Indian Council of Medical Research and Others vs K. Rajalakshmi and Another

S.K. Krishnan, J.—Aggrieved by the order, dated 28.11.2000 passed in T.A.No. 2/2000 by the Madras Bench of the Central

Administrative Tribunal, Chennai, while the respondents therein, have filed a Writ Petition No. 7094 of 2001 for issuance of a Writ of Certiorari

calling for the records relating to the order dated 28.11.2000, in T.A.No. 2 of 2000 and quash the same, the applicant therein has filed a Writ

Petition No. 488 of 2002 for issuance of Writ of Certiorarified Mandamus for quashing the above said order in respect of giving effect to

regularise the service of the petitioner in W.P.No. 488 of 2002 and to direct the respondents 2 to 4 to regularise the services of the petitioner with

effect from 1.4.1975 when the petitioner joined the service of the National Nutrition Monitoring Bureau with all consequential benefits.

Since the survival of the petition in W.P.No. 488 of 2002 is solely based on the nature of the disposal of the petition in W.P.No. 7094 of 2001,

first we deal with the Writ Petition No. 7094 of 2001 and for the sake of convenience, we call the parties as arrayed in W.P.No. 7094 of 2001.

The facts, leading to the filing of these petitions, are as follows:

The first respondent was appointed as a Research Assistant on 1.4.1975 by the first petitioner and she joined duty in the Tamil Nadu unit of

National Nutrition Monitoring Bureau (hereinafter called as NNMB), which is a project of the first petitioner. The NNMB has been functioning in

Tamil Nadu since 1972. The first respondent is a post graduate degree holder in Home Science and Sociology. Even though, it is stated in her

appointment order that she would be on probation for six months and she completed the same on 30.9.1975, the same has not been declared.

While so, on 10.8.1982, the first respondent and five others were promoted as Assistant Research Officer.

The grievance of the first respondent is that even though she has been working in the NNMB without any break, her services were not

regularised by the first petitioner, despite her repeated representations, dated 23.9.1987, 14.6.1990 and 27.3.1995. Since, the same were not

considered by the petitioners, finding no other alternative, the first respondent filed a writ petition in W.P.No. No. 2757 of 1998 before this

Court, which was transferred to the Central Administrative Tribunal, where it was numbered as T.A.No. 2 of 2000.

Considering the fact that the first respondent has been working for more than 25 years, the Tribunal came to the conclusion that the services of

the first respondent has to be regularised from the date of filing of the Writ Petition, i.e. from 25.2.1998.

Aggrieved by the same, both the petitioners and the first respondent are before us as stated above.

Heard both sides.

The learned Additional Central Government Standing Counsel would contend that the first respondent is not entitled for regularisation since she

has been appointed only on temporary basis and her post has been renewed every year.

It is further contended that since the project was created initially on yearly renewable basis, the periodical promotion to the staff was not

feasible of compliance as even the grant-in-aid for the units was barely enough to meet the essential expenditure of the units.

Further, it is contended that since the post being held by the first respondent is purely a temporary one, she is not entitled for regularisation and

therefore, the order of the Tribunal has to be set aside.

Per contra, the learned Senior Counsel appearing for the first respondent would submit that even though the Tribunal has elaborately discussed

the facts and circumstances of the case and various decisions of the Supreme Court and concluded that the services of the first respondent has to

be regularised, it directed the respondents to regularise the services of the first respondent with effect from 25.2.1998, i.e. from the date of filing of

the Writ Petition, and not from 1.4.1975 on which date she was appointed, which is against law, and therefore, the services of the first respondent

has to be regularised with effect from 1.4.1975 by quashing the order of the Tribunal in so far as date of effect.

In support of his contention, the learned Senior Counsel relied on the following two decisions.

a. Dr V.P. Chaturvedi and Others Vs. Union of India (UOI) and Others, a .

b. State of Haryana and others Vs. Piara Singh and others etc. etc., .

It is not disputed that the first respondent was appointed on 1.4.1975 by the first petitioner as Research Assistant and she has been working in

the National Monitoring Bureau, which is a project of the first petitioner. It is not the case of the petitioners that the appointment of the first

respondent is irregular. It is also not disputed that the first respondent is a post graduate degree holder in Home Science and Sociology.

It is seen from the appointment order, dated 16.4.1975 that the name of the first respondent was sponsored by the Employment Exchange and

the sanction was accorded by the Director General of the Council for the appointment of the first respondent as Research Assistant.

From the above facts, it is clear that the appointment of the first respondent is regular and she is having required qualifications for holding the

above said post and also she has been working continuously in NNMB without any break from the date of her appointment on 1.4.1975.

Now the only question to be decided is whether the services of the first respondent can be regularised, if so, from which date.

The only contention of the petitioners is that since the post being held by the first respondent is purely a temporary one and being renewed

every year, the services of the first respondent cannot be regularised.

To decide the nature of the post being held by the first respondent, it is necessary for this Court to know the objectives of the National

Nutrition Monitoring Bureau.

