Central Administrative Tribunal - Allahabad
Dr Jitendra Dubey vs Ihq Of Mod(Army) on 1 November, 2023
Reserved
(On 12th October, 2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*********
Original Application No. 298 of 2023
Allahabad this the 01st day of November, 2023
Hon'ble Mr. Justice B.K. Shrivastava, Member-J
Hon'ble Mr. Mohan Pyare, Member-A
Dr. Jitendra Dubey s/o Vyasji Dubey, R/o 45, Maa Kali Road, Ganga
Nagar, Ward-13, Saidur, District-Ghazipur. Presently working as Dental
Officer S-14/73-L-1, Sarnath, Varanasi (U.P.).
Applicant
By Advocate: Shri Anil Kumar Singh
Vs.
1. Union of India through Secretary/Director, Central Organization
ECHS Adjacent Generous Branch, IHQ of MOD, Maude Lines, Delhi
Cantt-110 010.
2. Commander, Regional Centre ECHS Sub Area, Varanasi Cantt.
3. Official Incharge, ECHS Varanasi Cantt., Varanasi.
4. OIC Station Head Quarter ECHS Cell, Varanasi Cantt.
5. Dr. Mehdi Askari C/o Hasan Askari, R/o House No. 1, Village-
Khanwai, Post Office- Sarai Mohiuddenpur, Sahganj, District-
Jaunpur.
Respondents
By Advocate: Shri Manoj Kumar Sharma
ORDER
By Hon'ble Mr. Justice B.K. Shrivastava, Member (Judicial) This Original Application has been filed on 15.04.2023 under Section 19 of the Administrative Tribunals Act, 1985 for the following relief contained in para-8 of the O.A., as under: -
"8.i. To quash and set aside the impugned order dated 08.04.2023 passed by respondent no. 4 (Colonel K.M. Singh, OIC Station Head Quarter ECHS Cell, Varanasi Cantt..
ii. to direct the respondents not to interfere in the peaceful working of the applicant as Dental Officer in ECHS Policlinic, Ghazipur and ensure his monthly regular salary as and when it falls due.2
iii. to award cost of the original application to the applicant."
2. During the arguments, it is submitted by the applicant's counsel that he does not want to press the relief No. (i) related to appointment of respondent No. 5. He only insisted upon the point that the applicant was appointed on ad hoc basis, therefore, he cannot be replaced by another ad hoc appointee. As per learned counsel for the applicant, he is not challenging the appointment procedure of respondent No. 5. He only challenged the action taken by the respondents under which the applicant has been replaced by appointing another ad hoc employee i.e. respondent No. 5.
3. As per applicant, he was appointed as a "Dental Officer" by appointment letter dated 13.02.2020 on "ad-hoc basis" for 89 days w.e.f. 14.02.2020. The services of applicant, after 12.05.2020, were extended by respondent No. 4 from time to time. The last extension was granted from 27.04.2022 to 26.04.2023. The applicant was working as a Dental Officer on ECHS, Polyclinic, District Ghazipur. The last experience certificate (annexure A-4) was also issued by the respondent No. 3 on 24.01.2023. There was no any complaint against the applicant and he was serving with his full sincerity and devotion.
4. It is again submitted by the applicant that the respondent No. 4 illegally and arbitrarily issued the appointment letter on contractual basis in favour of respondent No. 5 Dr. Mehdi Askari. The aforesaid appointment is based on upon the choice of respondent No. 4. The services of applicant could not be terminated. The applicant also filed the detailed representation dated 10.04.2023. It is submitted that as per the established law by the Supreme Court and the C.A.T. Full Bench, the ad hoc appointment cannot be replaced by another ad hoc appointment.
