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2022 DIGILAW 1087 (CAL)

Lieutenant Governor v. Antony

2022-07-27

HIRANMAY BHATTACHARYYA, SABYASACHI BHATTACHARYYA

body2022
JUDGMENT Hiranmay Bhattacharyya, J. - The order dated May 5, 2022 passed by the Central Administrative Tribunal, Kolkata Bench, Kolkata (for short the Tribunal) In Original Application No. 131/2022/Port Blair and MA/44/2022 is the subject matter of challenge in the writ petitions filed by the Andaman and Nicobar Administration as well as at the instance of original applicants before the Tribunal. 2. The writ petition filed by the Andaman and Nicobar Administration (for short 'the Administration') is registered as WPCT/11/2022 while the one at the instance of the original applicants before the Tribunal is registered as WPCT/18/2022. 3. Since both the writ petitions arise out of the order passed on the Original Application filed before the Tribunal, both the writ petitions were heard analogously and are being disposed of by this common judgement and order. 4. The original applicants before the Tribunal claim to have been appointed as General Duty Medical Officer (for short 'GDMO') on contractual basis under the Directorate of Health Services, Andaman and Nicobar Administration. The original applicant No. 1 and 2 claim to have been appointed as GDMO on contractual basis on the basis of selection process held on 12.08.1998 and 18.03.2004 respectively. The original applicant nos. 3 to 7 claim to have been appointed also as GDMO on various dates on and from 2008 onwards on contractual basis. Though the original applicants were initially appointed for a specific period, such period was extended from time to time and the last extension was made vide order dated January 6, 2022 for the period from 01.01.2022 to 28.02.2022. A paper publication dated January 12, 2022 was made inviting the intending candidates for appointment to the post of General Duty Medical Officers for a period of one year or till regular incumbent joins, which compelled the writ petitioners in WPCT/18/2022 to approach the Tribunal. The original applicants prayed for setting aside the notice dated January 12, 2022 and for a direction upon the Administration to extend the period of contract till the consideration of regularisation of their service. 5. The original applicants prayed for setting aside the notice dated January 12, 2022 and for a direction upon the Administration to extend the period of contract till the consideration of regularisation of their service. 5. Administration contested the original application before the Tribunal by filing a reply thereto contending that in response to the proposal sent by the concerned Directorate to the Administration for extension of the contract period of the original applicants for another year, the Administration returned the proposal and issued a direction for advertisement to fill up the 37 posts including 7 posts held by the original applicants on contractual basis and if the original applicants apply, they will be considered as per the standard Recruitment Rules for such posts. The Administration contended that the original applicants being contractual appointees have no legal right to claim for regularisation or continuation in the sanction posts in deviation of the Recruitment Rules. 6. The learned Tribunal by the order impugned dated May 5, 2022 disposed of the original application with a direction upon the Administration to complete the process of verification within the time limit specified in the impugned order and if after verification the same is found to be in order to reengage the applicants against the posts kept aside for them with proper remuneration in accordance with law. 7. Being aggrieved against such order, the Administration as well as the original applicants have preferred separate writ petitions. 8. Mr. Chakraborty, learned advocate for the Administration attacked the impugned order by contending that the direction passed by the Tribunal to reengage the original applicants in the posts where they were working is against the well settled principles laid down by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others vs Umadevi (3) and others reported at (2006) 4 SCC 1 wherein the Hon'ble Supreme Court after taking into consideration various judgements passed from time to time held that a person who is engaged as contractual or casual worker cannot invoke the theory of legitimate expectation of being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection. He further submits that a mandamus cannot be issued in favour of such contractual employees by directing the Administration to make them permanent since they neither have an enforceable legal right to be permanently absorbed nor the State has a legal duty to make them permanent. Thus, according to Mr. Chakraborty, the effect of the impugned order passed by the Tribunal is to allow a contractual employee to continue permanently in such posts. 9. He further contended that original applicants accepted the terms of the contract with their eyes wide open and as such they are not entitled to continue in the said posts after expiry of the period specified in the contract. In support of such contention he placed reliance upon a decision of the Hon'ble Supreme Court in the case of State of Haryana and others vs Polu Ram and another reported at (2010) 15 SCC 452. 10. Mr. Chakraborty further contended that the original applicants after accepting the terms of the appointment are estopped from challenging the nature of their appointment. He contended that the original applicants were aware that they were appointed on contractual basis and after accepting the said appointment cannot turn around and claim regularisation of their service as permanent employees. In support of such contention he placed reliance upon a decision of the Hon'ble Supreme Court in the case of State of Maharashtra and others vs Anita and another reported at (2016) 8 SCC 293 . 