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Judgment
This Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals, 1985 seeking regularization of his service and also quashing of order dated 07.06.2016 passed by the respondents whereby his service on contract basis has been extended only upto 31.07.2016 and thereafter this post is required to be hired on outsource basis as per the policy of GNCT of Delhi.
The facts, in brief, are that the applicant was engaged by the respondents on the post of Dresser (Group-D) on contract on 04.10.2008. On 24.07.2008 some of the Group-D employees working on contract basis were regularized. As several Group-D employees were regularized, the applicant moved a representation dated 25.02.2016 for regularization of his service as well. Instead of considering his case for regularization, the applicant was informed vide order dated 07.06.2016 that his contract will continue only upto 31.07.2016 because thereafter the respondents have decided to engage personnel to the post of Dresser on outsource basis. It is against this order the applicant is before this Tribunal.
The main argument of the applicant is that a contractual employee cannot be replaced by another contractual employee as has been held by the Hon'ble Supreme Court in the case of State of Haryana & Ors. vs. Piara Singh & Ors. [1992 AIR 2130].
Applicant's other argument is that the GNCT of Delhi has taken a decision on 16.02.2015 to the effect that services of no contractual employees will be terminated in view of formulation of policy for regularization. It is the contention of applicant that as similarly placed Group-D employees have been regularized, the respondents are duty bound and rule bound to regularize his services as well.
The respondents, in their counter reply, have stated that the applicant was engaged on contract on 04.10.2008. The terms of engagement in paragraph 3 clearly stipulate that the contractual engagement is purely on temporary basis and it can be terminated by the employer during the currency of the agreement without assigning any reason or giving any notice. They have stated that it is not the case that the applicant is being replaced by another contractual employee. The case, instead, is that a new policy has come into existence whereby several posts including the post held by the applicant i.e. Dresser is to be outsourced by following the procedure of tender. They have pointed out that the applicant has nowhere in the OA impugned this policy and, therefore, the validity of this policy is not an issue for adjudication before this Tribunal. The respondents have further stated that the contract of the applicant in 2016 was extended till 31.07.2016 and thereafter his services were over as the extended period of contract was also over.
As regards applicant's plea that several Group-D employees were regularized in 2008, the respondents have stated that all these employees were engaged prior to 2007 i.e. much before the applicant was engaged and subsequent to that no further regularization of the cadre of Dresser has taken place. As regards the policy of 19.10.2015 cited by the applicant in his favour, the respondents maintain that the policy of Govt. of NCT of Delhi vide order dated 19.10.2015 as per the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka & Others vs. Umadevi (3) & Others [2006 (4) SCC 1] shall be applicable to those contractual employees who have worked against these posts for an aggregate period of 6 months or more after 01.04.2013. But these are related to Group-B and Group-C employees only and not for Group-D post, which is to be outsourced as per the policy of the Govt. of NCT of Delhi.
The applicant has cited two judgments - (i) Narinder Singh Ahuja & Ors. vs. The Secretary, Ministry of Health and Family Welfare & Ors. [WP(C) No.1741/2014 decided by the High Court of Delhi on 03.11.2014] and (ii) Gunvantbhai Vashrambhai Dandaiya vs. State of Gujarat [Special Civil Application No.15541 of 2013 & Ors. decided by the High Court of Gujarat on 02.11.2015] in support of his contention. The respondents have also placed before me two orders one of Punjab & Haryana High Court in the matter of Nirmal Singh & Ors. vs. State of Haryana & Ors. [Civil Writ Petition No.8507 of 2008 decided on 18.08.2009] and another of High Court of Delhi in the matter of Shri Bhoop Singh & Ors. vs. Chairman-cum-Managing Director, North Eastern Electric Power Corporation Ltd. & Anr. [WP(C) No.6483/2014 and 4484/2014 decided on 19.03.2015] in support of their contention.
I have carefully gone through the material on record and heard the counsel for both the sides and have carefully considered the whole matter.
In my view the first issue for adjudication is whether the instant case is a case which can be categorized as a case where one contractual employee is being replaced by another contractual employee, which is also the main ground of the applicant.
