Khyali Ram and Ors. v. GNCTD and Ors.

1. This petition under Article 226 of the Constitution of India assails order dated 25 October 2024 passed by the Central Administrative Tribunal[1] on the petitioner’s prayer for interim relief in OA 4212/2024. The impugned order reads thus: “Order of The Tribunal Applicants have filed the present OA seeking the following reliefs: a) For an, order or direction quashing and setting aside the resolution/decision dated 9.10.18 of the Respondent No. 1 to the limited extent that it allows for existing contractual employees to be replaced by fresh contractual employees albeit to a limited extent. b) For an order directing the immediate reinstatement of all the erstwhile 129 Nursing Officer and “Tribunal” hereinafter 23 Paramedical Staff whose services were terminated on 30.9.2024 with effect from the date of termination. c) For an order prohibiting the Respondents from recruiting fresh contractual employees (Nursing Officers and Paramedics Staffs) in the place of the contractual employees recruited in August 2023 and terminated on 30th September 2024 vide notice dated 24.8.2024. d) Pass any other or further order in the interest of the applicants. Learned counsel for the applicants stated that the applicants had been serving the respondents as a Nursing Officer and Paramedics on contractual basis engaged via an outsourcing agency. They are aggrieved of the resolution/decision of the Cabinet of GNCTD dated 09.10.2018 whereby it has been decided that the services of the contractual staff through the outsourcing agency/new contractor, shall be maintained to the maximum of the 80 percent of the earlier manpower. It has been decided by the Cabinet that in case the contractor changes, then he shall be bound to accommodate atleast 80% of the staff engaged earlier by the erstwhile contractor/agency. Learned counsel submits that this gives a leeway of 20%, to engage new staff, which violates the decision of the Hon’ble Supreme Court in the case of Piara Singh and Ors. v State of Punjab[2] and Uma Devi and Ors. v Secretary, State of Karnataka and Ors[3], since it amounts to replacing a contractual with a different contractual. The applicants were working under the earlier contractor/outsourcing agency and were recruited in August 2023, but they were terminated on 30.09.2024 vide a notice dated 24.08.2024. He submits that it is this decision of the Cabinet that has allowed the new contractor to engage new manpower and terminate the applicants. Heard. Issue notice to the respondents. Learned counsel for R-1 and 2 and R-3 appear and accept notices. Four weeks time is granted to the respondents to file reply. Two weeks time thereafter is granted to the applicants to file rejoinder, if any. Learned counsel for the applicant insists on grant of interim relief. The interim relief as prayed for in para 9 of the OA reads as under: a) For interim relief in terms of prayer clauses (a) to

(c) above.

b) For an order staying the resolution/decision dated 9.10.18 of the Respondent No. 1 to the limited extent that it allows existing contractual employees to be replaced by fresh contractual employees albeit to a limited extent. c) For an order restraining the incoming contractor R- 4 or any other future contractor from replacing the erstwhile contractual employees whose services were terminated on 30.9.2024 with fresh contractual employees and for an order to the Respondents to continue with the services of erstwhile contractual employees. d) Pass any other or further order in the interest of the applicants. Learned counsel submits that this is a fit case where the Tribunal should intervene and stay the operation of the resolution/decision of 09.10.2018 only to the extent that it allows the existing contractual employees to be replaced by fresh contractual employees upto20%. Learned counsel for respondents refutes the applicant's above submission. He submits that granting an interim stay on this would amount to putting a break in the wheels of the administration. He also draws our attention to the order dated 26.09.2024 in Writ Petition No. 12938/2024. He submits that Hon’ble High Court has judicially noticed the cabinet decision and has allowed the respondents to comply with the said. He submits that no Master-Servant relationship exists between the respondents and the applicants. At this, counsel for R-4/new contractor submits that a consent order passed by the Hon’ble High Court of Delhi wherein the applicants had agreed to the direction that the Govt. of NCT of Delhi and contractor shall ensure compliance of the Cabinet decision. Further, he submits that he has entered into a contract with the Govt. which empowers him to engage the contractual staff as per the terms and conditions of the said contract. The contract is not before us and it is not our mandate to comment on the same. Prima facie action of the respondents is as per terms of the contract. In view of the above, we find that balance of convenience lies in favour of the respondents. Interim relief as prayed for, is thus rejected. List the OA for completion of pleadings on 20.02.2025.”

2. As worded, the impugned order is plainly unsustainable in law. Till two paras before the end of the order, the order records the contentions of the parties. The last two paras of the order read thus: “At this, counsel for R-4/new contractor submits that a consent order passed by the Hon’ble High Court of Delhi wherein the applicants had agreed to the direction that the Govt. of NCT of Delhi and contractor shall ensure compliance of the Cabinet decision. Further, he submits that he has entered into a contract with the Govt. which empowers him to engage the contractual staff as per the terms and conditions of the said contract. The contract is not before us and it is not our mandate to comment on the same. Prima facie action of the respondents is as per terms of the contract. In view of the above, we find that balance of convenience lies in favour of the respondents. Interim relief as prayed for, is thus rejected. List the OA for completion of pleadings on 20.02.2025.”

3. We find it difficult to understand as to how the Tribunal could simultaneously have observed that the contract on which Respondent 4 placed reliance was not before it and that the action of the respondents was as per the terms of the contract. This is a plainly contradictory finding.

4. Moreover, an order on interim relief, whether positive or negative, it requires to address the issues of prima facie case, balance of convenience and irreparable loss. The Tribunal has merely rejected the prayer for interim relief on the ground of balance of convenience.

5. Accordingly, with consent of parties, the impugned order is quashed and set aside. The prayer of the petitioner for interim relief is remanded to the Tribunal for decision afresh. Let all the parties appear before the Tribunal on 28 November 2024.

6. The petition stands allowed in the aforesaid terms.

7. Needless to say, before returning any finding, even prima facie, regarding the contract, the Tribunal would be well advised to call for a copy of the contract to be produced before it.

8. We have not expressed any opinion on the merits of the petitioner’s prayer for interim relief.

9. The de novo hearing would proceed uninfluenced by the impugned order or the observations or findings contained therein.

10. Mr. N K Singh is permitted to inform the Tribunal of the order passed by this Court.

C. HARI SHANKAR, J.