Central Administrative Tribunal - Delhi
Ranjeet Singh vs M/O Health And Family Welfare on 18 January, 2024
1
OA No. 2633/2021
(C-IV, item -52)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2633/2021
M.A. No. 265/2023
This the 18th day of January, 2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. RANJEET SINGH (aged about 30 years) Group'B'.
S/O POTHI LAL DOB: 10.07.1988
DATE OF JOINING: 25.02.2016
REG. NO: 1929
R/O ADRASH COLONY, MANDRAJAL ROAD, SHIKURGANJ
KARALI,
RAJASTHAN.
2. MEGHA SHARMA
D/O YASHPAL SHARMA
DOB: 20.11.1989
DATE OF JOINING: 24.02.2016
REG.NO: 422
R/O SHAIL JAIN HOUSE NO. 853, RANI BAGH,
SAKURBASTI,
DELHI-110034.
3. W.HEMABATI
D/O NABALKISHORE SINGH
DOB: 04.01.1989
DATE OF JOINING: 23.04.2016
REG. NO. 556
R/O ZOVENG METELLEIK AZ, CHURACHAND PUR,
NORTH SUB-DIVISION, MANIPUR-795128.
4. PUSHPA KUMARI
S/O MOHAN PAL
DOB: 10.07.1990
DATE OF JOINING: 25.02.2016
REG. NO. 1589
R/O ANAND KUMAR, NEAR SBI BANK,
WARD NO: 2, SURAJGARH,
JHUNJUNNU
RAJASTHAN-333029
2
OA No. 2633/2021
(C-IV, item -52)
5. DINESH KUMAR BAIRWA
S/O BANAWARI LAL
DOB:- 06.09.1989
DATE OF JIONING: 03.03.2016
REG. NO. 832
R/O BAIRWA MOHALA KALWAN DAUSA, RAJASTHAN-
333505.
6. DINESH KUMAR
S/O SHARVAN LAL BAIRWA
DOB:- 07.05.1986
DATE OF JIONING: 29.02.2016
REG. NO.
R/O WARD NO. 23, BEHZND HIGH SCHOOL ROAD,
DAIKA BAS BARDIKUL, RAJASTHAN-303313.
7. YOGESH KUMAR
S/O BISHAN SINGH
DOB: 01.05.1985
DATE OF JOINING: 24.02.2016
REG. NO. 2208
R/O VILLAGE JALKA P.O. PUR,
TEHSIL. KOTKASIM
ALWAR, RAJASTHAN-301702.
8. TENNA MASIH
S/O LAL MASIH DOB: 20.06.1988
DATE OF JOINING:
REG. No. 145
R/O JOSHI (5) PANIPATH, HARYANA-132113.
...Applicants
(By Advocate: Mr. G. D. Chawla with Ms. Vaishali Sulkhlan)
Versus
1. UNION OF INDIA THROUGH ITS SECRETARY, M/O
HEALTH AND FAMILY WELFARE, (MEP SECTION)
NIRMAN BHAWAN,
New Delhi-110001
3
OA No. 2633/2021
(C-IV, item -52)
2. MEDICAL SUPERINTENDENT, Kalawati Saran
Children's Hospital, C-604, Shivaji Stadium Bus Terminal,
Connaught Place, Shaheed Bhagat Singh Marg, Gole
Market, New Delhi-110001.
3.DIRECTOR,
ALL INDIA INSTITUTE OF MEDICAL SCIENCES, ANSARI
NAGAR,
NEW DELHI-110029
...Respondents
(By Advocate: Mr. Dilbagh Singh and Mr. Kaushal
Gautam with Ms. Vanshika)
4
OA No. 2633/2021
(C-IV, item -52)
ORDER (ORAL)
By Hon'ble Mr. Tarun Shridhar, Member (A):
The applicants herein are Staff Nurses working on contract in different hospitals of the Govt. of India located in the National Capital Territory of Delhi. They are said to have been engaged to contract to tide over the crises on account of the COVID pandemic. They bear a legitimate expectation that at an appropriate time their services as Staff Nurse will be regularized or in the alternative they shall be given some preference in recruitment/appointment of Staff Nurses in terms of the policy notified by the Government on 03.05.2021. In the meanwhile, the respondents have issued an advertisement dated 16.10.2021 inviting applications for recruitment to the post of Staff Nurse and pursuant to that a selection examination has been conducted. Against this background, the applicants seek the following relief by virtue of the present OA:
"a) Quash and set aside the impugned recruitment notice no. 2021 (dated 16.10.2021), to the extent that the same does not prescribe any preference for the contractual staff nurses having served 100 days on covid duty and further directing respondents to implement the order dated 03.05.2021 issued by respondent no.1 by prescribing the method of grant of preference in regular employment and granting the same to applicants.5 OA No. 2633/2021
(C-IV, item -52)
b) Direct respondents to consider and declare the methodology for the preference to be given to the contractual staff having completed 100 days of covid duty, by way of amendment of advertisement and online application form.
c) Direct the respondents to consider granting of bonus marks to the contractual staff nurses, in relation to the years of service rendered by them/experience gained by them so as to provide them with a level playing field in the ensuing recruitment/selection process along with the preference promised to them on 03.05.2021.
d) Direct Respondent no.1 to get the recruitment /selection process conducted by the Staff Selection Process instead of respondent no.3, since the SSC is the designate competent authority in the RR's and as such is also competent to grant bonus marks as is being granted by the Bihar Technical Service Commission (BTSC) and the Rajasthan Govt.
e) Accord all consequential benefits
f) Award costs of the proceedings; and
g) Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondent in the facts and circumstances of the case."
2. Notice in the OA was issued on 18.11.2021 and on the first date itself, the following interim directions were issued:
"5. In the facts and circumstances, as an interim measure, it is ordered that the examination/selection, pursuant to the impugned recruitment notice, shall be subject to outcome of the present OA.
6. It is further directed that till the next date of hearing, status quo, shall be maintained qua the services of the applicants, under the respondents."
