Rajesh Prakash vs Central Administrative Tribunal, Chandigarh Bench, Chandigarh and Others

M.M. Kumar, J.—By this order we propose to dispose of above mentioned 11 petitions, which have been filed against the common order dated 28th August, 2009, passed by the Central Administrative Tribunal. Chandigarh Bench, Chandigarh (for brevity, ''the Tribunal'') whereby while disposing of the Original Applications filed by the applicant-petitioner(s) the non-applicant-respondent authorities have been directed to hold the selection process in respect of the available vacant posts against which the applicants were initially appointed by allowing them to appear in that process after giving them age relaxation etc. The Tribunal has also declared the promotion of the applicant-petitioner(s) to the higher posts as irregular.

It is pertinent to mention that petitions mentioned at Sr. Nos. 1 to 5 above have been preferred by such persons who approached the Tribunal by filing OAs for setting aside their termination orders. Whereas petitions mentioned at Sr. Nos. 6 to 11 have been filed by the Indian Council of Agricultural Research feeling aggrieved against the directions issued by the Tribunal,--vide the impugned order.

For proper appreciation of the controversy raised in these petitions, it would be appropriate to first notice the factual position in respective cases :

C.W.P. Nos. 15538 of 2009 and 2787-CAT of 2010

In pursuance of an advertisement dated 17th/23rd July, 1993, Shri Rajesh Prakash (petitioner in C WP No. 15538 of 2009) was appointed as T-4 (Instrument Mechanic) on 20th June, 1994, against a post created under an ad hoc project of Bio-Technology of Embryo Transfer in Buffaloes at CIRB, Hisar. He was posted at ORB Sub Campus. Nabha. Since the said project was up to 30th September, 1997, therefore, his service were terminated,--vide order dated 30th September, 1997 (A-5). On 21st November, 1997, another order was issued by the respondent extending the period of the project up to 31st March, 1998. Accordingly, the applicant-petitioner was reinstated and his period of absence was ordered to be treated as leave of the kind due. On 10th February, 1998, he again joined his duties. On 20th February, 1998, he was adjusted against the vacant post of T-4. which was vacated by one Shri V.P.S. Poonia. It was stipulated in the order that in the event of reversion of Shri Poonia to his parent post, the services of the petitioner would be liable to be terminated without any notice (A-7). He continued to work against the said regular post though the project stood over. ON 31st March, 2001, another order was passed permanently adjusting him against the post of T-4 (Computer Programmer) with immediate effect (A-8). However, after completion of 12 years of service, a show cause notice was issued to him on 14th July, 2006 requiring him to show cause as to why his services be not terminated because it was found that his adjustment was done erroneously, inasmuch as, the prescribed Recruitment Rules were not followed for recruitment to T-4 grade post. After considering the reply filed by him, his services were terminated,-- vide order dated 17th July, 2007 (A-1). Challenging the order dated 17th July, 2007. Shri Rajesh Prakash-petitioner filed O.A. No. 470-HR-2007 before the Tribunal.

C.W.P. Nos. 15699 of 2009 and 2784-CAT of 2010

Dr. Ashwani Kumar Saini (petitioner in CWP No. 15699 of 2009) was appointed to the post of T-4 (Technician) as a result of his selection in pursuance of Advertisement No. CIRB/1/95 under the DBT-ETT Project with effect from 27th June, 1995 (P-2). The said project was for a period of five years i.e. up to 30th October, 1997, On 20th March, 1995, a decision was taken by the Indian Council of Agricultural Research for absorption of various positions created for DBT funded projects. It was considered necessary that the Scientists/Technicians recruited for the DBT Projects are appropriately absorbed after the project period is over (P-3). On 17th July, 1997 and 17th September, 1997, again a plan was proposed for adjustment of the staff (P-4 & P-5). The petitioner was adjusted/absorbed against the regular post of Scientist in the T-4 Grade,-- vide order dated 20th February, 1998 (P-6). On 31st March, 2001, another order was passed adjusting him against the post of T-7 (Veterinary Officer) instead of Scientist with immediate effect (P-8). In the year 2000, he was absorbed against a regular sanctioned post in T-4 Grade. Thereafter, he was promoted to the next higher grade as T-5 (Laboratory Technician) in the pay scale of Rs. 6500--10500 with effect from 1st July, 2000,-- vide order dated 7th May, 2002 (P-9). On 14th July, 2006, a show cause notice was issued to him as to why his appointment to the post of T-4 Grade with effect from 1st April, 1998 be not cancelled. After considering the reply-filed by him, his services were terminated,--vide order dated 17th July, 2007 (P-15). Challenging the order dated 17th July, 2007. Dr. Ashwani Kumar Saini-petitioner filed O.A. No. 478-HR-2007 before the Tribunal.

