Central Administrative Tribunal - Delhi
Smt. Kiran Dalal (Aged About 33 Years) vs Union Of India on 21 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.4369 OF 2014 New Delhi, this the 21st day of July,2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER 1. Smt. Kiran Dalal (aged about 33 years), W/o Sh.Dinesh Dalal, R/o D-7, Mohan Garden, Uttam Nagar, Delhi, Designatino: MRW, Group B. 2. Sh. Harish Kumar (aged about 28 years), S/o Sh.Sadhu Ram, R/o H.No.292/5, G.No.5-B, Shakti Vihar, Delhi 94, Designation: Pros & Orth Tech, Group B 3. Sh.Ravi Kumar (aged about 30 years, s/o Sh.Pradeep Kumar, R/o C-152, DDA Flats, New Ranjeet Nagar, West Patel Nagar, New Delhi Designation: MRW, Group B 4. Sh.Tarun Walia (aged about 29 years), s/o Sh. K.K.Walia, R/o H.No.40, Street No.5, Shakarpur, Delhi 92 Designation: Steno, Group C 5. Smt. Seema Rani (aged about 27 years, D/o Sh.Jai Dayal Sharma, R/o 58-E, Sector 4, DIZ Area, Gole Market, New Delhi Designation: MRW, Group B 6. Ms.Megha Jogota (Aged about 28 years), W/o Sh.Ravi Kumar R/o C-152, DDA Flats, New Ranjeet Nagar, West Patel Nagar, New Delhi Designation: MRW, Group B 7. Sh.Arun (aged about 32 years) s/o Sh. Asharfi Lal, R/o A-218, Nand Ram Park, Uttam Nagar, New Delhi Designation: W/S Worker, Group B 8. Sh.Vikash Kumar (aged about 37 years), S/oSh. Babu Ram, R/o M-61, Shakurpur Colony, Delhi Designation: W/S Worker, Group B 9. Sh.Shiv Shankar (aged about 36 years), S/o Sh. Surat Prasad, R/o H.No.116, Harijan Basti, Sultan Puri, Delhi 86 Designation: W/S Worker, Group B 10. Sh.Narinder Singh (aged about 34 years), S/o Sh.Hartirath Singh, R/o H.No. 2685, Shadi Pur, Main Bazar, Gali No.3, Delhi 110008 Designation: W/S Worker, Group B 11. Sh.Salman Ali Khyan (aged about 32 years) S/o Sh.Shameem Khan, R/o 449, Akhatar Masjid, Opp.P.L.Sharma Hospital, Ahmed Road, Meerut, Designation: W/S Worker, Group B 12. Sh.Ashok Raghav (aged about 27 years), S/o Sh. Nathi Singh, R/o Block 28/4C DIZ Area, Gole Market, New Delhi Designation: N/Aid, Group D 12. Sh.Sanjay (aged about 31 years), S/o late Sh.Ramesh R/o 9166, Lady Harding Staff Quarter, Type I/112, P.K.Road, New Delhi Designation: S/Wala, Group D 13. Smt. Preeti (aged about 29 years), D/o Sh.Ram Kishan, R/o 378, 1st Floor, Type II, Lancer Road, Timar Pur, Delhil Deisngation: S/Wali, Group D .. Applicants (By Advocate: Mr. Hari Prakash) Vs. 1. Union of India, Through the Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi 110001 2. Medical Superintendent, Kalawati Saran Childrens Hospital, (Lady Harding Medical College, S.B.S.Marg), Bangla Sahiv Marg, Connaught Place, New Delhi .. Respondents (By Advocate: Mr.Rajender Nischal) .. ORDER RAJ VIR SHARMA, MEMBER(J):
Brief facts of the applicants case, as projected in the O.A and relevant for the purpose of deciding the issue raised by the applicants, are that in the year 2007, the applicants were initially engaged by respondent no.2 to work in different capacities on contract basis for a period of three months on consolidated salary under the Scheme for Upgradation of Facilities in the Department of Physical Medicine & Rehabilitation in various Medical Colleges promulgated by respondent no.1, vide its letter dated 25.8.2005. After expiry of the initial period of three months, the period of their engagement was extended from time to time. By orders dated 21.5.2009 and 6.5.2010 (Annexure A-2 and Annexure A-3), the period of their engagement was extended for one year with effect from 1.4.2009 and further up to end of 11th Five Year Plan, i.e., till 31.3.2012. Respondent no.2, vide order dated 2.4.2012 (Annexure A/4), discontinued the contract engagement of the applicants. However, respondent no.2, vide order dated 14.5.2012 (Annexure A/4 collectively), extended the contract period of their engagement with effect from 10.5.2012 to 30.9.2012 on the existing terms and conditions. Respondent no.1, vide letter dated 16.9.2014 (Annexure A/5), created 10 posts on regular basis for upgradation of Physical Medicine