Admittedly, the applicant has not been replaced by another individual. The respondents have themselves not kept any person on contract in lieu of the applicant. Instead, they have enacted a policy which provides that certain types of jobs can be outsourced. It means that the Department has not to engage any personnel in those jobs.Instead another agency is entrusted with the responsibility of hiring such persons, who will carry out such jobs. Strictly speaking, in my view, this is not a case where a contractual worker is being replaced by another contractual worker. In fact, it is a case where the whole policy of taking people on contract has undergone a change, and, as pointed out by the learned counsel for the respondents, this policy has not been challenged by the applicant in this OA. There is nothing on record to suggest that the policy of outsourcing, per se , has been held or declared ultra vires by any of the courts. In other words, I do not find anything on record to conclude that the Government is restrained from enacting a policy of outsourcing for certain types of jobs. This being so, and in view of the fact that the policy itself has not been impugned/challenged in the instant OA, I am inclined to conclude that the ratio of law laid down by the Supreme Court in Piara Singh's case (supra) that contractual worker cannot be replaced by another contractual employee, does not strictly apply to the instant case. As a matter of fact, none of the judgments cited by the applicant nowhere rule that the policy of outsourcing is unconstitutional or in violation of fundamental rights enshrined in the Constitution.
As regards the applicant's claim that several Group-D employees have been regularized, it is to be noted that the regularization order was issued in July, 2008 whereas the applicant was engaged in October, 2008. Clearly, this regularization had happened for the contractual workers, who were engaged prior to 2008, and, therefore, obviously claim of the applicant for regularization could not be taken into account as he was engaged much later. It is also a fact that subsequent to that nobody else was regularized and now the question of regularization does not arise because the whole policy has undergone a change.
As regards the policy dated 19.10.2015, the respondents have stated on record that the contents of this policy were applicable to Group-B and Group-C employees and not to Group-D post because Group-B & C jobs were not to be outsourced whereas Group-D jobs were to be outsourced and, therefore, the applicant's plea that taking recourse to the policy dated 19.10.2015 he should also be regularized is substantially negated by the stand taken by the respondents. The same shall be true of the Circular dated 16.02.2015 which stipulates that services of contractual employees engaged by the department should not be terminated till further instructions in the matter. The applicant had strongly argued that once a decision not to discontinue the services of the contractual employee has been taken, how could be his services terminated? This plea, however, is not valid in the light of what the respondents have stated that this was to be applied in case of Group-B & Group-C employees only.
It is seen from the reply of the respondents that the policy to outsource Group-D employees had come into operation in 2007. The only question, therefore, arises as to how the applicant was engaged on contract basis in 2008 when such jobs were to be outsourced. However, the respondents in their reply have explained this anomaly by stating that engagements in 2008 were done as a onetime measure to start the new services in the hospitals and, therefore, the engagement of some contract workers including that of the applicant was effected.
Coming to the judgments placed before me by the learned counsel for the applicant, the decision of the Hon'ble High Court of Delhi in Narinder Singh Ahuja & Ors. vs. The Secretary, Ministry of Health and Family Welfare & Ors. (supra) relates to Data Entry Operators and Secretariat Assistants on purely contractual basis for the World Bank/GFATM assisted Revised National T.B. Control Programme [RNTCP) Project at the Central T.B. Division. These were the posts which were created for a particular Project aimed at addressing the issue of T.B. control in the country. The problem there arose when two new persons were posted as Executive Assistants on 28.04.2011, who were hired through the agency of DGHS/Ministry resulting into existing contractual employees losing their jobs. The main issue in that case was that the policy of outsourcing framed in 2010 was implemented in respect of RNCTP in 2013 and the same was held to be discriminatory because this outsourcing policy had been exempted as far as the petitioners were concerned. It is also a fact that in that case the Project was to continue till 2017 and in between,during the currency of the Project, discontinuation of existing contractual staff in order to adjust the outsourced staff was clearly not sustainable in the eyes of law. As is clear, such is not the case in the instant OA. Here, it is a purely contractual appointment of Group-D staff with clear stipulation that applicant's services can be terminated without assigning any reason. Moreover, the post held by the applicant is not part of any Project. Therefore, in my view, the judgment of the High Court is not applicable to the case in hand.
