. The word 'terminated' used therein is to be understood in the said context. She further clarifies that the rules of natural justice would not be attracted in the present case as the policy for contractual engagement has a categorical provision that the contract is for a specific period and is 'need based'; hence, it does not confer any right either for its extension or otherwise upon the contractual employee. She reiterates that a communication dated 05.03.2018, impugned in the present OA nearly conveys the decision not to extend the contract and hence, it is neither a punitive order nor an adverse order.
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Item No.49/ C-4 OA No. 1231/2018
9. Learned counsel for the respondents has further added that the applicant all this while was aware of the policy as also the terms and conditions of contract. In fact, it is on the basis of this policy and the contract entered thereon that her engagement has been continued from time to time by way of extension. It is only when the contract was not extended that she has questioned the very policy and contract, of which, she has been a beneficiary for long. She also clarifies that in terms of the policy, performance appraisal has taken place each year with respect to all contractual employees including the present applicant. Therefore, at this stage she cannot be questioning the same.
10. Learned counsel for the respondents has further clarified that the assessment of performance appraisal introduced in respect of contractual employees is to be understood only in the specific context of evaluating the performance of such employees for a limited extent of determining whether the contract is to be extended or not. Merely keeping a good appraisal is not by itself a ground for extension of contract; it is also dependent upon requirement subject to availability of sufficient 11 Item No.49/ C-4 OA No. 1231/2018 work. She clarifies that the policy categorically states that screening in terms of evaluating the performance of the contractual employees is proposed with a view to bring uniformity in the contract of all contractual employees irrespective of the source through which they have engaged. She clarifies that this also lends a degree of transparency and objectivity when it comes to extending the contract of the contractual employees. She adds that the arguments put forth by the learned counsel for the applicant is an after-thought and cannot be taken on board at this stage. Learned counsel for the respondents has further added that the applicant all this while was aware of the policy as also the terms and conditions of contract. In fact, it is on the basis of this policy and the contract entered thereon that she has been continuing her engagement from time to time by way of extension. It is only when the contract was not extended has she questioned the very policy and contract of which has been a beneficiary for long. She also clarifies that in terms of the policy, performance appraisal has taken place each year with respect to all contractual employees 12 Item No.49/ C-4 OA No. 1231/2018 including the present applicant. Therefore, at this stage she cannot be questioning the same.
11. In rejoinder, learned counsel for the applicant drawing attention to a short additional affidavit of the respondents dated 23.02.2023 points out that the said affidavit indicates that performance appraisal of the applicant, as also other contractual employees, was to follow the two-tier system whereas the performance appraisal form annexed thereto as performance assessment is made only by the Controlling Officer; and overall assessment and weighted average score was 67.64, which is marginally less than 70%. However, the Controlling Officer has made a categorical submission that the applicant could be given extension in view of her qualification and performance as also the requirement of personnel in the cadre. Learned counsel reiterates that both the conditions for extension of contract based on performance and requirements are met in the case of the applicant. He alleges discriminatory treatment towards the applicant, which is in violation of Article 14 of the Constitution of India by drawing attention to the case of one, Mr. S. Ashokan, who attained the weighted average 13 Item No.49/ C-4 OA No. 1231/2018 score of only 64.50 i.e., much less than the applicant but his case was recommended for extension of the contract period by six months. Learned counsel for the applicant, reiterates the arguments he had put forth that any order or decision which carries in itself adverse civil consequences has to necessarily state the reasons for passing such an order. In any case, administrative orders like judicial and quasi-judicial orders must always state the reasons. He further submits that in service jurisprudence, if an employee is made to enter into a contract, it should be so entered into as equals. In the present case, it would not be an exaggeration to call the contract a sham as it is in contravention to Article 14 of the Constitution of India.
12. He further responds to the arguments put forth by the learned counsel for the respondents and submits that in service jurisprudence if an employee is made to enter into a contract, it should be so entered into as equals. In the present case, it would not be an exaggeration to call the contract a sham as it is in contravention to Article 14 of the Constitution of India.
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Item No.49/ C-4 OA No. 1231/2018
13. We have heard the learned counsel for the parties and gone through the pleadings available on record.
14. The applicant was engaged on contract. This engagement was extended from time to time. The terms and conditions of the contract were unambiguously clear that the services of the applicant shall be extended subject to performance appraisal. Only after evaluating the performance from time to time, the applicant has been given the extensions. These extensions have been granted for the last nine years. When the extensions have been extended each time after performance appraisal, the applicant did not raise any concern. At this stage, she is estopped from raising any objection with respect to the procedure adopted by the respondents. It was only when her extension was considered along with others and she has not been found fit in terms of the relative assessment, that she was not given the extension. Along with the applicant, there are other similarly placed persons whose performance has been evaluated. Therefore, it cannot be said that the action of the respondents was arbitrary or any discrimination has been meted out to the applicant.
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Item No.49/ C-4 OA No. 1231/2018
15. The appointment of the applicant was not against a substantive post, she was engaged on contract basis in terms of a policy and the method prescribed therein. It is the case of ending of contract by afflux of time and not the renewal or continuation of contract, meaning thereby, the date on which the relationship between the applicant and the respondents would severe or come to an end was prescribed in the offer of appointment itself. By implication, if the fresh order for extension is not issued before the term/engagement comes to an end, the umbilical cord between the two does not exist any longer and applicant would cease to be the employee with the respondents. Therefore, in our considered opinion, there was no violation of principles of natural justice. The appointment being purely on contract, no indefeasible right has been created in the favor of the applicant.
16. With respect to the discrimination meted out to the applicant and as explained by the learned counsel for the applicant with respect to one Shri S. Asokan, Advisor, it is seen, that Shri Asokan has been awarded 6.35 on the scale of 0-10 and he was put to trial for a period of six months. The case of the applicant was also 16 Item No.49/ C-4 OA No. 1231/2018 recommended for extension from time to time after appraisal. It is not the case of the applicant that she has been replaced the by another contractual employee.
17. We have gone through all the judgments relied upon by the learned counsel for the applicant. For the reasons explained, these judgments do not come to the rescue of the applicant as the laws laid down by the Hon'ble Apex Court are not attracted in the present facts as in the instant OA. We are confronted with the fact that the applicant was engaged on contractual basis and she has not been replaced by another contractual employee. We reiterate that the applicant was never terminated and her employment came to an end with afflux of time.
18. For the reasons explained hereinabove, we do not find any merit in the OA and the same, being devoid of merits, is accordingly, dismissed. However, in the facts and circumstances, there shall be no order as to costs.
(Pratima K Gupta) (Tarun Shridhar)
Member (J) Member (A)
/rk/