and Rehabilitation Services Department in respondent no.2s Hospital, subject to the condition that the existing contractual posts would be abolished. Respondent no.2, vide office order dated 24.9.2014 (Annexure A/5 collectively), extended the period of their engagement for further 89 days with effect from 31.10.2014 to 27.1.2015. While the matter stood thus, respondent no.2, vide office order dated 2.12.2014 (Annexure A/1) terminated the services of the applicants by giving seven days notice from 2.12.2014. By the said order dated 2.12.2014, the office order dated 24.9.2014 was also cancelled in respect of the applicants. Hence, the applicants filed the present O.A. seeking the following reliefs:
(i) That this Honble Tribunal may graciously be pleased to pass an order for set aside the office order No.KSCH/RR-Cell/PMR-107/2014-15/5144 dated 02/12/2014 passed by the additional medical superintendent, Kalawati Saran Childrens Hospital, New Delhi whereby the services of the applicants were terminated in a illegal and arbitrary manner without following the due procedure of law.
(ii) That this Honble Tribunal may graciously be pleased to pass an order for regularization of the services of the applicants retrospectively with effect from their joining with full back wages and other service benefits.
(iii) That this Honble Tribunal may graciously be pleased to pass an order for continuation of the services of the applicants till final disposal of the present original application.
(iv) That this Honble Tribunal may graciously be pleased to pass an order for stay the regularization process of the 5 junior candidates of the applicants as stated hereinabove.
(v) Any other relief which this Honble Tribunal deems fit and proper may also be granted in favour of the applicants.
2. It is contended by the applicants that the service rendered by them is of permanent nature, and respondent no.1, vide letter dated 16.9.2014, has created 10 posts on regular basis for respondent no.2s Hospital under the aforesaid Scheme to absorb the contractual employees in permanent service. By adopting a pick and choose policy, respondent no.2 has proposed to select Shri Ved Prakash as Prosthetic and Orthotic, Sh.Anil Kumar as Prosthetic & Orthotic, Smt. Rajni Chawla as Clinical Psychologist, Ms. Shilpi Verma as Speech Therapist, and Sh.Pradeep Kumar as Store Keeper. Except Shri Ved Prakash, all others are junior to the applicants, but by the impugned order 2.12.2014 (Annexure A/1), respondent no.2 has terminated their services. They have been continuously working since last seven years. It is also contended by the applicants that they are professionally qualified and have acquired experience and are, thus, eligible for appointment against regular posts. In the year 2009 they wanted to quit the job, but respondent no.2 held them up and assured that their services would be regularized in due course. Their cases were also recommended by respondent no.2 for regularization. In the meantime, they have become over-aged and are ineligible to apply for selection and appointment to any post under any other organization. In view of this, the respondents, instead of terminating their contractual services by the impugned order, ought to have regularized their services.
3. Opposing the O.A., the respondents have filed a counter reply. It is, inter alia, stated by the respondents that respondent no.1, vide letter dated 16.9.2014 (Annexure A/5), has created 10 posts in different grades on regular basis for upgradation of Physical Medicine & Rehabilitation Services Department in Kalawati Saran Childrens Hospital,New Delhi, subject to the condition that the existing contractual posts would be abolished. Respondent no.2 is not going to regularize the services of any contractual employees. The matter of filling these newly created posts is under process. The contractual services of the applicants have been terminated by giving seven days notice as per the offers of appointment issued to the applicants.