3. Pursuant to notice, the respondents have filed a detailed counter reply contesting the right of the applicants to file the present OA. They have argued that the applicants were recruited strictly on contract basis with a clear condition that their appointment as contractual Staff Nurse 6 OA No. 2633/2021 (C-IV, item -52) shall not confer any right upon them to obtain regular appointment. Further they have submitted that though their contracts have been extended from time to time, however, the same was done after obtaining the approval of the relevant Ministry and there was always a gap kept between such approval and the expiry of contract hence it cannot be said that the applicants are continuing uninterruptedly. They have reiterated that in any case the contractual employees cannot be said to be regular employees and since the initial contract was only for a period of six months which has been extended from time to time it does not entitle them for regularization or to seekany preference in general recruitment.
4. The respondents have further contended in their counter reply that the notification dated 03.05.2021 was under specific circumstances which were unique and only with respect to the manpower engaged during a specific period for the specific challenge of dealing with the COVID pandemic. The present applicants have been recruited earlier to that and hence the benefit of the said notification cannot be given. The recruitment to the post of Staff Nurse is conducted through All India Competitive Examination and the applicants are always free to participate in the 7 OA No. 2633/2021 (C-IV, item -52) same in terms of their eligibility, however, they cannot claim any preference in a competitive examination, which is open and fair.
5. Pleadings in the matter have been complete since long and it is listed for final hearing. However, in the meanwhile, the respondents filed an MA No. 265/2023 seeking vacation of the interim order dated 18.11.2021 an extract of which has been quoted in one of the previous paragraphs. The applicants in the OA chose not to file any reply to the said MA since pleadings were complete and the matter was ready for hearing. Accordingly, it was decided that the MA, vide which vacation of interim order is sought, be heard with the OA. So we have taken up both the MA and the OA together. Since the OA is being taken up for final adjudication, the prayer made in the MA becomes infructuous. However, as elaborate pleadings are outlined in the MA, we are taking these into consideration; the learned counsel for the respondents too relies upon them extensively.
6. Before we take up the arguments put forth by the learned counsel for the respondents, we note that on 10.04.2023, Mr. G. D. Chawla, learned counsel for the applicants had brought to the notice of the Court that an 8 OA No. 2633/2021 (C-IV, item -52) identical OA No. 509/2022 was also pending and requested that both be clubbed together. However, such clubbing did not take place and today Mr. Chawla has produced before us the order dated 22.12.2023 passed in OA No. 509/2022.
7. We have sought the assistance of the learned counsel to ascertain whether the facts, circumstances and the issues in the two OAs are identical or not. We note that OA 509/2022 has been decided along with a bunch of other OAs on account of commonality of issues. Both Mr. Chawla, learned counsel for the applicants and Mr. Dilbagh Singh, learned counsel for the respondents confirm that facts and circumstances as also the issues being considered in the present OA are identical to the one considered and decided in OA No 509/2022.
8. However, Mr. Dilbagh Singh, learned counsel for the respondents relying upon the pleadings in the MA has argued that identical facts and circumstances have been considered by another Bench of this Tribunal in OA Nos.
3616/2019 & 501/2022. In these OAs the Tribunal had unambiguously held that a contractual employee does not enjoy any right for regularization and relying upon various pronouncement of higher Courts including the Hon'ble Apex Court, the Tribunal had refused to interfere in the 9 OA No. 2633/2021 (C-IV, item -52) OAs and did not provide any relief to the applicants therein. He explains that this Tribunal was guided by the judgment of the Hon'ble Apex Court in State of Karnataka & Ors. vs. Umadevi & Ors. (2) 2006 4 SCC. He submits that it would be appropriate that the observation made therein on the basis of Umadevi's (supra) case are given a careful reading. Mr. Dilbagh Singh reads the entire MA, therefore, it would be fair to reproduce the arguments outlined in the MA. They are as follows:
"3. The Applicants were engaged on contract basis in February, 2016 through recruitment process held in Lady Hardinge Medical College. The offer of appointment was initially for a period of six months, or till the regular incumbents join duty, whichever is earlier. They were appointed on a consolidated salary of Rs. 37,500/- per month. It was clearly mentioned in the offer of appointment that "The contract will lapse automatically, after joining of regular incumbents or expiry of contract period." The period of contract with the Applicants were extended till regular candidates are appointed. As far as letter dated 03.05.2021 of Respondent No.1 (Ministry of Health & Family Welfare) i.e. 17. The Central Government recommends to State/UT Government to consider giving preference in regular government appointments of Health professionals through the respective Public Service Commission/ other recruitment bodies, for those Health Professionals under this special scheme, who complete a minimum of 100 days of Covid related duty. The Applicants were engaged on contract basis in 2016 well before the onset of Covid.
4. That the Applicants were selected on the basis of Walk-in- Interview. The same was done to meet the emergent requirement of the Institution of Respondent No. 2 Kalawati Saran Children's Hospital, New Delhi for providing Nursing care to the patients visiting the Hospital till the appointment of Nursing Officers on regular basis. Further, it is submitted that the Applicants did not go through the rigors of competitive examination which a candidate needs to undergo for its selection to the post of Nursing Officer on regular basis. As per the 10 OA No. 2633/2021 (C-IV, item -52) notified Recruitment Rules for the post of Nursing Officer, there is no provision of giving any preference to the Contractual Staff working as Nursing Officer. Thus, the original application before this Hon'ble Tribunal merits rejection on the sole count that no preference other than those envisages in the notified Recruitment Rules. The Recruitment Rules are notified under Article 309 of the Constitution of India, therefore, the Government of India Ministries/Departments are bound to adhere to the provisions of notified Recruitment Rules. In the present case the Applicants were engaged Nursing Officer on contractual basis.
5. That in the matter O.A No. 2276/2017 Prakash Rathod & Ors Vs Ministry of Health and Family Affairs & Ors, the Hon'ble CAT, Principal Bench vide order dated 24.10.2018 held as follows:
"2. The applicants, 21 in number, filed the OA aggrieved by the Annexure-A/1 order dated 16.06.2017, wherein one month notice was issued to the applicants for termination of their contracts, by stating that in view of the regular recruitment for the post of Nursing Officers and in view of their joining, the services of the applicants who are working on contractual basis against the same vacancies, are terminated, as indicated therein.
3. This Tribunal while issuing notice on 13.07.2017, directed the respondents to continue the services of the applicants on first come last go basis, if there are still vacancies, even after joining of the regularly recruited candidates.