5. The respondents opposed the O.A. and filed the counter affidavit on 05.07.2023. It is submitted by the respondents that the appointment 3 was temporary and upon the contractual basis for 89 days w.e.f. 14.02.2020 to 12.05.2020. The services of applicant were not extended but he was re-appointed again on temporary and contractual basis w.e.f. 16.05.2020 to 12.08.2020 and thereafter from 17.08.2020 to 13.11.2020 and from 17.02.2021 to 16.05.2021 due to Covid 19 restrictions. It is also submitted that on relaxation of Covid 19 restrictions, the provisions of Central Organization, ECHS letter No. B-49760/AG/ECHS/2017 dated 22.12.2017 was followed for selection/appointment to the post of Dental Officer on ECHS, P.S., Gazipur. The applicant was selected by the Board of Officers and appointed by the Station Commander, Varanasi initially for 11 months w.e.f. 24.05.2021 to 23.04.2022 and extension was granted from 27.04.2022 to 26.04.2023 in accordance with the provisions contained in aforesaid Central Organization letter. The applicant's contractual appointment was only up to 26.04.2023. The most suitable candidate has been selected through the Board of Officers in accordance with the provisions of Central Organization ECHS letter No. B- 49760/AG/ECHS/2017 dated 22.12.2017. It is also submitted by the respondents that the new selection was conducted by following the existing rule. The applicant himself participated in the aforesaid selection and the respondent No. 5 has been duly selected while the applicant has been kept in reserved list at serial No. 2. After participating in the selection/appointment, the applicant cannot challenge the aforesaid selection procedure.
6. The applicant also filed the supplementary affidavit on 19.04.2023, second supplementary affidavit on 26.04.2023 and third supplementary affidavit on 28.04.2023 along with some documents. The rejoinder affidavit was filed on 11.07.2023.
7. The main contention of the applicant is related to appointment of respondent No. 5. Because as per the applicant, he was appointed on ad hoc basis and his services were extended from time to time. Therefore, 4 his services cannot be terminated by replacing him from another contractual employee. The applicant placed reliance upon Ms. Parveen Khan v. Government of NCT, Delhi dated 25.03.2010 passed by the Full Bench of CAT, New Delhi. It appears from the aforesaid Judgment that the matter was referred to the Full Bench in the light of Harminder Kaur and others v. Union of India and others 2009 (7) SCALE 2004. The Full Bench of CAT decided the aforesaid reference in the light of the Supreme Court Judgment passed in Piara Singh v. State of Haryana 1992 (4) SLR 770 and Dr. A.K. Jain and others v. Union of India 1987 (Supp.) SCC 497. The Court said that the issue is well settled on the basis of judicial precedent that a set of contractual employee shall not be replaced by another set of contractual employee except if the contractual employees are not working satisfactorily.
8. The applicant also submitted the copies of orders dated 27.02.2018 passed in W.P. (S/S) No. 345 of 2018, 350 of 2018, 353 of 2018 and 352 of 2018 passed by the High Court of Uttarakhand at Nainital. The aforesaid four orders are related to the interim relief and any law has not been laid down. The order passed only for interim measure cannot be followed as a "principle of law".
9. As per applicant, he was initially appointed by order dated 13.02.2020 for the period from 14.02.2020 to 12.05.2020. According to applicant, his services were extended from time to time till 26.04.2023. But, the respondents did not accept the aforesaid contention. As per respondents, the services were not extended but the applicant was re- appointed. The letters of appointment are also filed in the record. It appears from the aforesaid letters that: -
(i) by letter dated 13.02.2020, the appointment was granted w.e.f. 14.02.2020 to 12.05.2020;
(ii) by letter dated 16.05.2020, the appointment was granted w.e.f. 16.05.2020 to 12.08.2020;5
(iii) by letter dated 16.08.2020, the appointment was granted w.e.f. 17.08.2020 to 13.11.2020;
(iv) by letter dated 17.11.2020, the appointment was granted w.e.f. 17.11.2020 to 13.02.2021;
(v) by letter dated 16.02.2021, the appointment was granted w.e.f. 17.02.2021 to 16.05.2021;
(vi) by letter dated 22.05.2021, the appointment was granted w.e.f. 24.05.2021 to 23.04.2022;
(vii) by letter dated 26.04.2022, the appointment was granted w.e.f. 27.04.2022 to 26.04.2023;
10. It appears from the last two letters dated 22.05.2021 and 26.04.2022 that for a period of 23 months, the appointment was granted. By first letter 11 months period was given and by second letter 12 months period was given. Hence, the total period by both letters was 23 months. Before the aforesaid period, there was no any appointment during the period from 13.05.2020 to 15.05.2020, 13.08.2020 to 16.08.2020, 14.11.2020 to 17.11.2020, 14.02.2021 to 16.02.2021 and 17.05.2021 to 23.05.2021. Therefore, the contention of the respondents appears to be correct. The services of applicant were not extended but at every time, fresh contractual appointment was given after some gap.