4. The applicants have filed a rejoinder reply refuting the stand taken by the respondents.
5. We have perused the records and have heard Mr.Hari Prakash, learned counsel for the applicants, and Mr.Rajender Nischal, learned counsel appearing for the respondents.
6. In support of the claim of the applicants, Mr.Hari Prakash, learned counsel appearing for them, placed reliance on the following decisions:
(i) Union of India and others v. Subir Mukharji and others, (1998) 5 SCC 310: AIR 1998 SC 2247, where the respondents had been working as labourers since 1988 continuously in the printing press of the Eastern Railway at Calcutta. They were engaged as labourers through a contractor. Claiming temporary status and regularization of their services in the Eastern Railway, they approached the Central Administrative Tribunal, Calcutta Bench. The Tribunal disposed of the O.A. filed by them with a direction to the respondents to absorb the respondents as regular Group D employees or such of them who may be required to do the quantum of work which might be available on a perennial basis. If they were otherwise found fit, their pay or wages should be fixed at the minimum of the appropriate scale, provided they were still working as contract labourers. Dismissing the appeal preferred by the Union of India, the Honble Supreme Court held as follows:
there is no denial on the part of the appellant Nos. 1 to 5 that the work which respondents have been doing it of perennial nature. Even otherwise the directions issued by the CAT in the order dated 13.3.1997 have given enough discretion to the Eastern Railways to absorb them as regular Group D employees bearing in mind the quantum of work available on perennial basis and subject to their fitness. In our opinion, the directions contained in the order dated 13.3.1997 passed by the CAT are quite fair in the facts and circumstances of the case and it is for this reason we are not inclined to interfere with the impugned order in exercise of our jurisdiction under Article 136 of the Constitution.
(ii) Secretary, H.S.E.B. v. Suresh & others, etc., etc., (1999) 3 SCC 601, where the respondents were Safai Karmacharis engaged by the contractor to work in the Main Plant Building and other units belonging to the appellant. The claim of the said Safai Karmacharis arose by reason of discontinuation of the service at the units belonging to the appellant. The Labour Court, while adjudicating the issue, as to the justification of the termination of their services in terms of the order of reference under Section 10 of the Industrial Disputes Act, came to a definite conclusion on the basis of evidence tendered that the work force did in fact work for more than 240 days in the year and as a matter of fact, there was no dispute raised on that score by the appellant, and it was on this factual score that the Labour Court did record that the presence of an intermediary would not, however, alter the situation as regards the existence of relationship of employer and the workmen and thus between the Board and the claimants and as such answered the reference in the affirmative, resulting in a finding that the workmen were entitled to be reinstated with continuity of service along with 10% back wages. This finding of the labour court stood accepted by the Honble High Court of Punjab & Haryana. Hence, appeals were filed by the appellant. While considering the appeals, the Honble Supreme Court observed thus:
.This Court in Minerva Mills case (AIR 1980 SC 1789) in no uncertain terms laid down that the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation and is thus consequently an essential ingredient of social and economic justice The Honble Supreme Court further observed thus:
.There is, however, a total unanimity of judicial pronouncements to the effect that in the event, the contract labour is employed in an establishment for seasonal workings, question of abolition would not arise but in the event of the same being of perennial in nature, that is to say, in the event of the engagement of labour force through intermediary which is otherwise in the ordinary course of events and involves continuity in the work, the legislature is candid enough to record its abolition. The Honble Supreme Court further observed thus:
Incidentally, the Haryana State Electricity Board in the usual course of business has had to maintain the plant and stations as a llicencee within the meaning of Indian Electricity Act, 1910 and Electricity Supply Act, 1948. This maintenance work cannot by any stretch be ascribed to be of seasonal nature but a continued effort to achieve the purpose of its existence in terms of the statute. . The Honble Supreme Court further observed:
Needless to note at this juncture that the Contract Labour Regulation Act being a beneficial piece of legislation as engrafted in the statute book, ought to receive the widest possible interpretation in regard to the words used and unless words are taken to their maximum amplitude, it would be a violent injustice to the framers of the law. As a matter of fact law is well settled by this court and we need not dilate much by reason, therefor to the effect that the law courts exist for the society and in the event of there being a question posed in the matter of interpretation of a beneficial piece of legislation, question of interpreting the same with a narrow pedantic approach would not be justified. On the contrary, the widest possible meaning and amplitude ought to be offered to the expressions used as otherwise the entire legislation would loose its efficacy and contract labour would be left on the mercy of the intermediary. As noticed above Draconian concept of law is no longer available for the purpose of interpreting a social and beneficial piece of legislation specially on the wake of the new millennium. The democratic polity ought to survive with full vigour; socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective the question arises is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working for more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution the answer cannot possible in the affirmative the law courts exist for the society and in the event law courts feel the requirement in accordance with principles of justice, equity and good conscience, the law courts ought rise up to the occasion to meet and redress the expectation of the people. Dismissing the appeals, the Honble Apex Court held thus:
It has to be kept in view that this is not a case in which it is found that there was any genuine contract labour system prevailing with the Board. If it was a genuine contract system, then obviously, it had to be abolished as per Section 10 of the Contract Labour Regulation & Abolition Act after following the procedure laid down therein. However, on the facts of the present case, it was found by the Labour Court and as confirmed by the High Court that the so called contractor Kashimr Singh was a mere name lender and had procured labour for the Board from the open market. He was almost a broker or an agent of the Board for that purpose. The Labour Court also noted that the Management witness Shri A.K.Chaudhary also could not tell whether Shri Kashmir Singh was a licensed contractor or not. That workmen had made a statement that Shri Kashmir Singh was not a licensed contractor. Under these circumstances, it has to be held that factually there was no genuine contract system prevailing at the relevant time wherein the Board could have acted as only the principal employer and Kashmir Singh as a licensed contractor employing labour on his own account. It is also pertinent to note that nothing was brought on record to indicate that even the Board at the relevant time was registered as principal employer under the Contract Labour Regulation and Abolition Act. Once the Board was not a principal employer and the so called contractor Kashmir Singh was not a licensed contractor under the Act, the inevitable conclusion that had to be reached was to the effect that the so called contract system was a mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced and the real contractual relationship between the Board, on the one hand, and the employees, on the other, could be clearly visualized. Before, we conclude,, the other aspect of the matter as has been contended by the learned Advocate, appearing in support of the appeals ought to be noticed, to the effect that as a matter of fact the principal employer, namely, the Board has in fact applied for registration of establishment and there are documentary evidence available in support thereof. Though, however, no such case has been made out nor the issue raised either before the Labour Court or before the High Court, this Court, however, to subserve the ends of justice permitted the appellant to file documentary evidence in support of the same and as such three weeks time was granted at the conclusion of the hearing on 13th January,1999 so that the same may be produced before the Court. We however wish to place on record that in the normal circumstances, no such opportunities are granted, especially at this stage of the proceeding but by reason of special facts, which are singularly singular, this Court granted such an opportunity so as to meet the ends of justice. The appellant, however, has failed to obtain such an opportunity and as a matter of fact no such documentary evidence has seen the light of the day even after such an opportunity to the appellant. In that view of the matter, we do not see any merit in these appeals and the appeals therefore fail and are thus dismissed.
