Govt. Of Nct Of Delhi And Ors. vs Dr. S.K. Nagar
2004 Latest Caselaw 802 Del

JUDGMENT

B.A. Khan, J.

1. The writ petition challenges the Order of the Central Administrative Tribunal dated 8th May, 2002, passed in O.A. No. 3429/2003 directing the petitioners to consider respondent's regularisation of the services to the post of Demonstrator(Dental) without insisting on fresh selection through DSSSB provided that his record is good. The facts of the case are as under:-

An advertisement was issued on 11th January, 1995, inviting applications for certain posts in the Dentistry Department of Maulana Azad Medical College. One of the posts advertised was of Demonstrator. The advertisement itself said that the post was for short-term contract appointment but was likely to continue. Respondent applied for the post of Demonstrator pursuant to this advertisement. He was issued an offer letter on 13th June, 1995, which said " on recommendation of Staff Selection Board, the undersigned is directed to offer to Dr. S.K. Nigam, an appointment to the post of Demonstrator (Dental) on a purely adhoc and emergent basis for a period of six months or till such time a regularly selected candidate joins his duty, whichever is earlier on the following terms and conditions ....."

2. Respondent accepted the offer and underwent the necessary formalities of medical examination and character verification. His appointment was extended from time to time. On 11th October, 2001, an Order was issued by the NCTD saying that the Lt. Governor of Delhi was pleased to approve the extension of adhoc appointment of Dr. S.K. Nagar as Demonstrator of the Dentistry Wing of Maulana Azad Medical College up to 31st December, 2001 or till such time the post was filled up on regular basis, whichever was earlier. On 21st December, 2001, O.A. No. 3429/2001 was filed by the respondent claiming the relief of regularisation of service on the post of Demonstrator (Dental) w.e.f. the date of his initial appointment. In reply, it was contended by the petitioners that the appointment of the respondent was made on local recruitment level and not by the Staff Selection Board; that the appointment was made on emergent basis for a period of six months or till the time a regularly selected candidate was appointed to the post, whichever was earlier; and that the respondent had no right to regular appointment to the post of which was to be filled up on regular basis under rules.

3. Respondent in the O.A., relied on the case of Dr. Anuradha as a precedent. He claimed that Dr. Anuradha was similarly appointed on adhoc basis in 1987 but was subsequently regularised. In response the petitioners stated that Dr.Anuradha joined service prior to the constitution and confirmation of DSSSB and that the case of Dr. Anuradha was different from that of the respondent.

4. The Tribunal on consideration of the matter held :-

"Applicant had been selected on the recommendation of SSB constituted by the Medical & Public Health Department of Government of NCT of Delhi and fulfillled the requisite qualifications for the post. He has continued to function as Demonstrator (Dental) for the last about seven years with respondents. We find that the institution of DSSSB came into existence in April, 1997, i.e. much after the appointment of applicant. No rules have been shown to us requiring further selection by the DSSSB for the post of Demonstrator (Dental) which had been filled earlier as per rules prior to the constitution of DSSSB. Even presently, as established by Annexure A-7, new posts under the Department of Health & Family Welfare are being filled by the department itself without assistance of DSSSB.

In the facts and circumstances as described above, in recognition of applicant's selection through the SSB, fulfilllment of eligibility conditions under the rules, experience of working with respondents for the last about seven years, and in the interest of justice, we find this to be a fit case where a direction should be issued to respondents to consider the services of applicant for regularization without insisting on fresh selection through DSSSB, provided that applicant's record it good."

5. Petitioners are aggrieved of this. They have challenged the Tribunal order on the ground that it had failed to take in regard the change in the legal position related to the status of adhoc and contract appointees who could not claim any right of regularisation of service against the post on which they were appointed in terms of several judgments of the Supreme Court and this Court. It is submitted that this respondent was initially appointed on adhoc basis which was for six months. The order further stipulated that his adhoc appointment would continue till regular appointment was made to the post and that it could be terminated at any time on one month's notice without assigning any reason and that he would have no right for any regular appointment to the post. The Tribunal had also failed to appreciate that regular appointment to the post of Demonstrator (Dental) was to be made in accordance with the rules and now regular appointments to these posts were to be made through DSSSB.

6. The stand of the respondent, on the other hand, is that he was appointed on adhoc basis on the basis of Staff Selection Board and that since he had worked on this post for several years, he was entitled to be regularised.

7. We are informed that respondent was already out of service after petitioners had declined to grant him any further extension in his adhoc service and that he was already gainfully employed. This by itself should have rendered this petition infructuous. But that could keep the Tribunal order enunciating a wrong legal position in respect of adhoc appointment intact which cannot be otherwise countenanced, in the face of several Supreme Court judgments and judgment of this Court in Government of NCT of Delhi v. Dr. Anita Nanda was adopted. Therefore, this petition required to be briefly examined on its own merits.

8. It is well established by now that an adhoc/ contract appointee does not enjoy any right of regularisation on the post to which he is appointed. It also well settled that an appointment on a post de hors the rules does not entitle an appointee to regularisation of service. Because the appointee in such cases would have to sink or swim with the terms of his appointment order.

9. In the present case it is not disputed that respondent's appointment was purely adhoc and on emergent basis for three months or till such time a regularly selected candidate was to join the post. It was also a condition of this order that this appointment would not entitle him to regular appointment on the post merely because he was granted extension in his adhoc tenure. That he was selected through Staff Selection Board would also not entitle him to claim any regularisation of service on that post which was admittedly to be filled up under rules on regular basis.

10. It is not the case of this respondent that recruitment rules governing the post of Demonstrator (Dental) provided for regularisation of service of an adhoc appointee. Therefore, so long as his appointment was de hors the rules, which did not provide for regularisation of service in such a situation the question of regularisation of respondent's service on the post of Demonstrator would not arise.

11. Respondent's plea that he was to be treated alike with one Dr.Anuradha who was appointed on the recommendation of Selection Board way back on 15.7.87 and was regularised is also misconceived because record shows that services of this Doctor were not regularised. But, on the contrary, order dated 30.5.1988 shows that she was appointed on regular basis from 9.6.1987 and was put on probation for one year. Had her services been regularised, she would not have been put on probation. This plea, therefore, loses the distinction between regularisation of service and appointment of that Doctor on regular basis.

12. The Tribunal order on this parity of reasoning is unsustainable and is set aside to allow this petition.