11. Per contra, Mr. Gopala Binnu Kumar, learned advocate for the petitioners in WPCT/18/2022 contended that the original applicants who were appointed on contractual basis cannot be replaced by another set of contractual appointees as sought to be done by the Administration by publishing an advertisement dated January 12, 2022. In support of such contention he placed reliance upon the decision of the Hon'ble Supreme Court in the case of State of Haryana and other vs Piara Singh and others reported at AIR 1992 SC 2130 , in the case of Hargurpratap Singh vs State of Punjab and others reported at (2007) 13 SCC 292 and an unreported judgement of the Hon'ble Supreme Court passed on April 21, 2022 in Civil Appeal Nos. 3084-3088 of 2022 in the case of Manish Gupta and another vs President, Jan Bhagidari Samiti and others. 3084-3088 of 2022 in the case of Manish Gupta and another vs President, Jan Bhagidari Samiti and others. He also referred to the decisions of various High Courts in the case of Malwinder Singh Mali vs Punjabi University Through Its Registrar reported at 1999 0 Supreme (P&H) 1283 and Narinder Singh Ahuja and others vs The Secretary, Ministry of Health and Family Welfare and others reported at 2014 0 Supreme (Del) 2342 in support of his aforesaid contention. He further contended that the original applicants are entitled to an order for regularisation in the said vacant posts. Mr. Kumar also attacked the impugned order whereby a direction for reengagement was passed instead of continuation of their engagement. 12. In reply, Mr. Chakraborty submitted that the decision of the Hon'ble Supreme Court in Piara Singh (supra) has been overruled in Umadevi (3) (supra). He thus submits that the said decision cannot be said to be a binding precedent. 13. Heard the learned counsel for the parties and considered the materials placed. 14. The advertisement dated January 12, 2022 was published while the original applicants were engaged in their respective posts. The said advertisement was issued for making contractual appointment in 37 posts including the posts in which the original applicants were appointed. The original application was filed immediately after such advertisement was published. 15. After going through the averments made in the original application it appears that the principal grievance of the original applicants before the Tribunal was that the Administration sought to replace them by a new set of contractual appointees. Though a relief was claimed for regularisation of their services, but from the arguments advanced by the learned counsels of the respective parties, this court is of the view that the issue regarding regularisation of their services was not raised in course of hearing and as such the learned Tribunal, in the considered view of the Court, was justified in not returning any finding on such issue. On the contrary, a submission was made on behalf of the original applicants that they should continue until the posts are filled up on a regular basis. In view thereof, the original applicants cannot now raise their plea for regularisation of their services in WPCT 18 of 2022 before this Court. 16. On the contrary, a submission was made on behalf of the original applicants that they should continue until the posts are filled up on a regular basis. In view thereof, the original applicants cannot now raise their plea for regularisation of their services in WPCT 18 of 2022 before this Court. 16. Thus for the aforesaid reasons, the prayer for regularisation of the original applicants cannot be considered by this Court while exercising powers of judicial review. 17. The other issue and which according to this Court is the only issue that is to be decided in these writ petitions is whether one set of contractual appointees can be replaced by a different set of contractual appointees. 18. The terms of agreement of the original applicants are more or less identical. For the purpose of deciding the aforesaid issue it would be necessary to consider the relevant terms of the contract of appointment of one of the original applicant viz Dr. Christina Rossity and the same is extracted hereinafter. 'DURATION The engagement is for a period of 11 months from the day you sign the contract within the stipulated period as per the offer of appointment letter. Any extension or renewal of your appointment beyond this duration, if any, will be subject to a review on your performance and contribution in your work and an agreement on terms that must be mutually agreed upon. However this would not be construed in any manner a promise for the regular appointment under State Health Society, A&N Islands.' 'TERMINATION The State Health Society reserves the right to terminate your engagement without assigning any reason thereof after serving one month's notice or by paying one month salary without serving any notice to you, for just cause including but not limited to the following grounds. i. Breach of obligations under the confidentially CLAUSE. ii. Failure to observe the terms of this agreement or the legitimate directions or orders for performing duties as assigned to your by the State Health Society. iii. Obstructing the performance of the functions of the State Health Society. iv. Causing damage to the prestige or reputation of the State Health Society by wilful or gross misconduct. v. Your performance is unsatisfactory.' 