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Judgment
ORDER
Shri Anil Kumar Singh, learned counsel for the applicant, and Shri Ram Chandra Sahu, learned counsel for the respondents, are present and heard.
Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
“(i)This Hon’ble Tribunal may graciously be pleased to quash the order dated 28.06.2019 passed by respondent no.3 and employment notice dated 02.08.2019 issued by respondent no.4.
(ii)This Hon’ble Tribunal may graciously be pleased to direct the concerning respondents to allow the applicant to discharge their duties on their respective past as before and pay the salary/numeration to the applicants as and when the same false due.
(iii)To issue another writ, order or direction in favour of the applicant as deem fit and proper in the circumstances of the case.
(iv)Award the cost of the application in favour of the applicant.”
The brief facts of the case are that the applicants were appointed as Guest Faculty in their respective trades in the year 2015. The appointment of the applicants was initially made for three months which is said to have been extended from time to time till June 2019. Thereafter, vide an employment notice dated 02.08.2019, respondent no.5 invited applications from eligible candidates for the post of Guest Faculty for different trades. The applicants appeared in the written examination on the scheduled time and centre and passed the same. Thereafter respondent no.4 issued interview letters to the shortlisted candidates which was held on 04.09.2019. Eventually the services of the earlier Guest Faculties (which includes all the applicants) were terminated and new Guest Faculties were engaged. Hence, the present O.A. has been filed.
Submission of learned counsel for the applicants is that the applicants have served for four years and six months in the institution continuously with artificial breaks for some days caused by the respondents concerned to avoid continuity and regularity of the applicants so that they may not claim regularization as per law. It is further submitted that the respondents have lowered the eligibility criteria for the subsequent appointment made vide the employment notice dated 02.08.2019 which is against the latest circular dated 27.12.2018, thus, bad in law. It is argued that the result of the written examination was neither published nor the merit list was provided to the applicants, as such, the ranking of the candidates appearing in the written examination is not clear and transparent and thus illegal. It is next argued that in an arbitrary manner, the respondents have not selected all the guest faculties including the applicants who were previously engaged and worked for a long time. It is emphatically contended that the new engagement as Guest Faculty is an adhoc arrangement which is against the law laid down by the Hon’ble Apex Court in the case of State of Haryana vs Pirara Singh [1992 AIR 2130] decided on 12.08.1992 wherein it has been held that an adhoc or temporary employee should not be replaced by another adhoc or temporary employee and he must be replaced only by a regularly selected employee which is necessary to avoid arbitrary action on the part of the appointing authority. Thus, prayer was made to allow the O.A. and direct the respondents to re-engaged the applicants on the post of Guest Faculty quashing the impugned order and notification.
Submission of learned counsel for the respondents is that admittedly the applicants were engaged as Guest Faculties on purely contractual basis. It is argued that the applicants have produced fabricated office orders as annexures in the O.A. As per the alleged engagement letter, the present applicants have been engaged only for the specific period. It is stated that as CITS Session 2018-19 was started in August 2018 and classes were closed upto 30th June, 2019, hence, these applicants were engaged till June 2019 (as per DGT guidelines). There was CITS exam during July 2019 and fresh CITS Session i.e. 2019-20 was started in August 2019. Fresh recruitment of guest faculties was conducted for new CITS Session 2019-20 by taking written test of all the interested candidates including all these applicants/old Guest Faculties and new Guest Faculties were engaged initially for the period of three months as per their merit obtained in the test. The older guest faculties were removed vide order of JDT dated 28.06.2019 because their selection process was made without taking any written test and interview cum POT. It is further submitted that as the guest faculty recruitment was inadvertently done by following the previous DGT norms of Vocational Instructors Recruitment Rules only. As the respondent no.4 came to know about the latest order of Guest Faculty recruitment, fresh process for engagement of guest faculties was initiated on 20.12.2019 and accordingly fresh advertisement notice was issued on 31.12.2019 after taking approval from competent authority on 30.12.2019 for appointment of new guest faculties by conducting open written test. In pursuance of the aforesaid notification, all the present applicants have applied for the engagement for different faculties therefore questions of previous notification and subsequently procedure for the engagement have come to an end.
Learned counsel for the respondents further submitted that the respondents have not proceeded in pursuance of the notification dated 31.12.2019 due to covid-19 pandemic. The department DGT, MSDE, Govt. of India has published a fresh advertisement for recruitment of Junior Consultant, centrally through NIMI Chennai which was open for all eligible candidates as per the rules. NIMI Chennai has conducted written examination (CBT) and practical examination for engagement of Junior Consultant for a tenure i.e. 11 months only. Presently DGT, HQ, New Delhi has posted give Junior Consultant at NSTI Kanpur for a period of 11 months on the basis of the recruitment conducted by the NIMI Chennai.
