w w w . L a w y e r S e r v i c e s . i n



Dr. Charan Singh Rayat, Department of Histopathology, Post Graduate Institute of Medical Education & Research v/s Union of India through Secretary, Ministry of Health & Family Welfare, New Delhi & Others


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    Original Application No. 060/00541 of 2015

    Decided On, 15 March 2016

    At, Central Administrative Tribunal Chandigarh Bench

    By, THE HONOURABLE MR. JUSTICE L.N. MITTAL
    By, JUDICIAL MEMBER & THE HONOURABLE MR. RAJWANT SANDHU
    By, ADMINISTRATIVE MEMBER

    For the Petitioner: Jagdeep Jaswal, Advocate. For the Respondents: Sanjay Goyal, Advocate.



Judgment Text

L.N. Mittal, Judicial Member

1. By filing this Original Application under Section 19 of the Administrative Tribunals Act, 1985, Dr. Charan Singh Rayat has sought the following relief:-

i) That impugned order dated 25.6.2015 (A-1) and order dated 5.6.2015 (A-2), be quashed and set aside being wholly illegal and arbitrary and the Honble Tribunal may kindly pass orders to direct the respondents to allow the respondents to continue to officiate on the post of Lecturer (Medical Technology) till the availability of regular incumbents.

ii) That respondents be further directed to consider the applicant for regular appointment as Lecturer (Medical Technology) as per statutory rules with all consequential benefits.

2. The applicant was initially appointed as Junior Laboratory Technician w.e.f. 01.09.1980. He was promoted as Senior Laboratory Technician w.e.f. 01.03.1992, as Technical Assistant w.e.f. 10.11.2007 and as Tutor Technician w.e.f. 16.01.2012. Respondent no. 2 Institute issued notice dated 22.03.2013 (Annexure A-3) inviting applications for one post of Lecturer (Medical Technology) in the Department of Histopathology to be filled up on purely adhoc basis for six months. The applicant applied and was selected and appointed to the said post on adhoc basis for six months vide appointment letter dated 15.05.2013 (Annexure A-4). The appointment was subject to decision in T.A. No. 12/CH/2010 which was pending before the Tribunal. He submitted his joining report Annexure A-5 on 15.05.2013 (A.N.). His appointment on adhoc basis was extended for six months each up to 14.05.2014, 14.11.2014 and 14.05.2015 by various orders (Annexure A-6 collectively). The said T.A. No. 12/CH/2010 was decided by the Tribunal vide order dated 10.07.2013 directing the respondents to finalize the recruitment rules to the post of Lecturers within two months from the date of order and further to ensure that the relevant recruitment to the post of Lecturer was made within further two months on regular basis. However, pursuant thereto, neither recruitment rules have been finalized nor the post has been filled up on regular basis. Respondent no. 4, Head of Department (HoD) vide letter dated 18.04.2015 (Annexure A-7) requested to further extend term of the applicant as Lecturer (Medical Technology) for another six months or as per rules till the post is filled up on regular basis. Pursuant thereto, impugned order dated 05.06.2015 (Annexure A-2) was issued mentioning that the term of the applicant could not be extended beyond two years i.e. beyond 14.05.2015 and accordingly HoD was requested to fill up the said post afresh on adhoc basis as per existing recruitment rules. Consequently, HoD issued letter/order dated 25.06.2015 (Annexure A-1) intimating the applicant that his term on the post of Lecturer could not be extended beyond two years i.e. beyond 14.05.2015 and hence the applicant stood reverted from the post of Lecturer and was directed to work on his parent post of Tutor Technician w.e.f. 15.05.2015. Facts to this extent are not in dispute.

3. The applicant has alleged that he is still holding the charge of the aforesaid post of Lecturer. It is also his case that a contractual or adhoc employee cannot be replaced by another contractual or adhoc employee and can be replaced only by regularly selected candidate. Since the post in question has not been filled up on regular basis, respondents cannot fill the said post afresh on adhoc basis as mentioned in impugned order Annexure A-2 and the applicant has to be allowed to continue on the said post till regular recruitment is made. Direction given by the Tribunal in T.A. No. 12/CH/20110 has also not been complied with and process of recruitment on regular basis has not been initiated nor the recruitment rules have been finalized. Extension beyond two years has been given to one Dr. Seema Chhabra, Asstt. Professor in the Deptt. Of Immunopathology who is continuing on adhoc basis since April 2008 without interruption. The impugned orders are also bad being retrospective in effect.

4. Respondents in their written statement alleged that the applicant stood reverted to his parent post of Tutor Technician w.e.f. 15.05.2015. It was denied that he was still holding the charge of post of Lecturer. He was not granted extension on the said post after expiry of two years period of adhoc basis on 14.05.2015. Director, PGIMER has power to appoint Lecturer in Medical Technology on adhoc basis for a period not exceeding two years and, therefore, respondent no. 2 Director cannot extend term of the applicant on the post of Lecturer on adhoc basis beyond two years as per serial no. 61 of Schedule -I appended to PGIMER Chandigarh Regulations, 1967 (in short, the Regulations) The applicant has thus been rightly reverted to his parent post vide impugned orders Annexures A-1 & A-2 on expiry of two years term as Lecturer on adhoc basis. The applicant also cannot seek direction for regular appointment. Recruitment Rules are still in the process of being framed. Various other pleas were also raised.

5. The applicant filed replication wherein he reiterated his version and controverted the stand of the respondents. It was pleaded that under serial no. 61 of Schedule-I of the Regulations, President of the Institute has power to grant extension on the post of Lecturer on adhoc basis even beyond two years and similar benefits have been extended to Dr. Seema Chhabra andDr. Pratik Bhatia.

