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2024 DIGILAW 1269 (RAJ)

Mohd. Imran S/o Abdul Hakim v. Union Of India

2024-09-19

MUNNURI LAXMAN, PUSHPENDRA SINGH BHATI

body2024
JUDGMENT : Per Dr. Pushpendra Singh Bhati, J: 1. Since the instant writ petitions arise out of the order dated 12.03.2024 passed by the Central Administrative Tribunal (in short, ‘the Tribunal’), Jodhpur Bench, Jodhpur in Original Applications No.445/2016 & other connected matters, therefore, the writ petitions have been heard together and are being decided by this common judgment. 1.1. For the sake of brevity, the facts, as pleaded in one of the petitions, being D.B. Civil Writ Petition No. 5234/2024 and the prayer clauses thereof, are taken for the purpose of present analogous adjudication. 1.2 The prayer clauses reads as under:- “i) By an appropriate writ, order or direction, the judgment and order dated 12th March 2024 (annex-1) passed by the learned Central Administrative Tribunal, Jodhpur while rejecting the Original Application No.445/2016, may kindly be declared illegal and be quashed and set aside. ii) By an appropriate writ, order or direction, the original application filed by the petitioners before the learned Central Administrative Tribunal, Jodhpur, may kindly be allowed and the respondents be directed to confer the regular pay scale i.e. 9300-34800 with the Grade Pay of Rs.4600/- after regularizing their services on the post of Staff Nurse Grade-II, with all consequential benefits. iii) By an appropriate writ, order or direction, the respondents be directed to treat the petitioners as regular after completing 2 years of service on the post of Staff Nurse Gr.II and confer them the benefits of permanent servant of AIIMS, Jodhpur with all consequential benefits. iv) Without prejudice to above, by an appropriate order or direction, the contractual appointment of the petitioners be declared sham and it may be declared that the appointments of the petitioners made pursuant to the advertisement dated 15.07.2013 as regular appointments and therefore, the petitioners be conferred the benefit of regular pay scale from the date they have been appointed with AIIMS Jodhpur with all consequential benefits including the arrears of salary. v) By an appropriate writ, order or direction, the respondents be restrained to terminate the services of the petitioners, and if during the pendency of the writ petition, the services of the petitioners are terminated, the orders of termination, may kindly be declared illegal and be quashed and set aside with all consequential benefits. v) By an appropriate writ, order or direction, the respondents be restrained to terminate the services of the petitioners, and if during the pendency of the writ petition, the services of the petitioners are terminated, the orders of termination, may kindly be declared illegal and be quashed and set aside with all consequential benefits. vi) Any other appropriate order or direction which this Hon’ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners. vii) Costs of the writ petition may kindly be awarded to the petitioners.” 2. Brief facts of the case, as placed before this Court by Mr.Manoj Bhandari, learned Senior Counsel assisted by Mr. Prateek Surana and Dr.Nikhil Dungawat, appearing on behalf of the petitioners, are that the respondent-All India Institute of Medical Sciences (AIIMS), Jodhpur issued an advertisement on 15.07.2013 inviting applications from eligible candidates for recruitment on various posts, including Staff Nurse Grade-II for Nursing Colleges and Hospital Services, on contract basis initially for a period of 11 months, at AIIMS, Jodhpur. 2.1. The petitioner having possessed the requisite educational qualification, applied in pursuance of the aforesaid advertisement; after going through the written examination as well as the interview process, the petitioner was appointed on the post of Staff Nurse Grade II (in short, ‘post in question’), vide appointment order dated 15.01.2014, by the respondents. Such appointment of the petitioner was extended from time to time. 2.2. The petitioner filed a representation seeking regularization on the post in question and for grant of regular pay scale, pertaining thereto, with all consequential benefits, but no heed was paid by the respondent-department. Thereafter, while apprehending the termination of his services, the petitioner filed an Original Application bearing O.A. No. 445/2016 before the learned Tribunal; during pendency of the said O.A., the petitioner filed a Misc. Application bearing No.44/2022, wherein the learned Tribunal vide order dated 01.04.2022 passed an interim order, while directing the respondents not to terminate the petitioner’s service. Thereafter, while apprehending the termination of his services, the petitioner filed an Original Application bearing O.A. No. 445/2016 before the learned Tribunal; during pendency of the said O.A., the petitioner filed a Misc. Application bearing No.44/2022, wherein the learned Tribunal vide order dated 01.04.2022 passed an interim order, while directing the respondents not to terminate the petitioner’s service. 2.3 Thereafter, the petitioner filed another Original Application bearing O.A. No.159/2020 before the learned Tribunal, with a prayer for issuance of a direction to the respondents that they shall not make recruitment pursuant to the advertisement issued on 05.08.2020 on the post of Nursing Officer/Nurse Grade II against which the petitioner is presently working and have sought their regularization by filing aforesaid original application; the same was granted by the learned Tribunal vide order dated 13.12.2023. 