Central Administrative Tribunal - Delhi
Shri Narinder Singh Ahuja vs Union Of India & Others : Through on 10 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.1016/2013 MA NO.792/2013 MA NO.1000/2013 Reserved on 20.12.2013 Pronounced on 10.01.2014 HONBLE MR. ASHOK KUMAR, MEMBER (A) HONBLE MR. RAJ VIR SHARMA, MEMBER (J) 1. Shri Narinder Singh Ahuja, S/o S. Rajinder Singh Ahuja, Working as Secretariat Assistant, Under Central T.B. Division, Directorate General of Health Services, Room No.523, C Wing, Nirman Bhawan, New Delhi-110 018. 2. Smt. Ekta Swami W/o Shri Sundeep Kr. Swami, Working as Secretariat Assistant, Under Central T.B. Division, Directorate General of Health Services, Room No.523, C Wing, Nirman Bhawan, New Delhi-110 018. 3. Shri Ramesh Chand, S/o Late Shri Dani Chand Working as Data Entry Operator, Under Central T.B. Division, Directorate General of Health Services, Room No.523, C Wing, Nirman Bhawan, New Delhi-110 018. 4. Smt. Anjana Bhandari, W/o Shri Manoj Bhandari, Working as Secretariat Assistant, Under Central T.B. Division, Directorate General of Health Services, Room No.523, C Wing, Nirman Bhawan, New Delhi-110 018. 5. Mrs. Priyanka Arora, D/o Shri Ashok Kumar Arora, Working as Data Entry Operator, Under Central T.B. Division, Directorate General of Health Services, Room No.523, C Wing, Nirman Bhawan, New Delhi-110 018. Applicants (By Advocate: Shri Atanu Mukherjee) VERSUS Union of India & Others : through 1. The Secretary, Ministry of Health & Family Welfare, 1st Floor, A-Wing, Nirman Bhawan, New Delhi. 2. The Secretary, Department of Personnel & Training, North Block, New Delhi. 3. The Director General of Health Services, 4th Floor, A-Wing, Nirman Bhawan, New Delhi. 4. The Deputy Director General (T.B.), 522, C-Wing, Nirman Bhawan, New Delhi. Respondents (By Advocate: Shri Ashok Kumar) :ORDER: MR. ASHOK KUMAR, MEMBER (A):
MA No.792/2013 has been filed for joining together. The same is allowed.
2. The applicants in this OA are aggrieved by the non-extension of their contract appointment despite the decision of the respondents that all contractual staff will be appointed for one year at a time and annual renewal every year to be done till the project exists. However, the contractual appointment could be discontinued for non- performance/under performance/abolition of the post/show-cause notice and satisfactory response not received during the previous contract period. The applicants made representations for continuation of their contract but no decision has been assigned on their representations. Their contracts expired on 31st March, 2013. They have urged that there has been violation of the terms and conditions mentioned in the appointments letters and ignoring the cases of the applicants, respondents took a decision to conduct a meeting on 21.03.2013 for selection of contractual employees against the guidelines mentioned in their own letters and in disregard of the Financial Budget decision without any justification. No justification has been provided for not extending their contracts nor applicants performance has been found to be poor or unsatisfactory. In the light of the judgment of the Honble Chandigarh High Court in C.W.P. No.5269/2012 decided on 21.03.2012 in similar circumstances, respondents have not taken steps in consonance with that judgment, in which the Honble High Court had directed the respondents to consider the claim for regularization of services within four months.
3. It is further stated in the OA that the respondents initially appointed persons with approval of the Ministry of Health and Family Welfare for hiring the services of Data Entry Operators and Secretariat Assistants on purely contract basis for the World Bank/GFATM assisted Revised Nation T.B. Control Programme (RNTCP) project at the Central T.B. Division. As per the office Memorandum dated 23.10.2002, respondents issued the appointment letter in favour of the applicant no.1 with certain stipulations, including that the contract could be terminated by either side on fifteen days notice. The applicants were initially engaged on contract basis to handle the work under this programme for one year and their contracts were extended by the competent authority from time to time for a further period of one year. The appointment/extensions letters carried conditions of contractual engagement such as that he would be treated as Non-Official and would be neither entitled to any other service benefit of the Government of India nor could claim under any circumstances for his regularization in Government of India, The contractual appointment is subject to the execution of an Agreement between the CTD and the employee as per the TOR. This will be a full time engagement and the contract can be terminated by either side at fifteen days notice. In the extract of Budget and Financial Management (Annexure-A/7) also, the condition of appointing contractual staff for one year at a time, and annual renewal every year to be done till the project exists, was provided apart from the conditions regarding discontinuation of service for non-performance/under performance/abolition of the post/show cause notice issued and satisfactory response not received during previous contract period.