The objectives of the NNMB are as follows:

a. To collect data on dietary intakes and nutritional status of the population in each of the States on a continuous basis; and

b. To evaluate the on-going National Nutrition Programmes, identify their strengths and weaknesses and recommend mid-course corrections to

improve their effectiveness.

At this juncture, it is pertinent to note the nature of the job of the first respondent.

As seen from the records, the nature of the job of the first respondent is that she has to collect data by taking strenuous trips to interior hilly,

tribal, forest and rural areas and compile the same and after an evaluation, she has to submit the reports to the authorities concerned.

Combined reading of the objectives and the nature of the job would clearly show that the post being held by the first respondent cannot be

said to be temporary in nature.

Even assuming that the post is purely a temporary one then the question arise that how long that post can be kept as temporary.

At this juncture, it is pertinent to note the contents of the letter dated 11.8.1995, which was sent by the Minister of State for Health and Family

Welfare, New Delhi, to a Member of Parliament, Lok Sabha. The contents of the letter are as follows:

Please refer to your letter No BA/B13/F-19/95 dated 20th April, 1995 regarding Memorandum from the staff of National Nutrition Bureau,

Nagpur.

The Indian Council of Medical Research has informed that they are actively considering grant of permanent status of National Nutrition Monitoring

Bureau Units. The proposal regarding regularisation of the services of the staff working in these units will be considered by them as and when a

decision in this regard is finalised.

From the above letter, it is clear that the Ministry of State Health and Family Welfare has come to the conclusion that the services of the staff

working in the units of NNMB have to be regularised.

Further, considering the qualification and experience of the first respondent, she was promoted to the post of Assistant Research Officer along

with four others by the first petitioner and she would be on probation for a period of two years from the date of her joining duty, vide Official

Memorandum, dated 24.9.1982.

In service jurisprudence, no post can be treated permanently as temporary. Temporary means only for a certain limited period. When a post

being held by a person continues to be held for more than a certain limited period, it cannot be said that it is a temporary post. Such continuance, in

a certain post, automatically takes away the character of temporary and takes the character of permanent.

Even the project or department or whatever the name be, can function on yearly renewal basis, but the services of the persons working in such

project or any other departments cannot be kept as temporary for more than a certain limited period. Because, the renewal of the project or

departments on yearly basis would not affect its functions and objectives, whereas the services of the persons working in such project or

departments are not regularised, if they are working for more than a certain limited period, which would not only affect their career but also their

entire life.

In this regard, what was held by the Supreme Court in the State of Haryana and others Vs. Piara Singh and others etc. etc., , is squarely

applicable to the case on hand.

The Supreme Court observed as follows:

Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions

of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised

either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in

exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and

other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of law and to see

that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the

State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the

employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given

for equal work, which is indeed one"" of the directive principles of the Constitution. It is for this very reason it is held that a person should not be

kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is

need and warrant for a regular post and accordingly directs regularisation.

In light of the above, we are of the view that when the first respondent puts in more than 25 years of service continuously in NNMB without

any break and her appointment is regular and considering her qualification and experience she was promoted to the post of Assistant Research

Officer and when especially she is on the verge of retirement, her services have to be regularised with all monetary and service benefits and

therefore, we agree with the view taken by the Tribunal that the services of the first respondent have to be regularised. However, we differ from

the view of the Tribunal that the services of the first respondent have to be regularised from the date of filing of the Writ Petition i.e. 25.2.1998 for

the following reasons.

As already stated above, it is not disputed that the first respondent was appointed on 1.4.1975 and her appointment was regular and

thereafter, she was promoted as Assistant Research Officer along with four others on 24.9.1982. Since the services of the first respondent was not

regularised, she gave representations even in the year 1987 to regularise her services.

In such circumstances, the services of the first respondent have to be regularised from the date of her initial appointment, i.e. 1.4.1975. When

the date of appointment is not disputed and the appointment is regular and there is no violation of any rules in such appointment, the Court cannot

postpone the date of regularisation from the date of actual appointment to the date of filing of the Writ Petition or to any other date. In giving effect

to the regularisation of the services, the Court can interfere when the date of appointment is in dispute and the appointment is not regular and any

violation of rules is found in the appointment of the concerned, and then the Court, according to the facts and circumstances, can fix the date of

effect of regularisation, otherwise, the Court cannot interfere.

In view of the above, the services of the first respondent have to be regularised from the date of her initial appointment, i.e. with effect from

1.4.1975 and in such circumstances, the order of the Tribunal in so far as the direction in respect of date of effect has to be set aside. Accordingly,

the same is set aside. Consequently, while we dismissing the W.P.No. 7094 of 2001, the petitioners therein are directed to regularise the services

of the first respondent with effect from 1.4.1975 with all monetary and service benefits.

In result, the W.P.No. 7094 of 2001 is dismissed and the W.P.No. 488 of 2002 is allowed. No costs. Consequently, connected

miscellaneous petitions are closed.