(iii) J.Elangovan and others v. The Central Government Industrial Tribunal-cum-Labour Court and others, W.P. No. 27449 of 2006, decided on 3.12.2010, where the petitioners were employed as lift operators in the second respondent-Airports Authority of India (AAI). Their services were taken through the third respondent. It was contended by the petitioners that having regard to Section 12 of the National Airports Authority of India Act, 1985, the provision of providing lift facility being part of its functioning, the employment of the petitioners through the agency of the third respondent is a sham transaction and hence the second respondent-AAI in law is bound to treat them as their employees with all the service benefits. The Industrial Tribunal came to the conclusion that the control and supervision exercised by the 2nd respondent was only to ensure efficiency and quality of work, which is technical in nature and which has to be carried on under technical guidance. Going by the terms of the contract, the Industrial Tribunal came to the conclusion that the entire control and supervision of the petitioners could not be treated as with the second respondent. The production of attendance register and duty roster did not establish the effective control by the second respondent. Thus, the Tribunal came to the conclusion that the contract is a genuine contract and there was nothing sham and nominal to reject the contention of the second respondent only to hold that the petitioners are the staff of the second respondent. Challenging the award of the Industrial Tribunal, the petitioners filed writ petition before the Honble High Court of Madras. The Honble High Court in paragraphs 44 and 45 of the judgment held thus:
44. There is no dispute on the well settled proposition of law that where the fact-finding Tribunal had given its decision based on materials,, this Court has no jurisdiction to substitute its view, however small the evidence may be, to draw a conclusion. This Court does not sit in appeal over the findings of the Tribunal to substitute its view on the findings based on evidence. However, when there is perversity arising from non-application of mind to the provisions of the Act or to the application of law, this Court has every jurisdiction to correct the same. Given the fact that providing a lift is not a mere facility or convenience to the passengers coming to the Airport but incidental to the nature of business of the second respondent, the device adopted by the second respondent in employing persons, who are discharging no less a duty than what the four permanently employed persons do, the petitioners are justified in their contention that the Management is not justified in treating these petitioners differently as not forming part of their employees strength.
45. In the above circumstances, I have no hesitation in setting aside the order of the Tribunal, thereby allowing the writ petition. The proper in the writ petition, hence, stands answered in favour of the petitioners. Consequently, the petitioners are declared as direct employees of the second respondent and are entitled to all benefits granted to the regular lift operators. Accordingly, the Writ Petition is allowed. 6.1 Mr.Hari Prakash, the learned counsel appearing for the applicants, also relied on the Office Memorandum dated 23.1.2013 issued by the Chief Labour Commissioner, Government of India, Ministry of Labour & Employment, which reads thus:
OFFICE MEMORANDUM Sub: Engagement of workers through Contractors by the Ministries and Departments of Central Government.
It has been noticed in the recent past that a large number of workers are being engaged on contract by various central Government Ministries and Departments. Parlliament Questions have been received in this regard apart from various complaints relating to non-compliance of various provisions of law. These include wages and social security benefits flowing out of various legislations.
Similarly in cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work.
You may be aware that Government has enacted the Contract Labour (Regulation & Abolition) Act, 1970 and central rules made thereunder which provide regulation of contract labour in the establishments. The Act also provides for prohibition of employment of contract labour where a notification is issued under Section 10. So far 82 Notifications have been issued. This Act casts obligation on employing departments to register their establishments under the Act before the authority notified by the Central Government, the cntractors have also to obtain licence before engagement of contract labour in the establishments. The Act & Rules provide for certain facilities to be provided to the contract workers engaged in the establishments and also to maintain registers and records, to issue wages slips and employment cards to the contract workers by the employing department and contractor.
The Act also provides for penal action against the defaulters. The relevant Sections are as under:-
Section 23. Contravention of provisions regarding employment of contract labour.-Whoever contravenes any provision of this act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour, or contravenes any condition of a licence granted under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and in the case of continuing contravention with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention, provide penalty for Contravention of provisions regarding employment of contract labour shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend tone thousand rupees, or with both and in the case of a continuing contravention with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
Section 24 Other offences.-If any person contravenes any of the provisions of this Act or any rules made thereunder for which no other penalty is elsewhere provided, he shall be punishable with imprisonment for aterm which may extend to three months, or with fine which may extend to one thousand rupees, or with both, provide penalty for contravention of Other offences shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
It is also noticed that some establishments are engaging contract workers in the employments which have been prohibited under section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. Some principal employers and contractors are violating the provisions of act & Rules.
In view of above, the employing departments are hereby notified to ensure the compliance of the provisions of the Act & Rules in all establishments including PSUS under them.