4. It also stated that during transition from RNTCP II to RNTCP 2012-2017, all the contractual staff shifted on the post on new salary norms, retaining the actual increments amount received after the last revision of salaries. The respondents issued the order dated 04.01.2010 consequent upon approval of the Cabinet Committee on Economic Affairs to the proposal of RCC (GFATM) assisted RNTCP with financial norms from 01.04.2009 to 31.03.2015. It is stated that the applicants got the information under RTI Act, 2005 that two new persons, namely Mr. Zubar and Mrs. Gyan Prakash were posted as Executive Assistant on 28.04.2011. It was informed that these two contractual staff were hired through the agency of DGHS/Ministry because of which two contractual employees had lost their jobs despite the assurance being given by the Ministry that outsourcing policy would never get implemented and that applicants would be exempted from the same. Yet the decision for outsourcing has been taken against which representations have been filed, but the contract of the applicants has not been extended which comes to an end of 31.03.2013.
5. Applicants have, therefore, stated that the action of the respondents is arbitrary, illegal, unconstitutional and in violation of Articles 14 and 16 of the Constitution of India and the respondents have also violated the DOP&T instructions dated 11.12.2006, which was issued in compliance of the direction of the Constitution Bench of the Honble Supreme Court in the case of Secretary, State of Karnataka and others Versus Uma Devi and others. The policy of outsourcing was made in the year 2010 while it is being implemented in the case of the applicants in 2013 although an exemption had been given to all the applicants in the year 2011 that their job would not be outsourced. However, the policy of outsourcing is being implemented w.e.f. 01.04.2013 and salary of the applicant is being released through Departmental Budget from September, 2012 onwards because no aid is being taken from World Bank/GFATM which was the earlier source of funding the programme. Once the National Strategic Plan (NSP) and revised salary had been approved by the Government from 2012 to 2017 and sanction/funding had already been received from the Departmental Budget, the contract was required to be extended, which has not been done despite several representations made by the applicants. Although, as per the contract letters, the applicants had given the undertaking that they would not claim any regularization but having regard to the fact that the respondents are bound and covered under DOP&T instructions dated 11.12.2006, hence, such persons having 10 years of service should be considered for regularization without any condition. Moreover, some of the applicants having more then 10 years continuous services without any break are legally entitled for regularization in terms of DOP&T instructions dated 11.12.2006.
6. In view of the afore-noted facts and grounds the applicants have sought the following reliefs:-
8.1. That this Honble Tribunal may graciously be pleased to allow this Original Application and direct the respondents to take the appropriate steps to regularize their service according to the Rule and instructions issued by DOPT issued in compliance of direction of Honourable Apex Court Constitutional Bench judgment in case of Secretary, State of Karnataka Versus Uma Devi with all consequential benefits.
8.2 That this Honourable Tribunal may graciously be pleased to allow this Original Application and direct the respondents to continue their contracts till the Project exist or as per sanctioned Financial Budget till 2017 they remain continue without any difficulties against these posts without any discrimination.
8.3 That any other or further relief which this Honble Tribunal may be deem fit and proper under the circumstances of the case may also be granted in favour of the applicants.
8.4 That the cost of the proceedings may also be awarded in favour of the applicants.
7. The respondents in their counter reply have stated that the RNTCP was started in 1993 as a Pilot Project and funding was obtained from various international sources including the Global Fund against AIDS, TB and Malaria (GFATM) for different periods of time for different areas. Phase II RNTCP of the World Bank Project was approved by the CCEA for the period from October 2006 to September 2011 and the World Bank support to the Programme was extended up to September 2012. The funding from GFATM was approved up to March 2013. Thereafter, no funding support from any external agency was available for RNTCP. Under the RNTCP scheme/project, there was provision for some contractual (non-official) positions for Central level monitoring unit of the RNTCP project. Different persons were engaged on purely contract basis on yearly/half yearly basis on mutually agreed terms and conditions. In between, the terms and conditions of the contracts were also revised in accordance with the terms of financial assistance of the donor agency and some of the persons who agreed on revised terms and conditions were again engaged on fresh yearly/half yearly basis. The services of the applicants were also hired on contractual basis from time to time by entering fresh contract each time for a specific period, the last contract of each applicant being for 9 months w.e.f. 01.07.2012 to 31.03.2013. This period has since expired on 31.03.2013, which contained the condition that the applicants would be treated as Non-Official and would be neither entitled to any service benefit of the Govt. of India nor could be claimed under any circumstances for regularization of services in Govt. of India. The contract could be terminated by either side at fifteen days notice. Remuneration for contractual employees w.e.f. October, 2012 to 31st March, 2013 was paid from the Domestic Budget in order to honour the contract, instead of terminating the contract simultaneously with the expiry of World Bank support. The contract of two applicants continued on 31.03.2013 co-terminus with funding with the support from Global Fund.