I have considered the rival submissions and have gone through the record carefully.
Before discussing the submissions, it would be relevant to first examine the case laws referred to by the applicants. In addition to the judgement in the case of Piara Singh (supra), learned counsel for the applicant has placed reliance on the order dated 04.09.2023 passed by this Tribunal in O.A./498/2019 and referred to the case laws cited in the aforesaid order dated 04.09.2023 in support of his argument that an adhoc employee should not be replaced by another adhoc employee. The relevant portion of the aforesaid order is quoted below:-
“3.We have heard Shri Anil Kumar Singh and Gyanandra Singh, learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondents.
4.Learned counsel for the applicant argued that without giving opportunity of hearing to the applicant, the respondent No.4 has issued termination order dated 06.05.2019 against the applicant which is arbitrary and malafide intention, hence it is liable to be quashed. Learned counsel for the applicant submitted that she has been serving with the respondents to the entire satisfaction of their superior officers, and has her unblemished service record. Learned counsel further argued that services of the applicant were terminated on the ground that she has not qualified in the walking interview. He contended that in the entire Rules for the contractual appointment in the ECHS, there is no such provision to take interview who is still working. It was alleged, that the action of the respondents, to replace the applicant with another candidate is arbitrary, illegal, without jurisdiction and contrary to the proposition of law, i.e., one set of contractual employee cannot be replaced by another set of contractual employee, except the employee already employed, are not working satisfactorily. Thus, on this ground, the impugned order is liable to be quashed and respondents may be directed to reengage the applicant. Learned counsel for the applicant has relied upon the following case laws:-
(i)Manish Gupta and another etc. Vs. President, Jan Bhagidari Samiti and ors etc. reported in 2022 LiveLaw (SC) 406.
(ii)State of Haryana and others etc. Vs. Piara Singh and others etc. reported 1992 AIR 2130.
(iii)Anil Lamba and others Vs. Govt. of NCT & others decided in W.P (C) NO. 1958/2017 on 6th March 2017 by Hon’ble Delhi High Court.
(iv)Ms. Kavita P.H. Vs. Union of India and others decided in OA No. 2302 of 2019 on 23.01.2020 by C.A.T. Principal Bench.
(v)Dr. Hema Valecha Vs. Sports Authority of India and others decided in OA NO. 597 of 2023 on 05.10.2023 by C.A.T. Principal Bench.
5.On the other hand, learned counsel for the respondents vehemently contended that respondents have rightly terminated the services of the applicant as she was not selected by the Board, who has conducted interview. Learned counsel for the respondents further submitted that applicant is being replaced by another set of contractual employees, is factually incorrect and a misconception. ECHS has invited applications from the eligible candidates and every application will be considered on its own merit to select most suitable persons and there is no intent to oust the applicant, who will be given an equal chance to compete with other candidates. Learned counsel for the respondents further submitted that there cannot be any debate on the proposition that one set of contractual employees cannot be replaced by another set of contractual employees, but this is not the situation in the present case as contracts of applicant has expired and in between, the ECHS notified for filling up of vacancy by walking interview wherein applicant has competed and not succeeded in the walking interview. Article 14 of the Constitution demands that there is an open notification giving equal chance to all those who apply and participate in a selection process and this would enable the ECHS to get the best talent as Female Attendant. Learned counsel for the respondents also submitted that as per Central Organization ECHS letter dated 24th May 2011, the Govt. orders on the subject initially stipulated that the employment will be normally for a period of two years and would be extended up to 3 years or 5 years. For the paramedical and non-medical there was no restriction owning to limited availability of candidates. Respondents out-rightly denied that the applicant is working in the department w.e.f. 2013. She had applied and participated for fresh employment as per Govt. rule for which walking interview was held in Feb. 2017 and in the interview she has not selected, thus, her services was terminated
6.We have gone through the rival submissions advanced by the learned counsel for the parties and also gone through the entire records.
7.In the case of Manish Gupta (supra), the Hon’ble Supreme Court has held that :-
“12.A perusal of the advertisement dated 24 th June, 2016 issued by the Principal, Government Kamla Raja Girls Post Graduate Autonomous College, Gwalior, which is at Annexure P2 of the Appeal Paper Book and the advertisement dated 2 nd July, 2016 issued by the Principal, SMS Government Model Science College, Gwalior, M.P., which is at Annexure P3 of the Appeal Paper Book, would show that the appointments were to be made after the candidates had gone through due selection procedure. Though Shri Nataraj, learned ASG has strenuously urged that the appointments of the appellants were as guest lecturers and not as ad hoc employees, from the nature of the advertisements, it could clearly be seen that the appellants were appointed on ad hoc basis. 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 others1 and on the order of this Court in the case of Hargurpratap Singh vs. State of Punjab and others2.
