WPMS/1476/2019 of CENTRE OF INDIAN TRADE UNIONS (CITU) Vs DIRECTOR ALL INDIA INSTITUTE OF MEDICAL SCIENCE RISHIKESH DEHRADUN

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition (M/S) No. 1476 of 2019

Centre of Indian Trade Unions (CITU) and others

………….Petitioners

Versus

Director All India Institute of Medical Science Rishikesh, Dehradun and others

……...Respondents

Present :

Mr. M.C. Pant, Advocate for the petitioners.

Mr. Rakesh Thapliyal, Senior Advocate assisted by

Mr. Pankaj Chaturvedi, Advocate for respondent nos. 1

Mr. Shivanand Bhatt, Central Government Standing Counsel for respondent no. 3.

Hon’ble Sudhanshu Dhulia, J. (Oral)

The petitioner no. 1 before this Court is Centre of Indian Trade Unions (CITU) and petitioner nos. 2, 3, 4 & 5 are its member. Petitioner nos. 3, 4 & 5 were working in All India Institute of Medical Science Rishikesh, Dehradun allegedly as follows:

2. Evidently petitioner nos. 3, 4 & 5 were selected to work in the Institute. They were selected after an advertisement was given by AIIMS in newspaper. They qualified the written test first and thereafter having qualified the interview as well they were appointed by the appointing authority. Since the appointment of the petitioner nos. 3, 4 & 5 was for eleven months and they had no say in the matter and had no other option but to accept the appointment for eleven months, yet their case, however, would be that this appointment for period of eleven months is itself arbitrary and is not becoming of welfare State to make such appointments temporarily or for limited period when admittedly the posts on which the appointments have been made are permanent posts and more importantly the appointment has been made after due process of law.

3. Evidently before the term had come to an end, the services of the one of the petitioners i.e. petitioner no. 3 were terminated by an order dated 09.01.2019. This order as well as the subsequent action of the respondent Institute by which the term of petitioner nos. 3, 4 & 5 have come to an end were challenged by the petitioners. Thereafter conciliation proceedings were initiated in which an application was moved by the petitioners under Section 33 (1) of the Industrial Disputes Act, 1947 alleging that the respondents have changed the condition of service during process of conciliation proceedings. Meanwhile the conciliation proceedings failed and the matter went before the Central Government, which is the appropriate

Government. Now the services of remaining workmen have also been dispensed with.

4. Learned counsel for the petitioners submits that since conciliation proceedings are not presently going on and the matter has still not been referred by the Central Government, there was no other alternative in law but to file the present writ petition, which they have done.

5. Mr. Rakesh Thapliyal, learned Senior Counsel for the AIIMS, on the other hand, would argue that it is not case of change in condition of service of the petitioners, as their appointment has already come to an end.

6. The petitioners in the present writ petition have alleged violation of Section 33 as well as Section 33-A of the Industrial Disputes Act, 1947 at the hands of the respondent Institute. The basis contention of the petitioners is that when the matter was pending consideration with the appropriate Government (which includes the report of the Conciliation Officer), no decision adverse to the petitioners ought to have been taken which would infer an opinion that it is change of condition of service.

7. Learned counsel for the petitioners has drawn attention of this Court to the Minutes of meeting dated 28.08.2018 (Annexure 6 to the Rejoinder Affidavit), point no. (ii) of which reads as under:

“(ii) It should be earnestly examined what preference can be extended to contractual staff in regular recruitment and also whether they can be regularized.)”

8. Learned counsel for the petitioners has also drawn attention of this Court to the observations made by the Hon’ble Apex Court in the case of Sheo Narain

Nagar and others v. State of Uttar Pradesh and another, (2018) 13 SCC 432, where the Hon’ble Apex Court while interpreting the seminal decision of Hon’ble

Apex Court in the case of “State of Karnataka v.

Umadevi, (2006) (4) SCC 1 had this to say :

“7. When we consider the prevailing scenario, it is painful to note that the decision in Umadevi (State of Karnataka v. Umadevi (3), (2006) 4 SCC 1) has not been properly understood and rather wrongly applied in various State Governments. We have called for the date in the instant case to ensure as to how many employees were working on contract basis or ad hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily-wage basis, etc. in exploitative forms. This situation was not envisaged by Umadevi. The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Umadevi has been ignored and conveniently overlooked by various State Governments/authorities. We regretfully make the observation that Umadevi has not been implemented in its true spirit and has not been followed in its pith and substance. It is being used only as tool for not regularising the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S.

Nakara v. Union of India (1983) SCC 305, from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going on to be destituted, there being no provision for pension, retrial benefits, etc. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike balance to really implement the ideology of Umadevi. Thus, the time has come to stop the situation where Umadevi can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Umadevi laid down that there should not be back door entry and every post should be filled by regular employment, but new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not permissible when we consider the pit and substance of true spirit of Umadevi.”

9. Strictly speaking, although the matter is pending before the appropriate Government and it may not be technically covered under Section 33 or Section 33A of the Industrial Disputes Act, 1947, yet it would be in the best interest of all the parties if the dispute as raised by the petitioners is also considered by the appropriate Government, particularly when another dispute of workmen of the establishment is already with the appropriate Government.

10. In view thereof, writ petition is disposed of with the direction that let the appropriate Government

consider the grievance of the petitioners whether their service conditions have been changed midstream and pass an appropriate order therein, in the light of the above observations.

11. Meanwhile, the petitioners apprehend that the post on which they were working will be filled up by way of regular selection, which is under way.

12. Although no interference is being made to regular selection exercise, but in order to enable the petitioners to make an effective representation before the appropriate Government, it is directed that though the process of regular selection may go on but no final decision be taken therein till two weeks from today, in order to enable the petitioners to approach the Government. The respondents may also consider engaging the petitioners in case there is requirement, till the posts are filled in accordance with law on the same terms and conditions, which should not be detrimental to them or amount to change in condition of service.

Avneet/

(Sudhanshu Dhulia, J.) 05.08.2019