C.W.R. Nos. 15832 of 2009 and 2786-CAT of 2010

Shri Balraj (petitioner in CWP No. 15832 of 2009) was initially-appointed as daily paid labourer in the CIRB. Hisar in May, 1987 and worked as such till 1993. On 3rd February, 1993, a temporary post of Supporting Staff Grade-I under a project on Embryo Transfer Technology sponsored by the Department of Bio-technology. Ministry of Science and Technology at Central Institute for Research on Buffaloes. Hisar was offered to him (A-2). The said project was to last upto September, 1997, On 12th September. 1997, he was adjusted against the vacant post of Supporting Staff Grade-I at the main campus (A-3). Since the DBT Project was extended upto 31st March, 1998, accordingly, Shri Balraj and other employees were transferred back under DBT Project.--vide order dated 21st November, 1997 (A-4). On 30th March, 1998, he was again adjusted against the vacant posts of Supporting Staff Grade I. On 6th July, 1999, an order was passed appointing various officials in substantive capacity with effect from the dates mentioned against their names. The name of Shri Balraj appeared at Sr. No. 7 and the date of his confirmation as Supporting Staff Grade I has been mentioned as 3rd February, 1995 (A-6). On 31st December, 2003, CIRB issued a provisional seniority list of Supporting Staff Grade I wherein the name of Shri Balraj has been mentioned at Sr. No. 2 and his date of initial appointment has been shown as 3rd February, 1993 (A-7). On 25th May, 2004, on the basis of the DPC, he was promoted to the post of Supporting Staff Grade-II (A-8). However, on 2nd August, 2006, a show cause notice was issued to him alleging that his initial adjustment as Supporting Staff Grade-I was erroneous. He challenged the show cause notice before the Tribunal by way of OA No. 505/HR/2006, which was disposed on 10th May, 2007, granting liberty to file reply to the show cause notice in form of representation. The respondents were directed to consider the representation and to pass a speaking order. It was further directed that in case of adverse decision, the same was not to be implemented for a period of 15 days. Eventually, the services of the petitioner were terminated,--vide order dated 17th July, 2007. Challenging the order dated 17th July, 2007, Shri Balraj -petitioner filed O.A. No. 468-HR-2007 before the Tribunal.

