Narinder Singh Ahuja & Ors v. The Secretary, Ministry of Health & Family Welfare & Ors

judgment of which is pending. Kindly provide/mention reasons or copy of sanctioning for not implementing outsourcing policy (I-17014/7/2009-IWSU dated 12.1.2010) on basic Accounts functioning staff who were again given extension of Direct Basis w.e.f.

20.5.2013 (copy enclosed). posted at the Division. Q.33 If sanctioning for not implementing outsourcing policy (I-17014/7/2009-IWSU) dated

12.1.2010 has been taken in r/o basic accounting staff working CTD, kindly provide copy of sanctioning including notings since it is subject to "Audit" and action on negligent on duty part officials could be recommended in this regard to high authorities including Central Vigilance Commission/CBI as Page 13 inspite of policy (outsourcing) available, the contract of staff doing routine accounting work got renewed from 20.5.13 onwards on direct basis.

¶13The relevant part of the RNTCP, which contains the structural guidelines for operation of the project, in regard to contractual employment reads as follows: "10. Contractual Service : Central Level monitoring unit strengthening is to include Technical officer and Technical assistants to each function of the technical unit, five data entry operators and four secretarial assistants and one statistician. The administrative section is to have one post of administrative officer and two administrative assistant. Finance section is to have three consultant finance, one finance manager, four accountants and one account officer. The procurement and logistics management section is to have one consultant, one logistic manager, one supply chain manager and ten assistants. Each NRL can be provided upto three microbiologists and four senior LTs for EQA. The national institute for tuberculosis to have one HR officer, two training facilitators, two epi-centre experts (one filed expert and one computer expert), one epidemiologist, two research officers, one librarian and one documentation assistant with a view to strength and promote research and its dissemination. xxxxxx The existing contractual staff posts and persons, if in line with the above norms will continue as per the guidelines. The relocation of posts and person is to be undertaken as per the need and approval by appropriate authority. All the contractual staff will be appointed for 1 year at a time and annual, renewal every year to be done till the project exists, except discontinued for non-performance/ under-performance/ abolish of post/show-cause notice issued and satisfactory response not received during previous contract period. During transition Page 14 from RNTCP II to RNTCP 2012-17, all the contractual staff shifts on the posts on new salary norms and retaining all the actual increments amount received after last revision of salaries."

¶14The respondents' clear stand – apart from the petitioners not possessing any right to claim extension of contract, is that the changed policy no longer enables the Central Government to enter into contract with individuals, even if work exists, but that such contracts are to be entered through an "outsourcing" agency (read contractor). This is apparent from the following averments in the counter affidavit filed before CAT: "7. The National Strategic Plan (NSP) for 2012-17 for RNTCP is a plan document. All relevant rules/ instructions are required to be followed for each activity/expenditure for implementing the NSP. It has been decided to engage contractual staff for Central Level Monitoring Unit of RNTCP under GFR 2005 i.e. GFR-178-185 through outsourced agency of Directorate General of Health Services (Dte.GHS), GOI. Dte.GHS/GOI has finalized an agency for providing contractual staff viz. Administrative Assistants, Stenographers & Typist-cum-DEO w.e.f. 01.01.2013. The remuneration of Rs.10942/- & Rs.11461/- per month per person for contractual staff being provided by outsourcing agency of Dte. G.H.S. is much less than that was being paid i.e. Rs.16500/- per month per person under World Bank/GFATM assisted project RNTCP. The Respondents are bound to take contractual staff from outsourced Agency of the Dte. G.H.S. as they are provided on lower remuneration than was provided under World Bank/GF funding. The decision economises as public exchequer.

