Central Administrative Tribunal - Allahabad
Unknown vs Union Of India Through Secretary To ... on 13 August, 2011
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 13th OF August 2011) Honble Mr. D.C. Lakha, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Original Application No. 54 of 2011. (U/S 19, Administrative Tribunal Act, 1985) Dr. Smt. Rita Shukla, wife of Dr. Shailendra Kumar Shukla, presently posted as Research Officer Human Reproductive Research Centre, Indian Council of Medical Research, Department of Obstetrics and Gynecology , Moti Lal Nehru Medical College, Allahabad resident of Professor Niwas-2, Medical College Campus, Allahabad. Applicant Versus 1. Union of India through Secretary to Government of India Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi. 2. Director General, the Indian Council of Medical Research, Ansari Nagar, P.O. 4911 New Delhi 110 029. 3. Principal, Moti Lal Nehru Medical College, Allahabad. 4. Officer Incharge, Human Reproductive Research Centre, Department of Obstetrics and Gynecology, Moti Lal Nehru Medical College, Allahabad. Respondents Present for Applicant : Shri Vikas Budhwar Sri Nikhil Agarwal Present for Respondents : Shri Anil Kant Tripathi O R D E R
Delivered by Honble Mr. A.K. Bhardwaj, Member (J) In terms of office order dated 24.12.1980 issued by Professor and Head of Department, Obstetrics and Gynecology, M.L.N Medical College, Allahabad, the applicant was appointed as Research Officer, purely on temporary basis for a limited period. She was required to join services positively by 1.1.1981 failing which her appointment was liable to be cancelled automatically. Subsequently, in terms of order dated 7.7.1981, it was provided that staff employed under I.C.M.R. Scheme would be paid Dearness Allowance, Additional Dearness Allowance, H.R.A and C.C.A etc. at the rates admissible to employees of the Medical College, Allahabad. Subsequently the staff engaged in I.C.M.R. Project were allowed the pay and other benefits in accordance with Rules applicable to the staff of Principal, Moti Lal Nehru Medical College, Allahabad. Consequent on the revision of pay scale on the basis of recommendation of 4th Central Pay Commission, the pay of the applicant was also revised. Similarly, the applicant was granted the benefit of recommendation of 5th Central Pay Commission including the fitment i.e. 40% of Old basic pay w.e.f. 1.4.998. Referring to factual position, learned counsel for the applicant submits that once the applicant is treated like any regular employee of the respondents, she is entitled to be absorbed as regular employee of respondent NO. 3. It is further submitted by learned counsel for the applicant that issue raised in the present Original Application is squarely covered by the decision of Madras Bench of the Tribunal upheld by the Honble High Court and also by Honble Supreme Court. A perusal of prayer clause reveals that the issue before Madras Bench of the Tribunal was only for regularization of services of the applicants in the Indian Council of Medical Research from the date of original appointment with all consequential benefits. While in the present case, applicant has also raised the issue of her age of retirement from service. Applicant has claimed that she is entitled to be continued in service till she reach the age of 62 years and respondents are not justified in bringing an end to her engagement as Project Employee on her attaining the age of 60 years. It is a matter of record that on the strength of interim stay granted by this Tribunal, the applicant is continuing in service as Project Employee beyond the age of 60 years. She reached the age of 60 years on 31.11.2011.
2. As far as the claim of the applicant for regularization is concerned, we find that the issue raised in O.A. NO. 1332/2000 filed before Madras Bench of the Tribunal was more or less identical to one raised in the present case. Also in the said O.A. No. 1332/2000, the applicants were working in the Regional Centre for Clinical Research in Human Reproduction, which is the Institute of Obstetrics and Gynecology at Egmore, Chennai as Project employee only. It would be relevant to excerpt the factual position involved in the aforementioned O.A. before Madras Bench, which read as under:-
2. The relevant facts are that all these applicants are working in the Regional Centre for Clinical Research in Human Reproduction (HRRC for short) which is in the institute of Obstetrics and Gynecology at Egmore, Chennai. The first respondent (ICMR) has established a network of 33 Human Reproduction Centres at various Medical Colleges in different parts of the country. The objective of the centres was to carry out relevant research to strengthen and improve the performance of national family welfare programme at the State level. These centres are expected to play a crucial role to achieve the national goal of population stabilization and to improve the reproductive health of the people. The reproduction centres are part of the ICMR and they participate in nationally co-ordinated studies on various topics, the details of which are given in paragraph 4.2 of the O.A. It is alleged that the first respondent provided complete funding to the HRRCs to meet operational cost including core staff consisting of medical and non-medical scientists, social works, clerk and a jeep with driver and contingency grant to cover charges for the vehicle travel and miscellaneous expenditure. The entire project co-ordination is done obly by ICMR and though the centre may be located in a hospital which is run by the State Government, the hospital or hoste institute does not have any role to play in assigning the project initiating the project, following the duty or assessing the performance of the staff. The only expectation of ICMR from the host institute is to provide office space to HRRC staff and necessary physical and clinical facilities and co-operation to conduct the research programme in an efficient manner. According to the applicants, the centre is completely run by the ICMR but since the research necessarily involves the need for clinical trials and a hospital, the local hospital is expected to provide office space and cooperation.