C.W.P. Nos. 15842 of 2009 and 2786-CAT of 2010

Shri Raj Kumar (petitioner in CWP No. 15842 of 2009) was initially appointed as daily paid labourer in the CIRB, Hisar, in May 1987 and worked as such till 1993. On 14th January, 1993, a temporary post of Supporting Stall Grade-I under a project on Embryo Transfer Technology sponsored by the Department of Bio-technology, Ministry of Science and Technology at Central Institute for Research on Buffaloes, Hisar, was offered to him (A-2). The said project was to last up to September 1997, On 12th September, 1997, he was adjusted against the vacant post of SS Grade-I at the main campus (A-3). Since the DBT Project was extended up to 31st March, 1998, accordingly, Shri Raj Kumar and other employees were transferred back under DBT Project,--vide order dated 21st November, 1997 (A-4). On 30th March, 1998, he was again adjusted against the vacant posts of SSG-I. On 6th July, 1999, an order was passed appointing various officials in substantive capacity with effect from the dates mentioned against their names. The name of Shri Raj Kumar appeared at Sr. No. 6 and the date of his confirmation as Supporting Staff Grade I has been mentioned as 14th January, 1995 (A-6). On 31st December, 2003, CIRB issued a provisional seniority list of Supporting Staff Grade 1 wherein the name of Shri Raj Kumar has been mentioned at Sr. No. 1 and his date of initial appointment has been shown as 14th January, 1993 (A-7). On 25th May, 2004, on the basis of the DPC. he was promoted to the post of Supporting Staff Grade-II (A-8). However, on 2nd August, 2006, a show cause notice was issued ageing that his initial adjustment as Supporting Staff Grade-I was erroneous. He challenged the show cause notice before the Tribunal by way of OA No. 506/HR/2006, which was disposed on 10th May, 2007, granting him liberty to file reply to the show cause notice in form of representation. The respondents were directed to consider the representation and to pass a speaking order. It was further directed that in case of adverse decision, the same was not to be implemented for a period of 15 days. Eventually, the services of the petitioner were terminated.- -vide order dated 17th July, 2007. Challenging the order dated 17th July, 2007. Shri Raj Kumar-petitioner filed O.A. No. 467-HR-2007 before the Tribunal.

C.W.P. Nos. 18489 of 2009 and 2782-CAT of 2010

Shri V.P.S. Punia(petitioner in CWP No. 18489 of 2009) has claimed that as a result of an all India Open Advertisement for the post of T-4 (Computer Programmer) he was appointed as such and joined the Central Institute for Research on Buffaloes CIRB, Hisar on 13th October, 1989. It has further been asserted that after successful completion of probation period he was confirmed with effect from 13th October, 1991. In the year 1993, an advertisement bearing No. 1/1993 was issued advertising various posts including the post of T-6 (Computer Programmer) [P-1/A-2]. However, in the meanwhile he was appointed as 1-6 (Computer Programmer) on ad hoc basis,--vide order dated 11th February, 1993. He was also selected in response to the aforementioned advertisement through open selection and a temporary post of T-6 Computer Programmer was offered to him.--vide order dated 20th January, 1994 (P-1 A-3). The said post pertains to a project on Embryo Transfer Technology sponsored by the Department of Bio Technology, Ministry of Science and Technology. Government of India for a period of 5 years. The petitioner joined the said post on 21st January, 1994. The term of the said project expired on 20th February, 1997, Accordingly,--vide order dated 30th September, 1997, the petitioner was reverted from the post of T-6 Computer Programmer to his parent post of T-4 Computer Programmer (P-1/A-5). On 21st November, 1997, another order was issued by the respondents extending the period of the project up to 31st March, 1998. Accordingly, the petitioner was reinstated as T-6 under DBT project on the same terms and conditions as were contained in the order dated 11th February, 1993 (P-1 /A-6). On 2nd February, 1998, he was again adjusted against the vacant post of Scientists (Computer Application) till the said post was to be regularly filled up (P-1/A7). On 7th June, 1999, the petitioner made a representation for his adjustment against a post of T-6 (Statistical Officer) which was lying vacant at CIRB Hisar since January, 1999 (P-1/A-8). However, respondent No. 2.--vide letter dated 26th August, 1999 called for the explanation with regard to the adjustment of the petitioner after the expiry of the project (P-1/A-9). However, the petitioner was adjusted as ''1-6 (Statistical Officer) vide order dated 31st March, 2001 (P-1/A-10).

Again, vide order dated January. 2004 the services of the petitioner were ordered to be terminated (P-1/A-11). He represented against the said order (P-1/A-12). Thereafter, a show cause notice dated 14th July, 2006 was issued to him as to why he may not be reverted as his adjustment has been found to erroneous and the competent authority has decided to cancel the same. Challenging the show cause notice, the petitioner approached the Tribunal by filing OA No. 597-11R-2006. The said OA along with others was disposed of.-- vide order dated 10th May, 2007 with direction to the applicants to file a detailed reply to show cause notice which was to be disposed of by the respondents and in case of adverse order, the applicants could approach the Tribunal. The petitioner submitted a detailed reply, which was rejected,--vide order dated 17th July, 2007, reverting the petitioner from the post of T-6 to ''1-4. Challenging the order dated 17th July, 2007. Shri V.P.S. Punia-petitioner has filed O.A. No. 465-HR-2007 before the Tribunal.