Sd/ (B.K.Sanwariya) Chief Labour Commissioner (C)
7. On the other hand, Mr.Rajender Nischal, learned counsel appearing for the respondents, relied on the decisions of the Honble Supreme Court in State of Karnataka v. Umadevi, 2006(4) SCC 1, and State of Karnataka & others v. M.L.Kesari & others, AIR 2010 SC 2587, to contend that the applicants, who were working purely on contract basis, have no right for regularization.
8. We have given our anxious consideration to the facts and circumstances of the case, and the rival contentions of the parties.
9. It is pertinent to mention here that the Scheme for Upgradation of Facilities in the Department of Physical Medicine & Rehabilitation in various Medical Colleges/Hospitals, promulgated by respondent no.1, vide its letter dated 25.8.2005, has not been produced before this Tribunal. Admittedly, for implementation of the said Scheme, the applicants were initially engaged by respondent no.2 on contractual basis with consolidated salary for a period of three months in the year 2007, and the period of their such engagement was extended from time to time on the terms and conditions incorporated in the initial offers of engagement till the issuance of the impugned office order dated 2.12.2014 (Annexure A/1). Neither the applicants nor the respondents have filed before us copies of the offers of engagement/appointment on contractual basis with consolidated salary issued to the applicants. It is also not the case of the applicants that at the time of their initial engagement on contractual basis, the respondents made any advertisement/notification inviting applications from eligible candidates for selection and engagement on contractual basis. It is also not the case of the applicants that they participated in any selection process conducted by the respondent no.2, and upon their selection, offers of engagement/appointment on contractual basis were issued to them by respondent no.2. It is also not their case that the provisions of Recruitment Rules for the posts, against which their contractual appointments/engagements were made, were followed by respondent no.2.
10. The letter No.A.12034/46/2006-ME, dated 16.9.2014 (Annexure A/5) issued by the Government of India, Ministry of Health & Family Welfare, Directorate General of Health Services (M.E.Section), whereby 10 posts on regular basis for upgradation of Physical Medicine & Rehabilitation Services in respondent no.2s hospital have been created, reads thus:
To The Director, LHMC & Associated Hospitals, New Delhi 110001.
Sub: Proposal for creation of posts on regular basis for upgradation of physical medicine and Rehabilitation Dept. of PMR of LHMC & Associated Hospitals, New Delhi.
Sir, I am directed to refer to your letter No.KSCH/10-11/R-Sec./PMR/2013-14/4495 dated 01.10.2013 on the above mentioned subject and to convey the approval of the competent authority for creation of following 10 posts on regular basis for upgradation of Physical Medicine & Rehabilitation Services in KSCH, New Delhi, subject to the condition that the contractual posts already exist will be abolished on the creation of the regular posts.
Sl.
No. Name of the post No. of the post No. of posts proposed for creation No. of post agreed to 1 Assistant Professor PB-3 with GP 6600 3 1 2 Sr. Resident PB-3 with GP 6600 2 1 3 Jr. Resident PB-3 with GP 5400 2 1 4 Clinical Psychologist PB 3 with GP 5400 1 1 5 Speech Therapist PB 2 with GP 4200 1 1 6 Prosthotist & Orthotist Gr.I PB-2 with GP 4200 2 2 7 Medical Social Worker PB-2 with GP 4200 1
-8
Vocational Counselor PB-2 with GP 4600 1
-9
Staff Nurse PB 2 with GP 4600 4 2 10 Prosthotist & Orthotist Gr.II PB 1 with GP 2800 6
-11
Multi-Rehabilitation Worker PB-1 with GP 2400 4
-12
Store Keeper PB-1 with GP 2400 1 1 28 10
2. This issues with approval of Ministry of Finance, Deptt. Of Expenditure ID No.118152/E-Coord.1/14 at dated 1.9.2014 (copy enclosed).