6. We have heard counsel for the parties and perused the case file.

7. Counsel for the applicant relying on judgment dated 21.02.2013 of Honble High Court of Punjab and Haryana in in CWP No. 3794 of 2013 titled Dharmender Vs. State of Haryana and Others (Annexure A-11) contended that an adhoc or contractual employee cannot be replaced by another contractual or adhoc employee and, therefore, the applicant as Lecturer on adhoc basis cannot be replaced by fresh adhoc appointment. It was also submitted that although respondent no. 2 Director has power to appoint Lecturer on adhoc basis for a period not exceeding two years, but the President of the Institute has full powers to appoint lecturer on adhoc basis for a period exceeding two years and therefore, term of the applicant as Lecturer on adhoc basis should be extended by the President of the Institute by exercising this power. In this context, it was pointed out that the President has exercised this power by granting extension to Dr. Seema Chhabra, Assistant Professor vide order dated 03.03.2015 (Annexure A-10). It was also pointed out that the applicant is still performing the duties of Lecturer as is evident from salary slips for August 205 and September 2015 and letter dated 18.08.2015 (Annexures A-12 & A-13.)

8. On the other hand, counsel for the respondents submitted that the applicant already stood reverted to his parent post of Tutor Technician w.e.f. 15.05.2015 as he was not granted extension on the post of Lecturer on adhoc basis beyond 14.05.2015. It was also submitted that the case of Dr. Seema Chhabra to whom extension has been granted by the President of the Institute beyond two years is distinguishable because according to document Annexure A-10, advertisements to fill the said post had been issued on 25.03.2012, 21.07.2012 and 02.08.2013, but interview could not be held due to pendency of review application in Honble Supreme Court regarding reservation in speciality/superspeciality posts. Thereafter, letter dated 06.02.2014 was received from the Govt. of India requiring the Institute to go ahead with selection process subject to outcome of the review petition. Accordingly, advertisement dated 20.10.2014 has been issued to fill the said post on regular basis. But since it was likely to take some time to fill up the said post on regular basis, so extension was granted to Dr. Seema Chhabra. It was pointed out that in the case of the applicant, the rules are still under the process of being framed and the post shall be filled up on regular basis thereafter and in the meantime, the post has to be filled up afresh on adhoc basis.

9. We have carefully considered the matter. The applicant already stands reverted to his parent post w.e.f. 15.05.2015 because admittedly his appointment as Lecturer on adhoc basis was lastly extended till 14.05.2015 only and not beyond it. Consequently, the applicant automatically ceased to continue on the said post w.e.f. 15.05.2015. For the same reason, it cannot be said that it is case of retrospective reversion of the applicant vide impugned orders Annexures A-1 & A-2. Judgment in the case of Dharmender (Supra) does not help the applicant because in that case, it was directed that in case the Petitioner was still continuing on the post of Data Entry Operator on a contractual basis, his services will not be dispensed with by replacing him with another similar arrangement of engaging another Data Entry Operator on contractual basis. In the instant case, however, as already noticed, the applicant already stands reverted to his parent post of Tutor Technician w.e.f. 15.05.2015. Consequently no direction for continuing him on the post of Lecturer on adhoc basis can now be issued and judgment in the case of Dharmender (supra), therefore, does not help the applicant.

10. The Institute also cannot be forced to seek indulgence of President of the Institute for granting extension to the applicant on the post of Lecturer beyond two years. Neither the Institute nor its President is party to the O.A. On the other hand, the Director, Assistant Administrative Officer and Head of Department of Histopathology only are respondents 2 to 4 whereas Union of India is respondent no. 1. The President of the Institute not being even party to the O.A. cannot be given any direction to extend the term of the applicant on the post in question beyond two years. Even otherwise, no such direction can be given either to the Director or President of the Institute to extend the term of the applicant on the post in question on adhoc basis.

11. The question of directing the respondents to consider the applicant for regular appointment as Lecturer (Medical Technology) as sought by the applicant does not arise because recruitment rules are still under the process of being framed. Obviously if and when recruitment rules are framed and recruitment to the post is to be made on regular basis, the applicant if eligible would be at liberty to apply for the same.

12. The case of extension granted to Dr. Seema Chhabra is completely distinguishable on facts from the case of the applicant. In the case of Dr. Seema Chhabra, steps are being taken to fill up the post on regular basis as per Annexure A-10 produced by the applicant himself and only because the process is likely to take some time, in the meantime only, extension has been granted to Dr. Seema Chhabra. In the case of the applicant, even recruitment rules are not in existence and no steps are, therefore, being taken to fill up the post in question on regular basis. Consequently, indefinite extension cannot be granted to the applicant on the said post on adhoc basis.

13. Before

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parting with the order, we are constrained to observe that despite order dated 10.07.2013 of the Tribunal in T.A. No. 12/CH/2010 for concluding the formulation of recruitment rules within two months and for making recruitment to the post on regular basis within further two months, the needful has not yet been done despite lapse of two years eight months. Honble Supreme Court vide order dated 03.11.2014 (Annexure R-2/2) in SLP preferred by PGIMER has simply stayed the proceedings in the Contempt Petition arising out of the order in T.A. 12/CH/2010, but has not stayed the operation of the order passed in the said T.A. Even the respondents have pleaded that they are in the process of framing the recruitment rules. However, it is surprising that the recruitment rules have not yet been finalised despite lapse of such long period. We disapprove the action (rather inaction) of the respondents in not finalising the recruitment rules and in not making recruitment to the post on regular basis. 14. For the reasons aforesaid, we find that the impugned orders Annexure A-1 &A-2 are not liable to be set aside and the applicant is not entitled to the relief claimed in the O.A. Accordingly, the O.A. is dismissed with no order as to costs.
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