CWP No. 2785-CAT of 2010

Shri Gopal Dutt Tiwari-respondent No. 1 was appointed as daily paid labourer on 9th January, 1989 and continued to work as such till 2nd February, 1993. On 3rd February, 1993, he was appointed as Supporting Staff Grade-I (Cook-cum-Khansama) against a temporary post under a project, namely. ''NARP'' (A-1/1). Though the said project expired on 30th June, 1993, he was adjusted against the post of a Messenger on regular basis.--vide order dated 16th August, 1993 with effect from 1st July, 1993 (A-2). On 28th February, 1997, the designation of respondent No. 1 was changed to Lab Attendant (A-4). On 6th July, 1999, an order was passed appointing various officials in substantive capacity with effect from the dates mentioned against their names. The name of the Shri Gopal Dull Tiwari-respondent No. 1 appeared at Sr. No. 8 and the date of his confirmation as Supporting Staff Grade I has been mentioned as 3rd February, 1995 (A-6). On 25th May, 2004, on the basis of the DPC. he was promoted to the post of Supporting Staff Grade-II (A-5). However, on 2nd August, 2006, a show cause notice was issued to the effect that his initial adjustment as Supporting Staff Grade-I was erroneous. He filed reply to the show cause notice, which did not find favour with the authorities and eventually his services were terminated.--vide order dated 22nd September, 2007. Shri Gopal Datt Tiwari-respondent No. 1 filed O.A. No. 634-HR-2007 before the Tribunal.

The respondent authorities while justifying the termination/ reversion orders asserted before the Tribunal that the applicants were appointed against a project with a clear stipulation that upon expiry of the project against which they were appointed, their services would be terminated. However the then Director. ORB, Hisar without having any authority to appoint the applicants against regular posts, committed an irregularity by offering them regular posts without affording opportunity to all those who were eligible in terms of the rules. When this irregularity surfaced, after following due procedure i.e. after issuing of show cause notice and considering the reply furnished by the applicants, their services have been terminated or some of them have been reverted to their substantive posts.

The Tribunal clubbed together all the OAs. While disposing of the OAs filed by the applicant-petitioners.--vide order dated 28th August, 2009, the Tribunal in para 27 has noticed that similar issues were raised in OA Nos. 75 and 76 of 2008 Bhanwar Lal Bose versus Secretary. ICAR and others before the Jodhpur Bench of the Tribunal, which were decided on 15th April, 2008. In that case the issue was whether the employees appointed against a project could be adjusted against regular posts on completion of the project. In the said case the Jodhpur Bench of the Tribunal has held that the respondent miserably failed to justify their belated action to terminate the services of the applicants after a decade. It was also observed that there was no concealment of fact or misrepresentation on the part of the applicants. The aforementioned decision of the Jodhpur Bench of the Tribunal was challenged firstly before the High Court of Rajasthan, Jodhpur, in CWP No. 3202 of 2008 (Secretary, ICAR. New Delhi and other versus Amit Kumar Singh and another and CWP No. 3213 of 2008 Secretary. ICAR. New Delhi and others versus Bhanwar Lai Bose and another. The High Court of Rajasthan upheld the order passed by the Jodhpur Bench of the Tribunal and dismissed the writ petitions on 21st October, 2008. The matter then traveled to Hon''ble the Supreme Court in SLP No. 1227 of 2009 Secretary. Indian Council of Agricultural Research and others versus Amir Kumar Singh and another, which was also dismissed. However, the Tribunal in the present cases has not adopted the same reasoning in view of the law laid down by Hon''ble the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , wherein it has been held that back door entrants or irregular appointees have no right to hold a post. The Tribunal has come to the conclusion that though the applicant-petitioners had been selected and appointed against posts in the respective projects by competing in open selection but their adjustment and appointment against regular posts was irregular and the same has been done without following proper selection process. Keeping this aspect in view, the Tribunal has directed the respondent authorities to hold the selection process for the applicant-petitioners for available vacant posts for which they were initially appointed through proper selection process as per rules, by allowing them to appear in that process after giving them age relaxation etc. and those who may make the grade in the final selection be allowed to continue. It has further been directed that the applicant-petitioners may be allowed to continue in their respective posts for which they are qualified and were appointed in the project through proper selection process upto six months or till selection process upto six months or till selection process is over, whichever is earlier. Until then their promotion to the higher post would be treated irregular.