As far as the decision of Gujarat High Court in Gunvantbhai Vashrambhai Dandaiya vs. State of Gujarat (supra) is concerned, here the case relates to Class-IV daily wager/Sweeper/Hamaal, who have been working for more than 15 years on this post, and there was a very legitimate right accrued to them following the judgment of the Hon'ble Supreme Court in Umadevi's case (supra). The Court has, therefore, allowed them to be continued and also directed the respondents to consider regularization of the petitioners in that case. Here again the facts and circumstances of the instant OA are quite different. As can be seen that Group-D employees, who had joined prior to 2008, were already considered for regularization in the light of Uma Devi's case by the respondents and an order to this effect was also passed on 24.07.2008 regularizing the services of Group-D employees. It is an admitted fact that the applicant joined much later than this order of regularization and subsequently no regularization was effected by the respondents, therefore, the claim of the applicant seeking parity with those regularized earlier does not seem justified and legally sustainable.
On the other hand, the respondents through the judgment cited by them in their favour tried to argue that in Nirmal Singh & Ors. vs. State of Haryana & Ors. (supra), the Hon'ble High Court of Punjab & Haryana has clearly held as under:-
"...Will the petitioners in this background still have a right to insist on their continuation, when they are not the permanent employees and were engaged on contract. The proposition enunciated in Hitesh Thakur's case (supra) that one contract employee cannot be replaced by another contract employee would not strictly arise in the facts of the present case. Here the respondents have taken a conscious decision to outsource the services which were earlier being performed by the petitioners on contract basis. This is not so in isolation in the case or the place where the petitioners are working but is on the basis of general policy decision formulated by the respondent-Government. The petitioners would not have a right to insist upon their continuation, especially so when they were employed on a contract basis."
Likewise in Shri Bhoop Singh &Ors. vs. Chairman-cum- Managing Director, North Eastern Electric Power Corporation Ltd. & Anr. (supra), the prayer made was that the petitioners, who were appointed as Security Guards, be taken back in service and that the orders of the respondent not to extend their contractual appointments be quashed as being illegal. In that case, the contention of the petitioners was that the respondent no.1 is duty bound to keep on extending the contract; and services of the petitioner cannot be replaced by outsourcing the work of security to an outside agency - a claim identical to the claim made in this OA. The Hon'ble High Court dismissed the petition observing as under:-
"5. As already stated, in the present case, the petitioners are not employed against a project. The petitioners were also appointed only for contractual terms from 1.4.2009 till extensions expired on 27.08.2014. Therefore, the present case is not a case where one set of contractual employees are being replaced by another set of contractual employees on identical terms, and, the present is also not a case where employees have been appointed for a project and their services are terminated although the project and the funding of the project continues. Therefore, petitioners cannot claim continuation of their employment and cannot force the respondent no.1 to grant them contracts of employment and thus effectively stating that the respondent no.1 cannot change its method of security by giving security of its organization to a security agency."
It is clear from the above discussion that the issue of introduction of outsourcing arrangement of certain types of jobs in the Government has not been held to be illegal so far and, therefore, the respondents are at liberty to do so, in so much so they can introduce a policy and implement it. As regards the claim of the applicant for regularization, the same is also not tenable because he was engaged much later in 2008 and could not be covered by the ratio of law laid down by the Hon'ble Supreme Court in Umadevi's case (supra).
In view of the facts and circumstances of the case, I am of the clear opinion that the instant OA, being bereft of merit, should be dismissed. However, I would still like to direct the respondents that they must ensure that the Agency, which is outsourced to engage personnel including the post of Dresser, must give priority to the applicant as and when they recruit such persons. In case they have already recruited personnel, they may be impressed upon to hire the services of the applicant irrespective of the age, if his work in the department was otherwise found to be satisfactory.
The instant OA is disposed of in the above terms.