Central Administrative Tribunal - Delhi
Shabudhin, S/O Shri Jai Mal vs The Govt. Of Nct Of Delhi Through The ... on 20 November, 2006
ORDER Mukesh Kumar Gupta, Member (J)
1. As the issue raised in these 3 applications, viz. 126, 409 and 428 of 2006 is common in nature, same were heard together are disposed of by this common order.
OA 428/20062. MA 353/2006 filed under Rule 4(5) of CAT (Procedure) Rules, 1987 for joining together is allowed. The reliefs prayed for are that respondents be directed to pay them salary at par with regularly appointed persons discharging same and similar duties as well as direction to respondents to provide them leave as well as medical facilities at par with regular employees and further to direct respondents to release their salary on monthly basis, in future.
3. In November 2000, respondents invited applications for appointment on contract basis to various posts of para-medical staff. Applicant No. 1 applied for post of Lab Assistant and was appointed in said capacity in Guru Gobind Singh Hospital vide Memorandum dated 21.11.2000 in pay scale of Rs. 3200-4900/- with usual terms and conditions. Applicant No. 2 was appointed as Lab Technician in Deen Dayal Upadhyay Hospital in pay scale of Rs. 4,500-7,000/- plus admissible allowances vide order dated 13.10.2001. Their services were terminated on 01.05.2003 and 12.08.2003 respectively. On the same date, applicant No. 2 was offered the post of Lab Technician for a period of 89 days or till regular incumbent is appointed, whichever was earlier. On 21.08.2003, applicant No. 1 was also engaged as Lab Assistant.
4. Their grievance is that when they were paid salary, they were shocked to find that a consolidated salary has been paid to them without any admissible allowances though when they were appointed in the year 2000, their appointment was in the regular pay scale. Their services were terminated in order to deprive them the right to get same scale of pay & allowances that were being paid to them earlier at par with regularly selected employees. Respondents resorted to unfair labour practice causing one days break in their service after every 89 days, which violates Articles 14, 16 and 21 of the Constitution of India. Not only this, they were shocked to learn that they were not made entitled to medical and leave facilities, whereas other para-medical staff working on contractual basis were allowed such benefits. Staff Nurses appointed on contract basis were allowed not only weekly off, casual leave, earned leave, half pay leave as well as maternity leave as per PSE-cum-Addl. Secretary (Health), Govt. of NCT of Delhi, vide letter dated 16.05.2000 (Annexure H). The Medical Superintendent, Maharishi Balmiki Hospital, Govt. of NCT of Delhi vide Office Order No. 290 dated 11.10.2004 also clarified that "all the staff appointed on contract basis are eligible for all leave benefits including Casual Leave, Earned Leave, Half Pay Leave, Commuted Leave and Maternity Leave after completion of one year of contractual services". Such facilities, which are available not only to Doctors, Nurses and other para-medical staff, have been denied to applicants. Para-medical staff working on contract basis in some hospitals are not only getting their basic salary in regular scale plus admissible allowances, but have also been allowed leave and other benefits. Details of such hospitals are-
Guru Gobind Singh Hospital, Raghubir Nagar Maharishi Balmiki Hospital, Purth Khurd Dr. Ambedkar Hospital, Rohini Deen Dayal Upadhyay Hospital, Hari Nagar Lal Bahadur Shastri Hospital, Kalyanpuri As such, applicants have been denied not only pay scale at par with regular employees but have also been deprived of leave and medical facilities, which is untenable in law being illegal, unjust, arbitrary and discriminatory. Even they have not been paid their salary etc. on regular monthly basis and sometimes it is paid even after 10 months. In the circumstances, not only the principle of "equal pay for equal work" has been grossly violated, but they are also not in position to have a bargaining power. The doctrine of "equal pay for equal work" cannot be breached merely because the appointment is either termed 'temporary', 'contract' or on 'regular' basis, as Article 39 contained in Part IV of the Constitution ordains the State to direct its policy towards securing 'equal pay for equal work'.
5. Ms. Monica Kapoor, learned Counsel appearing for applicants contended that they never applied for contractual appointment nor their appointment orders issued in August 2003 disclose about the factum of pay & allowances or salary to be paid to them. They were not even informed by said orders that their appointment was on contractual basis. There was no justification in terminating services of applicant No. 2 and appointing him on same date, i.e. 12.08.2003. They are also human being, but no leave has been allowed to them. They have been discriminated as far as grant of leave and medical benefits is concerned. Even the salary is not being paid regularly and, therefore, they had no idea as to what amount would be admissible to them. Respondents action, in these circumstances, violates the mandate of Articles 14 and 16 of the Constitution of India. In the same Institutions/Hospitals many other persons working even on contract basis have been paid and are in receipt of regular pay scales at par with regular employees and, therefore, there was no justification in treating them differently. Strong reliance was placed on common order dated 11.09.2002 in OAs. No. 247 and 346 of 2002 - Ms. Sethu Surenderan and Ors. v. Secretary (Medical), Delhi Govt., whereby Respondents were directed to make payment of salary as admissible to regular employees invoking the principle of "equal pay for equal work". Orders passed in OA 1280/2004 Chander Pal and Ors. v. Govt. of NCT was also relied upon. It was contended that aforesaid order dated 11.09.2002 has been complied with by Respondents.