I laving heard learned counsel for the parties and perusing the paper books with their able assistance we find that there is merit in the petitions which have been filed by the applicant-petitioners. From a bare perusal of the impugned order dated 28th August, 2009, it is clear that the Tribunal has primarily placed reliance on the judgment of Hon''ble the Supreme Court in Umadevi''s case (supra). However, we find that the Tribunal has not correctly applied the judgment rendered in Umadevi''s case (supra). No doubt it is true that in Umadevi''s case (supra) their Lordships" of Hon''ble the Supreme Court has held that those appointed irregularly and not in terms of the prescribed procedure in accordance with the relevant Rules and Regulations consistent with the requirement of Articles 14 and 16 of the Constitution, have no legal right to be made permanent. It has also been held that having accepted the employment at their own volition and with eyes wide open as to the nature of their employment they cannot be permitted to import theories which defeat the basic requirements of public employment and constitutional goal of equality. However, the judgment does not permit re-opening of order of regularisation already made. It is discernible from the perusal of following excerpts:

53...In the context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover or orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from the date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

(Emphasis added)

It is conceded position on record that the applicant-petitioners were initially appointed against the posts which were co-terminus with the projects by following the proper procedure i.e. by advertising those posts. On completion of the term of the projects they were duly adjusted against the vacant posts and also got their promotion to the next posts. Their orders of regularisation were passed much earlier to the judgment of the Constitution Bench in Umadevi''s case (supra). In the case of Shri Rajesh Parkash the order of regularisation was first passed on 20th February, 1998 and another was passed on 31st March, 2001 by permanently adjusting him against the post of T-4 (Computer Programmer). The case was sought to be re-opened much later by issuing a show cause notice on 14th July, 2006, which is obviously inspired by the judgment in Umadevi''s case (supra) rendered on 10th April, 2006. The facts are similar in the cases of Dr. Ashwani Kumar Saini(CWP No. 15699 of 2009). Shri Balraj (CWP No. 15832 of 2009). Shri Raj Kumar (CWP No. 15842 of 2009). Shri V.P.S. Punia (CWP No. 18489 of 2009). Shri Gopal Dutt Tiwari (CWP No. 2785-CAT of 2010). On these facts it is not open to ICAR to withdraw the order of regularisation. The principle of Umadevi''s case (supra) is not attracted because by way of their appintment against the regular posts their services have been regularised much earlier and they are working continuously for the last more than 10 years. Therefore, by virtue of the above exception, the judgment rendered in Umadevi''s case (supra) is not applicable in the present set of petitions.

In any case, Sarvshi Rajesh Prakash. Dr. Ashwani Kumar Saini and V.P.S. Punia were appointed after considering competing claim by issuing advertisement. The candidature of all candidates considered and they were subjected to selection process which was consistent with Articles 14 and 16(1) of the Constitution. Therefore, these persons satisfy the requirements laid down in paras 59 to 65 of the judgment of their Lordships" of Hon''ble the Supreme Court rendered in the case of State of Bihar Vs. Upendra Narayan Singh and Others, .

As a sequel to the above discussion, impugned common order dated 28th August, 2009 passed by the Tribunal as well as the impugned termination/reversion orders passed by the respondent authorities in respective cases are hereby set aside. Accordingly, the writ petitions filed by the applicant-petitioners, namely. CWP Nos. 15538, 15832, 15842, 15699 and 18489 of 2009, are allowed and the other set of petitions filed by the Indian Council of Agricultural Research, namely, CWP Nos. 2782 to 2787 of 2010, are dismissed being devoid of merit.

The office is directed to place a copy of this order on the file of each petition.