19. iii. Obstructing the performance of the functions of the State Health Society. iv. Causing damage to the prestige or reputation of the State Health Society by wilful or gross misconduct. v. Your performance is unsatisfactory.' 19. From the aforesaid contract of appointment it is evident that the engagement was for a period specified in the said contract and any extension or renewal of the appointment beyond such duration will be subject to a review on their performance and contribution in their work and upon an agreement being entered into between the parties as per mutually agreed terms. It is also evident that the said appointment letter would not be construed as a promise for the regular appointment under State Health Society, Andaman and Nicobar Islands. 20. It is not in dispute that after expiry of the initial period of engagement the same was extended from time to time and the last of such extension was vide order dated January 6, 2022 and the period of extension was from 01/01/2022 to 28/02/2022 or till the posts are filled up on regular basis or till any further order whichever is earlier, on the terms conditions of their initial appointment on short term contract basis. 21. During the said extended period, the notice dated January 12, 2022 was published for appointment of the posts of General Duty Medical Officers on contractual basis for a period of one year or till the regular incumbent joins. 22. It is also not in dispute that the original application was filed before the expiry of the period of last extension of the contract. 23. The learned Tribunal by the order dated January 25, 2022 directed the authority to keep 7 vacancies out of 37 for consideration of the present applicants as an interim relief. The Administration was also directed to show cause as to why the applicants shall not be continued till the vacancies are regularly filled up by the authorities and also whether such applicants shall be continued even beyond 28.02.2022. 24. From the terms of the contract of appointment it is evident that the original applicants were initially appointed for a fixed term which can be extended thereafter upon a review made by the authorities as to their performance and contribution to their work. 24. From the terms of the contract of appointment it is evident that the original applicants were initially appointed for a fixed term which can be extended thereafter upon a review made by the authorities as to their performance and contribution to their work. Record reveals that the initial term of appointment of such applicants were extended from time to time and was even extended after the issuance of the advertisement dated January 12, 2022 and such extension was made till April, 30, 2022. 25. From the aforesaid action of the authorities it does not appear that there was any plausible reason for not extending the period of engagement of the original applicants excepting that the administration has decided to replace the original applicants by a new set of contractual appointees. The requirement of the service of GDMO is also not disputed by the administration. 26. Since the original applicants had been rendering their services for quite a long period in their respective posts, they have acquired sufficient experience which will no doubt benefit the ultimate recipient of their services i.e. the patients. If experienced doctors are retained the administration will also be benefitted rather than appointing fresh candidates on ad hoc basis. 27. On the aforesaid factual background, it is to be decided whether the administration was justified in replacing the original applicants by a new set of contractual appointees. 28. The legal issue as to whether one set of contractual appointees can be replaced by another set of contractual appointees is no longer res integra. 29. The three Judge Bench of the Honble Supreme Court in the case of Piara Singh (supra) held that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee and that he must be replaced only by a regularly selected employee. 30. The aforesaid decision was taken note of by the Hon'ble Supreme Court in Umadevi (3) (supra). However, the principles settled in Umadevi (3) (supra) do not run counter to the aforesaid legal proposition laid down in Piara Sing (supra) that an ad hoc employee cannot be replaced by another ad hoc employee. 31. The Hon'ble Supreme Court in Hargurpratap Singh (supra) also held that though the ad hoc employees may not be entitled to regular appointment but their engagement should be continued till regular incumbents are appointed. 32. 31. The Hon'ble Supreme Court in Hargurpratap Singh (supra) also held that though the ad hoc employees may not be entitled to regular appointment but their engagement should be continued till regular incumbents are appointed. 32. A division bench of the Delhi High Court in the case of Narinder Singh Ahuja (supra) also disapproved the act of replacement of one set of contractual employees by a new set of contractual employees. 33. The Hon'ble Supreme Court in Manish Gupta (supra) held as follows:- '12. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 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 and on the order of this Court in the case of Hargurpratap Singh vs. State of Punjab and others.' 34. After going through the aforesaid decisions of the Hon'ble Supreme Court well as High Court, this Court finds that the consistent view of the Hon'ble Supreme Court and the High Court is that an ad hoc employee can be replaced only by a regular incumbent and not by another ad hoc employee. The aforesaid legal principle is squarely applicable to the facts of the case on hand. 35. It is not the case of the Administration that they want to replace the original applicant by appointing regular incumbents to the posts in question. Presently the Administration is trying to replace original applicants by a different set of contractual appointees till the regular incumbent joins. In view of the aforesaid well settled legal principles, this Court holds that the original applicants, can be replaced only by candidates who are regularly appointed by following a regular procedure prescribed and not by a new set of contractual or ad hoc appointees. 