4. The respondents vide their counter stated as under :-
"Further, offers of appointment have been sent to 226 candidates, who were found eligible on the basis of examination conducted by All India Institute of Medical Science in January, 2017 for appointment of regular basis. On the joining of these successful candidates, all the vacant posts in the cadre of Nursing Officer in Dr. RML Hospitals would be filled up. Thus, it will become necessary to terminate the services of Staff Nurses appointed on contract basis on first come last go basis. It is humbly submitted that Staff Nurses appointed on contractual basis will be replaced by the Staff Nurses selected through competitive examination for appointment on regular basis. Further, the contractual staff nurses would be replaced by Staff Nurses to be appointed on regular basis."
5. It is the settled principle of law that if a vacancy is filled up with regular recruitment, any person who is working on casual/daily wage/contract/temporary basis etc. has to give way to the regularly recruited employees.
11 OA No. 2633/2021(C-IV, item -52)
6. Hence, we cannot find fault with the action of the respondents in terminating the services of the applicants wherever regularly recruited employees have joined. However, the applicants are working on contractual basis since long time and their rights for continuation against any subsisting vacancies on the same terms, also cannot be ignored.
7. In the circumstances, the OA is disposed of by directing the respondents to continue the services of the applicants on the same terms, if there is work and vacancies are still available after filling up the vacancies on regular basis, and in preference to any of their juniors/freshers/outsourced employees. No costs."
Copy of the order dated 24.10.2018 passed by, the Hon'ble CAT, Principal Bench in O.A No. 2276/2017 Prakash Rathod & Ors Vs Ministry of Health and Family Affairs & Ors is being annexed herewith as ANNEXURE A/2.
6. That in Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC 1 by the decision of the Constitution Bench of the Hon'ble Supreme Court, it has been held as follows:
*43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. 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. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not 12 OA No. 2633/2021 (C-IV, item -52) acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it 8 to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts 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."
Copy of the Judgment dated 10.04.2006 passed in Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC 1 is being annexed herewith as ANNEXURE A/3. 7 It is further submitted that in the case of Narendra Kumar Tiwari & Ors V/s The State of Jharkhand & Ors. in Civil Appeal Nos. 7423-7429/2018, Supreme Court vide para 11 of judgment dated 01-08-2018 has described the referral value of Uma Devi case, which reads as follows:
"11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc."
Copy of the judgment dated 01-08-2018 in the case of Narendra Kumar Tiwari & Ors V/s The State of Jharkhand & Ors. in Civil Appeal Nos. 7423-7429/2018 is being annexed herewith as ANNEXURE A/4.
8. That in similar matters where the challenge to termination of services of the contractual nursing officers working in Dr RML Hospital etc was decided in favour of the respondent hospitals i.e. in OA No. and O.A. No. 13 OA No. 2633/2021 (C-IV, item -52) 501/2022 respectively, where the Hon'ble Tribunal vide Order dated 01.12.2022 has held as under: -
"8. We have considered the rival submissions of the learned counsel appearing for the respective parties, and having gone through the proceedings of the Original Applications, counter affidavit, rejoinder as well as the proceedings of the miscellaneous applications and the ratio of the decisions cited before us. Admittedly, the applicants are working as Nursing Officers purely on contractual basis in the respondent RML Hospital against the regular vacant posts. Initially they were appointed on contract basis on a consolidated remuneration of Rs. 17140/- per month in the year 2009 for a period of six months and later such remuneration was revised to Rs. 50247/- per month with the condition that they will not have any claim for regular appointment with the respondent hospital for the period they served there on contract basis. It was also made clear to the applicants that their services can be terminated by giving notice of one month by either party. The period of such contractual employment was thereafter extended from time to time till regular candidates were appointed.
9. The Constitution Bench of the Apex Court in Secretary State of Kerala us Umadevi & Ors.(supra) held as follows:
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. 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 14 OA No. 2633/2021 (C-IV, item -52) such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts 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."
The above observation of the Constitution Bench of the Apex Court is squarely applicable to the present applicants. The applicants, merely because they continued for a long time, did not acquire any right for regular appointment to the regular posts. The applicants were aware that their appointment was purely on temporary basis till the posts of Nursing Officer/Staff Nurse were filled up by regular candidates through competitive exams and that they could be removed by giving one month's notice by either party. In the present case, in accordance with the recruitment rules to fill up the posts of Nursing Officers, competitive examinations were held from time to time and the applicants also availed such opportunity, wherein, they did not qualify. It is also clear from the record that now the candidates who qualified through competitive examination in accordance with the Recruitment Rules are available and therefore, services of the present applicants ie. the contractual employees are sought to be terminated by giving notice of one month. The action of the respondent in terminating the services of 15 OA No. 2633/2021 (C-IV, item -52) contractual employees like the present applicants cannot be said to be wrong or unreasonable. We also find that in the teeth of the decision of the Constitution Bench of Apex Court in Umadevi (supra), the services of the applicants cannot be regularised.
10. Be that as it may, the applicants identically situated with the present applicants approached this Tribunal vide OA No. 2276/2017 Prakash Rathore & Ors. vs Ministry of Health & Family Welfare & Ors. That Application was finally disposed of by this Tribunal on 24.10.2018 by passing the following order:
"2. The applicants, 21 in number, filed the OA aggrieved by the Annexure-A/1 order dated 16.06.2017, wherein one month notice was issued to the applicants for termination of their contracts, by stating that in view of the regular recruitment for the post of Nursing Officers and in view of their joining, the services of the applicants who are working on contractual basis against the same vacancies, are terminated, as indicated therein.
3. This Tribunal while issuing notice on 13.07.2017, directed the respondents to continue the services of the applicants on first come last go basis, if there are still vacancies, even after joining of the regularly recruited candidates.
4. The respondents vide their counter stated as under :-
"Further, offers of appointment have been sent to 226 candidates, who were found eligible on the basis of examination conducted by All India Institute of Medical Science in January, 2017 for appointment of regular basis. On the joining of these successful candidates, all the vacant posts in the cadre of Nursing Officer in Dr. RML Hospitals would be filled up. Thus, it will become necessary to terminate the services of Staff Nurses appointed on contract basis on first come last go basis. It is humbly submitted that Staff Nurses appointed on contractual basis will be replaced by the Staff Nurses selected through competitive examination for appointment on regular basis. Further, the contractual staff nurses would be replaced by Staff Nurses to be appointed on regular basis."
