Central Administrative Tribunal - Delhi
Shri S.M. Gupta, Senior Lab Technician, ... vs Union Of India (Uoi) (Through ... on 15 July, 2008
ORDER
V.K. Bali, J. (Chairman)
1. S.M. Gupta, Lab Technician, presently employed with second respondent-Safdarjung Hospital, has filed present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking direction to be issued to the respondents to count service rendered by him at All India Institute of Medical Sciences (for short, AIIMS) and accordingly grant him first financial upgradation w.e.f. 08.09.1999 and second financial upgration w.e.f. 08.10.2004 under Assured Career Progression Scheme (for short, ACPS), with all consequential benefits.
2. Brief facts, as set out in the Application, reveal that the applicant was appointed as Laboratory Technician at AIIMS, New Delhi in 'Post Mortem Project' financed by Delhi Administration initially on temporary basis and was regularized in June, 1979. It is the case of the applicant that 'Post Mortem Project' at AIIMS was partly transferred to Safdarjung Hospital but AIIMS Administration instead of transferring the services of the applicant and others to Safdarjung Hospital w.e.f. 07.09.1987 i.e. the date of start of post mortem work at Safdarjung Hospital, terminated the services of the applicant on 16.12.1987. The applicant along with others, thus, became surplus. Persons, similarly situated as the applicant, filed CWP No. 879/1988 before Hon'ble Supreme Court of India which was allowed with direction that those who were working at AIIMS pursuant to the scheme in question, which had since been wound up, will be taken on duty at Safdarjung Hospital as fresh employees without any claim for seniority but whatever pay they were getting at AIIMS shall be protected and the period of service rendered by them at AIIMS will be counted for purposes of leave, pension and other retirement benefits. The applicant along with petitioners in CWP No. 879/88 were granted appointment by Safdarjung Hospital and while doing so, their pay was protected by way of order dated 24.11.1989. The pay scale of the applicant, while working at AIIMS, was Rs. 380-560 (pre-revised) equivalent to Rs. 1320-2040 (revised) and the same was protected when the applicant was appointed at Safdarjung Hospital. It is his case that he is entitled for first financial upgradation w.e.f. 08.09.1999 and second financial upgradation w.e.f. 08.10.2004 but he was wrongly granted the first financial upgradation under ACPS on 15.11.2001 resulting in denial of second financial upgradation till date. Aggrieved, the applicant made representation for grant of first financial upgradation w.e.f. 08.09.1999 and second financial upgradation w.e.f. 08.10.2004, which has since been rejected, vide impugned order dated 30.04.2008.
3. Learned Counsel representing the applicant contends that twelve years of service for grant of first financial upgradation under ACPS to the applicant have to count from 16.12.1987 when 'Post Mortem Project' was partly transferred to Safdarjung Hospital, New Delhi. The applicant, in the manner aforesaid, would be entitled to the second financial upgradation w.e.f. 08.10.2004.
4. We have heard learned Counsel for the applicant and with his assistance examined the records of the case. Relevant part of the impugned order dated 30.04.2008, reads as follows:
It is thus submitted that Sh. S.M. Gupta was taken on the strength of SJH as Lab. Tech. w.e.f. 15.11.89, in compliance to the Hon'ble Supreme Court's decision, as fresh employee without any claim of seniority, accordingly providing his pay protection and the service put in by him at AIIMS to be counted for the purpose of leave and retirement benefits (copy enclosed). However, Sh. S.M. Gupta was granted Ist ACP w.e.f. 15.11.01 on completion of 12 years of service at SJH, in the pay scale of Rs. 5500-175-9000/- vide order No. 10-3/05-Ad.II dated 4.10.05. Sh. Gupta had approached the Hon'ble High Court of Delhi. The Hon'ble High Court while dismissing the petition on 19-12-05 observed that 'Hence, we cannot accept the submission of learned Counsel for the appellant. The appellant has already got more than what he could legally claim having been employed in Safdarjang Hospital (when he could have been simply thrown out) and hence we find no reason to interfere with the impugned judgment. The appeal is dismissed.' Further, his representation dated 05-10-06 was forwarded to DGHS vide No. PF-1-255/89-Ad.II dated 19.02.07 and 29.05.07, for further ordered whether intervening period for the services rendered at AIIMS and SJH and to grant ACP can be regularized.
Sl. No. 43 of the clarification on counting of past service for ACP issued vide DOPT O.M. dated 18-07-2001 is attached.
In view of the above, counting of past service rendered in AIIMS is not admissible The order passed by Hon'ble Supreme Court in CWP No.879/1988 on 25.04.1989 reads as follows:
Shri B. Dutta, learned Additional Solicitor General submitted that the petitioners and the other persons who were working at the All India Institute of Medical Sciences pursuant to the scheme in question which has now been wound up will be taken on duty at Safdarjung Hospital as fresh employees without any claim for seniority. The learned Counsel for the petitioners states that an order may be made accordingly provided their pay is protected and the service put in by them is counted for the purpose of leave and retirement benefits.
We accordingly make an order directing the respondents to employ the persons referred to above at Safdarjung Hospital as fresh employees. But we however direct that whatever pay they were getting at the All India Institute of Medical Sciences shall be protected in their case and the period of service rendered by them at the All India Institute of Medical Sciences shall be counted for purposes of leave, pension and other retirement benefits. This petition is accordingly disposed of.
5. It appears from the record of the case that the applicant had filed CWP No. 748/1988 which was disposed of on 05.02.2004 (Annexure A-3). Division Bench of Delhi High Court, after reproducing the relevant part of the order passed by Hon'ble Supreme Court in paragraph 6, mentioned the effect of the said order, as follows:
a) Project persons were entitled to be taken on duty at Safdarjung Hospital, but as a fresh employee;
Pay which the employees were drawing while they were engaged in the project under All India Institute of Medical Sciences had to be protected;
Service rendered when the project was under All India Institute of Medical Sciences was to be counted only for purposes of leave, pension and other retirement benefits.
In paragraph 7, it has further been mentioned that effect thereof would be that the said persons were to be granted fresh appointment by Safdarjung Hospital and while doing so, their pay had to be protected. Said persons would not be entitled to their seniority but for purposes of leave, pension and other retirement benefits, service rendered when the project was under AIIMS had to be given benefit of.
6. It was urged on behalf of the applicant before the High Court of Delhi that the authorities at Safdarjung Hospital have treated him as fresh employee w.e.f. 24.11.1989. It was further urged that the applicant was entitled to be taken in service by the authorities at Safdarjung Hospital w.e.f. 15.11.1987, the date when he was released by the authorities at AIIMS, he must be paid his wages w.e.f. 16.12.1987 because admittedly, authorities at AIIMS while disengaging services of the applicant on 15.11.1987 gave him one month's wages in lieu of one month's notice for terminating his service. It was also urged that the applicant would be entitled to the increment which fell due to him in the years 1988 and 1989 and that his seniority has to be reckoned w.e.f. 15.11.1987. Contentions, as mentioned above, were repelled by Division Bench of Delhi High Court by observing as follows:
11. To my mind, petitioner cannot get any relief more than the relief granted to the writ petitioners before the Supreme Court in CW No. 879/1988.
12. Petitioner did not dispute that other persons were given benefit at par with the petitioner in terms of the order dated 25.4.1989 passed by the Supreme Court.
13. I may note that the re-engagement of the petitioner vide order dated 24.11.1989 records that the same is in terms of the directions issued by the Supreme Court in CW No. 879/1988.
14. Order dated 25.4.1989 passed by the Supreme Court, noted above, shows that authorities at Safdarjung Hospital were directed to employ the project employees as fresh employees. The order does not grant benefit of retrospective employment. Indeed in terms of the order passed by the Supreme Court, petitioner and other similarly situated employees were given employment. Order passed by the Supreme Court is clear. It had to be a case of fresh employment. The only exception was that service rendered under All India Institute of Medical Sciences had to be counted for purposes of leave, pension and other retirement benefits.
15. Relief as originally prayed was that letter dated 16.12.1987 terminating services of the petitioner be quashed. As noted above, due to similarly situated employees moving the Supreme Court, re-employment has been effected in terms of the orders passed by the Supreme Court. Original issue raised in the petition no longer survives. Issue sought to be raised during argument are contrary to the directions of the Supreme Court as contained in the order dated 25.4.1989.
16. No relief can be granted to the petitioner as the authorities have acted in compliance with the directions issued by the Supreme Court in CW No. 879/1988.
7. The plea raised by the applicant in present Application appears to be the same as was made by him in his writ petition, referred to above. He specifically urged that he was treated as fresh employee w.e.f. 24.11.1989 but he was entitled to be taken in service by the authorities at Safdarjung Hospital w.e.f. 15.11.1987, the date when he was released by the authorities at AIIMS, and must be paid the wages w.e.f. 16.12.1987. This contention was specifically repelled by holding that the applicant would be taken as fresh employee from 24.11.1989. Once, the applicant has lost his cause of treating him as employee of Safdarjung Hospital w.e.f. 15.11.1987, he cannot successfully urge to count the period of twelve years for his entitlement for the first financial upgradation under ACPS w.e.f. 15.11.1987. Period of twelve years shall have to be reckoned from 24.11.1989 and that precisely has been done. As, surely, the applicant has been given first financial upgradation under ACPS after twelve years from his appointment on 24.11.1989, the benefit of ACPS which arises because of putting in specific number of years of service cannot be termed as leave benefit or the post retirement benefits for which purpose alone service rendered by the applicant at AIIMS was to be taken into consideration.
8. Finding no merit in present Original Application, we dismiss the same in limine.