13.In that view of the matter, we do not find that an error was committed by the learned single judge of the High Court by directing the writ petitioners to continue to work on their 1 (1985) 4 SCC 43 2 (2007) 13 SCC 292 respective posts till regular selections are made. We, however, find that the direction issued by the learned single judge of the High Court that the writ petitioners would be entitled to get the salary in accordance with the UGC circular is not sustainable. The advertisements themselves clearly provided that the selected candidates would be paid the honorarium to be determined by the said Committee”.
8.In the case of Piara Singh (supra), the Supreme Court held as follows:-
“Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority”.
9.In the case of Anil Lamba (supra), the Hon’ble Delhi High Court has observed as under:-
“8.The second prayer of the petitioners is that petitioners should not be replaced by other set of contractual employees, and to which legal position there is no dispute in view of the judgment of the Supreme Court in the case of State of Haryana and Others Vs. Piara Singh and Others (1992) 4 SCC 118, and accordingly this relief prayed by the petitioners is granted that petitioners cannot be replaced by similarly situated employees except of course that in case there are legally valid reasons for not continuing the petitioners in their contractual services such as misconduct or other valid reasons as per law, then the respondent no.3 need not continue contractual services, however, reasons for not continuing the contractual employees will be made known to the petitioners by speaking orders and in case petitioners are not satisfied with the speaking orders then the petitioners can always challenge such orders in accordance with law”.
10.In the case of Kavita PH (supra), CAT, Principal Bench has held as under:-
“5.The issue is thus well settled on the basis of judicial precedent cited above that a set of contractual employees shall not be replaced by another set of contractual employees except if the contractual employees are not working satisfactorily. The reference is thus answered. The judgment in Ruchi Singh (supra) is overruled to this extent. The Original Applications are remitted to the DB for further adjudication."
11.In the case of Dr. Hema Valecha (supra), the CAT Principal Bench has held that:-
“20.Learned counsel for the respondents has argued that law of estoppel applies in the case of petitioners as they themselves appeared in the selection process with regard to the posts advertised in the context of the notified RRs and after participating in the process they cannot claim the relief sought for. However, given higher remuneration and better prospects if some of the applicants have appeared for the newly advertised posts, we do not see anything amiss, more particularly, when they have not questioned the exercise of cadre restructuring but only objected to their replacement. The Hon'ble Supreme Court vide Civil Appeal No.4578-4580/2022 decided on 16.06.2022 in the case of Krishna Rai (Dead) through LRs, vs BHU through Registrar & Ors. held that there cannot be any estoppels in law and no aggrieved person can be deprived from his legal right as per the law of the land.
21.To our mind, since the basic principle in vogue is that the applicants cannot be replaced by another set of contractual employee, which tantamounts to the infringement of legal rights of the applicants, the law of estoppel is not applicable”.
12.From the perusal of record, it is evident that subsequent to the termination of applicant, the respondents are ready to issue fresh notification for engaging new Female Attendant. It is relevant to mention here that several vacancies are lying vacant in the department for which new Female Attendants are required. On the first date of filing of this OA, applicant has got interim order from this Tribunal and on the basis of interim order she is working as Female Attendant.
13.It is an undisputed fact between the parties that the applicant was appointed as Female Attendant on contractual basis in the year 2006 and her contracts was renewed from time to time, without any break. The terms of the contractual engagements were spelt out to the applicant at the time of her engagement, which, inter alia, included consolidated monthly salary payable to them, period of engagement as well as other conditions.
14.Applicant claims that respondents are ready to engage new contractual Female Attendant, therefore, she seeks to appoint her because as per settled law adhoc/contractual employees cannot be replaced by another adhoc/contractual employee. It should be replaced by regular employee only. Thus, in the case of Pyara Singh (supra), Hon’ble Supreme Court has categorically observed that one set of temporary employee should not be replaced by another set of temporary employees unless it is found by the authorities that the persons working of contractual basis person are not working satisfactorily. It was held that if a contractual employee is to be replaced, it should be through a regular recruitment process and not by appointing another person on an contractual basis. 15. Further, in R.K. Trivedi vs. Union of India, (2012) 2 SCC 117, the Supreme Court reiterated that adhoc appointments must be governed by principles of fairness and reasonableness. The Court noted that continuous replacement of adhoc employees with other adhoc employees would amount to unfair labour practices. 16. The Hon’ble High Court of Delhi, in Jagdish Prasad vs. Union of India, 2015 SCC OnLine Del 10428, held that the replacement of an adhoc employee by another adhoc employee is against the principles of natural justice and fair play, and such actions should be avoided unless there are compelling reasons to do so.
