K. Aji Kumar vs The Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member – The applicant herein was appointed in a Group-D post along with other persons pursuant to Annexure A1 notification in the Central Government Health Scheme (CGHS) dispensary on 16.6.2004. By Annexure A1, applications were invited from competent persons on contract basis for a maximum period of two years, subject to certain conditions mentioned therein. Two vacancies were notified. Before the expiry of the contractual period of engagement, a memo was issued to the applicant informing that steps were taken for fresh appointment of Group-D staff on daily wages. Apprehending termination, the applicant along with few other persons approached this Tribunal in OA No. 246 of 2005. This Tribunal by Annexure A6 order did not accept the contention of the respondents CGHS that Rules did not permit appointment on contact basis and hence appointments were made on demand from CGHS dispensaries and the Chief Medical Officer of the units, as a temporary measure and it did not give any right to the applicant to continue. Negativing the above contention, this Tribunal held that since the respondents themselves have issued the advertisement inviting applications for two posts for a maximum period of two years or till a regular candidate was appointed. The appointment was done pursuant to that notification. The contention of the respondents that there was no Rule permitting contract appointment was not sustainable and it was held that they cannot now contend that the action was not in accordance with Rules. The Tribunal also noted that the respondents had again notified the post for appointment on daily wages, which sufficiently established that there was need for such posts on a continuing basis. However noting that it was a contract appointment it was held that the services of the applicant could not be terminated during the pendency of the contract employment. However, that did not preclude the respondents from terminating the contract in accordance with the conditions at the time of appointment. This order dated 7.9.2005 was challenged by the respondents in WP© No. 13412/2006 before the Hon’ble High Court of Kerala.

While so, apprehending termination the applicant approached this Tribunal again by filing OA No. 416 of 2006. By Annexure R4 order dated 21.6.2006 this Tribunal held that the grievance of the applicant herein was redressed by permitting them to continue in service on contract basis. Hence, the OA was closed expressing that the respondents would adhere to the instructions contained in a document produced in that OA as Annexure A4.

It emerges that thereafter by Annexure R3 judgment, the Division Bench of the Hon’ble High Court in WP© No. 13412 of 2006 held that the applicants were initially appointed for a term of three months and that their term was extended by another three months. Noticing that thereafter four years have elapsed after the engagement of the applicants and that the maximum period of employment was only for two years as held in the Original Application, the Writ Petition was disposed of clarifying that if the petitioners felt so, they can engage fresh hands in place of the applicants. The above judgment is dated 25.3.2009.

After the disposal of the Writ Petition, the applicant submitted Annexure A7 representation dated 18.11.2017 requesting for his absorption in service on the premise that he has been continuing in service since 16^th June, 2004. Since there was no response, Annexure A8 reminder dated 17.3.2018 was also issued. Thereafter the applicant approached this Tribunal seeking the relief to declare that the applicant is entitled to be absorbed and regularized in Group-D, which he has been occupying since 16.6.2004 with all consequential benefits of service including salary and wages.

A detailed reply statement and rejoinder were filed by both sides. Heard Mr. R. Sreeraj, learned counsel appearing for the applicant and Shri Thomas Mathew Nellimoottil, learned Senior Central Government Counsel, appearing for the respondents.

The regularization is opposed specifically on three grounds. Firstly it was contended that there was no sanctioned post. Secondly it was contended that the applicant had not completed 10 years as on the cutoff date i.e. 10.4.2006 as provided in the decision of the Hon’ble Supreme Court in State of Karnataka v. Umadevi (2006) 4 SCC 1. The third contention advanced was that the appointment itself was irregular and improper and was not in accordance with Rules. Hence, the applicant was not entitled to the above benefit.

It is pertinent to note that as evident from Annexure A6 as well as Annexure R4 that, at that time, the respondents did not have a case that there was no such sanctioned post. The fact that the applicant was appointed on contract basis and thereafter fresh appointments were sought to be done clearly showed that there were vacancies available which pre-supposes the existence of posts. However, in both earlier proceedings before this Tribunal, the respondents did not have a case that there was no sanctioned post. The only contention set up therein was that there was only irregularity in engaging the applicant. Hence, the contention of the respondents that there was no sanctioned post appears to be doubtful.