2.4 Subsequently, the learned Tribunal vide the impugned order dated 12.03.2024, while deciding the O.A. No.445/2016 and other connected matters, rejected the said original application of the petitioner. Thus, being aggrieved of the impugned order dated 12.03.2024, the present writ petitions have been preferred, claiming the afore-quoted reliefs. 3. Learned Senior Counsel for the petitioners submitted that the petitioners were appointed against the sanctioned posts, which is clear from the guidelines issued by the respondents themselves, while undertaking the process of selection of the petitioners, as per the communication dated 06.08.2013. It was further submitted that the said communication reveals that the appointment of the petitioners though made on the post in question on contractual basis, but the same was against the regular and sanctioned posts. 3.1. It was also submitted that a total of 96 Staff Nurse Grade-II were working in the respondent-AIIMS at the relevant point of time and 1230 posts were lying vacant, and therefore, there was no reason available to the respondents, not to accede to the request of the petitioners for regularization of their services on the post in question. It was further submitted that the petitioners have been working in the respondent-AIIMS for last more than 10 years, but the respondents are not regularizing the petitioners’ services on the post in question, with all consequential benefits, which is a clear violation of Articles 14, 16 & 21 of the Constitution of India. 3.2. It was further submitted that the petitioners have been working in the respondent-AIIMS for last more than 10 years, but the respondents are not regularizing the petitioners’ services on the post in question, with all consequential benefits, which is a clear violation of Articles 14, 16 & 21 of the Constitution of India. 3.2. It was also submitted that the petitioners were appointed on the post in question, after undergoing the due selection process i.e. written examination and interview, and that, the petitioners have also been awarded the experience certificate; as per the petitioner, the level of difficulty of the selection process undergone by the petitioners was quite high, in comparison to the other recruitment process for the post in question, and therefore, the petitioners, cannot in any manner, be termed as a back door entry, nor can they be treated as persons inducted through placement agency, more particularly, when the selection on the post in question was made from open market. 3.3. It was further submitted that no rules pertaining to the recruitment on the post in question were framed by the respondents till the year 2015. It was also submitted that the petitioners, by now, have already crossed the age criteria, thereby making them ineligible for any fresh recruitment. In support of such submission, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Ushaben Joshi Vs. Union of India & Ors (SLP (Civil) No. 6427 of 2019, decided on 02.08.2024). 3.4. It was also submitted that yet another recruitment process pertaining to the post (permanent in nature) of Nurse Grade-II was initiated by the respondents in the year 2016 and the Rules therefor, were framed by the respondents only in the year 2017. It was further submitted that the recruitment process of 2016 was also identical to the process underwent by the petitioners for the post in question in the year 2013; the appointment of the candidates participated in the process of 2016 was permanent in nature, but the similarly situated persons i.e. petitioners, despite successfully undergoing the identical selection process, were granted contractual appointment, which is nothing but an act of arbitrariness and discrimination on the part of the respondents. In support of such submission, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Neelima Srivastava Vs. In support of such submission, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Neelima Srivastava Vs. State of U.P. & Ors (Civil Appeal No. 4840 of 2021, decided on 17.08.2021) 3.5. It was further submitted that similar situated persons who have been working as Staff Nursing Grade-II at AIIMS, New Delhi, since 2003-2004, have already been ordered to be regularized in service on the said post, pursuant to a Resolution dated 28.02.2014, which was passed for regularization of Group B and Group C employees, working on ad hoc basis, at AIIMS, New Delhi, which can be further fortified from the Memorandum dated 07.05.2014 issued under the signatures of the Director and Member of Secretary of AIIMS, New Delhi. 3.6. It was also submitted that the 2nd Meeting of the Governing Body of the respondent-AIIMS, Jodhpur was held on 11.05.2017, to discuss the proposal for regularization in question, in Agenda Item No.11. After due discussion, Minutes of the said Meeting were drawn, and thereby, the Chairman of the respondent-AIIMS issued a direction for examining the issue sympathetically and thereafter, forward the proposal, if any, to the Ministry for further examination. 3.7. In support of such submissions, reliance was also placed upon the following judgments:- (a) Mahanadi Coalfields Ltd. Vs. Brajrannagar Coal Mines Workers’ Union (Civil Appeal Nos. 4092-4093/2024, decided on 12.03.2024 by) by the Hon’ble Apex Court; (b) Sheo Narain Nagar & Ors Vs. State of U.P. & Ors AIR 2018 SC 233 ; (c) Vinod Kumar & Ors. Etc. Vs. Union of India & Ors. (SLP (C) Nos. 22241-42 of 2016, decided on 30.01.2024) by the Hon’ble Apex Court. (d) Vinod Kumar Sharma & Ors Vs. Union of India & Anr. (W.P.(C) 17291/2022, decided on 29.07.2024) by the Division Bench of the Hon’ble Delhi High Court. 4. On the other hand, Mr. Mukesh Rajpurohit, learned Deputy Solicitor General appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioners, submitted that the advertisement dated 15.07.2013 makes it clear that the same was issued for certain posts on contractual basis for a certain period only, and no regular process of selection was sought to be followed thereby, and the orders of engagement dated 15.01.2014 were issued, and therefore, such contractual engagement of the petitioners cannot be termed as “substantive appointments”. 4.1. 4.1. It was further submitted that the petitioners completed 2 years of contractual services, by the time of filing the O.A. before learned Tribunal and that, on count of the same so also in view of the clear stipulation (contractual engagement) in the aforesaid advertisement, the petitioners cannot seek regularization of their services on the post in question. It was also submitted that the petitioners are getting Rs.34,000/- as fixed monthly pay, which is more than minimum of the pay prescribed under the relevant pay band, as applicable, and therefore, the grievance of the petitioners pertaining to the regularization in question is baseless. 4.2. It was further submitted that the petitioners’ engagement was made for a certain period and such appointees cannot take shelter of Articles 14, 16 & 21 of the Constitution of India, so as to seek regularization in service with all consequential benefits. In support of such submission, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors (2006) 4 SCC 1 . 4.3. It was also submitted that the appointments offered to the petitioners were contractual in nature and were offered to them on certain terms and conditions, which they accepted with open eyes. It was further submitted that there is a huge difference between a regular selection process and the one initiated and concluded qua the petitioners for the post in question, more particularly, when the regular selection process is to be concluded after wide publicity thereof throughout the country, whereas, the contractual engagement of the petitioners was made, owing to an immediate need, without the process as required for regular selection. 4.4. It was also submitted that the learned Tribunal, after duly considering each and every aspect of the case, has passed the impugned order, which is justified in law. 5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 6. This Court observes that the respondent-AIIMS issued the advertisement on 15.07.2013 for various posts including the post in question, for appointment on contractual basis initially for a period of 11 months; the petitioners applied for the same, and after going through the selection process viz. written examination as well as the interview, the petitioners were appointed on the post in question on 15.01.2014. written examination as well as the interview, the petitioners were appointed on the post in question on 15.01.2014. Thereafter, the petitioners’ appointment was extended from time to time, but under an apprehension of termination of such services, the petitioners raised an objection vide the aforementioned O.A. before the learned Tribunal. During pendency of the O.A., the petitioners have filed a misc. application. wherein the learned Tribunal vide order dated 01.04.2022 passed an interim order. 6.1. Subsequently, the learned Tribunal vide the impugned order dated 12.03.2024 decide the O.A. No.445/2016 and other connected applications, whereby the learned Tribunal dismissed the said original applications of the petitioners, which is subject matter of challenge in the instant writ petitions. 7. This Court further observes that the respondents issued the advertisement in the year 2013 and the petitioners were appointed, after going through the written examination, followed by the interview, and the petitioners’ appointment on the post in question was made initially for a period of 11 months, and thereafter, it was extended from time to time, and till today they are working on the said post, for last more than 10 years. 8. This Court also observes that during the pendency of the O.A. 445/2016 before the learned Tribunal, an interim order was passed on 01.04.2022 in Misc. Application No. 44/2022 so as to protect the services of the petitioners from termination. Relevant portion of the said order dated 01.04.2022 is reproduced as hereunder:- “Learned counsel for the applicant very fairly states that the respondents are extending the contract by every year by renewing the services of the applicant. He also states that the applicant is in apprehension that if the respondent-department does not renew the contract of his services may be terminated now. In this eventuality, learned counsel for the applicant prays that the respondents be restrained from terminating the services of the applicant subject to the outcome of the present O.A. as the applicant has been rendering the services since 2014 and the O.A. is pending before this Tribunal for adjudication. In this eventuality, learned counsel for the applicant prays that the respondents be restrained from terminating the services of the applicant subject to the outcome of the present O.A. as the applicant has been rendering the services since 2014 and the O.A. is pending before this Tribunal for adjudication. The balance of convenience lies in favour of the applicant as well as the natural justice demands that the respondents be restrained from terminating his services subject to the outcome of this O.A. In view of the above, the M.A. No.32/2022 is allowed and the respondents are directed not to terminate the services of the applicant till the next date of hearing.” 9. This Court further observes that in the instant writ petitions, challenging the impugned order of the learned Tribunal, this Hon’ble Court passed an interim order dated 16.04.2024, relevant portion whereof of reproduced as hereunder:- “8. Meanwhile, the respondents shall stand restrained from dispensing with the services of the petitioners. The respondents shall be at liberty to move appropriate application for vacation of the interim order, if occasion so arises or to seek leave to disengage any of the petitioner(s), if he/she indulges in any act of unbecoming of a Government servant.” 10. This Court also observes that in an identical situation, the AIIMS, New Delhi in its 150th Meeting of the Governing Body held on 28.02.2014, comprising Chairman, Members, Member Secretary and Special Invitees, considered the proposal for regularization of Group “B” & “C” employees working on ad hoc basis, and as per the Minutes of the said Meeting, a total of 193 employees whose working tenure was ranging from 10 to 15 years were regularized in service; the present petitioners, working in the respondent-AIIMS, Jodhpur are similarly situated to the said employees regularized in service by AIIMS, New Delhi. The said proposal was also fortified by the Memorandum of the Director and the Member Secretary issued on 07.05.2014. This Court also observes that subsequently, the said employees of AIIMS, New Delhi were regularized in service and consequently, are getting regular pay scale of the post of Nurse Grade-II on 30.06.2014. The said proposal was also fortified by the Memorandum of the Director and the Member Secretary issued on 07.05.2014. This Court also observes that subsequently, the said employees of AIIMS, New Delhi were regularized in service and consequently, are getting regular pay scale of the post of Nurse Grade-II on 30.06.2014. The relevant portion of the said Meeting is reproduced as hereunder:- “MINUTES OF THE 150 MEETING OF THE GOVERNING BODY HELD ON FRIDAY, THE 28TH FEBRUARY, 2014 AT 3:00 P.M. IN THE COMMITTEE ROOM, 3RD FLOOR, MINISTRY OF HEALTH & FAMILY WELFARE, NIRMAN BHAWAN, NEW DELHI To consider the proposal for Regularization of Group “B” & “C” employees working on ad-hoc basis at the AIIMS, New Delhi. ____________________________________ Dy. Director (Admn.) explained that the proposal for regularization of ad-hoc employees emanated from the pressing demand of the various sections of employees of the Institute who had been working on ad hoc basis over a considerable period of time and this was a very long pending issue. It was also brought to the notice of G.B. that this proposal had been earlier brought before the S.F.C. as well as G.B. The G.B. had decided that such employees should be given relaxation in age but should be asked to go through the prescribed selection process alongwith other open candidates for respective posts. The Institute had acted on the advise of G.B. but the said employees had gone to C.A.T. and obtained a stay on the proceedings leading to disruption of the selection process. This resulted in a stalemate. Therefore, the Institute brought this proposal of regularization of ad-hoc employees for reconsideration of G.B. The proposal was strongly and vociferously supported by Smt. Sushma Swaraj, Shri Motilal Vora and other members. Smt. Sushma Swaraj informed that these employees had been working in the Institute for a long period of time and they had been shouldering the responsibilities of their respective posts as those of regular employees of the Institute. Many of these employees had been in the age group of 40-45 years and also many of them were the sole bread earners of their family. She added that dispensing with their services at this advance stage of their life would be inhuman. Shri Motilal Vora said that these ad-hoc employees had also actively contributed to the progress and development of the Institute and strongly advocated for regularization of their services. She added that dispensing with their services at this advance stage of their life would be inhuman. Shri Motilal Vora said that these ad-hoc employees had also actively contributed to the progress and development of the Institute and strongly advocated for regularization of their services. Shri Sundeep Nayak informed that there was a litigation in the Hon’ble CAT for regularization of these ad-hoc employees. He also informed that a case of regularization of the ad-hoc employees working in PGIMER, Chandigarh was referred to the DoPT which was turned down. Smt. Sushma Swaraj responded by saying that once the services of these ad-hoc employees were regularized, the litigation pending before CAT would automatically stand resolved. The Chairman wanted to know the number of ad-hoc employees to be regularized and the period of services rendered by them in the Institute. It was clarified that there were 193 such employees working on ad-hoc basis and they had rendered the services in the Institute ranging from 10 years to 15 years. The list of such employees was attached as Annexure-I of the agenda item. The Chairman said that if this was the situation, then many of such employees would be on the verge of retirement within next decade. After detailed deliberations, the Governing Body unanimously approved the regularization of the services of 193 employees working on ad-hoc basis in Group “B” and “C” categories of posts at the AIIMS, New Delhi (the list of such employees is attached as Annexure-I of the agenda item.” The relevant portion of the letter dated 07.05.2014 is reproduced as hereunder:- “MEMORANDUM ... .... . .... Minutes of the Governing Body meeting held on 28 February, 2014 at 03:00 PM in the Committee Room, 3rd Floor, Ministry of Health & Family Welfare Nirman Bhawan, New Delhi duly approved by the President were circulated to all the Members of the Governing Body vide No.2-1/2014-Genl. dated 28.03.2014 inviting observations, if any, within two weeks from the date of issue of the memo. Final Minutes as approved by the Chairman after incorporating an observation received from Shri Motilal Vora, Hon’ble MP (RS), are being circulated for kind perusal and record.” 11. dated 28.03.2014 inviting observations, if any, within two weeks from the date of issue of the memo. Final Minutes as approved by the Chairman after incorporating an observation received from Shri Motilal Vora, Hon’ble MP (RS), are being circulated for kind perusal and record.” 11. This Court further observes that the petitioners’ case for regularization of their services on the post in question, was also placed before the Governing Body in the Second Meeting of AIIMS, Jodhpur on 11.05.2017, in the presence of the Chairman, Members and Member Secretary, whereby as per Agenda Item No.11, the regularization of the petitioners on the post in question fell for consideration and after discussion, the Chairman directed that respondent-AIIMS may also examine the issue sympathetically and thereafter, forward the proposal, if any, to the Ministry for further examination. Relevant portion of the said Meeting is reproduced hereunder:- “Minutes of 2nd Meeting of the Governing Body of All India Institute of Medical Sciences, Jodhpur held on 11th May, 2017 in HFM Conference Hall, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi Agenda Item No.11: Discussion on service matters of contractual Staff Nurse Governing Body was informed that a letter from Dr. Manoj Rajoria, Member of the Institute Body and Hon’ble Member of Parliament has been received regarding regularization and salary enhancement of contractual Staff Nurse Grade – I. Committee was further informed that one Assistant Nursing Superintendent (ANS), six Staff Nurse Grade – I and eighty six Staff Nurse Grade – II are working in AIIMS Jodhpur on contract basis since 2014. They have filed the case in Hon’ble Central Administrative Tribunal (CAT) for regularization of their services. Reply has already been filed in Hon’ble Court. Governing Body, after discussion, observed that a committee for revising the Recruitment Rules for Nursing Cadre is already in place. Therefore, the Governing Body felt that the matter may also be considered while revising/framing the Recruitment Rules. Further, Chairman directed that the AIIMS, Jodhpur may also examine the issue sympathetically and forward the proposal, if any, to the Ministry for further examination.” 12. Therefore, the Governing Body felt that the matter may also be considered while revising/framing the Recruitment Rules. Further, Chairman directed that the AIIMS, Jodhpur may also examine the issue sympathetically and forward the proposal, if any, to the Ministry for further examination.” 12. This Court also observes that the petitioners were working without any protection in the form of interim order(s) for about 9 years on the post in question in the respondent department, and thereafter, they were protected vide the interim orders in various stages of litigation, thus, they are working on the post in question for last more than 10 years. This Court further observes that the respondent issued the advertisement in the year 2013 and the petitioners cleared the written examination, so also the next stage i.e. the interview, thus, their selection on the post in question was made on the basis of their merit, which clearly shows that the petitioners were appointed through open market competition, and were not inducted in service through back door entry. 13. After considering the factual matrix of the present case, aforementioned Agenda Item No.11, Resolution of the AIIMS, New Delhi and the precedent law pertaining to regularization, the present writ petitions are partly allowed, while quashing and setting aside the impugned order dated 12.03.2024 passed by the learned Tribunal. 13.1. The respondents are to pass a fresh speaking order in the matter of regularization of the petitioners’ service on the post in question, while keeping into due consideration the aforementioned Resolution of AIIMS, New Delhi, Agenda Item No.11 of Second Meeting of Governing Body of AIIMS Jodhpur dated 11.05.2017 and the precedent law pertaining to regularization of employees, within period of 3 months from today. 13.2. Meanwhile and until passing of such fresh speaking order, the respondents are restrained from terminating the services of the petitioners from the post in question. However, on passing of such fresh speaking order by the respondents, in case the petitioner still feel aggrieved, they would be at liberty to take appropriate legal recourse. All pending applications stand disposed of.