3. In the appointment order of the applicants it is stated that the appointments are all temporary and the scale of pay was the same as was admissible for regular staff of the ICMR, but the allowances will be as per the existing rules of the ICMR scheme. Though the appointments are on temporary basis, the applicants have been working for a long period of 14 to 30 years and they have not been regularized in the services of ICMR and they are not entitled to any of tehe benefits of the regular employees such as Leave Travel Concession, time-bound promotion, selection grade, bonus, medical reimbursement, traveling allowances, gratuity or pension. It is stated that the recommendations of the IV Pay Commission were only partly implemented without 20% benefit and the applicants have been getting ICMR scales of pay, but allowances as admissible to staff in the host institute. It is further stated that the Vth Pay Commission was implemented with effect from 1.1.1996 for ICMR staff but in so far as the applicants are concerned, the same was partly implemented with effect from 1.4.1998 and that too without 40% benefit. Under these circumstances, the applicants moved various representations to regularize their services. It was informed orally that it was the responsibility of the host institute to regularize their services. They have also been given oral assurances that they would be made permanent by the ICMR itself. In fact the governing body of the ICMR at its 76th Annual Meeting held at New Delhi on 28.1.1999 has recommended that field units including HRRCs with long term goals should be allowed to continue and made permanent. Inspite of such recommendation no concrete action has been taken to regularize the staff or t grant them other monetary benefits. The applicants therefore moved a representation on 18.11.1999 but there was no reply. As such, the applicant came before this Tribunal by way of O.A. 727 of 2000 and this Tribunal by an order dated 6.7.2000 directed the respondents to consider and dispose of the representation on merits. Pursuant to the direction, a reply was sent by the respondents to the applicants dated 9.8.2000 and in the reply it is only stated that the cases of the applicants are under consideration with the Ministry of Health and Family Welfare and all sincere efforts is being made to expedite the issue as early as possible to regularize the staff under the Councils network. It is further stated that till a final decision is taken by the Ministry the applicants were informed that their cases of regularization cannot be acceded to. The said order is under challenge in this O.A.
3. In the said Original Application filed before Madras Bench of the Tribunal also, the respondents had raised the contention that the Project Employees are appointed only for the period for which the project is in existence and cannot be continued beyond the project period. For the instant reference, para 6 of the order of Madras Bench of the Tribunal wherein the contention raised by the respondents in their reply is taken note of is extracted below:-
6. We heard the O.A. on 30.10.2001. At that time the first respondent has not filed any reply. After the case reserved for orders, the first respondent has filed a reply. In the reply it is stated that the Project Employees are appointed only for the period for which the project is in existence and cannot be continued beyond the project period. According to them, project employees are not entitled for regularization even though the qualification of project employees are same as that of the regular employees, that will not give them any right for regularization. It is also said that the job responsibility of a regular employee is very different and much more than that of a project employee. It is further contended that project employee is not entitled to regularization when there are no vacancies and the work done by them ends with the completion of the project. According to the first respondent that all these applicants have accepted the terms and condition of the appointment and have been appointed by the second respondent in the Human Reproduction Research Centre. ICMR is only a supervising authority and the project work was carried out under the control and supervision of HRRC. They prayed dismissal of this application.
4. Madras Bench of the Tribunal had disposed of aforementioned Original Application with following directions:-
16. Taking into consideration the facts and circumstances of the case, we dispose of this application with the following direction The fifth respondent is directed to consider the case of the applicant for regularization on the basis of the observation made above and pass final orders within a period of three months from today In the circumstances, there will be no order as to costs
5. As is contended by learned counsel for the applicant, the writ petition preferred against the aforementioned order passed by the Madras Bench of the Tribunal was dismissed by Honble Madras High Court and for S.L.P. preferred against the order of Madras High Court was dismissed by Honble Supreme Court. Order of Honble Supreme Court passed in S.L.P. No.14953-14960/2007 reads as under:-
Heard learned counsel for the parties In the facts and circumstances of the case, we are not inclined to interfere with the impugned order.
The special leave petitions are, accordingly, dismissed.
6. Opposing the Original Application, learned counsel appearing for the respondents raised almost same contention, which was raised before Madras Bench of the Tribunal in O.A NO. 1332/2000 noted in para 6 of the order.