5. It is the settled principle of law that if a vacancy is filled up with regular recruitment, any person who is working on casual/daily wage/contract/temporary 16 OA No. 2633/2021 (C-IV, item -52) basis etc. has to give way to the regularly recruited employees.
6. Hence, we cannot find fault with the action of the respondents in terminating the services of the applicants wherever regularly recruited employees have joined. However, the applicants are working on contractual basis since long time and their rights for continuation against any subsisting vacancies on the same terms, also cannot be ignored.
7. In the circumstances, the OA is disposed of by directing the respondents to continue the services of the applicants on the same terms, if there is work and vacancies are still available after filling up the vacancies on regular basis, and in preference to any of their juniors/freshers/outsourced employees. No costs."
From the above order, it is clear that the identical relief claimed by the applicants in OA No. 2276/2017, who were similarly situated with the present applicants, was not granted. Since fact and circumstances are identical, the case of the present applicants is squarely covered by the said decision. On this ground also, we are not inclined to interfere with the impugned action of the respondents."
9. Besides reiterating that the claim preferred by the applicants in the present OA is misplaced, learned counsel also argues that judicial propriety and discipline demands that the matter be referred to a Larger Bench since in identical facts and circumstances two Coordinate Benches have delivered different judgments. He goes on to clarify once again that in the case of Vinod Kumar Sharma, i.e., OA No. 3616/2019 and Prakash Rathod, i.e., OA No. 2276/2017, the Tribunal had categorically held that the contract of a contractual employee is liable for termination on expiry of the contract, and further, that the contractual employee has no vested right to seek regularization; once 17 OA No. 2633/2021 (C-IV, item -52) appointment is made on regular basis, the contractual employee has to necessarily give way to the regular employee.
10. We have heard learned counsel for the parties at length. We have also gone through the pleadings on record extensively. Mr. Chawla, learned counsel for the applicants relies solely upon the order of this Tribunal in OA No. 509/2022 and both the parties have confirmed that at least the facts and issues are identical. Therefore, we deem it appropriate to reproduce the said judgment verbatim:
"Learned counsel for the parties admit that the issue involved in all the captioned OAs are identical and the arguments are also identical. Accordingly, with the consent of the learned counsel for the parties, the matters were clubbed together and have been heard together today. Learned counsel for the parties further pleaded for keeping OA No.509/2022 as the lead case, the said OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 wherein the applicants have sought the following reliefs and interim relief:
Relief
a) Quash and set aside the one month notice of termination dated 14.02.2022, which would otherwise become effective on 14.03.2022.
b) Quash and set aside the impugned recruitment notice no. 2021 (dated 16.10.2021), to the extent that the same does not prescribe any preference for the contractual staff nurses having served 100 days on covid duty and further directing respondents to implement the order dated 03.05.2021 issued by respondent no.1 by prescribing the method of grant of preference in regular employment and granting the same to applicants
c) Direct respondents to consider and declare the methodology for the preference to be given to the contractual staff having completed 100 days of covid duty by way of amendment of advertisement and online application form.
d) Direct the respondents to consider granting of bonus marks to the contractual staff nurses, in relation to the years of service rendered by them/experience gained by them so as to provide 18 OA No. 2633/2021 (C-IV, item -52) them with a level playing field in the ensuing recruitment/selection process along with the preference promised to them on 03.05.2021.
e) Direct Respondent no.1 to get the recruitment /selection process conducted by the Staff Selection Process instead of respondent no.3. since the SSC is the designate competent authority in the RR's and as such is also competent to grant bonus marks as is being granted by the Bihar Technical Service Commission (BTSC) and the Rajasthan Govt.
f) Direct respondents to grant Age Relaxation to the applicants in lieu of the service rendered by them till date on contract basis and their services may be regularized giving them the preference as directed by Respondent no. 1 in their order dated 03.05.2021.
g) Accord all consequential benefits
h) Award costs of the proceedings; and
i) Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondent in the facts and circumstances of the case.
Interim Relief Pending decision in OA, this Hon'ble Tribunal may graciously be pleased to restrain the respondents from discontinuing with the services of the applicants till the pendency of this OA, by way of an ex-parte ad-interim order and by staying the operation of the notice dated 14.02.2022 as has been stayed by this Hon'ble Tribunal in OA 2635/2021 vide its order dated 16.02.2022.
2. Brief facts of the case, as narrated in the OA, are that Respondent No.1 is the Nodal Ministry under which the four hospitals i.e. Dr RML Hospital, Safdarjung Hospital, Lady Hardinge Medical College and Sucheta Kriplani Hospital and Kalawati Saran Children's Hospital function. The above four hospitals are funded by Respondent no.1 and are under the direct control and supervision of the same. In order to run the hospital services smoothly, a decision to initially appoint the applicants on contract basis was taken by Respondent No.1. After seeking necessary approvals and on its directions, the applicants were appointed after following due selection process.
3. The applicants are presently working as Staff Nurse on contract basis in various hospitals under the Directorate General of Health Services, Ministry of Health and Family. Welfare. A vacancy notice dated 07.10.2015 for the post of Staff Nurse, in four hospitals in Delhi, namely Dr RML Hospital, Safdarjung Hospital, Lady Hardinge Medical College and Sucheta Kriplani Hospital and Kalawati Saran Children's Hospital was issued by respondents and applicants had applied against the said vacancies. Due selection process was conducted and interviews were held wherein the applicants had competed against other candidates. On the basis of the said selection, a merit list was drawn and on the said merit, offer 19 OA No. 2633/2021 (C-IV, item -52) letters were issued to the successful candidates. Interviews were held in October, 2015 and result was finaly declared in February 2016.
4. The applications of the candidates were scrutinized and eligible candidates were called for interview. In this regard, a notice dated 10.12.2015 was issued by the LHMC & Associated Hospitals. It can therefore be said that the selection process was a well thoughtout and a long drawn process and only after going through the same and being declared successful the applicants were appointed as Staff Nurse on contract basis.