8. The National Strategic Plan for 2012-17 for RNTCP is a Plan document. It was decided to engage contractual staff for Central Level Monitoring Unit of RNTCP under GFR 2005 i.e. GFR-178-185 through outsourced agency of the Directorate General of Health Services, who had finalized an agency for providing contractual staff. The remuneration of such outsourcing staff for contractual service was much less than that was being paid under the World Bank/GFATM assisted project RNTCP. Thus, the respondents were bound to take contractual staff from outsourced agency because of the lower remuneration. Once the contract with the applicants came to an end on 31.03.2013, the right of applicants to continue their contract also ended. The contract up to 31.03.2013 was signed on mutually agreed terms and conditions, which had been accepted by the applicants. Since, there were no sanctioned regular posts of DEO or Secretarial Assistants for implementation of the project RNTCP, the request of the applicants for regularization cannot arise. Moreover, as per the last agreement with the applicants which ended on 31.03.2013, the applicants cannot demand regularization of their services.
9. Respondents have submitted that in view of the above, the OA deserves to be dismissed. Rejoinder has also already been filed by the applicant.
10. We have heard Mr. Atanu Mukherjee, learned counsel on behalf of the applicants and Mr. Ashok Kumar, learned counsel on behalf of the respondents.
11. Both sides have also filed written submissions, which are on record. Most of the facts given in the OA were reiterated during the arguments and our attention was specifically drawn to Para 10 of the National Strategic Plan w.e.f. 01.04.2012 which states that 5 Data Entry Operators and 4 Secretarial Assistants had to be included in the Central Level Monitoring Unit. The documents further state, according to the learned counsel for applicants, that funds have been requisitioned from the Cabinet until 2017 and hence the respondents could not take a plea to discontinue the contracts for want of funding. Reference was made to para 10 of the judgment of the Honble High Court of Delhi, which reads as follows:-
10. In para 11 of the report in Babita Rani (supra), the Honble High Court has clearly held that, in view of the existing scourge of TB, it did not behave the Administration to discontinue the services of employees working for its eradication for several years, manifesting a permanent need for the scheme, only on the specious grounds of dependency of foreign funding.
12. Our attention has specifically been drawn to Para 11 of the judgment in Babita Rani and Ors. Versus Govt. of NCT of Delhi and Anr. 124 (2005) DLT 97 wherein the Honble High Court had held that in view of the existing scourge of TB, it was not proper of the administration to discontinue the service of the employees only on the specious grounds of dependency of foreign funding. Learned counsel cited similar decisions in the case of Uma Devi (supra) and Union of India and another Versus Satish Joshi in LPA No.197/2013 wherein it was held that the principle of hire and fire could not be applied if the project continues and further that the service of the contractual employees appointed against the project has to be co-terminus with the project in question. The Honble High Court of Delhi in the case of Satish Joshi (supra) had held that the contractual employees appointed against the project could not be discontinued as long as the project continued in the light of the judgment. Learned counsel for the applicants submitted that the relief sought in the OA should be granted. Reliance was placed during arguments on the DOP&T circular. Learned counsel for respondents has also filed written submissions and has argued that the judgment of the Honble High Court of Delhi in Satish Joshi (supra), which has been relied upon by the applicants in their argument has been set aside by the Division Bench of the Honble Delhi High Court on 14.08.2013 in Satish Joshi (supra). The question has been decided in the judgment was whether the respondent of LPA had any vested right in continuing with his employment despite his contract of employment having come to an end by efflux of time. It was further argued that the reliance of the learned counsel for applicant in the matter of Uma Devi (supra), Gridco Limited & Anr. Versus Sri Sadananda Dolol & Ors., before analyzing of the judgment of the Division Bench of the Honble High Court of the Delhi in its findings in Para 22 and 23. As per the judgment, the applicants were not entitled for any relief sought in the OA.
13. We have considered the documents and pleadings on record.
14. Annexure-A/1 is a copy of the OM dated 23.10.2002 regarding one of the applicants (Shri Narinder Singh Ahuja) which stipulated in the terms and conditions as under:-
No.L.19015/18/99-TB Directorate General of Health services (Central TB Division) Nirman Bhavan, New Delhi-110011 Dated : 23rd October, 2002 OFFICE MEMORANDUM From the panel forwarded by New Delhi Young Mens Christian Association, Jai Singh Road, New Delhi 110001, Shri Narinder Singh Ahuja, r/o C6B-69, Janak Puri, New Delhi -110058 has been selected for the post of Stenographer. He is hereby offered the post of Stenographer. The terms and conditions of the appointment would be as under:-
The appointment will be purely on contract basis for a period of one year from the date of assumption of charge.
He will be paid consolidated remuneration of Rs.6,500/-p.m. and will not be entitled for any other allowance or benefit.
He will be treated as non-official and will not be entitled to any service benefit of Govt. of India.
He will not be entitled to any kind of leave.
This will be a full time engagement. He will not derive any salary/allowance etc. from any other source and an undertaking to this effect, may be given.
The contract can be terminated by either side at fifteen days notice. Fifteen days salary for the first month will not be paid. This will be kept reserve as security and will be released after the contract is over.
He is directed to report for duty within 7 days i.e. latest by 30th October 2002 along with Medical Certificate from a Govt. hospital or a medical practitioner holding atleast MBBS degree. (emphasis provided)
15. From the afore-noted terms and conditions, it is clear that the contract period was one year from the date of assumption of charge, was non-official and included non-service benefits. It is also apparent that the contract could be terminated by either side on fifteen days notice. Such terms and conditions are also mentioned in the office order issued on various dates and have been produced at Annexure-A/2 in the OA. It is apparent from the above that the appointments were only on contract basis, were contractual in nature, the contract employees would be treated as non-official and the contract could be terminated. It is observed from Annexure-A/2 that with effect from the contract entered on 10.05.2011, and thereafter, there was the condition regarding the appointment being treated as non-official, which reads as under:-
No. L.. 19015/1/2002-TB Government of India Ministry of Health & Family Welfare Directorate General of Health Services (Central TB Division) Nirman Bhavan, New Delhi-110108 Dated: the 10.5.11 ORDER With the approval of the competent authority, services of following employees are extended on purely contract basis w.e.f. 1st May, 2011 upto 31st March, 2012 at a monthly consolidated remuneration as shown below against each employee for the World Bank/GFATM assisted RNTCP Project at the Central TB Division.
Sl. Name Contractual position Monthly consolidated remuneration
1. Rajan Chauhan Consultant (Finance) 42,000/-
2. Sudha Arora Accountant 26,250/-
3. Ramesh Chand Data Entry Operator 15,750/-
4. Hemant Kumar Jha Data Entry Operator 15,750/-
5. Priyanka Arora Data Entry Operator 15,750/-
6. Ajeet Data Entry Operator 15,750/-
7. Narinder Singh Ahuja Secretarial Assistant 15,750/-
8. Ekta Saxena Secretarial Assistant 15,750/-
9. Anjana Bhandari Secretarial Assistant 15,750/-
Other terms & conditions of the contractual engagement are as under:
1. He/she will be treated as Non-Official and will be neither entitled to any other service benefit of the Government of India nor can claim under any circumstances for his/her regularization in Government of India.
2. The contractual engagement is subject to the execution of an Agreement between the CTD and the employee as per the TOR.
3. This will be a full time engagement. He/She will not derive any salary/allowance etc from any other source.
4. The contract can be terminated by either side at fifteen days notice or payment of 15 days salary in lieu of notice.
The above issues with the concurrence of the Integrated Finance Division vide Dy. No.C-281/IFD dated 6th May, 2011.
Sd/-
(Manoj Sinha) Under Secretary to the Government of India
1. Pay & Accounts Officer, Dte. GHS
2. Cash Section, Dte. GHS
3. Integrated Finance Division
4. Individual concerned (emphasis supplied)
16. It is clear from the above that no regularization could be claimed or any other service benefit of Govt. of India under these orders and the applicants having acted upon the order by way of taking up the assignment, have thus accepted this condition. Having once accepted these conditions, it is not understood as to how the benefit of regularization has now been claimed by them. A perusal of Annexure-A/3 which is on the subject Budget and Financial Management, Para 10 of the documents is regarding contractual services of 5 Data Entry Operators, 4 Assistants and other posts. It also provide for the norms of contractual staff posts and persons to continue as per the guidelines and that all contractual staff would be appointed for one year at a time and annual renewal every year to be done till the project exists, except discontinued for non-performance/under performance/ abolition of the post/ show cause notice issued and satisfactory response not received during previous contract period.
17. The other aspect is whether or not the system of contractual employment is required to be continued in the earlier form of directly engaging contractual employees, or whether this should be done as per the scheme of outsourcing framed by the DOP&T. The decision of the respondents to engage contractual staff for Central Level Monitoring Unit of RNTCP under FIR 2005 through outsourced agency of Directorate General of Health Services is a policy matter. Apart from the consideration of reduction of cost because of lower remuneration being paid under the outsourcing scheme, it is also to be considered whether in such matters of judicial review, there should or should not be any intervention in matters relating to policy of the respondents. We would feel that in all such policy matters the competent authority is to take a decision regarding the modality of implementation of the scheme. There can be no intervention in such matters by the Tribunal. One of the considerations in the present case for submitting to the outsourcing scheme is a lower cost involved in implementing the project by way of reduced remuneration to contractual employees. We are not, therefore, impressed with the argument of the applicant that the outsourcing policy for engaging employees on contract should not be implemented.
18. It is seen from the judgment dated 14.08.2013 in Satish Joshi (supra) of the Honble High Court of Delhi, wherein the judgment of the Honble Supreme Court in the case of Uma Devi (supra) was also discussed, as appears from Para 9 and 10 which is reproduced below:-
9. Aggrieved by the non-extension of his contract of employment, the respondent preferred a writ petition being W.P.(C) No.3215/2012. The said writ petition was disposed off by an order dated 20.03.2013 which is impugned in the present appeal. The learned Single Judge set aside the letter dated 17.04.2012 and further held that the respondent could not be removed from service without following principles of natural justice. The learned Single Judge referred to the decision of the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi & Anr.: (2006) 4 SCC 1 and held that contractual appointment for a project are ordinarily for a period of the project and the services of the employees have to be co-terminus with the project. The learned Single Judge further held that principles of natural justice had been violated inasmuch as the respondent had been removed without calling any explanation from the respondent. The learned Single Judge also noted that the issue regarding inadequate performance of the respondent had not been brought to the notice of the respondent and the letter dated 17.04.2012 did not provide any reasons for termination of the services of the respondent.
10. We have heard the counsel for the appellant and the respondent in person. In the present case, the principal question to be considered is whether the respondents has any vested right in continuing with his employment despite his contract of employment having come to an end by efflux of time. (emphasis supplied)
19. Para 12 of the judgment of the Honble High Court of Delhi in the said LPA distinguishes between the rights of temporary employees or casual wage workers. The purport of contractual employment has also been analyzed viz-a-viz the judgment in Uma Devi case (supra):-
12. We are also unable to agree with the decision of the learned Single Judge that the services of persons employed for a project have to be co-terminus with the project in question. We are unable to interpret the decision of the Supreme Court in the case of Umadevi (supra) to support the view that persons employed on a contractual basis for a project have a right to continue in employment for the complete tenure of the project notwithstanding their contract having come to an end with efflux of time. In that case, the Supreme Court was considering the question of whether persons employed on ad hoc basis without following the regular process of selection and appointment, could be regularized. The court held that unless an appointment was in terms of the relevant rules after a proper competition among qualified persons, the same would not confer any right on the employees so appointed. Although the said decision may not be applicable on the facts of the present case, the following observations made by the court are relevant:-
43. .If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage 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, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules: (emphasis provided)
20. In this very judgment, the Honble High Court has also held that it is difficult to accept the proposition that a state has to give a show cause notice or hear a party in the event it decides not to extend a contract which has come to an end by efflux of time. The Honble High Court also observed in Para 17 that the decision to not extend the contract of employment of the respondents cannot be considered to be a dismissal from service by way of a punishment. Finally, the Honble High Court of Delhi in Para 22 of the Satish Joshi case (supra), which is reproduced below:-
22. In the present case also the respondent is a qualified chartered accountant and was aware that his employment with the project was only for a fixed term. The respondent has no vested right to insist that his contract of service be extended beyond the agreed period. Thus, any interference by this Court under Article 226 of the Constitution of India would not be warranted.
(emphasis provided)
21. In view of the afore-noted facts and having regard to the various judgments, especially of the Honble High Court in Satish Joshi (supra), we are of the view that the applicants do not have any claim to seek continuation of their contract or for regularization of their services.
22. We are also of the opinion that in the present case, the respondents were under no obligation to issue any show cause notice or to provide opportunity of being heard to the applicants since the contract died its natural death by way of expiry of the period of contract.
23. Based on above we find no merit in the OA and the same is dismissed. With the disposal of this OA, MA No.1000/2013 also stands disposed of. No costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /jk/