7. We have heard learned counsel for the parties and perused the record.
8. While examining the plea of the applicant for continuing in service till attaining the age of 60 years. We have no hesitation to hold that the applicant is not regular employee and once her service is not regulated by statutory Rules, she cannot claim any particular age as age of her superannuation. As has been held by Honble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others 2006 Supreme Court Cases (L&S) 753. A contractual appointment comes to an end at the end of the contract and engagement or appointment on daily wages or casual basis comes to an end when it is discontinued. In the said case, it is also held that temporary employee could not claim to be made permanent on the expiry of his term of appointment even when he is continued in such capacity beyond initial period of engagement. 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. Paras 43 & 45 of the judgment reads as under:-
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. 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 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 do 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 or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain not at arms length- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the Court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumberable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
9. Recently in the case of Union of India and Ors. Vs. Vartak Labour Union JT 2011 (3)SC 110, Honble Supreme Court reiterated the view taken in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others (supra) and again ruled that the casual employment terminates when the same is discontinued and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. Paras 16 to 19 of the judgment are extracted herein below:-
16 We are of the opinion that the Respondents Unions claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules (See: Secretary, State of Karnataka and Ors. V. Umadevi (3) and Ors (2006) 4 SCC 1; Official Liquidator V. Dayanand and Ors: (2008) 10 SCC 1; State of Karnataka and Ors. V. Ganapathi Chaya Nayak and Ors; (2010) 3 SCC 115; Union of India and Anr. V. Kartick Chandra Mondal and Anr.; Satya Prakash and Ors V. State of Bihar and Ors. (2010) 4 SCC 179 and Rameshwar Dayal V. Indian Railway Construction Company Limited and Ors. (2010) 11 SCC 733.
17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed that:
It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them or less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointment consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
18. Explaining the dictum laid down in Umadevi (supra), a three Judge Bench in Official Liquidator (supra) has observed that:
In Sate of Karnataka V. Umadevi (3), the Constitution Bench again considered the question whether the State can frame scheme for regulaisation of the services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularization or absorption in the regular cadre and whether the Court can issue mandamus for regularization or absorption of such appointee and answered the same in negative.
19. In the light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions of the High Court cannot be sustained. These are set aside accordingly.
However, in the said judgment itself Honble Supreme Court ruled that where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of their services. Paras 21 and 22 of the said judgment reads as under:-
21 Therefore in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects.
22. In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs.
Also in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others (supra) Honble Supreme Court kept one exception laid down by their Lordship i.e. in such cases where irregular appointment of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of Tribunals. The question of regularization of their services may be considered on merits in the light of the principles settled by this Court in said cases. Para 53 of the said judgment is excerpted herein below:-
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Government and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitment are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed, as per the constitutional scheme..
10. In the present case obviously the applicant is continuing in the services of the respondents for a period of 30 years. Applicant has also produced the scheme dated 11.5.2011, which indicate the procedure for absorption applicable to Project Staff engaged in 31 Human Reproductive Research Centres funded by Indian Council of Medical Research (ICMR) who had put in more than ten years service as on 1st July 2010. Para 4 of the said scheme reads as under:-
4. Procedure for absorption:
4.1 ICMR will
(a) Earmark 30% of the posts likely to be created in the future and falling under Direct Recruitment Quota, in the relevant grade/category of posts as per recruitment cycle for absorption of eligible HRRC staff.
(b) Absorb eligible HRRC staff against the existing posts advertised by ICMR after the 1st July 2010.
4.3 The eligible HRRC staff will be absorbed subject to fulfillment of the essential requirements and as per the procedure laid down in the ICMR recruitment rules for the relevant category of post.
4.4 ICMR will grant one time age relaxation, wherever warranted to the eligible HRRC staff to facilitate their absorption.
11. In the aforementioned facts and circumstances, we deem it appropriate to dispose of the present case with a direction to the respondents to examine the claim of the applicant for regularization keeping in view the decision of Madras Bench of Tribunal in O.A. NO. 1332 of 2000 and also the decision of Honble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others (supra) and Union of India and Ors. Vs. Vartak Labour Union (supra). While doing so, respondents will also keep in view the scheme dated 11.5.2011 issued by I.C.M.R. vide letter NO. 16/56/2011-Admn. II. As far as the claim of the applicant for her continuance in service till the age of 62 years is concerned, we find that the temporary engagement of an employee terminates when the same is discontinued. Once the applicant is not a regular employee, her services can be discontinued by the respondents at any time. Moreover a casual worker/Project worker cannot claim any age of superannuation. Their services are utilized on need basis. Thus on being regularized services of the applicant would be governed by the Rules and Regulation applicable to the post on which she would be regularized. In case the applicant is considered unfit for regularization, it would be open for the respondents to discontinue her services subject to need of organization. However, till consideration of applicant for her regularization, respondents would continue engaging the services of the applicant in present capacity.
12. O. A disposed of. No costs.
Member (J) Member (A)
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