11. In the case of Dr. A.K. Jain &Ors. Vs. Union of India &Ors.[24/09/1987] 1988 SCR (1) 335 = 1987 SCC Supl. 497 = JT 1987 (4) 445 = 1987 SCALE (2)1002, doctors were appointed on ad hoc basis. Looking to the peculiar facts and circumstances of cases the Supreme Court said that no ad hoc Medical officer shall be replaced by any newly appointed Medical officer on ad hoc basis. The Court observed and passed the following order:-
1. The services of all doctors appointed either, as Assistant Medical officers or as Assistant Divisional Medical officer on ad hoc basis upto01.10.1984 shall be regularised in consultation with the Union Public Service Commission on the evaluation of their work and conduct on the 6 basis of their confidential reports in respect of the period subsequent to 01.10.1982. Such evaluation shall be done by the Union Public Service Commission. The doctors so regularised shall be appointed as Assistant Divisional Medical officers with effect from the date from which they have been continuously working as Assistant Medical officer/Assistant Divisional Medical officer. The Railway shall be at liberty to terminate the services of those who are not so regularised. If the services of any of the petitioners appointed prior to 01.10.84 have been terminated except on resignation or on disciplinary grounds, he shall be also considered for regularisation and if found fit his services shall be regularised as if there was no break in the continuity of service but without any back wages.
2. The Petitions of the Assistant Medical officer/Assistant Divisional Medical officers appointed subsequent to 01.10.1984 are dismissed. But we however direct that the Assistant Divisional Medical officers who may have been now selected by the Union Public Service Commission shall first be posted to the vacant posts available wherever they may be. If all those selected by the U.P.S.C. cannot be accommodated against the available vacant posts they may be posted to the posts now held by the doctors appointed on ad hoc basis subsequent to 01.10.1984 and on such posting the doctor holding the post on ad hoc basis shall vacate the same. While making such postings the principle of 'last come, first go' shall be observed by the Railways on Zonal basis. If any doctor who is displaced pursuant to the above direction is willing to serve in any other Zone where there is a vacancy he may be accommodated on ad hoc basis in such vacancy.
3. All Assistant Medical officers/Assistant Divisional Medical officers working on ad hoc basis shall be paid the same salary and allowances as Assistant Divisional Medical officers on the revised scale with effect from 1.1.1986. The arrears shall be paid within four months.
4. No ad hoc Assistant Medical officer/Assistant Divisional Medical officer who may be working in the Railways shall be replaced by any newly appointed AMO/AMO on ad hoc basis. Whenever there is need for the appointment of any AMO/ADMO on ad hoc basis is any Zone the existing ad hoc AMO/ADMOs who are likely to be replaced by regularly appointed candidates shall be given preference.
5. If the ad hoc doctors appointed after 01.10.1984 apply for selection by the Union Public Service Commission the Union of India and the Railways Department shall grant relaxation in age, to the extent of the period of service rendered by them as ad hoc doctors in the Railways.7
12. Three Judges Bench of Supreme Court inState of Haryana &Ors. Vs. Piara Singh &Ors. [12.08.1992] 1992 AIR 2130 = 1992 SCR (3) 826 = 1992 SCC (4) 118 = JT 1992 (5)179 = 1992 SCALE (2)384, considered the issue of regularisation of ad-hoc/ temporary employees in government service and said that the normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc /temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc / temporary employee. The Court said:-
"Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."
Various direction / Suggestions were given in the aforesaid case:-
"Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each States prepares a scheme, if one is not already in vogue, for regularisation of such employees 8 consistent with its reservation policy and if a scheme is already framed, the same way be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of adhoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein.