It is pertinent to note that even though the applicant had not completed ten years of service as on 10.4.2006 as prescribed in Umadevi’s case (supra), it emerges that the matter has been highlighted by the Hon’ble Supreme Court in Narendra Kumar Tiwari & Ors. Etc. v. The State of Jharkhand & Ors. Etc. (2018) 8 SCC 258. That was a case wherein it was noticed by the Hon’ble Supreme Court that the decision in Umadevi’s case (supra) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely, However, in Narendra Kumar Tiwari’s case (supra) it was noticed that in spite of the intention in Umadevi’s case (supra) to prevent irregular or illegal appointments in the future and to confer a benefit on those who had been irregularly appointed in the past, the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi’s case (supra). The Hon’ble Supreme Court noted that it clearly indicated that it was all right to continue with irregular appointments and whenever required terminate the service of the irregularly appointed employees on the ground that they were irregularly appointed. Hence, in the light of the decision in Narendra Kumar Tiwari’s case (supra) the above contention is also not sustainable.

The third contention that appointment was not in accordance with Rules has been a contention set up by the respondents right from the beginning. However, the specific case seems to be that there was no authorization to appoint on a contract basis. The specific Rules in relation to it have not been made available. Hence, all the three contentions does not appear to be sustainable.

There is yet another factor to be taken note of Annexure R3 judgment of the Division Bench dated 25.3.2009 specifically permitted the respondents to terminate the services of the applicant, but the applicant continued to be engaged by the respondents much latter. He continues to be there even now. He approached this Tribunal only in the year 2018 with this Original Application. Virtually for nine years, notwithstanding the only direction in Annexure R3, the respondents continued to engage him. Even after filing of the Original Application he continued to be engaged. His continuance was not based on any interim orders and no stay was granted by this Tribunal in this Original Application.

Having considered this case, I feel that this is a case in which the respondents should consider the proposal of his regularization if a proper representation is made with in a period of one month from today. Ordered accordingly. If any such representation is made, the respondents shall consider it in the light of the facts referred to above and shall pass appropriate orders within a period of two months thereafter from the date of receipt of the copy of this order and the representation. He shall not be terminated during the interregnum till the final orders are passed. It is made clear that if no such representation is made, the respondents will be free to proceed as directed in Annexure R3.

The Original Application is allowed to the above extent. No costs.

Annexure A1 – True copy of the advertise No. E.81/PtII/2004 dated 26.3.04 published in Mathrubhoomi Daily on 28.3.2004.

Annexure A2 – True copy of the order No. E81/PtII/2004/1137 dated 28.4.2004.

Annexure A3 – True copy of the medical certificate of fitness issued by the Chief Medical Officer, CHHS Dispensary, Trivandrum.

Annexure A4 – True copy of the appointment order No. E-81/Pt.II/2004/CGHS/1389 dated 16.6.2004.

Annexure A5 – True copy of the order No. E.81/2004/CGHS/TVM/2657 dated 21.12.2004 issued by the third respondent.

Annexure A6 – True copy of the order dated 7.9.2005 in OA 246 of 2005 passed by this Hon’ble Tribunal.

Annexure A7 – True copy of the representation dated 18.11.17 submitted by the applicant.

Annexure A8 – True copy of the reminder dated 17.3.18 submitted by the applicant.

Annexure A9 – True copy of the statement filed by the counsel for the respondents in OA 246/2005.

Annexure R1 – True copy of letter dated 22.10.2018 of directorate of CCHS.

Annexure R2 – True copy of letter bearing NO. 14011/21/2002/11D(Pt.I) dated 4.3.2004.

Annexure R-3 – True copy OM dated 14.10.200.

Annexure I – True copy of the OM No. F. No. 45/86/97-P&PW(A)-Part II dated 27.10.1997.

Annexure II – Judgment in K.S. Krishnaswamy & Others vs. Union of India and another, 2006 KHC 1772.