36. In view of the aforesaid well settled legal principles, this Court holds that the original applicants, can be replaced only by candidates who are regularly appointed by following a regular procedure prescribed and not by a new set of contractual or ad hoc appointees. 36. Since the Administration has not taken any decision to fill up the 7 posts held by the original applicants by regularly appointed candidates, this Court is of the considered view that the Administration ought to have extended the period of engagement of the original applicants or renewed the contract of appointment for a further period as the original applicants have been rendering services for a long period of time and the requirement of services of GDMOs is not in dispute. 37. From the materials available on record it is evident that the original applicants were given contractual appointments in duly sanctioned posts. The notice dated 12.01.2022 seeks to make contractual appointment till the regular incumbent joins. The terms of appointment of the original applicants do not put any restriction as to the period of contractual appointment excepting that such extension or renewal has to be made on a review made by the authorities. In the contract of appointment of the original applicants there is no provision that such contractual appointees would have to participate in a fresh selection process for the purpose of extension of the period of such appointment. 38. In the case of Anita (supra), a restriction was imposed in the terms of appointment as to the maximum period of contractual appointment and it was also specified therein that such appointees would have to participate in the selection process for fresh contractual appointment. Furthermore, the posts under consideration in the said reported case were to be filled up only by contractual appointment as per the policy decision of the Government and such posts were not permanent in nature. The said decision is, therefore, distinguishable on facts and is not applicable to the facts of the case in hand. 39. In Umadevi (3) (supra) it has been held that a mandamus cannot be issued in favour of temporary employees to absorb them in permanent service. The said decision is of no assistance to the administration as this Court is only considering the claim of the original applicants to continue in their respective posts till the regular incumbent joins. 40. 39. In Umadevi (3) (supra) it has been held that a mandamus cannot be issued in favour of temporary employees to absorb them in permanent service. The said decision is of no assistance to the administration as this Court is only considering the claim of the original applicants to continue in their respective posts till the regular incumbent joins. 40. Whether an ad hoc employee can be replaced by another ad hoc employee was not in issue in Polu Ram (supra), cited by Mr. Chakarborty and therefore, the said decision is of no assistance to this Court for deciding these writ petitions. 41. The decision of the Punjab and Haryana High Court in Malwinder Singh Mali (supra), cited by Mr. Binnu Kumar deals with a case of termination of an ad hoc employee and is therefore distinguishable on facts. 42. This Court is conscious of the proposition of law urged by Mr. Chakraborty that a contractual employee cannot claim the status of permanent employee and also that they cannot claim to be absorbed as a matter of right. The original applicants, whose engagement was a contractual one, cannot be said to be elevated to the status of a permanent employee even if their period of contractual appointment is extended, in the facts of this case, as they can be easily replaced by regular incumbents. 43. This Court therefore holds that that the original applicants/writ petitioners in WPCT/18/2022 would be entitled to continue in their respective posts till they are replaced by regularly selected candidates. 44. For the reasons as aforesaid, the impugned order dated May 5, 2022 is modified only to the extent that the original applicants/writ petitioners in WPCT/18/2022 shall be allowed to continue in their respective posts and the administration is directed to extend the period of contract of appointment and/or to renew the same with effect from the date of expiry of the last extension on the same terms and conditions on which they were engaged till they are replaced by regularly selected candidates. However the original applicants shall not be entitled to any remuneration for the interregnum period if they have not rendered any service during such period. An opportunity of hearing is to be afforded to the original applicants by the administration before taking any decision that the original applicants or any of them are not entitled to remuneration for any such period. 45. An opportunity of hearing is to be afforded to the original applicants by the administration before taking any decision that the original applicants or any of them are not entitled to remuneration for any such period. 45. WPCT 18 of 2022 thus stands allowed in part. Consequently WPCT 11 of 2022 stands dismissed. 46. There shall be however no order as to costs. 47. Urgent photostat certified copy of this order shall be supplied to the parties upon compliance of all formalities. 48. I agree.