OA 126/20066. Applicant in this OA was appointed as Junior Radiographer vide Memorandum dated 1.10.2003 on short term contract basis for a period of 89 days or till regular incumbent is available, whichever earlier. Earlier he had appeared in the examination conducted by Respondents for post of Junior Radiographer, for which applications were invited vide advertisement dated 21.02.2002, but he was unsuccessful as per the results declared in October 2002. His engagement was extended from time to time after giving artificial breaks of one day. The Memorandum dated 01.10.2003 did not disclose the scale of pay or consolidated amount etc. to be paid to him. His services were terminated retrospectively w.e.f. 24.06.2005 and re-engaged from next day, i.e. 25.06.2005 vide order dated 10.10.2005 (Annexure C). This appointment was against vacant post and on the same terms and conditions.
OA 409/20067. MA 327/2006 filed under Rule 4(5) of CAT (Procedure) Rules, 1987 for joining together of three applicants is allowed. Applicants in this OA were appointed as OT Assistants in August/September, 2003 on contract basis for a period of 89 days or till regular incumbents are appointed, whichever earlier. The grievance is that they were paid consolidated salary of Rs. 5,000/- p.m. without admissible allowances. They had applied for regular appointment to the post of O.T. Assistant in regular pay scale and were expecting salary in said scale with admissible allowances.
Respondents stand:
8. Aforesaid claims have been strongly resisted by Respondents by filing separate reply in each OA, basically taking same and identical pleas. Applicants were not successful candidates in the recruitment process conducted by Health & Family Welfare Department, Govt. of NCT of Delhi. Later, since the Directorate of Health Services were opening some new hospitals for which there were some emergent requirement of Staff Nurses and other para-medical staff, the said Department furnished the dossiers of unsuccessful candidates, who had earlier appeared in examinations. They were called through Memorandums to work in concerned posts purely on contract basis for 89 days or till regular incumbents were available. They joined the post with full knowledge that the service was purely on contract basis for short term. Services of some of them were terminated on appointment of regular incumbents. Some of them were re-engaged on same terms & conditions. Contractual employees are not entitled to pay scales as admissible to regular employees. Since they were not successful in the selection process, they were not entitled to regular appointments. Their services were extended from time to time. Principle of 'equal pay for equal work' is not applicable in present case. No allowances are admissible to them. The case regarding grant of leave & medical facilities to contractual employees is under consideration with Government of India. Monthly salary/remuneration is paid to contractual employees as per approval granted by Finance Department.
9. Applicant No. 2 in OA 428/2006 was engaged on 12.08.2003 in a different hospital than the one in which he was appointed in the year 2001. No representation was ever made either seeking pay parity with regular employees or complaining about delayed payment, contended Shri Ajesh Luthra, learned Counsel for Respondents. Clarification dated 11.10.2004 issued by Medical Superintendent, Maharishi Balmiki Hospital is not applicable as far as applicants are concerned, as issue of grant of such benefits is under consideration with the Govt. of India. Reliance was placed on order dated 05.07.2006 in OA No. 598/2005 Merlin Mathew and Ors. v. Govt. of NCT of Delhi and Ors. whereby termination of Staff Nurses appointed on contract basis as well as prayer for grant of pay & allowances at par with regular employees had been turned down. Reliance was also placed on 2003 (1) SCSLJ 363 Orissa University of Agriculture and Technology and Anr. v. Manoj K. Mohanty, to contend that while allowing the claim for equal pay for equal work it must be seen that there is material relating to other comparable employees as to the qualifications, method of recruitment, degree of skill, experience involved in performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales. Lastly, reliance was placed on 2004 (1) ATJ 390 Utkal University and Anr. v. Jyotirmayee Nayak and Ors. The learned Counsel also laid emphasis on the fact that method of appointment in present cases cannot be compared with those who have been appointed on regular basis after completing procedure prescribed under the rules.
10. Rebutting the aforesaid contentions and pleas raised by respondents, rejoinders were filed reiterating their contentions.
11. I have carefully perused the pleadings and give my thoughtful consideration to rival contentions of parties.
12. The twin issues raised in present set of cases relate to (i) entitlement to regular pay scale and (ii) leave & medical facilities. As far as first aspect of grievance is concerned, the same is no longer res integra. In a latest pronouncement, viz. State of Madhya Pradesh and Ors. v. Yogesh Chandra Dubey and Ors. the question considered has been "Whether the respondents, who were appointed on daily wages, are entitled to claim minimum of the pay scale attached to the post in which they had been working with applicable allowances". Respondents therein were appointed on daily wages. They were not appointed upon compliance of the statutory rules. No advertisement was issued. Vacancies were also not notified to the Employment Exchange. However, the claim laid was on the premise that they were entitled to regularization as well as regular pay scale at par with regular employees. The Hon'ble Supreme Court, on examination of aforesaid facts as well as various judgments noticed therein held that as respondents therein did not hold any post, were 'not entitled to any scale of pay'. It is well settled that a person who has been appointed by the State upon following the recruitment rules enjoys a status. The post must be created and or sanctioned before filling it up. It is not in dispute that applicants herein had been unsuccessful in the regular selection process for various posts and their appointment on contract basis had been de hors the statutory rules. The nature of appointment was well known to them on the dates of their appointment as the Memorandum issued specifically recite that their engagement was for a short term on contract basis for 89 days or till a regular employee available, whichever earlier. The Hon'ble Supreme Court has placed reliance in the judgment in State of Karnataka and Ors. v. KGSD Canteen Employees Welfare Assn. and Ors. , and dealt with the contention as raised herein, holding that:
The contention that at last for the period they have work they were entitled to the remuneration in the scale of pay as that of the government employees cannot be accepted for more than one reason. They did not hold any post. No post for the canteen was sanctioned by the State. According to the State, they were not its employees. Salary on a regular scale of pay, it is trite, is payable to an employee only when he holds a status. It is further well settled that appointment to the post must be made in terms of existing rules. Regularization is not a mode of appointment. If any recruitment is made by way of regularization, the same would mean a back-door appointment, which does not have any legal sanction. I may note at this stage that the plea of regularization has not been raised in these proceedings & therefore I do not wish to dwell on this aspect.
13. As far as the issue regarding entitlement to leave and medical benefits is concerned, I may note, at the cost of repetition, that the Office of PHC-cum-Addl. Secretary (Health), Govt. of NCT of Delhi vide communication dated 16.05.2000 in specific stated that the Staff Nurses appointed on contract basis will be entitled to leave benefits as under. Details of which are as under:
1. Weekly Off as are admissible to the staff nurses appointed on regular basis
2. Casual Leave 8 in a year
3. Earned Leave 30 days in a year
4. H.P.L. 20 days in a year
5. Maternity Leave 135 days on delivery 42 days on abortion The aforesaid communication has been reiterated and clarified once again by the Medical Superintendent, Maharishi Balmiki Hospital vide Office Order dated 11.10.2004. It is not in dispute that appointments made against various other categories on contractual basis, viz. Doctors, Staff Nurses and other para-medical staff, have been accorded such benefits of leave and medical facilities. The only contention raised by Respondents is that the matter is under consideration of Govt. of India. In my respectful view, such plea cannot stand in the way of applicants enjoying the said benefits. For entitlement to leave as well as medical facilities, no distinction between the categories of officers based on their scale of pay or nature of appointment, would be justified & reasonable. Staff Nurses and other para-medical staff appointed on contractual basis were made entitled to aforesaid benefits on completion of one year of contractual service, which period in any case has already been undergone by each of the applicants in above cases. Then how a different treatment could be accorded to them? remains to be answered.
14. I may also note that the Hon'ble Supreme Court in 2000 (1) SCSLJ 257 Municipal Corporation Of Delhi v. Female Workers (Muster Roll) and Anr. held that female workers (Muster Roll) are also entitled to grant of maternity leave as available to regular female workers. Therefore, the fact that one is a regular employee or not loses its significance. In my considered view, no different classification can be made based on nature of appointment for grant of such benefit. Any classification drawn merely based on nature of appointment would not stand the tests of Article 14. In the circumstances, I hold that aforesaid benefits have been denied to the applicants without any reason & subjection. The said benefits have to be extended to persons appointed on contractual basis, at par with other categories like doctors, Staff Nurses etc. and further such facilities should be extended to the applicants immediately.
15. In view of the discussion made hereinabove, the conclusion is:
applicants would not be entitled to claim pay & allowances at par with regular employees;
applicants are entitled to grant of leave of various nature as well as medical facilities.
16. The OAs are thus disposed of in the aforestated terms. No costs.