¶8Once the contract with applicants came to an end on

31.3.13, right of applicants to continue their contract also ended. No orders/ Rules/ regulations in this case have been violated. The contract which was up to 31.3.13 was signed on mutually agreed terms and conditions and the applicants have accepted the terms and conditions of hiring of their services on contract basis with open eyes. Their services cannot be continued after 31st March, 2013 as all these applicants were working under a project funded by World Bank/ GFATM. The World Bank Project ended on 30th Sept, 2012 and GF support ended on Page 15

31.3.13 and therefore Central TB Division (CTD) can not engage any contractual staff on World Bank/GF remuneration which is much higher than the remuneration charged by outsourcing agency. Even for World Bank/GFATM support, the remuneration of contractual positions is to be lowest. There are no sanctioned regular posts of DEO or Secretarial Assistants for implementation of the project RNTCP and therefore, the request of applicants for regularization does not arise. Further as per last agreement with the applicants which ended on 31.3.2013, the applicants cannot demand for regularization of their services."

¶15In 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. Page 16

¶16For 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.

¶17The impugned order of the CAT is accordingly set aside; the writ petition is allowed in terms of the above directions. S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) NOVEMBER 3, 2014

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 13.10.2014 Pronounced on: 03.11.2014 + W.P.(C) 1741/2014, C.M. NO.3645/2014 NARINDER SINGH AHUJA AND ORS. ..... Petitioners Through: Sh. K. Venkatraman, Advocate. versus THE SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE AND ORS. ...... Respondents Through: Sh. Ajay Digpaul, CGSC. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT % 1. In these proceedings under Article 226 of the Constitution, the petitioners are aggrieved by an order of the Central Administrative Tribunal (CAT) dated 10.01.2014 in OA No.1016/2013. Their application for a direction to continue them in the respondents' employment was dismissed by the said impugned order. 2. The applicants were aggrieved by the non-extension of their contractual appointment. They complain that the respondents' action in discontinuing such contracts is contrary to the decision to appoint all contractual employees for one year at a time with annual renewal every year till the project existed. Contractual appointments could be discontinued for non-performance/under performance/abolition of the post. This was to be preceded by show-cause notice and in case no satisfactory response was Page 2 received during the previous contract period, there could be termination of contract. The petitioners represented for continuation of their contracts but no decision was communicated to them. Their contracts thus expired on 31.03.2013. They have urged that there has been violation of the terms and conditions mentioned in the appointments letters and ignoring the cases of the applicants, respondents took a decision to conduct a meeting on 21.03.2013 for selection of contractual employees against the guidelines mentioned in their own letters and in disregard of the Financial Budget decision without any justification. No justification was given for discontinuing their contracts. The petitioners had also relied on the judgment of the Punjab and Haryana High Court in C.W.P. No.5269/2012, dated 21.03.2012 in similar circumstances. 3. The respondents initially appointed persons (including petitioners) with approval of the Central Ministry of Health and Family Welfare for hiring the services of Data Entry Operators and Secretariat Assistants on purely contractual basis for the World Bank/GFATM assisted Revised Nation T.B. Control Programme (RNTCP) project at the Central T.B. Division. In terms of the office Memorandum dated 23.10.2002, respondents issued an appointment letter in favour of the first petitioner with certain stipulations, including that the contract could be terminated by either side on fifteen days' notice. The basis of the applicants' initial contractual appointment was to handle the work under the said programme for one year. The petitioners' contracts were extended by the competent authority from time to time for a further period of one year. The extension letters contained conditions of contractual engagement such as that they would be treated as Non-Official and would be neither entitled to any other service benefit of the Central Government nor could claim regularization. The contractual appointment was subject to the execution of an Agreement between the CTD and the employee as per the TOR. This was a full time Page 3 engagement and the contract could be terminated by either side at fifteen days' notice. Reliance was placed on the Budget and Financial Management too, to say that the condition for appointing contractual staff was a time period of one year at a time, with annual renewal every year to be done till the project existed. It was alleged by the Petitioners that during transition from RNTCP II to RNTCP 2012-2017, all contractual staff shifted on the post on new salary norms, retaining the actual increments amount received after the last revision of salaries. The respondents issued the order dated 04.01.2010, consequent upon approval of the Cabinet Committe