ORDER (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J):
The facts and issues in the captioned OAs are stated to be common, the grounds urged on behalf of the parties are also common and the reliefs sought by the applicants are similar. However, in OA No.3257/2024, the applicants participated in the selection process initiated by the respondents vide Advertisement No.2/23 dated 31.07.2023 and in view of the order passed by the Hon'ble High Court of Delhi, the benefit in terms of age relaxation was extended to the applicants in OA No.3257/2024. In the background of such an admitted position and with the consent of the learned counsel for the parties, the captioned OAs are being heard and decided together by the present common order.
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However, for the sake of convenience, OA No. 1789/2020 has been taken as a lead case and facts are being taken from the pleadings therein.
2. Brief facts as explained by the learned counsel for the applicants are that the respondents issued a notification dated 23.01.2007 (placed at Page 21 of OA), inviting applications from eligible candidates for the post of Paramedical/Nursing Staff on contract basis. In pursuance of the same, the applicants have applied and after going through an interview, they were placed with the service of the respondents on contractual basis and they have continued on the same post till date. In the year 2020, in the wake of Covid-19, the respondents passed an order dated 20.08.2020 whereby existing contractual employees i.e Paramedical/Nursing staff were allowed to continue till 31.12.2020 by delinking such engagement with the regular number of vacancies, this was reiterated on 03.09.2020 by the respondents. However, the remuneration of the applicants was adjusted from "wages" head up to 31.12.2020. Aggrieved by the said order, the applicants approached this Tribunal by way of filing the instant Original Application seeking following reliefs:-
"i) to quash the Letter of this engagement dated 20.08.2020 and 08.09.2020 wef 31.12.2020
ii) to direct the respondent to regularize the applicant with consequential benefits in view of judgement of Uma Devi reported in SCC(1) 2006 18 order 06.11.2023 in CWP6798 of 2002 attended finally by withdrawal of SLP."
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3. While issuing notice to the respondents on 17.11.2020, this Tribunal extended interim protection to the applicants. The same is reproduced as under:-
"We direct that the interim orders passed in the OAs shall be modified to the effect that in case there exists any work for the applicants, the respondents shall continue them subject to the same terms. However, they shall not be replaced by another set of contractual employees. Under no circumstances, the pendency of the OAs shall be a factor to deny appointment to the persons who are already selected by the Selecting Agency. It shall also be open to the applicants to avail the benefit of policy framed by the Government of Delhi on 11.10.2020."
4. Learned counsel for the applicants, in support of the cause of the applicants, argues that the respondents issued an advertisement, which was in public domain and in pursuance to the advertisement, the applicants applied, after going through scrutiny and filtration by way of a walk-in interview. The respondents after assessing their ability, suitability and educational qualification, appointed them on contractual basis against the sanction posts. The fact that the applicants have been allowed to continue from the date of their respective dates of appointment establishes that the job requirement in the hospital is of perennial nature. He draws strength from the decisions of the Hon'ble Supreme Court and Hon'ble High Court of Delhi in the following matters:-
(i) Sonia Gandhi & Ors. Vs. Govt. of NCT of Delhi & Ors. in WP (C) No. 6798/2002 decided on 06.11.2013. Paras 16, 17 & 22 of the said judgment read as under:-
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"16. We take note of the decision dated May 22, 2009 in W.P.(C) No.8476/2009 as also the decision dated March 20, 2013 in W.P.(C) No.4641/2012 and direct that not only the writ petitioners in the above two writ petitions but additionally all contract appointed employees shall be paid wages by the Government of NCT of Delhi as per the decision of the Division Bench of this Court in W.P.(C) No.8476/2009 and shall be entitled to leave of all kind including maternity and sick leave in terms of the decision in W.P.(C) No.4641/2012.
17. On the subject of regularization the undisputed position which emerges is that over the last two decades i.e. 20 years the Government of NCT of Delhi has not assessed the man power requirement in its various departments and offices resulting in large scale contract appointment being resorted to. xxxx xxxx xxxx
22. Accordingly, we issue another direction and simultaneously dispose of the two writ petitions. The direction would be that the Government of NCT Delhi would carry out a manpower requirement assessment in all its departments keeping in view the fact that the population in Delhi has crossed 1.7 crore persons. Such number of posts shall be sanctioned as are necessary to provide services to the citizens of Delhi. A one time policy of regularization shall be framed and existing rules pertaining to service in different departments shall be amended. Existing contractual employees shall be considered for appointment to these new posts as per a policy framed."
