Harvinder Oberoi, Member (J)
1. The present OA is filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned advertisement/order dt. 11.5.2020 (Annex. A/1), declaring to the effect that the same is totally illegal, arbitrary and against the law of the land and consequently, pass an order directing the respondents to allow the applicant to work in the department to the post of Refractionist till work is available as per his appointment order and the service of the applicant may not be replaced by another fresh contract employee.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
2. The brief and relevant facts of the matter are that vide circular dated 17.11.2011, the respondent no. 2 advertised one post of Refractionist in the Department of Ophthalmology in Northern Railway, Central Hospital, New Delhi on contractual basis, initially for a period of one year. The applicant applied for the same and was consequently appointed as Refractionist in the Northern Railway, Central Hospital for a period of one year vide appointment order dated 28.12.2011. The term of the appointment of the applicant was thereafter extended on contractual basis by the respondents from time to time. Thereafter, vide advertisement dated 11.05.2020, the respondent no. 2 issued a fresh advertisement, for appointment to one post of Refractionist on contractual basis for Northern Railways Central Hospital, New Delhi. On 10.06.2020, the competent authority i.e. the Central Hospital again recommended further extension of the engagement of the services of the applicant for three months, for which the competent authority accorded the approval vide order dated 29.06.2020. It is alleged that the applicant was not aware of the advertisement dated 11.05.2020 as the same was not circulated to the Central Hospital and due to this reason, the Hospital extended the term of engagement of the applicant on 10.06.2020.
3. Per contra, the respondents have filed Affidavit in reply dated 15.09.2020 wherein they have stated that the post of Refractionist cannot be filled on regular basis as neither there is a regular post of Refractionist in NRCH, nor are there any Recruitment Rules for the same. It is further submitted that earlier also on 18.02.2019, another fresh advertisement was issued but due to non-receipt of any application, the applicant's engagement was extended. Thereafter, owing to the outbreak of Covid-19, the recruitment process could not be finalized and engagement of applicant's services was again extended till 30.09.2020. It is also submitted that the advertisement dated 11.05.2020 was widely published and a copy of the same was also marked for the Northern Railway Central Hospital. To support this contention, the respondents have placed on record a copy of the dispatch stamp(Annex R-VI). It is further submitted that 44 applications were received for the said post in pursuance to the advertisement dated 11.05.2020
4. The applicant has filed rejoinder in which he has made the same averments as made in the OA. The applicant has placed heavy reliance on the decision of the Division Bench of this Tribunal in OA No. 698/2020.
5. Heard learned counsel for both the parties at length.
6. Learned counsel for the applicant has argued that applicant joined the post on 28.12.2011 on contract basis. Thereafter, he was continued to be engaged, on the same terms and conditions. He submits that the impugned action of the respondents in issuing fresh advertisement for recruitment to the said post on contractual basis is illegal and bound to be set aside by the tribunal. He relies upon the law laid down by the Apex court in the case of Central Welfare Board and others vs. Anjali Bepari and others, reported in : 1996 (5) SLR 195 [LQ/SC/1996/1189] , relevant para is quoted below:
"3. Calling this order in question, this SLP has been filed. It is not in dispute that the project is being wound up in a phased manner and the services of the employees are being dispensed accordingly. It is stated by the learned counsel for the petitioners that no junior to the respondent was allowed to continue in the said project. It is stated that there are other projects being operated similarly, but the persons engaged therein also are continuing on temporary basis and are senior to the respondent. Therefore, she cannot be regularized in any other scheme. In view of the above stand, we direct the petitioners to continue the respondent in any other temporary scheme but keeping in mind the overall seniority of all the persons; the dispensing with the services should be on last-come-first-go basis, i.e., the juniormost incumbent has to go out first. As and when vacancies would arise, such persons whose services have been dispensed with will be taken back without following the practice of requisitioning the names of candidates from the employment exchange. They would be regularized only when regular posts are available and in accordance with the order of seniority."
7. In Inder Pal Yadav and others etc. Vs. Union of India and others etc., reported in 1985 SCR (3) 837 the Hon'ble Apex Court has ruled as under:-
"To avoid violation of Art. 14, the scientific and equitable way if implementing the scheme is for the Railway administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Sec. 25G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly."
8. In the case of Ms. Shikha Jain and others vs. Union of India and another in OA No. 2149/2016, the coordinate Bench of this Tribunal has considered the Order/Judgment dated 3.11.2014 in Narinder Singh Ahuja and others vs. The Secretary, Ministry of Health and Family Welfare and others in Writ Petition (Civil) No. 1741/2014 of the Hon'ble High Court of Delhi, para 6 thereof read as under:-
"6. The applicants in the present OA prayed for continuation of their contracts, and also for directions for regularization of their services against regular posts. The learned counsel for the applicants in support of his contention that the applicants' services cannot be replaced by another set of contractual employees, even in the guise of out-sourcing, placed reliance on a decision of the Hon'ble High Court of Delhi in WP(c) No. 1741/2014 dated 03.11.2014(Annexure A4). The relevant paragraphs of the said decision, read as under:
"15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the petitioners' engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to "outsource" engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners' contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the "outsourced" or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners' employment is not their replacement with regular appointees, but instead, with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended.
16. For the above reasons, this court is of opinion that the CAT erred in law, in holding that the petitioners could not complain against the discontinuance of their contractual employment. Accordingly, a direction is issued to the respondents to continue the petitioners in contractual employment on annual renewal basis, till the currency of the RNTCP scheme/project in 2017. An appropriate consequential order shall be issued by the respondents within eight weeks from today.
17. The impugned order of the CAT is accordingly set aside; the writ petition is allowed in terms of the above directions."
9. Admittedly, it is not the case of the respondents that there is no work available. On the other hand, it is specifically stated that they have issued advertisement to hire staff on contractual basis. That means that the respondents are intending to replace the applicant, who has been working on contract basis, for the last few years, with another set of contract employee. The said action of replacing one set of contract employees with another set of contract employees is clearly against to the settled principles of law. Even the aforesaid decision of the Hon'ble High Court is to the same effect.
10. From the Orders/Judgments referred to and relied upon by the learned counsel for the applicant precisely noted hereinabove, it is evident that in the matter of casual/contractual/daily wage employees, such employees are required to be continued till the posts against which they have been engaged are filled up by way of regular selection and till the such work against which they have been engaged exists. They are further not required to be replaced by another set of casual/contractual/daily wage employees and if at all because of requirement of such employees is found reduced, the principle of 'last-come-first-go', i.e., junior-most incumbent has to go first, is to be resorted to. Of course, the employer is within its jurisdiction to see the suitability as well.
11. Considering the submissions as well as the decision of the aforesaid OA and the various judgments/decisions referred therein, it is crystal clear that the respondents were wrong in issuing the advertisement dated 11.05.2022 as the same clearly amounts to replacing one contractual employee i.e. the applicant with the other. Accordingly, the advertisement dated 11.05.2022 is quashed and set aside. Respondents are directed not to replace the applicant by another contract employee or till regular employee is available. In the aforesaid terms the Original Application stands allowed. There shall be no order as to cost.