5. In February, 2016, respondents deployed the applicants on contract basis against the vacant posts, directly for a period of six months. The initial engagement of six months has been subsequently extended and continued vide various written orders, however, with an artificial break of one day. Till date, the applicants have been provided extension letter only three times, i.e. firstly on 19.08.2016, secondly on 25.04.2017 and thirdly on 06.12.2017. Thereafter, the applicants are working till date without having any letter of extension served upon them. Meaning thereby applicants have been continued in service beyond the very terms and conditions under which they were engaged granting them semi permanent/regular status. Although initially 323 candidates were engaged on contract basis but slowly due to exigency of work the number of contract employees were increased to 709. On 17.03.2017, permission and approval from the Integerated Finance Division for further extension of the services was granted and the same was conveyed by respondent no. 1 to various hospitals. It is submitted that in total 709 employees were engaged on contract basis and this was done after seeking due approval from the competent authority, including the Integrated Finance Division. Respondents themselves did not deem it necessary to issue the continuation of contract orders as it was believed by them that the nature of the services of the applicants had by way of efflux of time achieved permanent status and so also the applicants were made to believe.
6. The respondents did not pass any order of extension of services after 17.03.2017 and yet suddenly the order dated 19.07.2019 was issued whereby services of the applicants have been extended uptill 30.09.2019 and 12.1.2019. When the covid pandemic struck the country all the aforesaid hospitals were declared covid dedicated hospitals and various directions and restrictions imposed on medical staff including the applicants. On 03.04.2020, a notice was issued and it was directed that no resignation of any medical staff including the contractual nursing staff, like the applicants, would be accepted and strict disciplinary action would be taken against whosoevếr attempts to avoid covid duty including sending names to the nursing council of the contractual staff for taking appropriate action as per law. Applicants were also threatened with legal action under Disaster Management Act 2005.
20 OA No. 2633/2021(C-IV, item -52)
7. Respondents have caused an advertisement on the wébsite for purposes of direct recruitment to the post of Nursing Officer. Upon coming to know of the advertisement, the applicants approached their authorities at the respective hospitals where they are working, seeking information regarding their status, but no satisfactory reply was received. It is submitted that advertisement dated 16.10.2021 is the immediate cause of worry for the applicants since the said advt/online application form does not give any preference to those contractual staff who have completed 100 days of Covid Duty. No information with respect to the covid duty carried out by the applicants has been sought. There is no column/space in the online application form where the applicants could specify the number of days of Covid duty carried out by them. Thus, it is clear that no preference or even recognition of the covid duty carried out by the applicants would be given to them. As such, this is clear cut violation of the directions of respondent no.1 and therefore the advertisement notice deserves to be quashed on this ground alone. From the aforesaid advertisement, it is clear that this is a case where the recruitment drive has been initiated at the instance of respondent no.1. The applicants are thus aggrieved by the action of respondent no.3 in not following the instructions dated 03.05.2021 by the recruiting agency.
8. The respondents in their counter reply have raised preliminary objections stating that the present O.A. is liable to be dismissed on the sole ground that the applicants were presently working as Nursing Officer purely on contractual basis in the Hospital of Respondent No. 2, Dr. Ram Manohar Lohia Hospital, New Delhi against regular vacant posts. The applicants were engaged on contract basis on a consolidated remuneration of Rs. 37,500/- per month w.e.f. 2016 initially for a period of six months with the condition that the applicants will not have any claim whatsoever for regular employment for the period applicants served in this Hospital on contract basis. The appointment can be terminated by giving a notice of one month by either party. The period of contract with the applicants were extended till regular candidates are appointed. As far as letter dated 03.05.2021 of Respondent No.1 (Ministry of Health & Family Welfare) which states that the Central Government recommends to State/UT Government to consider giving preference in regular government appointments of Health professionals through the respective Public Service Commission/ other recruitment bodies, for those Health Professionals under this special scheme, who complete a minimum of 100 days of Covid related duty is not applicable to the applicants, as they were engaged on contract basis in 2016, well before the onset of Covid.
9. The applicants were selected on the basis of Walk-in- Interview. The same was done to meet the emergent requirement of the Institution of Respondent No. 2, Dr. Ram Manohar Lohia Hospital, New Delhi for providing Nursing care to the patients, visiting the Hospital till the appointment of Nursing Officers on 21 OA No. 2633/2021 (C-IV, item -52) regular basis. Further, it is submitted that the applicants did not go through the rigors of competitive examination which needs to undergo selection to the post of Nursing Officer on regular basis. As per the notified Recruitments Rules for the post of Nursing Officer, there is no provision of giving any preference to the contractual staff working as Nursing Officer. Thus, the original application before this Tribunal merit rejection on the sole count that no preference other than those envisages in the notified Recruitment Rules. The Recruitment Rules are notified under Article 309 of the Constitution, therefore, the Government of India Ministries/Departments are bound to adhere to the provisions of notified Recruitment Rules. In the present case, the applicants were engaged Nursing Officer on contractual basis.
10. The learned counsel for the respondents draw our attention to order of this Tribunal in OA No. 2276/2017 dated 24.10.2018 against the termination order dated 16.06.2017 as under:
"3. This Tribunal while issuing notice on 13.07.2017, directed the respondents to continue the services of the applicants on first come last go basis, if there are still vacancies, even after joining of the regularly recruited candidates.
The respondents vide their counter stated as under:
"Further, offers of appointment have been sent to 226 candidates, who were found eligible on the basis of examination conducted by All India Institute of Medical Science in January, 2017 for appointment of regular basis. On the joining of these successful candidates, all the vacant posts in the cadre of Nursing Officer in Dr. RML Hospitals would be filled up. Thus, it will become necessary to terminate the services of Staff Nurses appointed on contract basis on first come last go basis. It is humbly submitted that Staff Nurses appointed on contractual basis will be replaced by the Staff Nurses selected through competitive examination for appointment on regular basis. Further, the contractual staff nurses would be replaced by Staff Nurses to be appointed on regular basis."