(ii) K. Ragupathi Vs. The State of Uttar Pradesh and Ors. in Civil Appeal No. 3913 of 2022 decided on 12.05.2022. Para 11 of the said decision is reproduced herein below:-
"11. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short "APAR") of the appellant during the period 201213 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely
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reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good."
(iii) Raman Kumar & Ors. Vs. UOI & Ors. in Civil Appeal No. 7898/2020 decided on 03.07.2023. Para 13 of the said judgment read as under:-
"13. The services of the appellants are directed to be regularized from the date on which the services of other 35 employees were regularized and the backwages and other consequential benefits etc., to which the appellants would be entitled to, shall be paid to them within a period of six months from today."
(iv) Vikram Kumar & Ors. etc. Vs. UOI & Ors. in Civil Appeal Nos. 5153-54 of 2024 decided on 30.01.2024. Para 7 is as under:-
7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise 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 of orders of the courts or of tribunals and should further ensure that regular recruitments are
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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 this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
5. Learned Counsel for the respondents has placed on record the Recruitment Rules with respect to different cadre of Paramedical/Nursing Staff existing with the respondents, amended rules issued from time to time for various para medical staff, that may include Lab Assistant (Gr.IV), Assistant (OT/CSSD), Technician (OT/CSSD), Audiometric Assistant, Technical Assistant (OT/CSSD), Assistant Security Office, Refractionist, Occupational Therapist, Radiographer, Speech Therapist, Assistant Dietician, Physiotherapist. She confirms that in pursuance to the Recruitment Rules the respondents have sent requisition to DSSSB to notify the vacancies vide Advertisement No. 02/23 on 31.07.2023, wherein the posts have been advertised and numbered from Serial No. 15 to 26.
6. In rejoinder, learned counsel for the applicants submit that recruitment rules placed on record by learned counsel for the respondents have not been notified so far. Therefore, he submits that recruitment rules placed on record by the respondents are rather, incorrect or not in existence. He strengthened his submission from the different proceedings before Delhi High Court in WP(C ) No. 1629/2010 in the matter of Lalit
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Kumar Vimal Vs. Secretary (Health) & Ors. and batch decided on 29.11.2010. Para 39 of the said Order dated 29.11.2010 reads as under-
"39. Before concluding we must express our anguish at the fact that the Government of NCT Delhi and its Department concerned i.e. the Board of Technical Education have not been discharging their Constitutional obligations evidenced by the fact that knowing fully well that Paramedical Education is not the subject matter of any legislation, they have neither legislated nor have framed any norms for recognizing institutions awarding diplomas in Paramedical Education."
7. Heard the learned counsel for the parties.
8. The issue in these OAs is that the applicants who were appointed on contractual basis seek regularization along with the consequential benefits. In order to decide the present Original Applications, we may revert back to the advertisement dated 23.01.2007 placed at page 21. From the advertisement, it is clear that the respondents had invited applications from eligible candidates for Paramedical/Nursing Staff purely on contract basis for a period of 11 months on consolidated monthly remuneration. The same is reproduce herein below:-
"Notice for Walk IN Interview
Application from eligible candidates are invited for engagement of the following Paramedical/Nursing Staff purely on contract basis for a period of 11 months on consolidated monthly remuneration (inclusive of all allowances). Interviews will be held in the Conference Room. Office of the Medical Superintendent, Dr. Hedgewar Arogya Sansthan, Karkardooma, Delhi-32. The appointment is purely on contract basis initially for a period of 11 months OR till regular candidate joins the post, whichever is earlier. The candidates can register their names with the office of the MS, as per the specimen application from given in along with the advertisement, for interview from 24-01-08 to 31-01-08 between
02.00 p.m. to 4.00 p.m. No application will be entertained after scheduled time and date. The name of posts, qualification required,
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remuneration (consolidated) and dates of interviews are given as under:-
xxx xxx xxx xxx"
9. To elaborate, the appointment was on contractual basis on a consolidated salary, on the basis of the Walk- in- Interview. The Recruitment Rules placed on record confirm that they were notified in the year 1959 and subsequently amended in 1984, in some of the cases in 1998 and they were in place at the relevant point in time , when the advertisement was issued on 23.01.2007. In the exigency of service, the Applicants were appointed on contractual basis and have been continued, since then, particularly in view of interim protection extended by this Tribunal. Evidently, it is clear from the Advertisement itself that the Applicants were not appointed against any substantive posts. The same is further confirmed by the subsequent Order of Hon'ble Lt. Governor on 20.08.2020 and reiterated on 03.09.2020. Therefore, the Applicants cannot be stated to be appointed against any regular vacancies.