26. So far as the employees and workmen employed by Statutory/Public Corporations are concerned, it may be noted that they have not issued any orders akin to those issued by the Punjab and Haryana Government. Even so, it is but appropriate that they adopt as far as possible, keeping the exigencies and requirements of their administration in view, the criteria and principles underlying the orders issued by their Government in the matter of regularisation and pass appropriate orders. In short, the Statutory/Public Corporations in Haryana will follow the orders contained in the letter dated 6.4.1990 referred to above, as supplemented by the orders in the Notification dated 28.2.1991, where as the Statutory / Public Corporations in Punjab shall follow the criteria and principles stated in the affidavit of Sri G.K. Bansal, Under Secretary to the Government of Punjab, Department of Personnel referred to in para 22 above. These directions shall not, however, apply to these 9 Statutory/Public Corporations functioning within these States as are under the control of the Government of India. These Corporations will do well to evolve an appropriate policy of regularisation, in the light of this judgment, if they have not already evolved one, or make their existing policy consistent with this judgment to avoid litigation."
13. Recently in Manish Gupta & Anr. Etc. Vs. President, Jan Bhagidari Samiti & Ors. Etc.[C.A.Nos.30843088 of 2022, Arising out of SLP (Civil) No. 1294612950 of 2017] [decided by SC on 21.04.2022] the Supreme court also said that an ad-hoc employee cannot be replaced by another ad-hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. In the aforesaid case an advertisement came to be issued in the year 2014 for appointment of teachers as guest faculty for the Academic Year 20142015 in different Colleges. The writ petitioners having requisite qualifications, applied to the advertised positions in pursuance to the said advertisement. Upon their selection by the duly constituted Committee, they were appointed. After the end of the Academic year, the writ petitioners were discontinued from service. Fresh advertisements were issued for the next Academic Year 2015 2016. Being aggrieved thereby, the writ petitioners approached the High Court and the learned single judge of the High Court of M.P. vide judgment and order dated 29th September, 2016,allowed the writ directing that the writ petitioners therein would continue to work on their respective posts till regular selections were made. It was also directed that the writ petitioners therein were entitled to get the salary in accordance with the UGC circular issued in February, 2010. But the Division Bench of the High Court by order dated 8th February, 2017, allowed the writ appeals and set aside the judgment and order passed by the learned single judge of the High Court. The Supreme Court set aside the Order of Division Bench and confirmed the order of Single Judge with some modification. The Court said: -
10
"12. A perusal of the advertisement dated 24th June, 2016 issued by the Principal, Government Kamla Raja Girls Post Graduate Autonomous College, Gwalior, which is at Annexure P2 of the Appeal Paper Book and the advertisement dated 2nd July, 2016 issued by the Principal, SMS Government Model Science College, Gwalior, M.P., which is at Annexure P3 of the Appeal Paper Book, would show that the appointments were to be made after the candidates had gone through due selection procedure. Though Shri Nataraj, learned ASG has strenuously urged that the appointments of the appellants were as guest lecturers and not as ad hoc employees, from the nature of the advertisements, it could clearly be seen that the appellants were appointed on ad hoc basis. It is a settled principle of law that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. Reliance in this respect can be placed on the judgment of this Court in the case of Rattan Lal and others vs. State of Haryana and others, (1985) 4 SCC 43 and on the order of this Court in the case of Hargurpratap Singh vs. State of Punjab and others, (2007) 13 SCC 292.
13. In that view of the matter, we do not find that an error was committed by the learned single judge of the High Court by directing the writ petitioners to continue to work on their respective posts till regular selections are made. We, however, find that the direction issued by the learned single judge of the High Court that the writ petitioners would be entitled to get the salary in accordance with the UGC circular is not sustainable. The advertisements themselves clearly provided that the selected candidates would be paid the honorarium to be determined by the said Committee."
14. We are informed at the Bar that the appellants are being paid on a per hour basis, i.e., at the rate of Rs.1,000/ per hour and they are continuing to work in pursuance of the order of status quo passed by this Court on 28th April, 2017. We also find substance with the submission made on behalf of the respondent - State that continuation of the appellants would depend on the number of students offering themselves for the concerned courses.
15................
