Central Administrative Tribunal - Delhi
Dr. Rajni Dhall & Others vs Municipal Corporation Of Delhi on 22 October, 2009
Central Administrative Tribunal Principal Bench TA No.451/2009 New Delhi this the 28th day of October, 2009. Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Dr. Rajni Dhall & Others -Applicants (By Senior Counsel Shri G.D. Gupta with Shri S.K. Sinha, Advocate) -Versus- Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi-110066 through its Commissioner. -Respondent (By Advocate Shri Parveen Swarup) O R D E R Honble Mr. Shanker Raju, Member (J):
Dental Surgeons on contract basis by virtue of this TA have sought the following reliefs:
i) quash the terms in the appointment order at Annexure P.II and the order at Annexure P. III directing the petitioners to execute an agreement giving up even their fundamental rights;
ii) direct that from the date of initial appointment the petitioners be granted the full pay scale and allowances including NPA as admissible to regular Dental Surgeons and they may also be granted benefits of Provident Fund, Medical Attendance and Treatment and other service conditions as applicable to regular Dental Surgeons;
2. A brief factual matrix transpires that recruitment to the posts of Dental Surgeon is made on regular basis through Union Public Service Commission (UPSC). However, when such a process was not possible and emergent situation in administrative exigency requires filling up of the posts through recruitment on contract basis for a period of six months or till the posts are filled on regular basis through UPSC, whichever is earlier, which was adopted by the respondents. Applicants, who were qualified on walk on interview with the approval of the Commissioner, entered into an agreement and were appointed on a consolidated amount of Rs.10,000/- per month. As per the conditions of contract certain benefits were also allowed but no right of regularization was one of the stipulations. Applicants have continued on these posts since 2000 and their emoluments were enhanced by the respondents from time to time. Item No.63 dated 24.7.2007 deals with enhancement of remuneration of contractual appointees in Health Department of MCD prescribed an amount of Rs.28,513/- to the applicants. As per item No.16 of the Agenda and in such item No.16 of Resolution dated 24.7.2007 adopted the pay structure of contractual Doctors in Government of NCT of Delhi and consequently an order passed by the respondents on 14.9.2007 fixed the emoluments to Rs.28,513/- which was further enhanced. Applicants through this TA have sought regular pay scale at par with the regular Doctors with full pay scale and allowances, including NPA.
3. Learned Senior Counsel Shri G.D. Gupta vociferously argued the case of applicants by contending that the mode of appointment was akin to the regular appointment and as the applicants have continued to perform duties which are identical to that of the duties performed by regular Dental Surgeons having apt qualifications and faced interviews they are entitled, on the principle of equal pay for equal work, to full pay scale and allowances, including NPA.
4. Learned Senior Counsel states that under Section 96 of the DMC Act appointment to Group A posts as per the proviso does not require consultation with UPSC if it is not exceeding one year and approval of the Commissioner is sufficient, which has been accorded in the instant case. It is stated that as the appointment of applicants was in accordance with rules, relying upon a decision of the Tribunal, which stood affirmed by the Apex Court in Dr. Sangeeta Narang v. Delhi Administration, 1998 (6) ATC 405, it is stated that on that basis a batch of Writ Petitions in CWP No.3641/1998 Govt. of NCT of Delhi v. Dr. V.S. Chauhan etc., were allowed by an order of the Division Bench of the Delhi High Court on 11.9.1998, wherein the petitioners have been brought at par in the matter of pay scales with that of regular employees.
5. Learned counsel would also state that the contractual medical officers have been allowed earned leave, HPL, commuted leave and extraordinary leave in 2004 by the respondents.
6. Shri G.D. Gupta has also relied upon the decision of the Apex Court in Y.K. Mehta v. Union of India, AIR 1988 SC 1970 to contend that it is unreasonable and unjust to discriminate between two sets of employees performing identical set of duties in the matter of pay.
7. Shri Gupta further relied upon a decision of the Apex Court in State of Punjab & Ors. v. Surinder Singh, 2007 (12) SCALE 602, Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka and others, (1992) 2 SCC 29 and also a decision of the Apex Court in Union of India v. Arun Kumar Roy, AIR 1986 SC 737 to substantiate his pleas.
8. On the other hand, learned counsel of respondents Shri Parveen Swarup vehemently opposed the contentions and stated that the applicants have been appointed on contract basis in the circumstances when the recruitment of Dental Surgeons on regular basis by UPSC was not adopted. It is stated that appointment was for a fixed term and on consolidated emoluments, which has been agreed to through an agreement by the applicants. As such, they are estopped from challenging it, as bound by the principles of waiver, acquiescence and promissory estoppel. Learned counsel states that applicants are not performing identical duties as their working hours are less, as compared to regular Dental Surgeons. As such, having no parity, principle of equal pay for equal work has no applicability.
9. Learned counsel has also filed an additional affidavit in response to the affidavit filed by the applicants on 24.3.2008, wherein it is stated that the enhancement of emoluments was as per Item No.16 of the Agenda of meeting held in MCD on 24.7.2007 and once the contract was executed applicants are bound by the terms of contract. However, it is stated that from time to time at par with the Govt. of NCT of Delhi applicants emoluments have been enhanced.
10. We have carefully considered the rival contentions of the parties and perused the material on record. It is trite law as ruled by the Apex Court in Ahmedabad District Cooperative Society v. Gilbert B. Shah, 2005 (1) ATJ SC 175 that conditions of service of contractual employees should be governed by the terms of contract.
11. Insofar as equal pay for equal work as to the contract employees is concerned, the Apex Court in State of Haryana v. Charanjit Singh, 2006 (1) SCSLJ 1 ruled that persons employed on contract basis cannot claim equal pay as given to the regular employees, as their conditions and terms of service are governed by the contract. In a Constitution Bench decision of the Apex Court in Secretary, State of Karnataka and others v. Umadevi and others, 2006 (4) SCALE 197 insofar as equal pay for equal work is concerned, the following observations have been made:
35. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
37. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485). There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
39. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
12. In Official Liquidator v. Dayanand, 2009 (1) SCC (L&S) 943 a three-Judge Bench of the Apex Court on equal pay for equal work regarding temporary, contractual, casual labours and daily wagers ruled as under:
100. As mentioned earlier, the respondents were employed/engaged by the Official Liquidators pursuant to the sanction accorded by the Court under Rule 308 of the 1959 Rules and they are paid salaries and allowances from the company fund. They were neither appointed against sanctioned posts nor they were paid out from the Consolidated Fund of India. Therefore, the mere fact that they were doing work similar to the regular employees of the office of the Official Liquidators cannot be treated as sufficient for applying the principle of equal pay for equal work. Any such direction will compel the Government to sanction additional posts in the offices of the Official Liquidators so as to facilitate payment of salaries and allowances to the company paid staff in the regular pay scale from the Consolidate Fund of India and in view of our finding that the policy decision taken by the Government of India to reduce the number of posts meant for direct recruitment does not suffer from any legal or constitutional infirmity, it is not possible to entertain the plea of the respondents for payment of salaries and allowances in the regular pay scales and other monetary benefits at par with regular employees by applying the principle of equal pay for equal work.
118. On the basis of above discussion, we hold that -
the respondents are not entitled to absorption against the sanctioned posts in Group C of the Department of Company Affairs, Government of India, as of right.
(ii) The 1999 Scheme does not suffer from any legal or constitutional infirmity insofar as it provides for absorption of the company paid staff only to the extent of 50% vacancies in direct recruitment quota of Group C posts.
(iii) The decision taken by the Government of India to reduce the number of posts in direct recruitment quota and consequential abolition of posts in the Department of Company Affairs is not vitiated by arbitrariness or violation of the doctrine of equality or malafides.
(iv) The doctrine of legitimate expectation cannot be invoked for sustaining the directions given by the High Courts of Calcutta and Delhi for creation of supernumerary posts to facilitate absorption of all company paid staff in the regular cadres.
(v) The respondents are not entitled to have their pay fixed in the regular scales and other monetary benefits at par with regular employees working under the Official Liquidators.
121. We also feel that the salaries and allowances payable to the company paid staff should be suitably increased in the wake of huge escalation of living cost. In Jawaharlal Nehru Technological University vs. T. Sumalatha (Smt.) and others (supra), a two-Judges Bench, after taking note of the fact that emoluments payable to the Investigators appointed in the Nodal Centre at Hyderabad had not been revised for six years directed the Union of India to take expeditious steps in that direction. Keeping that judgment in mind, we direct the Official Liquidators attached to various High Courts to move the concerned Court for increasing the emoluments of the company paid staff. Such a request should be sympathetically considered by the concerned Courts and the emoluments of the company paid staff be suitably enhanced and paid subject to availability of funds.
13. The Apex Court in Harminder Kaur & Ors. v. Union of India & Ors., 2009 (7) SCALE 204 while dealing with this aspect quoted the decision of the Apex Court in National Fertilizers & Ors. v. Somvir Singh, (2006) 5 SCC 493 with the following observations:
17. We are not oblivious of the fact that in some decisions rendered by different benches of this Court taking a sympathetic view in favour of the employees who had been serving the State for a long time, the rigours test laid down therein were sought to be dilated. However, some other benches of this Court had interpreted Paragraph 53 of the Uma Devi (supra) in the light of the decisions mentioned therein.
In Mineral Exploration Corpn. Employees' Union vs. Mineral Exploration Corpn. Ltd. [(2006) 6 SCC 310] wherein this Court, while following Umadevi (3) (supra), invoked para 53 of the said decision to opine:
"39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in accordance with and in compliance with all the directions given in the judgment by the Constitution Bench in Secy., State of Karnataka v. Umadevi (3) (supra) and in particular, paras 53 and relied on by the learned Senior Counsel appearing for the Union. The Tribunal is directed to dispose of the matter afresh within 9 months from the date of receipt of this judgment without being influenced by any of the observations made by us in this judgment. Both the parties are at liberty to submit and furnish the details in regard to the names of the workmen, nature of the work, pay scales and the wages drawn by them from time to time and the transfers of the workmen made from time to time, from place to place and other necessary and requisite details. The above detailsshall be submitted within two months from the date of the receipt of this judgment before the Tribunal."
However, in National Fertilizers Ltd. & ors. vs. Somvir Singh (2006)5 SCC 493, this Court held:-
"23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications.
The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
xxx xxx xxx
25. Judged by the standards laid down by this Court in the aforementioned decisions, appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.
26. It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Umadevi(3)"
In State of M.P. & Ors. vs. Lalit Kumar Verma [(2007) 1 SCC 575], this Court held:-
"20. The decision to implement the judgment was evidently subject to the decision of this Court. But, the Special Leave Petition is barred by limitation.
The question, inter alia, which arises for consideration before us is as to whether we should condone the delay or allow the respondent to continue to occupy the permanent post.
21. The legal position somehow was uncertain before the decision rendered by the Constitution Bench of this Court in Uma Devi (3) (supra). It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation.
The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article 16 of the Constitution of India."
In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & ors., [(2007) 2 SCC 491], this Court held:-
"19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires."
In Postmaster General, Kolkata & Others vs. Tutu Das (Dutta) [(2007) 5 SCC 317], this Court held as under:-
"20. The statement of law contained in para 53 of Umadevi (3) cannot also be invoked in this case. The question has been considered by this Court in a large number of decisions. We would, however, refer to only a few of them.
21. In Punjab Water Supply & Sewerage Board v. Ranjodh Singh referring to paras 15, 16 and 53 of Umadevi (3) this Court:
"17. A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularisation was in relation to such appointments, which were irregular in nature and not illegal ones.
18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. v. Somvir Singh in the following terms:
`23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State of Karnataka wherein this Court observed: [Umadevi (3) case, SCC p. 24, para 16] "16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words `regular' or `regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments."
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.' " (See also State of M.P. v. Yogesh Chandra Dubey and State of M.P. v. Lalit Kumar Verma.) The controversy, if any, in our opinion, has been given a quietus by a three Judge Bench of this Court in Official Liquidator vs. Dayanand & ors. [(2008) 10 SCC 1], holding:
"75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of Karnataka v. Uma Devi (3) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judges Benches for declining to entertain the claim of regularization of service made by ad hoc/temporary/ daily wage/casual employees or for reversing the orders of the High Court granting relief to such employees - Indian Drugs and Pharamaceuticals Ltd. v. Workmen [(2007) 1 SCC 408], Gangadhar Pillai v. Siemens Ltd. [(2007) 1 SCC 533], Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara [(2007) 5 SCC 326], Hindustan Aeronautics Ltd. v. Dan Bahadur Singh [(2007) 6 SCC 207]. However, in U.P. SEB v. Pooran Chand Pandey (2007) 11 SCC 92 on which reliance has been placed by Shri Gupta, a two-
Judges Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judges Bench in Maneka Gandhi v. Union of India[(1978) 1 SCC 248]."
The Court noticed that in U.P. SEB v. Pooran Chandra Pandey (supra), this Court had held:
"18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the Court. No doubt, Maneka Gandhi case does not specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application."
(Emphasis supplied) However, the said observations were held to have been uncalled for.
The Bench noticed several judgments/orders of different Benches taking a view contrary to Uma Devi (3) (supra) to opine that those cases were illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. It was opined:
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions.
Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in U.P. State Electricity Board v. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
We feel bound by the observations made therein.
{See also State of Karnataka & Ors. vs. Sri G.V. Chandrashekar [2009 (3) SCALE 653} Recently, in State of Bihar vs. Upendra Narayan Singh [2009 (4) SCALE 282], a Bench of this Court, while holding that equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit and despite the fact there may be certain exceptions thereto, observed:
"17. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together."
The court noticed the spoil system as also a large number of decisions rendered thereon including Uma Devi (supra) to hold:
"33. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits."
14. Having regard to the ratio and the fact that appointment of applicants was not as per the recruitment rules and without intervention of the UPSC was not an appointment as per the rules the contractual appointment was on the terms and conditions of agreement consented to by the applicants. As such, the doctrine of equal pay for equal work would not be attracted. However, there is another aspect of the matter, which is to be probed into, which amounts to discrimination between a class, i.e., counterparts contract Doctors employed in Govt. of NCT of Delhi are getting more emoluments than the applicants. It is also trite that a methodology adopted by the respondents to adopt the pay structure of contractual Doctors in Govt. of NCT of Delhi. Applicants are entitled for this parity in totality. In this regard as per Item No.16 of the Agenda is reproduced as under:
Item No.16:- Enhancement of remuneration of Contractual Appointee in Health Department, MCD.
(i) Commissioners letter No. F.33/Health/363/C&C dated 24-7-2007.
Background:
There has been acute shortage of manpower in Health Department, MCD affecting the Health Services adversely. Requisitions were sent to UPSC for filling up of posts of GDMOs under Allopathic, Ayurvedic, Homeopathy and Unani Stream. Similarly for filling up of posts of para medical and other staff, the DSSSB was requested time and again. However, neither UPSC nor DSSSB was able to fill up the desired vacancies. Therefore, as an alternative arrangement, Medical Officers of all streams and Paramedical personnel were engaged on contract basis at a fixed salary in the public interest.
The remunerations that were paid/are being paid to these persons engaged on contractual basis do not commensurate with their qualifications and job profile. Hence, these Contractual Appointees had been representing time and again for enhancement of their salary. The matter was considered at depth and discussed at length taking into confidence the finance department as well.
CA-cum-FA has concurred in the proposal for enhancement of remuneration of Contractual Appointee with the following observations:
The proposal of the department (regarding enhancement of monthly remuneration) on grounds of parity acceptable in principle subject to condition that it the same is for making it at par with similar posts in GNCTD, the criteria approved by the GNCTD for fixation of contractual amount may be applied in MCD also, so that there may not be any disparity. Proposal:
Accordingly, the matter was taken up with the Delhi Government to ascertain the position of remuneration being paid to the Contractual Medical Officers and the paramedical Staff in Delhi Government. The Deputy Secretary (H&FW), Govt. of GNCTD vide letter No. F.8/262/2004/H&FW Pt.I-258 dated 13-7-2007 (Annexure A) and the Addl. Secretary-II, H&FW vide noting dated 4-6-2007 on the face of the letter of Health Department dated 28-5-2007 (Annexure B) communicated the pay scales/the remuneration being paid to the medical officers and the Paramedical Staff in GNCTD respectively. Accordingly, a proposal has been prepared for enhancement of the remuneration of the Medical Officers and the Paramedical staff of various categories engaged and to be engaged in future in the Municipal Corporation of Delhi in accordance with the remuneration being paid in Delhi Government and also as concurred by the Finance as under:-
----------------------_______________________________________________________________________________ S. No. Category of Staff Proposed enhanced Remuneration at par with GNCTD.
1. GDMO-II/Ayurvedic/Unani/ 8000-13400+Allowances i.e. Homeo/Dental/Doctors Rs.28513 (fixed) i.e Pay Scale + Allowances i.e. Rs.28513 (fixed).
2. Para-medical Staff Minimum Basic+D.P.+D.A. at the Time of initial appointment.
____________________________________________________________ The proposal however, does not include those persons who have been engaged on contract basis after retirement or engaged on promotional posts. While, the retired persons engaged against the direct recruitment posts shall continue to receive the same amount at hitherto before. Before persons shall be engaged against the promotional posts.
The proposal of the department regarding enhancement of contractual remuneration as detailed above may please be placed before the Standing Committee/Corporation for approval.
15. The aforesaid proposal has been passed by the House and approved by the Mayor while orders have been issued on 14.9.2007 to allow the applicants fixed emoluments of Rs.28,513/- from 1.10.2007. In this regard we have been apprised that the pay structure and the emoluments given to the Medical Officers, GDMO in Govt. of NCT of Delhi, i.e., counterparts of applicants are much higher than what is given to the applicants. Having accepted the parity, it will not be fair on the part of the respondent-MCD not to adopt identical pay structure of contract Doctors in Govt. of NCT and depriving applicants of the pay and allowances at par with counterparts in Govt. of NCT w.e.f. 1.10.2007 is certainly an invidious discrimination, which has not been proved otherwise and constitutes an infraction to the principle of equality enshrined under Article 14 of the Constitution of India. Moreover, respondents cannot approbate and reprobate simultaneously. Having adopted the pay structure of contract Doctors in Govt. of NCT of Delhi, the same cannot be denied to the applicants.
16. Resultantly, for the foregoing reasons, this TA is disposed of with a direction to the respondents to extend to the applicants the same pay structure and emoluments as disbursed to their counterparts contract Doctors in Govt. of NCT of Delhi w.e.f. 1.10.2007 with arrears etc. within a period of three months from the date of receipt of a copy of this order. No costs.
(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
San.