10. With respect to the submissions of the learned counsel for the applicants that the Applicants were filtered and selected after the selection process initiated by the respondents against the regular vacancies and discharging their duties since the inception, the contentions, according to us, are misplaced, to clarify, that they never participated against the regular process prescribed under the recruitment rules and neither were
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they appointed against the regular posts. However, they have continued for a fairly long time. Precisely, for the reason that the Applicants have continued for a long period, they have been extended one time age relaxation in terms of order dated 11.10.2020 passed by the respondents, in compliance of the decision of the Hon'ble High Court of Delhi in matter of Sonia Gandhi & Ors. Vs. GNCTD & Ors. The Applicants were extended the relaxation and allowed to participate in the regular selection process. However, the Applicants have chosen not to respond to the advertisement. The judgment relied upon by the learned counsel for the applicants i.e. Sonia Gandhi & Ors. (Supra) clearly mentions that the respondents were directed to take a policy decision with respect to regularization of the contractual employees. The respondents have taken decision and passed orders on 11.10.2020 as explained above and the Applicants have been extended the benefits of the said decision, this decision has not been challenged in the instant O.A.
11. With respect to decision in the matter of K. Ragupathi Vs. The State of Uttar Pradesh and Ors. in Civil Appeal No. 3913/2022 of Hon'ble Apex Court as relied upon by the learned counsel for the applicants, in the said judgment of the Hon'ble Apex Court, the Applicants though were appointed on contractual basis, however, they went through a selection process which was almost like a regular process which is not existed in the present case. Therefore the said judgment may not come to the rescue of the Applicants. The judgement in Raman
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Kumar & Ors. Vs. UOI & Ors. in Civil Appeal No. 7898/2020 of the Hon'ble Supreme Court may also not come to the rescue of the Applicants, as the facts in the said matter were completely different from the present Original Application, as in the facts before the Apex Court, there were two sets of the applicants before the Hon'ble Apex Court wherein one set of the applicants were extended certain benefits and second set though were denied, therefore the Honorable Supreme Court extended the relief for the reasons of parity, which is also not the same situation as in the present case. In the judgment of Vikram Kumar & Ors. etc Vs. UOI & Ors in Civil Appeal No. 5153-54 of 2024 of the Hon'ble Supreme Court, it has reiterated the decision in the matter of
Uma Devi, wherein certain directions have been issued by the Hon'ble Supreme court with respect to "irregular" and "illegal" appointments. In the present case, the Applicants have not participated in the due process.
12. The submission of the learned counsel for the applicants that the recruitment rules have not been notified is not accepted, in light of the fact that the notified RR are placed on record. Relying upon recruitment rules, the respondents have sent a requisition to DSSB to notify the vacancies on 31.07.2023. The said advertisement also clearly mentions in para 4 that the respondents have extended the relaxation to all the contractual employees working with the Department of Health & Family Welfare which was also extended to the Applicants. However, the Applicants have chosen not to participate in the selection process.
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Moreover, with respect to the submission of the learned counsel for the applicants that the Hon'ble Lt. Governor has sought amendment in the RRs, it is clear that Recruitment Rules that have been notified by the respondents in respect to post 1959 amended in 1988 &1998 and are sought to be revised and amended by the respondents, however, this amendment has not been placed so far. Therefore, the present Recruitment Rules are in force.
13. The submission of the Applicants in the OA that the Applicants have been placed incorrectly under the "Wages Head", it will be worthwhile to mention the Order dated 03.09.2020 whereby the Applicants' services have been adjusted from the Wages Head. From the said order, it is clear that in view of exceptional circumstances that prevailed due to Covid-19, the Applicants' service continued with the respondents and therefore, the respondents were persuaded to accommodate the Applicants and continued.
14. For the reasons detailed hereinabove, the instant OAs are dismissed.
15. Pending MAs, if any, shall stand disposed of. No costs.
(Chhabilendra Roul) (Pratima K. Gupta) Member (A) Member (J)
/pinky