The respondents contend that it is the settled principle of law that if a vacancy is filled up with regular recruitment, any person who is working on casual/daily wage/contract/temporary basis etc. has to give way to the regularly recruited employees."
11. In order to facilitate expeditious selection process for filling up vacant posts of Nursing Officers in the four Central Government Hospitals viz Dr. R.M.L Hospital, Safdarjung Hospital, Lady Hardinge Medical College and Sucheta Kripalini Hospital, and Kalawati Saran Children Hospital. Respondent No. 3, All India Institute of Medical Science, New Delhi issued the advertisement for filling up the posts of Nursing Officer through a competitive examination to be conducted by them in terms of decision taken by Ministry of Health & Family Welfare 22 OA No. 2633/2021 (C-IV, item -52) in the capacity of competent authority. AIIMS has already conducted the Written Examination in 2017 and 2019 also on behalf of all four Central Government Hospitals including Dr. RML Hospital. Hence, the present O.A. has no merit and the same is liable to be dismissed"
12. The respondents argue that the instant OA is identical in nature and it deserves to be disposed in the light of the above judgment.
13. We have perused the pleadings on record and also heard Shri Nalin Kohli, senior advocate with Ms.Nimisha Menon, Shri G.D.Chawla, Shri Yogesh Sharma and Ms. Meenu Mainee, learned counsel appearing for the applicants and Shri Hilal Haider, Shri Dilbagh Singh, Shri Manish Kumar, Shri Sanjay Kr. Pathak, Shri Avneesh Garg with Shri Harsh Pal, Shri Ashwani Kumar, Shri Ram Kawar Dhillon, Shri G.S. Virk, Shri Anand Verma with Shri Ayush Gupta, Shri Vanshika Gautam for Shri Kaushal Gautam at length.
14. The learned counsel for the applicants has drawn our attention to the communication of respondent no 1 dated 03.05.2021, which was sent to all the States and UTs on the subject of Augmenting of Human Resources for COVID-19. Para 17 of the said Communication states as follows:
"17. The Central Government recommends to State/UT Governments to consider giving preference in regular Government appointments of Health professionals through the respective Public Service Commission/ other recruitment bodies, for those Health Professionals under this special scheme, who complete a minimum of 100 days of Covid related duty."
15. It is also stipulated in Para 13 of the Communication that all Health professionals thus engaged will be covered under the Insurance Schemes of Government for health workers fighting Covid-19 and all the health workers who signed up for minimum 100 days of Covid duty and completed it successfully will be given the Prime Minister's Distinguished Covid National Service Samman through Government of India in recognition of the invauable service rendered by them during Covid-19 and in the same spirit the Health professionals who had completed minimum of 100 days of Covid related duty were to be given preference in government regular appointments of Health professionals through various modes of recruitments. However, the impugned order dated 16.10.2021 wherein the posts were advertised for Nursing Officers in four Central Government Hospitals, para 17 of the communication dated 03.05.2021 was clearly overlooked as there is no mention of any relaxation being accorded for those who had completed a minimum of 100 days of Covid related duty.
16. The learned counsel for the applicants also highlights a 23 OA No. 2633/2021 (C-IV, item -52) tweet from the Prime Minister's office dated May 3, 2021 stating that all such professionals who signed up minimum of 100 days and completed it successfully will also be given the Prime Minister's Distinguished National Samman from the Government of India. He has also brought to our notice certain paper cuttings stating to the effect health workers will get health insurance which is in a way reiteration of Communication dated 03.05.2021 issued by the respondent no.1 i.e. Ministry of Health and Family Welfare, Government of India.
17. Learned counsel for the applicants contends that the impugned advertisement dated 16.10.2021 clearly violates the circular issued by the Ministry of Health and Family Welfare, Govt. of India and it is surprising that their Communication has been glossed over by none other than their own institutions by issuing such advertisement, which is liable to set aside.
18. He also draws our attention to the order of the Hon'ble Supreme Court in a Suo Motu Writ Petition (Civil) No.3/2021 dated 30.04.2021 passed in the wake of unprecedented humanitarian crises in the country, following the out-break of Covid-19 pandemic. Relevant portion of the said judgment reads as follows:
"70. Hence, in the present proceedings, we hope to not only initiate a dialogue so as to better tackle the current COVID-19 pandemic but also to preserve its memory in our public records, so that future generations may evaluate our efforts and learn from them.
71. We speak not only as members of this Court, but also as grateful citizens of the country, and commend the outstanding work of our all healthcare professionals (doctors, nurses, healthcare workers, laboratory technicians, ward staff, ambulance drivers, crematorium workers etc.) during this crisis. They have truly gone beyond their call of duty and toiled day in and day out, relentlessly without rest amidst great challenges. It is absolutely necessary to take urgent steps for their well-being to ensure that our appreciation for their tremendous efforts is not reduced to rhetoric. This is especially important since another factor which affects how collective public memory of any event is created is by the rhetoric surrounding. As such, our public memory of this public event has to transcend its conception as a "war" against the virus of COVID-19 itself, but rather to remember that it is "the complex epidemiological circumstances that promote these outbreaks and the under-resourced health systems that are tasked with disease containment. While the healthcare professionals have been at the forefront of tackling this crisis, we have to recognize their contribution as medical healthcare professionals who have undertaken "to protect public health using proven scientific evidence and best practices and to serve to community at large, and not just as "CORONA WARRIORS".
72 (ii) Healthcare personnel are at an obvious heightened risk 24 OA No. 2633/2021 (C-IV, item -52) of contracting the COVID-19 virus. However, we are aware of reports that indicate that infected healthcare personnel are left to fend for themselves without adequate availability of beds, oxygen or essential drugs. Further, some of them have also often been asked to report back to duty within 10 days of first testing positive for COVID-19 (provided they are asymptomatic), even though a longer recuperation period is often recommended. While we are dealing with a terrible second wave of the COVID-19 pandemic, there must be an effective policy to ensure that the nation truly acknowledges their effort and creates incentives for them. We hope it will be remedied soon by the Central and State Governments through the introduction of appropriate guidelines and measures."