Yours faithfully, Sd/ (Prem Prakash) Deputy Secretary(P.P.) 10.1 The impugned Office Order dated 2.12.2014 (Annexure A/1), whereby the services of the applicants as contractual employees have been terminated on expiry of seven days from 2.12.2014, reveals that applicant nos. 1,3, 5 and 6 were working as MRWs (Multi Rehabilitation Worker), applicant no.2 was working as Workshop Worker (Prosthetic & Orthotic Technician), applicant no.4 was working as Stenographer-cum-Data Entry Operator, applicant nos. 7 to 11 were working as Workshop Workers, applicant no.12 was working as Nursing Aid, and applicant nos. 13 and 14 were working as Safaiwalas.
10.2 It transpires from the letter dated 16.9.2014 (Annexure A/5) that none of the posts in which the applicants, 14 in number, were working on contract basis has been included in the 10 posts created by respondent no.1 for respondent no.2s Hospital.
10.3 If at all the contractual posts held by the applicants existed in respondent no.2s Hospital, such contractual posts were abolished by the letter dated 16.9.2014 ibid. It has been asserted by the respondents that they have already taken steps to fill up the aforesaid 10 posts created under the letter dated 16.9.2014 ibid by making regular appointments, and therefore, the contractual services of the applicants have been terminated by them as per the terms and conditions of the offers of engagement/appointment of the applicants.
10.4 In the above view of the matter, we find no substance in the contention of the applicants that 10 posts have been created by respondent no.1, vide its letter dated 16.9.2014 ibid, to absorb the contractual employees in permanent service.
11. In support of their plea that respondent no.2, by adopting a pick and choose policy, has proposed to select and appoint Shri Ved Prakash as Prosthetic & Orthotic, Sh.Anil Kumar as Prosthetic & Orthotic, Smt. Rajni Chawla as Clinical Psychologist, Ms.Shilpi Verma as Speech Therapist, and Sh.Pradeep Kumar as Store Keeper, the applicants have not produced any material before this Tribunal. Therefore, we are not inclined to accept the said plea of the applicants. This apart, none of the said persons has been impleaded as a party-respondent in the present O.A.
12. In view of the fact that the posts held by the applicants on contractual basis have not been created by respondent no.1, vide its letter dated 16.9.2014 (Annexure A/5), we find no substance in the contention of the applicants that they are professionally qualified and have acquired adequate experience and are thus fully eligible for appointment against the posts created on regular basis. Similarly, no material has been placed by the applicants to show that they wanted to quit the contractual jobs but were held up by respondent no.2 with assurance that their services would be regularized in due course. The applicants have also not produced before us any material to show that respondent no.2 recommended regularization of their services. The applicants having accepted the terms and conditions in the offers of their engagement on contractual basis and having willingly continued to work on such contractual basis till they become over-aged, cannot claim regularization in any posts on the ground of their becoming over-aged for selection and appointment under any organization. If they are so professionally qualified, the applicants, instead of continuing on contractual basis, should have applied for and taken part in selection for appointment under other organization when they were within the age limit.
13. In State of Karnataka v. Umadevi, (2006) 4 SCC 1, the Constitution Bench of the Honble Supreme Court has held that appointments made without following the due process or the rules relating to appointment do not confer any right on the appointees and Courts cannot direct their absorption, regularization or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme, and that 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, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. It has also been held that a temporary, contractual, casual or a daily- wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution of India.
14. In State of Karnataka and others v. M.L.Kesari and others, (2010) 9 SCC 247, the Division Bench of the Honble Supreme Court has held that the object behind the direction in para 53 of Umadevis case (supra) is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of Courts or Tribunals, before the date of decision in Umadevis case (supra) was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.
15. The decisions in Union of India and others v. Subir Mukharji and others (supra), Secretary, H.S.E.B. v. Suresh & others, etc. etc. (supra), and J.Elangovan & others v. The Central Government Industrial Tribunal-cum-Labour Court and others (supra), cited by Mr.Hari Prakash, learned counsel appearing for the applicants, besides being distinguishable on facts, are not helpful to the case of the applicants. The O.M. dated 23.1.2013, issued by the Chief Labour Commissioner, Government of India, Ministry of Labour & Employment, which has been relied on by Mr.Hari Prakash, also does not support the claims of the applicants.
16. In the light of the above discussions, we hold that the O.A. being devoid of merit is liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN