Central Administrative Tribunal - Delhi
Kapil Kumar Kataria vs Govt. Of Nct Delhi on 18 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA 2141/2010 ORDER RESERVED ON: 05.07.2012 ORDER PRONOUNCED ON: 18.07.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) 1. Kapil Kumar Kataria, S/o Sh. Subhash Kataria, R/o RZ L-29, Shankar Park, West Sagarpur, Gali No.3, New Delhi-46. 2. Ritu, W/o Shri Sudhir Kumar, R/o Flat No. 701, Sector 16-B, Dwarka, New Delhi. 3. Poonam, D/o Sh. Mahipal Singh, R/o A-119, Ph-I, Shyam Vihar, Deenpur, Najafgarh, New Delhi-43. 4. Gajender Singh, S/o Shri Mehar Chand, R/o H.No. 400, A/4, Near Govt. Girls School, Budh Vihar, Munirka, New Delhi-67. Applicants. (By Advocate Shri Harish Kumar) Versus 1. Govt. of NCT Delhi Through the Chief Secretary, New Secretariat, New Delhi. 2. Director of Health, Directorate of Health Service, Govt. of NCT Delhi, F-17, Karkardooma, Delhi-32. 3. Chief District Medical Officer (SW), Directorate of Health, Dispensary Complex, Sector-2, Dwarka, New Delhi. Respondents. (By Advocate Ms. Alka Sharma) O R D E R
Shri G. George Paracken:
The applicants in this O.A have been working as Lab. Assistants in different dispensaries under Chief District Medical Officer (Respondent No.3), South West Zone, Dispensary Complex, Sector-2, Dwarka, New Delhi under the Government of NCT, Delhi. They have been serving on contract basis. According to them, although they have been discharging similar duties as was being performed by the regular staff working on the similar posts, but the respondents have denied them right to equal pay for equal work based on the principle of equality. Initially, they have been paid consolidated salary of Rs.5,000/- per month and it has been increased to Rs.10,260/-. On the other hand, regular employees of the similar posts are getting salary of Rs.21,733/- per month. The applicants are only receiving the basic salary and dearness allowance only whereas the regular staff of the same post have been getting basic pay, HRA, DA, CCA, TA, annual increment as well as patient care allowances, etc. They have, therefore, sought a direction to grant them equal salary and other benefits as applicable to the regular employees working on similar posts as per the principle of equal pay for equal work.
2. The learned counsel for the applicants Shri Harish Kumar has submitted that the issue involved in this case has already been settled by a Full Bench of this Tribunal in O.A 1330/2007 Mrs. Victoria Massey Vs. National Capital Territory of Delhi & Ors. and O.A 1331/2007 Mrs. Swaran Kanta Vs. National Capital Territory of Delhi & Ors. The Full Bench, after a detailed discussion of the various cases, decided by the Apex Court as well as the other course, vide its common order dated 23.08.2008, came to the conclusion that the applicants, in the facts and circumstances of the case, were entitled for pay and allowances at par with regular employees of the respective categories. The relevant paras of the said order are as under:
17. The totality of the discussions leads us to a conclusion that the applications are required to be allowed. However, in view of the delay in coming over to this Tribunal, some amount of restrictions necessarily are to be imposed in the matter of grant of monetary relief. Applicants in both the OAs will have the date of their initial engagement counted as the date of entry. Their pay scales and pay have to be appropraiately fixed with reference to such date. Increments will be admissible to them from the above date and their pay as on today is to be fixed on such basis that they were as Grade A Nurses for all purposes. They will be entitled to the actual resultant arrears only with effect from the date they filed this Original Applications, namely, 26.07.2007. We also record the submission made by the learned counsel that the applicants have no claim for getting their services regularized, especially since as they had not passed the prescribed test for getting such benefits.
18. A technical objection had been raised by the respondents that in the earlier original applications and writ petitions, reliefs have been granted to concerned persons who were employed in the hospitals under the Municipal Council of Delhi, and as far as the NCT of Delhi is concerned, decision could not have been applicable on all fours.
19. But we note that identical contentions as above had been raised before the High Court as well as in OA 1857/2006, but have been found as having no merit. Therefore, in such circumstances, we do not think it appropriate to dwell on such technical objections. We direct consequential orders as per our directions as above are to be passed by the concerned respondents and benefits are to be extended to the applicants within three months from today. There will be no order as to costs.
3. The respondents have challenged the aforesaid order of this Tribunal before the Honble High Court of Delhi in Writ Petition No. 8476/2009 and other connected cases. The Honble High Court, vide its judgment dated 22.5.2009, modified the aforesaid order of the Full Bench to the extent that the applicants therein were not entitled for promotion as well as increments as long as they remain as contractual employees. The operative part of the said judgment is 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 as 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 direction. 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.
4. The learned counsel for the applicants has also invited our attention to the order of the Tribunal in OA 3419/2010 and connected cases Rakesh Kumar & Ors. Vs. Govt. of NCT of Delhi & Ors. wherein the Tribunal, relying upon the aforesaid orders of the Full Bench as well as the judgment of the High Court, passed the following orders:
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.
5. The learned counsel for the applicants has also relied upon the order of this Tribunal in OA 3901/2010 and connected cases Karamveer Vs. Govt. of NCT of Delhi & Ors. wherein this Tribunal passed the following order on 30.09.2011:
3. In our considered view, the aforesaid order shall applicable equally in this case also. Accordingly, these OAs are allowed in terms of the aforesaid OA.
4. These are OAs have been filed as the second round of litigation by the applicants, as held by the Full Bench of this Tribunal in OA No. 1330/2007 and connected cases, they shall be entitled for actual resultant arrears with effect from the respective dates of filing of their first Original Applications. The applicants in OA No. 3901/2010 have filed their Original Application No. 1693/2010 on 2.5.2011, the applicants in OA No. 776/2011 have filed their Original Application No. 1697/2010 on 24.5.2010 and the applicants in OA No. 3445/2010 have filed their Original Application No. 740/2010 on 4.3.2010. The applicants in these cases will be entitled for the arrears w.e.f. 2.5.2010, 24.5.2010 and 4.3.2010 respectively.
6. Again, this Tribunal vide order dated 17.05.2012 in OA 2146/2011 Manjusha & Ors. Vs. Govt. of NCT of Delhi & Ors. granted similar relief to the applicant therein and its operative part is as under:
In view of the above facts and circumstances of the case, we allow this OA. The respondents shall, therefore, grant all the benefits to the applicants as has been granted to the applicants in OA 3419/2010 and connected cases (supra) vide this Tribunals order dated 06.07.2011 and as disposed of by the High Court vide its order dated 07.12.2011 in WP (C) No.6959/2011 (supra). The aforesaid directions shall be complied with within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
7. The learned counsel for the applicants has further relied upon the judgment of the Honble High Court in WP (C) No. 6956/2011 MCD Vs. Rakesh Kumar and Anr. wherein the High Court has reiterated its earlier order in WP (C) 8476/2009 decided on 22.05.2009 (supra). The relevant part of the said judgment reads as under:
4. We may however mention that while holding that the contractual employees shall also be entitled to the same pay parity as the regular employees, it was clarified that they would not be entitled to increments and would get pay at the minimum of the regular pay scale. The following directions were given by this Court:
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 as 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 direction. 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.
5. There is a dispute about the payment of certain other benefits like HRA, residential accommodation etc. Mr. Pawan Kumar Bahl, learned counsel for the respondents states that the respondents shall be satisfied if they are also given the same treatment and benefits as were given by this Court in the aforesaid judgment as per the passage supra.
6. This writ petition is accordingly disposed of with the direction to the petitioner to give the benefits to the respondents in similar manner.
8. The respondents have filed their reply. They have submitted that while the facts in this case are not disputed, they are now filing SLP against the order of the Honble High Court before the Apex Court.
9. We have heard the learned counsel for the parties and perused the documents available on record. There is no dispute that the issue raised in this case has finally been decided by the Full Bench of this Tribunal in Mrs. Victoria Masseys case (supra) as modified by the Honble High Court of Delhi in WP (C) No. 8476/2009 (supra). As a matter of judicial propriety and discipline, we are bound by those orders. Accordingly, this O.A is allowed. We, therefore, direct that the applicants in this case shall be granted all the benefits as has been granted to the applicants in Mrs. Victoria Masseys case (supra) as per the Full Bench of this Tribunal dated 23.08.2008 and as modified by the Honble High Court in WP (C) No. 8476/2009 (supra) decided on 22.05.2009. The respondents shall pass appropriate orders extending the benefits to the applicants within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
(Sudhir Kumar) ( G. George Paracken )
Member (A) Member (J)
SRD