Central Administrative Tribunal - Delhi
Ram Rattan vs Govt. Of Nct Of Delhi Through on 11 December, 2012
Central Administrative Tribunal
Principal Bench
O.A. No. 3311/2011
Order reserved on: 14.05.2012
Order pronounced on:11.12.2012.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
Ram Rattan,
S/o Sh. Diyal Singh,
R/o Flat No.593,
Metro View Apartments,
Sector-13B, Phase II,
Dwarka, New Delhi-43.
-Applicant
(By Advocate : Ms. Monika Kapoor)
Versus
1. Govt. of NCT of Delhi through
The Chief Secretary,
5, Sham Nath Marg, Delhi.
2. The Director, Directorate of Health Services,
The Govt. of NCT of Delhi,
F-17, Karkardooma,
Shahdara, Delhi.
3. Rao Tula Ram Hospital,
Through the Medical Superintendent,
Jaffar Pur, New Delhi.
- Respondents
(By Advocate Shri Amit Anand)
O R D E R
Mr. Sudhir Kumar, Member (A):
Applicant before us is aggrieved by the order dated 30.08.2010 passed by the respondents in pursuance of the previous orders of this Tribunal in OA No.1481/2010 in the matter of Shri Abdul Rehman, Shri Ram Rattan & Ors. v. Chief Secretary, GNCT of Delhi & Rao Tula Ram Memorial Hospital & Ors., in which the Tribunal had, on 07.03.2010, allowed the applicants therein to withdraw their OA, with liberty to approach the respondent-department by submitting an appropriate representation. The respondents have, in reply to the representation given by the applicants, thereafter passed the order, which has been impugned herein as Annexure A-1.
2. The case of the applicant is that respondent No.2 had advertised and called for applications from eligible candidates for appointment to various posts on contract basis, and that his application had been considered, and through office order dated 21.11.2000 (Annexure A/2), the respondents had appointed him as ECG Technician, purely on contract basis, for a period of 89 days. Thereafter, the applicant had been offered appointment once again, by a letter of offer for engagement on contract basis, through Annexure A/3 dated 07.07.2008, which conditions of engagement on contract basis had been accepted by him, pursuant to which, by Annexure A/4 dated 06.08.2008, the applicant had been engaged for a period of 11 months w.e.f. 24.05.2008. Through Annexure A/5 dated 14.07.2008, it was clarified that leave of certain kinds may be granted to similarly placed incumbents, as per the guidelines dated 14.09.2007, and (through Annexure A/6) applicant had, after a break of one day each after 11 months period concerned, accepted continuation of his contractual appointment as ECG Technician, w.e.f. 24.05.2008 to 23.04.2009, and then again from 25.04.2009 to 24.03.2010, and then again from 26.03.2010 for a period of two months till 22.05.2010.
3. After the passing of the order at Annexure A/6 dated 25.08.2009, continuing the contractual appointment of the applicant upto 22.05.2010, the applicant was further engaged for the period from 24.05.2010 to 23.04.2011 through order dated 18.05.2010 (Annexure A/13) on a consolidated remuneration of Rs.15336/-. It was further mentioned that this contractual engagement would be terminable in case a regular appointment is made prior to 23.04.2011 . However, later on, through orders dated 14.07.2010 (Annexure A/15) his consolidated remuneration on contract basis was refixed on the basis of the minimum of the VIth CPC pay scales in Pay Band-2 (Rs.5200+Grade Pay 1800+DA35% being 2800 at Rs. 10,800). The applicant thereafter filed an RTI application dated 2.8.2010 seeking information regarding the salary being drawn by other ECG Technicians engaged on contract basis for 89 days in the hospital, and was issued the information under the RTI Act through Annexure A/16 colly. giving him information that only one ECG Technician was drawing the basic pay of Rs.7510 in the Pay Band 2 of Rs.5200-20200 with Grade Pay of Rs.2400+DA of Rs.3469+HRA of Rs.2973+Transport Allowance of Rs.2160+PC of Rs.1400, totalling to Rs.19912/- and all other ECG Technicians were being given consolidated amount of Rs.10,160/-.
4. The Applicant thereafter sought further information under RTI Act in respect of his other contemporary ECG Technicians S/Shri Gaurav Sharma, Baljeet Singh and Kapil Sagar, and was supplied with that information under the RTI Act through the letter dated 07.09.2010. Prior to this he had also been provided with another set of information under the R.T.I. Act on 3.9.2010, giving details of emoluments of ECG Technicians working on contract basis in his hospital, and giving the details that those who had been appointed initially on the basis of 89 days contractual employment, were drawing the basic pay of Rs.7510+Grade Pay of Rs.2400 and allowances of Rs.10152 bringing the total to Rs.20,062/-, while those appointed on 11 months consolidated remuneration basis were being granted the consolidated pay at Rs.10200/-.
5. The applicant feels aggrieved that even though this Tribunal had ordered in the case of the OAs filed by some others, and in OA No.52/2002 Ms. Shabana & Others v. Govt. of NCT of Delhi & Ors., that the respondents were to pay salary to the applicants therein at par with the regular employees, such benefits had eluded the applicant of the present case. The applicant has further submitted that through its three-Judge Full Bench judgment dated 23.07.2008 in OA No.1330/2007 with OA No.1331/2007 in the case of Mrs. Victoria Massey v. Govt. of NCT of Delhi and Mrs. Swarana Kanta v. Govt. of NCT of Delhi, the Tribunal had directed the pay scales as admissible to the regular employees to be allowed to those two applicants, but the benefit of that judgment also had not been provided to the applicant.
6. The applicant has assailed the action of the respondents in having reduced his consolidated salary from Rs.15336 to Rs.10800, and that in response to the RTI query sought by him from the Medical Superintendents of various hospitals through Annexure A/9, it has been disclosed that ECG Technicians in the same hospitals are being paid different salaries. The applicant has assailed that the respondents are denied the benefits of continuity of service to him and other similarly placed persons by giving him artificial break in service, which is discriminatory, unjustified and violative of Articles 14 and 16 of the Constitution of India. He had, therefore, taken the ground that when his appointment was made against a post which carried a pay scale and he has already put in more than a decade in service, and has become over-age to apply on a regular post, the respondents cannot be allowed to even reduce his consolidated emoluments by more than Rs.5000/-, and refuse to grant him leave benefit as well as medical facilities, as is being given to other para-medical staff working on contract basis in other hospitals, where they are being paid salary at par with other regular employees, with leave benefits and medical facilities. He had invoked the dictum of equal pay for equal work and has submitted that Article 39 of Constitution of India ordains the State to direct its policy towards securing equal pay for equal work. In saying so, he had sought shelter behind the Honble Apex Courts decisions in Randhir Singh v. Union of India, (1982) 1 SCC 618; Dhirendra Chamoli v. State of U.P., (1986) 1 SCC 637; Surinder Singh v. Engineer-in-Chief, CPWD, (1986) 1 SCC 639; and Jaipal v. State of Haryana (1988 (3) SCC 354). In the result, the applicant had prayed for the following reliefs:
In view of the facts and circumstances narrated above, it is most respectfully prayed that this Honble Tribunal may be pleased to:-
(A) direct the respondents to pay the salary to the applicants at par with regular appointed persons discharging same and similar duties;
(B) direct the respondents to pay the difference between the salary paid to the regular employees and the consolidated salary paid to the applicant from his respective date of initial appointment;
(C) direct the respondents to provide the applicant with leave benefits as well as with medical facilities as are being provided to the regular employees;
(D) allow the cost of the present application;
(E) pass any other further order/orders as this Honble Tribunal may deem fit and proper.
7. The respondents filed a counter-reply on 30.01.2012, submitting that the applicant was engaged as an ECG Technician purely on contract basis, in the pay scale of Rs.4000-6000, with admissible allowances, for a period of 89 days, or till the regular incumbent is appointed, whichever is earlier, and on the terms and conditions as given in the offer issued at the time of appointment, a copy of which has been enclosed by the applicant. It was further submitted that the terms of the contract services of the applicant were renewed from time to time only on the requests of the applicant, after a notional break of one day each time. It was further submitted that the applicant was not regularly appointed against the advertisement, as appointment was done by the Directorate of Health Services. It was further submitted that the order dated 16.05.2000 (Annexure A/8 of the OA) laying down admissibility of leave to the Staff Nurses appointed on regular basis is not applicable to the applicant who is an ECG Technician. It was further submitted that the order passed by this Tribunal in OA No.52/2002 Ms. Shabana & Ors. (supra) is not applicable in this case. It was further pointed out that the OA No.1332/2007 was filed by a Staff Nurse who, being a nursing professional, constitutes a group different than the ECG Technician, and further that the applicant of OA-1330/2007 Ms. Victoria Massey (supra) was still an applicant before this Tribunal in OA-277/2011, which case was still pending. It was further submitted that the applicant is fully aware that he had been engaged on contractual basis as per the relevant rules and procedure, and that he does not belong to the same class as that of the regular Government employees, and it was submitted that no act on the part of the respondents is discriminatory, unjustified and in violation of Articles 14 and 16 of the Constitution of India.
8. It was further submitted that the latest order dated 14.07.2010 is only a corrigendum of the earlier letter dated 18.05.2010, and does not actually amount to a reduction of the amount of emoluments payable to the applicant alone. The respondents had, therefore, prayed that the OA may be rejected.
9. The applicant filed a rejoinder on 29.03.2012, more or less reiterating his contentions as per the OA, and denying that the decision in Ms. Victoria Masseys case (supra) is not applicable in his case, and it was submitted that both Ms. Victoria Massy as well as the applicant are working on contract basis, and hence their cases are similar. It was, therefore, prayed that the relief, as prayed for in the OA, may be granted.
10. Heard. During the course of the arguments the learned counsel of the applicant heavily relied upon the orders passed by the Tribunal in OA No.3111/2001 and 3112/2001 and in OA No.52/2002 as well as the orders dated 23.07.2008 in OA No.1330/2007 with OA No.1331/2007. The learned counsel for the applicant also filed a copy of the judgment dated 15.11.2011 in OA No.908/2011 Satender Mishra & Ors. v. Govt. of NCTD & Ors. in which he claimed that the cases of similarly placed persons had been considered and the following order had been passed:
Applicants are seeking the following reliefs in this Original Application:
1. It is respectfully prayed that the respondents may please be directed to consider the applicants for giving them equal salary and perks at par with other Hospitals of Delhi Govt. mentioned in this OA.
2. It is further prayed that the respondents be directed to pay back arrears to the applicants from the date of the joining.
3. Any other relief which this Tribunal may deem fit and proper in the interest of justice may be awarded to the applicants and against the respondents.
2. The learned counsel for the respondents has submitted that this OA is covered by the order passed in OA No.3903/2010 decided on 01.11.2011. Relevant part of the aforesaid order reads as under:
2. In our considered view this OA is squarely covered by the judgment of the Full Bench of this Tribunal in the case of Ms. Victoria Massey Vs. NCT of Delhi & Ors. etc. (supra) as modified by the Hon,ble High Court of Delhi vide its judgment dated 22.5.2009 in WP (C) No.8476/2009 - Govt. of NCT of Delhi & Ors. Vs. Dipika S.Kumar, including WP (C) No.279/2008 - Helan Peter Vs. NCT of Delhi & Ors. and WP (C) No.8764/2008 - Govt. of NCT of Delhi Vs. Victoria Massey.
3. After the aforesaid decision of the Full Bench as modified by the High Court of Delhi, as mentioned earlier, this Tribunal has disposed of number of OAs filed by similarly placed applicants. A Coordinate Bench of this Tribunal in OA-3419/2010 and connected cases - Rakesh Kumar and ors. Vs. Govt. of NCT of Delhi and ors. has allowed the OA and its relevant part is as under:
5. During the course of hearing in these OAs, the Tribunal has sought information from the respondents as to the various allowances being given to the regular employees of the respective categories. The respondents have submitted that the regular employees are entitled for the following emoluments:-
(a) Basic Pay
(b) Grade Pay
(c) Dearness Allowance
(d) House Rent Allowance
(e) Transport Allowance (Non Taxable)
(f) Transport Allowance (Taxable)
(g) Hospital Patient Care Allowance
(h) Washing Allowance
(i) Maternity Leave Allowance (for female employees)
6. From the above position, it is clear that the aforesaid Full Bench decision of this Tribunal, as modified by the Honble High Court shall hold the field. Therefore, the applicants, who are working as contractual employees under the Govt. of NCT of Delhi and Municipal Corporation of Delhi are entitled for all the benefits as admissible to the similarly placed regular employees of their respective categories except promotion and annual increments while they remain as contractual employees. In other words, they have to be given all the allowances which are being given to the similarly placed employees. As regards the dearness allowance is concerned, it is clarified that the benefit of the periodical revision of the same will also be given to the contractual employees. Consequently, the respondents are directed to re-fix the monthly emoluments of the applicants from their respective dates of initial engagements. However, the arrears arising out of such fixation shall be admissible only from the respective dates they have filed these OAs. The respective dates of filing OA No. 1943/2010, 2945/2010 preceded by OA No. 724/2010 and OA No. 3419/2010 are 2.6.2010, 4.3.2010 and 01.10.2010. The respondents are directed to carry out the aforesaid directions within a period of two months from the date of receipt of a copy of this order.
7. With the aforesaid directions, these OAs are allowed. There shall be no order as to costs.
4. Again, vide another Order dated 30.9.2011 in OA-3901/2010 and connected cases - Shri Karmveer and ors. Vs. Govt. of NCT of Delhi and ors., we have directed the respondents to refix the monthly emoluments of the applicants irrespective of dates of their initial engagement but restricting the arrears arising out of such fixation only from respective dates they filed these OAs.
5. Accordingly, we direct that the respondents shall refix the pay of the applicants, who were in this OA, in terms of the judgment of the Full Bench of this Tribunal in the case of Ms. Victoria Massey Vs. NCT of Delhi & Ors. etc. (supra) and as modified by the High Court with effect from the initial date of their engagement. However, the arrears arising out of such refixation shall be admissible only from the date of filing of OA-1409/2010 (supra), which was decided on 29.4.2010. The aforesaid direction shall be complied with, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
3. The respondents shall apply the aforesaid directions in this case also. Accordingly this OA is disposed of. There shall be no order as to costs.
11. On the other hand, the learned counsel for the respondents heavily relied upon several Honble Apex Court judgments, including in the case in Secretary, State of Karnataka & Ors. v. Umadevi & Others, (2006) (4) SCC 1, and also filed a copy of the order of the Honble High Court of Calcutta in Writ Petition No.26952/2006 Hardhan Mehato v. The State of West Bengal & Another with WP No.26953/2006 - Babulal Mehato v. The State of West Bengal & Another decided on 17.01.2012.
12. We have given our anxious consideration to the facts of this case. Another parallel set of cases had earlier come up before this Tribunal in OA No.1468/2011 with OA No.1677/2011 with OA No.1678/2011 with OA No.3847/2011, the orders in which were pronounced on 13.01.2012. Also, in their counter, the respondents had mentioned about the pendency of the case of Mrs. Victoria Massey in OA No.277/2011, but in the interregnum, on 04.10.2012, common orders have been passed in OA No.3617/2010 with OA No.4371/2011 and OA No.277/2011, covering the case of Mrs. Victoria Massey also. While one of us [Mr. G. George Paracken, Member (J)] was the author of the judgment dated 15.11.2011 cited above, another one of us has been a part of the Bench which delivered the judgment dated 04.10.2012 in OA No.3617/2010 with OA No.4371/2011 & OA No.277/2011 (supra). It is also seen that the three Member Full bench judgment of this Tribunal dated 23.07.2008 in OA No.1330/2007 with OA No.1331/2007 Mrs. Victoria Massey v. Govt. of NCT of Delhi and Mrs. Swarana Kanta v. Govt. of NCT of Delhi, had been partially set aside and modified by the Honble Delhi High Court, and, thereafter, all the judgments have followed a consistent path in law, and are consistent on the points of law with each other. Therefore, while deciding this case, we do not find ourselves free to tread on an entirely different path, and judicial discipline demands that we follow the same interpretation of law.
13. The law of the land as regarding the concept of equal pay for equal work has been very aptly summarized by the Honble Calcutta High Court in the case of Hardhan Mehato (supra) by stating as follows:-
The submission of the petitioner is essentially on the concept of equal pay for equal work which according to the petitioner offends Article 14 of the Constitution of India if not followed. It is undisputed that the petitioner while accepting the promotion does so with open eyes and its consequences flowing therefrom, the concept of equal pay for equal work is not applicable in case of a contractual appointment and does not offend Article 14 and 16 of the Constitution that has been held by the Five Judges Bench of Supreme Court in case of Secretary, State of Karnataka and Ors Vs. Uma Devi (3) and Ors. reported in (2006) 4 SCC 1 in these words:
"48. 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 8 recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned 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."
In case of Mahendra L. Jain Vs. Indore Development Authority reported in (2005) 1 SCC 639 the Supreme Court held that the doctrine of equal pay for equal work as adumbrated in Article 14 and Article 39 (d) of the constitution cannot be invoked unless it is expressly and clearly demonstrated relating to the nature of work and responsibilities attached to the posts but not when their services are not regularized and continued on a consolidated pay on adhoc basis.
Whether the High Court in exercise of power vested under Article 226 of the Constitution can issue mandamus and compel the state and its instrumentality to regularize the service of the temporary /adhoc/ dailywager/casual/contract employees to prescribe or give similar pay scale to the employees appointed through different modes with different 9 conditions of service and different sources of payment came up for consideration before the Supreme Court in case of Official Liquidator Vs. Dayanand reported in (2008) 10 SCC 1, it is held:
"93. The respondents' claim for fixation of pay in the regular scale and grant of other monetary benefits on a par with those appointed against the sanctioned posts has been accepted by the High Courts on the premise that their duties and functions are similar to those performed by regular employees. In the opinion of the High Courts, similarity in the nature of work of the company-paid staff on the one hand and regular employees on the other hand, is by itself sufficient for invoking the principle of equal pay for equal work. In our view, the approach adopted by the High Courts is clearly erroneous and directions given for bringing about parity between the company-paid staff and regular employees in the matter of pay, allowances, etc. are liable to be upset.
94. The principle of equal pay for equal work for men and women embodied in Article 39 (d) was first considered in Kishori Mohanlal Bakshi v. Union of India and it was held that the said principle is not capable of being enforced in a court of law. After 36 years, the issue was again considered in Randhir Singh v. Union of India, and it was unequivocally ruled that the principle of equal pay for equal work is not an abstract doctrine and can be enforced by reading it into the doctrine of equality enshrined in Articles 14 and 16 of the Constitution of India.
95. The ratio of Randhir Singh v. Union of India (1982) 1 SCC 618 : 1982 SCC (L&S) 119 was reiterated and applied in several cases--Dhirendra Chamoli v. State of U.P. (1986) 1 SCC 637 : 1986 SCC (L&S) 187, Surinder Singh v. CPWD (1986) 1 SCC 639 : 1986 SCC (L&S) 189, Daily Rated Casual Labour v. Union of India (1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228, Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka (1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902and Jaipal v. State of Haryana (1988) 3 SCC 354 : 1988 SCC (L&S) 785 : (1988) 7 ATC 771 and it was held that even a daily-wage employee who is performing duties similar to regular employees is entitled to the same pay. However, in Federation of All India Customs and Central Excise Stenographers v. Union of India (1988) 3 SCC 91 : 1988 SCC (L&S) 673 : (1988) 7 ATC 591, Mewa Ram Kanojia v. AIIMS (1989) 2 SCC 235 : 1989 SCC (L&S) 329 : (1989) 10 ATC 51, V. Markendeya v. State of A.P (1989) 3 SCC 191 : 1989 SCC (L&S) 454 : (1989) 11 ATC 3, Harbans Lal v. State of H.P. (1989) 4 SCC 459 : 1990 SCC (L&S) 71 : (1989) 11 ATC 869, State of U.P. v. J.P. Chaurasia (1989) 1 SCC 121 : 1989 SCC (L&S) 71 : (1988) 8 ATC 929, Grih Kalyan Kendra Workers-- Union v. Union of India (1991) 1 SCC 619 : 1991 SCC (L&S) 621 : (1991) 16 ATC 507, GDA v. Vikram Chaudhary (1995) 5 SCC 210 : 1995 SCC (L&S) 1226 : (1995) 31 ATC 129, State of Haryana v. Jasmer Singh (1996) 11 SCC 77 : 1997 SCC (L&S) 210, State of Haryana v. Surinder Kumar (1997) 3 SCC 633 : 1997 SCC (L&S) 844, Union of India v. K.V. Baby (1998) 9 SCC 252 : 1998 SCC (L&S) 539 , State of Orissa v. Balaram Sahu (2003) 10 1 SCC 250 : 2003 SCC (L&S) 65, Utkal University v. Jyotirmayee Nayak (2003) 4 SCC 760 : 2003 SCC (L&S) 598, State of Haryana v. Tilak Raj (2003) 6 SCC 123 : 2003 SCC (L&S) 828, Union of India v. Tarit Ranjan Das (2003) 11 SCC 658 : 2004 SCC (L&S) 160, Apangshu Mohan Lodh v. State of Tripura (2004) 1 SCC 119 : 2004 SCC (L&S) 10, State of Haryana v. Charanjit Singh (2006) 9 SCC 321 : 2006 SCC (L&S) 1804, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh (2007) 6 SCC 207 : (2007) 2 SCC (L&S) 441, Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara (2007) 5 SCC 326 : (2007) 2 SCC (L&S) 143 and Canteen Mazdoor Sabha v. Metallurgical & Engg. Consultants (India) Ltd. (2007) 7 SCC 710 : (2007) 2 SCC (L&S) 758, the Court consciously and repeatedly deviated from the ruling of Randhir Singh v. Union of India (1982) 1 SCC 618 : 1982 SCC (L&S) 119 and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, experience, confidentiality, functional need, etc.
96. In State of Haryana v. Jasmer Singh the two-judge Bench laid down the following principle:
"8. It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. This court has repeatedly observed that evaluation of such jobs for the purposes of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted."
97. In Harbans Lal v. State of H.P. the Court held that the claim of carpenters employed by an incorporated company for parity in wages payable to their counterparts in government service is unsustainable.
98. In Jawaharlal Nehru Technological University v. T. Sumalatha it was held that the respondents who were employed under a scheme known as National Technical Manpower Information System, which was sponsored by the then Ministry of Education and Culture, cannot claim parity with the regular government employees in the matter of pay scale.
99. In Canteen Mazdoor Sabha v. Metallurgical & Engg. Consultants (India) Ltd. another two-judge Bench held that simply because some employees of a contractor of the alleged head employer are performing the task or duties similar 11 to the employees of the head employer, it will not entitle such employees to claim parity."
On the anvil of law enunciated in the above reports it is beyond any reasonable doubt that the petitioner being a contractual promotee cannot get pay and allowances in parity with the other regular promotees and or appointees.
(Emphasis supplied).
14. After having exhaustively discussed the law regarding the demands for equality of pay scales and equal pay for equal work, the Honble Calcutta High Court had in that case ultimately held as follows:-
The judgment cited by the petitioner were delivered by the Apex Court and this Hon'ble Court prior to the judgment rendered by the Apex Court in case of Uma Devi (3) (supra) and as such does not have a binding precedent.
Therefore I do not find any merit in the above-mentioned writ petitions.
(Emphasis supplied).
15. Since all the available case law has been very succinctly summarized by the Honble Calcutta High Court in its above cited order dated 17.01.2012, we do not have to once again discuss the impact or import or any of the cited case law in this regard beyond what has been already cited above.
16. The sum and substance of the ratio as laid down by the Honble Apex Court in State of Haryana v. Jasmer Singh (1996) 11 SCC 77 is that the concept of equal pay for equal work cannot be applied blindly and it is clear that the equality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in education or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There can also be other considerations, which will be relevant in regard to the efficiency in service, which may justify differences in pay scales so that considerations, which may have a bearing on efficient performance in a job are given due weightage. The Honble Apex Court has, therefore, held that the evaluation of the jobs for the purposes of pay scale must be left to expert bodies and, unless there are any malafides, its evaluation should be accepted by the Courts (and Tribunals). Further, it flows from the case of Jawaharlal Nehru Technological University v. T. Sumanlatha (supra) that persons who are employed for a contingency, or not in the regular stream of Government employment, cannot claim parity with regular Government employees in the matter of pay scales. Even in the order passed on 01.11.2011 in OA No. 3903/2010, in Paragraph-6, this Tribunal had observed as follows to state that contractual employees remain as contractual employees, and cannot be held to be admissible to promotion and annual increments, although periodical revision of Dearness Allowances etc. would have to be allowed to the contractual employees also:-
6. From the above position, it is clear that the aforesaid Full Bench decision of this Tribunal, as modified by the Honble High Court shall hold the field. Therefore, the applicants, who are working as contractual employees under the Govt. of NCT of Delhi and Municipal Corporation of Delhi are entitled for all the benefits as admissible to the similarly placed regular employees of their respective categories except promotion and annual increments while they remain as contractual employees. In other words, they have to be given all the allowances which are being given to the similarly placed employees. As regards the dearness allowance is concerned, it is clarified that the benefit of the periodical revision of the same will also be given to the contractual employees. Consequently, the respondents are directed to re-fix the monthly emoluments of the applicants from their respective dates of initial engagements. However, the arrears arising out of such fixation shall be admissible only from the respective dates they have filed these OAs. The respective dates of filing OA No. 1943/2010, 2945/2010 preceded by OA No. 724/2010 and OA No. 3419/2010 are 2.6.2010, 4.3.2010 and 01.10.2010. The respondents are directed to carry out the aforesaid directions within a period of two months from the date of receipt of a copy of this order.
17. In the order dated 04.10.2012 in OA No.3617/2010 with OA No.4371/2011 & OA No.277/2011 also, it has been held as follows:-
.The relief regarding grant of regular pay scale/benefits like regular pay scales, increments, deduction of GPF, bonus etc. cannot be granted to the applicants in view of the decision of the Honble Apex Court, which are as follows:
i) Orissa University of Agriculture & Technology v. Manoj K. Mohanty, 2003 (1) SC Service Law Judgment page 363.
ii) Utkal University and another Vs. Jyotiramyee Nayak & others, 2003 (2) SC Service Law Judgment page 249.
iii) Km. Priti Chopra v. Managing Director, 2002 (2) All India Service Law Journal page 197.
iv) Mahendra Lal Jain & others v. Indore Development Authority & others, 2005 Vol.1 SCC 639.
v) State of Haryana v. Charanjit Singh, 2006 Vol.9 SCC 321.
9. The legal position in respect of casual or contract employees are not entitled to increment and would get pay at the minimum of the regular pay scale. In the absence of regularization, question of consideration of cases for promotion also would not arise. The said benefit cannot be granted to the applicants since they are not regular employees and they are not seeking for regularization. 10 to 12 xxx xxx xxx xxx
13. On the admitted facts narrated in the preceding paragraphs it is very crystal clear that the applicants were engaged on contractual basis, initially they were engaged for 89 days, that was continued from time to time and as of now they are working. They have not completed 10 years of service on contractual basis and they are not eligible for regularization in view of the judgment of the Honble Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi & others, (2006) 4 SCC 1 and State of Karnataka & Ors. v. K.L. Kesari & Ors., 2010 (7) SCALE 743. It is not the case of the applicants that they want regularization. They want only annual increments, leave benefit (casual leave and earned leave,) health card facilities, child care allowances etc. as has been given to regular employees,at par with regular employees. Applicants relying upon the increments given to the employees of one of the Institutions run by NCT of Delhi admitted that Cancer Institute is not notified under Section 14 of the Administrative Tribunals Act, 1985. We are of the view that the benefit given to the employees of Cancer Institute, Delhi cannot be considered that the similar benefit has to be given to the applicants. Applicants are relying upon the judgment of this Tribunal in OA-2108/1999 dated 18.05.2000. The said OA was filed by the Doctors. They are also working on contractual basis. We are of the view, that the applicants cannot compare their service at par with the Doctors, the nature and duties of the Doctors and the nature and the services of the applicants are totally different. The grievance of the applicants that the respondents should not discriminate amongst similarly situate employees as per the directions of the Honble High Court in WPC No.8476/2009 dated 22.05.2009 has to be granted to the applicants. It is relevant to extract the observations made by the Honble High Court of Delhi, which reads as under:
The legal position in this regard is that casual or contract employees are not entitled to increments and would get pay at the minimum of the regular pay scale. In the absence of regularization, question of consideration of cases for promotion also would not arise. While that is the position in law, we have no information as to whether other Staff Nurses appointed on contract basis, who had approached the Tribunal and this Court earlier for pay parity and were granted relief, have been granted increments or not. In case the petitioner had given to those nurses appointed on contract basis benefit of increment, then it would be extended to the respondents herein as well on the principle of equality and equal treatment. However, if such a benefit has not been granted to other similarly situated staff nurses appointed on contract basis, then the respondents herein also shall not be entitled to benefit of either increment or promotion. All these writ petitions are disposed of in the aforesaid terms. Petitioner shall work out the arrears of salary payable to the respondents in terms of aforesaid directions. Arrears will be calculated from the date when these respondents filed the O.A. If the payment is not made within two weeks, respondents will be entitled to approach the Court for withdrawal of the amount deposited in the Court.
14. The said judgment of the Honble High Court of Delhi has been affirmed by the Honble Apex Court in SLP (C) No.14208/2009 dated 09.07.2009. The respondents contended that the judgment of the Honble High Court (supra) has been complied with under compulsion vide order dated 19.04.2010 in CP No.686/2009, 69/2010 and 311/2009. Respondents of their own have not sanctioned the increment to Mrs. Swaran Kanta Bhatia & applicants cannot seek the similar benefit, which has been given to Smt. Swaran Kanta Bhatia under the principle of discrimination. Applicants contended that when the similar benefits have been given to one Smt. Swaran Kanta Bhatia, respondents cannot deny the benefit to the applicants.
15. We have carefully considered the submissions of the learned counsel from either side on the ground of discrimination. Under the facts and circumstances of this case we are of the opinion that the annual increments would be granted to regular employees if the employees are appointed under the recruitment rules framed under Article 309 of the Constitution of India by inviting applications by publication in accordance with the selection procedure. Those employees are only eligible for annual increment attached to the pay scale. The pay scale shall be given to the regular employees only. In the present case the applicants are not seeking regularization of their services. They want only increments and other benefits as prayed in the OA. Admittedly the applicants are contractual employees. The increments given to the employees of an autonomous body, i.e, Cancer Institute of Delhi, the said benefit cannot be extended to the applicants. The said Institute has not been notified under Section 14 of the Administrative Tribunals Act, 1985. It is the prerogative power of the Executive to fix the pay scale to a particular post, as held by the Honble Supreme Court in R.L. Bansal v. Union of India, AIR 1993 SC 978. The applicants have no legal right to ask for grant of increments and other benefits since they are not regular employees, the increment granted under the court order, i.e., in CP (supra) cannot be extended to the applicants. Respondents on their own have not granted increments to Mrs. Swaran Kanta Bhatia. We have great respect to the orders of the Honble High Court. The Honble High Court has made it clear that in case the petitioner had given to those nurses appointed on contract basis benefit of increment, then it would be extended to the respondents herein as well on the principle of equality and equal treatment. However, if such a benefit has not been granted to other similarly situated staff nurses appointed on contract basis, then the respondents herein also shall not be entitled to benefit of either increment or promotion.
16. We have taken care of the observations made by the Honble High Court. We have great respect to the judgment, but the Honble High Court has not laid down the law in respect of grant of increment to the employees working on contract basis.
17. Applicants have relied upon the judgment of this Tribunal in OA No.282/2011 dated 11.01.2012 in the case of Pawan Kumar v. Govt. of NCT of Delhi & Others. The said OA was filed for grant of benefit as was granted by this Tribunal in the case of Victoria Massey & Anr. V. NCT of Delhi & Ors. in OA No.1300 & 1331 of 2007, decided on 23.07.2008 and another judgment in OA No.1843/2007 dated 29.12.2011 in Swastika Bhakat & Ors. v. Govt. of NCT of Delhi & Others. The learned counsel of applicants has taken us to paragraph-8 of the said judgment. The Tribunal has decided the case based on the decision of the Full Bench in Victoria Massey (supra) and also the observations made by the Honble High Court, that in case the respondents have given pay parity and increments to those Nurses appointed on contract basis then it would be extended to the applicants also on the principle of equality and equal treatment. However, if such benefits have not been granted to other similarly situated staff nurses appointed on contract basis the respondents are not entitled to either increments or promotion.
18. On the admitted facts narrated in the earlier paragraphs and also the observations made by the High Court in WPC No.8476/2009 with WP(C) No.279/2008, WP(C) No.8764/2008 and WP(C) No.8844/2008 it is evident that the respondents on their own have not granted increments to Swarana Kanta Bhatia. The increment was given only to that applicant as per the direction of this Tribunal in Contempt Petition No.686/2009. In our view the increment given to one of the applicants who is working on contract basis that benefit cannot be extended to others who are similarly situated. As observed in the earlier paragraphs the applicants are not seeking regularization since they are not eligible for regularization in view of the judgments of the Apex Court in the case of Umadevi (supra) and M.L. Kesari (supra). When the increment is attached to a pay scale, the pay scale will be given only to the regular employees. The increment given to the employees of the Delhi Cancer Institute cannot be considered that the similarly situated contract employees are also entitled for the increment and other benefits as prayed for. Applicants have no legal right to ask for annual increment and other benefits, their services cannot be equated with the services of the regular employees. Hence, applicants have failed to establish their case for grant of reliefs as prayed for in the OAs. The respondents are justified in their reply statement and their specific stand that they have not discriminated the applicants since the applicants are not eligible for grant of increments and other benefits as prayed in the OAs. Accordingly, OAs are liable to be dismissed.
19. OAs are dismissed but with no order as to costs.
18. As a result, in the instant case also, it is clear that the applicant cannot claim to be placed on parity with those appointed on a regular basis. The applicant has accepted contractual appointment from time to time, till the post concerned is filled up by regular employment as per rules, which terms and conditions of his contractual employment he has signed with open eyes. Also, since he had not completed 10 years as a contractual employee as on the date of the judgment in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Others (supra), he is not entitled for regularization also.
19. However, it is seen that Annexure A-15 order dated 14.07.2010, a Corrigendum to the earlier order dated 18.05.2010, is a non-speaking order, and does not give any reason whatsoever as to why and how the consolidated remuneration of the applicant was reduced from Rs,15,336/- per month to Rs.10,800/- per month. Such adverse orders, without giving any reasons and logic, and without affording an opportunity to the applicant to contest the stand of the respondents, cannot be allowed to be sustained.
20. Therefore, the OA is partially allowed, inasmuch as the Corrigendum order dated 14.07.2010 (Annexure A-15) is set aside, in response to the prayer at Para 8(e) of the relief clause, and the respondents are directed to re-consider the case of the applicant regarding reduction of his consolidated remuneration, which aspect has not been covered fully in the impugned Annexure A-1 dated 30.08.2010 also. The OA is accordingly disposed of as partially allowed, but there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.