16. Accordingly, we pass the following order:
A. The appeals are partly allowed.
B. The impugned judgment and order dated 8th February,
2017 passed by the Division Bench of the High Court of Madhya Pradesh, Gwalior Bench in Writ Appeal No.386 of 2016 along with companion matters is quashed and set aside;
11C. The judgment and order dated 29th September, 2016 passed by learned single judge of the High Court is modified as under:
(i) The writ petitioners appellants herein would be entitled to continue on their respective posts till they are replaced by regularly selected candidates;
(ii) The writ petitioners appellants herein would be continued on their respective posts provided that a sufficient number of students are available for the particular course(s) for which the writ petitioners -appellants herein are appointed.
(iii) The writ petitioners - appellants herein would be entitled to honorarium at the rate of Rs.1,000/ per hour as is being paid to them presently.
14. It appears from the record that the appointment was given due to Covid 19 restrictions. On relaxation of Covid 19 restrictions, the provisions of Central Organization ECHS letter No. B- 49760/AG/ECHS/2017 dated 22.12.2017 was followed for selection/ appointment for the post of Dental Officer at ECHS, Gazipur. The applicant was selected by the Board of Officers and appointed by the Station Commander, Varanasi initially for the period of 11 months w.e.f. 24.05.2021 to 23.04.2023 and the extension was granted from 27.04.2022 to 26.04.2023. Therefore, the regular recruitment process was not followed because of situation arisen due to Covid 19 and the applicant was appointed by passing the due procedure.
15. It is also appear from the record that the notification for employment was issued on 12.01.2023. The copy of aforesaid notification is also enclosed at page 47 of the O.A. In the aforesaid notification, the post of applicant was also advertised. Thereafter, the applicant himself applied for the aforesaid post. In compliance with the aforesaid notification 12.01.2023, an interview for the post of Dental Officer was conducted on 10.03.2023 and the result was declared on 03.04.2023. The copy of result has been filed along with the fourth supplementary affidavit dated 01.05.2023. It appears that the respondent No. 5 has been selected for the aforesaid post and the applicant gets the status of reserved No. 2. It means that the name of 12 applicant is in the waiting list at serial No. 2. Therefore, it is also appear that the applicant himself participated in the aforesaid selection. When the notification was issued, the applicant did not challenge the aforesaid action of the respondents. The applicant himself applied and participated in the selection procedure. When the applicant was not selected then, he is stopped to challenge the selection procedure and he cannot challenge the appointment of respondent No. 5.
16. The case of Pradeep Kumar Rai and Ors. Vs. Dinesh Kumar Pandey and Ors., 2015 (11) SCC 493 [C.A. No.6549 of 2014] [D- 11.05.2015] was related to the promotion of Constables and Head Constables to the rank of Sub-Inspectors in the State of Uttar Pradesh. The process of promotion started way back in 1999 and the candidates appearing for promotion from the rank of Constable or Head Constable to the rank of Sub-Inspector have challenged the selection and promotion process at various stages of the promotion process. The court observed that after participating and unsuccessful in the examination, the candidate cannot be allowed to challenge the examination: -
"16. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview.This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted. (See Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Ors., (2011) 1 SCC 150, and K.H. Siraz Vs. High Court of Kerala and Ors. (2006) 6 SCC 395)"
17. In Ashok Kumar Vs. State of Bihar, C.A. No. 9092 of 2012 decided on 21.10.2016, three judges bench of Supreme Court said that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon 13 being declared to be unsuccessful. It was not open to the appellants after participating in the selection process to question the result, once they were declared to be unsuccessful. The court refer the cases Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100, Manish Kumar Shah v. State of Bihar, (2010) 12 SCC 576, Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150, Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521, Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493, Madras Institute of Development v. S.K. Shiva Subaramanyam, (2016) 1 SCC 454, Amlan Jyoti Borrooah v. State of Assam, (2009) 3 SCC 227 and said:-
"11. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate."
18. In Madan Lal (Madan Lal and Others v. State of J & K and others, (1995) 3 SCC 486,), it was held that if a candidate takes a calculated chance and appears at the interview then only because the result of the interview is not palatable to him he cannot turn around and subsequently contend that the process of interview was unfair and the selection committee was not properly constituted.
19. Therefore, it appears from the entire record that the applicant having no any authority to challenge the aforesaid selection in which he was also participated and the respondent No. 5 was selected. Hence, the O.A. having no any force is dismissed.
(Mohan Pyare) (Justice B.K. Shrivastava)
Member (Admn.) Member (Judicial)
/M.M./