19. Further, he places reliance on order dated 16.11.2023 passed by the Hon'ble High Court of judicature at Madras in Dr. D. Hariharan & Others vs. Union of India & Others wherein the claim of such health professionals who performed Covid-19 duty had been initially denied in the process of fresh recruitment. The court in that case held that the rules can even be changed in the middle of the process for such health professionals given in compelling circumstances arising out of Covid+19 crises. The relevant portion of the judgment is as follows:
"The brief facts leading to the filing of these petitions are as follows:- On 11.10.2022, the Medical Services Recruitment Board (MRB), Government of Tamil Nadu, issued Notification No.11/MRB/2022, in and by which, it invited applications for direct recruitment to 1021 vacancies in the post of Assistant Surgeon (General) in the scale of pay of Rs.56,100-1,77,500. The selection was by a process of written examination consisting of two papers, namely, Tamil Language Test and the Main Paper. All the writ petitioners had applied and participated in the selection process. The examination was conducted on 25.04.2023. On 23.06.2023, the Tamil Eligibility Test Result and the Final Answer Keys were released by the MRB. The objections to the key answers were also considered and the keys are finalised.
1.1. While so, on 13.07.2023, a group of Doctors approached this Court by way of W.P.No.20742 of 2023, seeking for award of weightage marks for the duty rendered by them in COVID - 19 pandemic wards. Considering the fact that no scheme was put in place by the Government of Tamil Nadu, an interim stay was granted against issuing any appointment orders.
1.2. Thereafter, on 17.08.2023, the Government of Tamil Nadu issued G.O.(Ms).No.278, dated 17.08.2023, in and by which, it was decided to implement the direction of the Hon'ble Supreme Court of India in Suo Motu W.P.(Civil) No.3 of 2021 to grant incentives to those Health Professionals who worked for COVID - 19 related duty in regular Government appointments. Accordingly, 2-5 marks were awarded to the Medical Officers as per the criteria contained in paragraph No.5 of the Government Order in respect of the above selection upon furnishing of the COVID Duty Certificate as directed in 25 OA No. 2633/2021 (C-IV, item -52) the Government Order.
5.1. COVID - 19 pandemic brought in an extreme and abnormal situation. Even the spouse and children of a person who died of COVID - 19 did not even come near and the body was packed in a bag and disposed off. The right of free movement throughout the country, right to assemble, right to celebrate weddings with friends and relatives were all curtailed. Places of worship, where worship and rituals should not stop even in war time, stood locked and closed. The inviolable law of limitation prescribing the last date for approaching Courts stood extended. Therefore, there was departure from normalcy in every aspect and that stood extended even to certain legal principles and of course, the approach is ad hoc and ad hominem applicable only in respect of the pandemic. The present grant of incentive marks is also a fall out of the COVID - 19 pandemic and therefore, we hold that the normal rule of changing the game during the course of the game also requires a different consideration in this context and the said rule cannot come in the way of grant of incentive marks to these Medical Officers who put their life at risk. Gratitude and recognition for service to mankind is very much part of our constitutional jurisprudence and if the incentive is not granted in the present selection, then it can never be."
20. Therefore, based on the above submissions and the cited judgments, the learned counsel for the applicants contends that the Nursing Officers completed 100 days Covid duty had definitive claim for preference given as per communication /notification issued by the Ministry of Health and Family Welfare, as well as the orders passed by the Hon'ble Supreme Court and the Hon'ble Madras High Court as cited above. He also asserts that in fact the claim of the applicants is on a better footing because unlike in the case of Health professions in the cited case where the Hon'ble Madras High Court held that the rule can be changed in the middle of the process, as the communication dated 03.05.2021, was issued prior to the advertisement and not in the middle of the process.
21. He also submits that this is also a case where the applicants have legitimate expectation as held by the Hon'ble Supreme Court in WG CDR A.U. Tayyaba (Retired) and Others. Vs. Union of India and Others (2023) 5 SCC 688. The relevant portion of the said judgment is as follows:
"29. A person is said to have a reasonable or legitimate expectation if a representation or a promise made by an authority, either expressly or impliedly, gives room for such expectation in the normal course. While applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the state action. In State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi,10 this Court speaking through of one us (D.Y. Chandrachud J) elaborated on the doctrine of legitimate expectation in the following terms:26 OA No. 2633/2021
(C-IV, item -52) "45. ...The state must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the state will act according to what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary state action which Article 14 of the Constitution adopts."
22. In support of his contention he also leans on the judgment of the Hon'ble Supreme Court in State of Bihar and Others vs. Shyama Nandan Mishra 2022 SCC 554, which is on the same lines, as above.
23. Learned counsel appearing for respondent No.3 representing AIIMS, on the other hand, submits that the AIIMS was given responsibility of recruiting the Nursing Officers and the relevant guidelines and instructions provided to them had no mention of the Notification dated 03.05.2021 and as such they had merely followed the relevant guidelines given to them and beyond, this they had no role in the matter.
24. The other respondents reiterate the claim made in the counter to say that the case of the applicants is not covered under the said circular as they were contractual employees and they had no claim to any such regularisation. In support of their assertions, the order passed by the coordinate Bench of this Tribunal in OA Nos.3616/2019 and 501/2022 on 01.12.2022 in Vinod Kumar Sharma & Others vs. Union of India & Others has been cited, more specifically paras 11 and 13 as follows:
"11. The applicants relying upon the notification of the Central Government dated 03.05.2021, submitted that they are entitled to be considered for giving preference for regular appointment as health professionals through the respective Public Service Commission or other recruitment bodies under special scheme. In our considered opinion, this notification of the Central Government is not applicable to the present circumstances as the applicants were appointed much prior to the outbreak of Covid-19. That apart, the fact remains that the applicants also earlier appeared for the examinations which were held for selecting regular Nursing Officers, however, they could not qualify the same.