17.In light of the aforementioned judgments, it is clear that the replacement of a contractual employee by another contractual employee is not permissible unless it is accompanied by a valid and justifiable reason. The replacement must adhere to the principles of fairness, reasonableness, and administrative necessity. Thus, it is held that the respondents cannot replace the applicant with another set of contractual employee until and unless her services are not satisfactory. In view of observation of Hon’ble Supreme Court, we are of the view that the OA is liable to be disposed of.
18.Accordingly, OA is disposed of with the aforesaid observations. We hereby direct the respondents to give preference to the applicant to engage her on contract basis. No order as to costs. All associated MAs are disposed of.”
Learned counsel for the applicants in addition to the above, has also referred to the judgement in the case of Kendriya Vidyalaya Sangathan and others vs Anil Kumar Singh and others reported as (2003) 10 SCC 284; Hargurpartap Singh vs State of Punjab reported as 2007 (13) SCC 292; Sangeeta Sharma vs Union Territory of Chandigarh reported as 2005 (3) SLR 775; Rajwinder Kaur and others vs State of Punjab etc b CWP No.7882 of 2004 decided on 11.04.2005 by the Division Bench of Punjab and Haryana High Court; Division Bench of Delhi High Court in Narinder Singh Ahuja and others vs The Secretary, Ministry of Health and Family Welfare and others -W.P. (C) 1741/2014- decided on 03.11.2014; Delhi High Court in Abhinav Chaudhary and others vs Delhi Technological University and another -W.P. (C) 3512/2014- decided on 20.01.2015; Rajasthan High Court, in the case of Ambra Bhambio vs State of Rajasthan and others reported as 2014 (10) RCR (Civil) 3018 and the full Bench of the Hon’ble Central Administrative Tribunal (Principal Bench) New Delhi in O.A. No. 484 of 2009 along with O.A. No.1461 of 2009 decided on 25.03.2010. Referring to them, learned counsel for the applicants argued that it has been held repeatedly that a set of contractual employees should not be replaced by another set of contractual employees and should be allowed to continue working unless their work is not satisfactory or until a regular appointment is made on the post concerned.
Learned counsel for the applicant, during the course of argument, submitted that applicant nos. 2, 3, 5 and 7 are not pressing the matter. Thus, the relief is sought by applicant nos. 1, 4 and 6 namely Shiv Gopal, Pushpa Devi and Pinki Singh respectively.
The respondents have contended that the applicants were not engaged on a regular basis and thus they cannot claim to continuously discharge their duties on their respective posts of Guest Faculty. They further argue that the notification in question has not been acted upon and later the engagement process has been conducted centrally through NIMI Chennai which was open for all eligible candidates as per the rules. Thereafter, recruitment has been made of junior consultants for 11 months period.
If we take into account the submissions made by learned counsel for the parties in light of the case laws referred to by learned counsel for the applicants, then, apparently, since the applicants had worked from 2015 till 2019, even if in broken spells, they should not have been disengaged from work on the post of Guest Faculty by contractual engagement until any regular appointment was made on the said post as per the rules. Even in further engagement on contractual basis, the applicants’ position and experience on the post should have been given preference while making the fresh engagement. The new engagement made is also adhoc and only for 11 months. The earlier notification of the year 2019 pursuant to which the applicants had also appeared in the written examination but were not finally selected, has not been acted upon as per the averment made in the supplementary counter reply dated 16.12.2022 filed on behalf of the respondents.
Under these circumstances, as has also been held in the similar facts and circumstances in O.A./498/2019, it is clear that the replacement of a contractual employee by another contractual employee is not permissible unless it is accompanied by a valid and justifiable reason. The replacement must adhere to the principles of fairness, reasonableness, and administrative necessity. Thus, the respondents cannot replace the applicants with another set of contractual employees until and unless their services are not satisfactory.
Accordingly, OA is disposed of with the direction to the respondents to give preference to the applicant nos. 4 and 6 for engagement on contract basis, if any is to be made in the future. As far as case of applicant no.1 is concerned, he would have crossed the age of 60 years, thus, no direction is issued in his respect.
All associated MAs also stand disposed of. No order as to costs.