13. Before parting with this judgment, we must make a reference to the decision of Apex Court in Narendra Kumar Tiwari & Ors. vs State of Jharkhand & Ors.(supra), relied upon by Mr. Gonsalves, learned senior counsel for the applicants. He places heavy reliance on para 10 of the said judgment which reads as follows: "10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularized 27 OA No. 2633/2021 (C-IV, item -52) unless there is some valid objection to their regularization like misconduct etc." In the aforesaid case, the Apex Court considered the grant of benefits of Regularization Rules framed by the State of Jharkhand in the year 2015 for the employees who had not completed 10 years of service as on the cut-off date ie. 10.04.2006. The Apex Court while taking note of the fact that the State of Jharkhand came into existence only on 15.11.2000, held that the Regularization Rules must be given a pragmatic interpretation, and if the candidates had completed 10 years of service on the date of promulgation of the Regularization Rules, they ought to be given the benefit of service rendered by them. In our opinion, the ratio of this decision cannot be made applicable here as in the present case, there are no Regularization Rules, and accordingly, there is no question of completion of 10 years of service on promulgation of such rules. The applicants cannot escape the criteria laid down in Umadevi (Supra) wherein it has been categorically held that it is not open to the Courts to prevent regular recruitment at the instance of temporary employees whose period of employment may have come to an end or of ad-hoc employees who, by very nature of their employment, do not acquire any right. 14. Taking the totality of the facts and circumstances of the case into consideration, we do not find any merit in both the Original Applications and the same are accordingly dismissed. Pending MA(s), if any, shall stand disposed of. There shall be no order as to costs."
25. The respondents have also relied upon the judgment of the Hon'ble Supreme Court in Ganesh Digamber Jambhrunkar & Others vs. The State of Maharashtra & Ors. Vide SLP (C) No.2543/2023 decided on 20.09.2023. Relevant portion of the said judgment reads as under:
"We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken."
26. The respondents submit that in the light of above judgments, the applicants have no claim as they were engaged much before the onset of Covid-19 as contractual employees and it is not open to the courts to prevent regular appointment. It is also argued that since the applicants participated in the recruitment process following the impugned advertisement of 16.10.2021, they cannot challenge the recruitment process.
27. We have considered the judgments cited and also the averments made in the light of the said judgments. It is not in dispute that the Ministry of Health and Family Welfare issued Notification dated 03.05.2021 wherein it was 28 OA No. 2633/2021 (C-IV, item -52) specifically mentioned that the preference was to be given in government regular appointments of Health professionals through the respective Public Service Commission/other recruitment bodies, for those Health professionals under this special scheme who complete a minimum of 100 days of Covid related duty. The only criteria laid down for preference was completion of minimum of 100 days of Covid related duty. The said communication did not state if those employees who were contractual or those who were engaged much before the onset of Covid-19 were not covered by the said communication. It is also evident that this was not a case of regularisation or absorption but claiming preference in regular government appointments and therefore the ratio of judgments cited does not apply in this case. Also just because they participated in the process of recruitment do not disqualify them to claim the benefit of the circular dated 03.05.2021 as they had legitimate expectation to get preference in recruitment. Therefore, we are of the view that the competent authority while issuing the impugned advertisement should have definitely considered their case, more so, the Notification was issued by the Ministry of Health and Family Welfare under which the Lady Hardinge Medical College is placed.
28. In the facts and circumstances, we hereby direct the competent authority amongst the respondents to consider their cases in line with their own Notification dated 03.05.2021 by grant of preference to the applicants. The competent authority amongst the respondents will issue necessary directions in this regard as expeditiously as possible and preferably within a period of 8 weeks from the date of receipt of a copy of the order.
29. The O.A. is partly allowed on the above terms. No costs."
11. We find that the Coordinate Bench which has passed the said Judgment has very diligently and in great depth discussed the pronouncements of the various Courts and law laid down in the matter. After giving due consideration to the different pronouncements of the Courts, the Tribunal has finally given specific directions in para 28 of the said judgment. At the risk of repetition, we reproduce the said para again to obviate any possibility of ambiguity.
29 OA No. 2633/2021(C-IV, item -52) "28. In the facts and circumstances, we hereby direct the competent authority amongst the respondents to consider their cases in line with their own Notification dated 03.05.2021 by grant of preference to the applicants. The competent authority amongst the respondents will issue necessary directions in this regard as expeditiously as possible and preferably within a period of 8 weeks from the date of receipt of a copy of the order."
12. Let us now dissect this para. There is a policy notified by the respondents on 03.05.2021. The subject of said policy is Augmenting Human Resource for COVID - 19 regarding". The policy is in two parts, namely, (i) Relaxation/Facilitation/Extension and (ii) Incentives/Recognition of Service. This policy lays down guidance for engagement of human resource for dealing with the crises of COVID. The para 17 of the policy states:
" 17. The Central Government recommends to State/UT Governments to consider giving preference in regular Government appoints of Health Professionals through the respective Public Service Commission/other recruitment bodies, for those health Professionals under the special scheme, who complete a minimum of 100 days of Covid related duty."
13. Here is a recommendation of the Central Government to all the State and UT Governments regarding regular Government appointments of Health Professionals and it categorically states "to consider giving preference in regular Government appointment of Health professionals". We reiterate that the policy accordingly recommends a 30 OA No. 2633/2021 (C-IV, item -52) preference to the personnel engaged for dealing with COVID pandemic, and further clarifies that recoomendation is only to "consider" giving a preference.
14. Let us go back to para 28 of the order passed in OA No. 509/2022. What this para does is direct the competent authority to "consider" the case of the applicants in line with their own notification dated 03.05.2021 by grant of preference to the applicants. The policy "recommends" to "consider" giving preference. The directions of the Tribunal are also to consider giving the said preference, that too, strictly in accordance with the policy. We have no doubt that judicial propriety and discipline binds us to decide this OA on the same analogy of OA No. 509/2022.
15. In view of what has been elaborately detailed and discussed above, the present OA is disposed of with a direction to the competent authority amongst the respondents to consider the claim of the applicants strictly in accordance with the provisions of the notification dated 03.05.2021, specifically the provisions providing preference to such employee as the present applicants are.
Pursuant to such consideration, the respondents shall take an appropriate decision in this matter expeditiously, in any case, not later than a period of eight weeks from the date of 31 OA No. 2633/2021 (C-IV, item -52) receipt of a copy of this order. The directions given vide the interim order dated 18.11.2021 shall remain in operation till such a decision is taken by the competent authority.
16. Against the background of what has been elaborately detailed above, the OA is disposed of. Pending MA also stands disposed of. No costs.
(Manish Garg) (Tarun Shridhar)
Member (J) Member (A)
/as/