Central Administrative Tribunal - Delhi
Dr. Gulvinder Singh Jolly vs Municipal Corporation Of Delhi on 27 November, 2009
Central Administrative Tribunal Principal Bench TA No. 642/2009 New Delhi, this the 27th day of November, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman(A) 1. Dr. Gulvinder Singh Jolly Specialist Grade II (Medicine) Municipal Corporation of Delhi, Rohini Polyclinic, Sector 7, Rohini, Delhi. 2. Dr. Ravindra Kumar, Specialist Grade II (Pediatrics) Municipal Corporation of Delhi, Rohini Polyclinic, Sector 7 Rohini, Delhi. Applicants (By Advocate: Shri S.M. Garg) Versus 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Delhi 110 006. 2. Director (Personnel), Municipal Corporation of Delhi, Town Hall, Delhi 110 006. 3. Govt. of NCT of Delhi, Through its Principal Secretary, Department of Health & Family Welfare, I.P. Sachivalaya, New Delhi. Respondents (By Advocate: Ms. Sudershani Ray for Ms. Suparna Srivastava) O R D E R Justice V. K. Bali, Chairman:
The controversy between the parties is in a very narrow compass. Whereas the applicants, who were first employed on contract basis with Govt. of NCT of Delhi and were later selected and appointed as Specialist (Grade-II) in MCD, would want their earlier service rendered by them in Govt. of NCT of Delhi to be counted for the purpose of pensionary benefits and protection/fixation of pay on the dint of Rule 17 of CCS (Pension) Rules, 1972, the respondents on the dint of same very rule would urge that they shall not be entitled to the relief claimed by them.
2. Brief facts which may need a mention in view of the controversy between the parties as culled out above, would reveal that whereas applicant no. 1 was appointed as Junior Specialist (Medicine) against a vacancy for the same with NCT of Delhi-respondent no. 3 on contract basis on 12.03.1999, applicant no. 2 was appointed on same and similar terms on the same post on 22.09.2003. Persons similarly situate as the applicants filed Original Application Nos. 2746/1999 and 2843/1999 seeking direction to be issued to the respondents to regularize their services. The said Original Applications came to be disposed of vide orders dated 19.10.2000 in the matter of Dr. Lalit Maini & Ors. V/s. Govt. of NCT of Delhi & Ors.. The operative part of the order reads thus:-
8. In the circumstances and also in view of the judgments of the Tribunal and High Court as well as the Supreme Court, we allow these two OAs. Respondents shall continue the applicants in service paying the same pay scales as are being paid to the regularly appointed Junior Specialist Grade-II in the Government of India with all attendant benefits, from the date of their respective initial appointments on contractual basis. The directions shall be implemented within a period of three months from the date of receipt of a copy of this order.
3. A similar OA bearing OA No. 805/2000 filed by other persons similarly situate as the applicants including Dr. Gulvinder Singh, applicant no.1 herein, for parity of reasons given in the matter of Dr. Lalit Mainie (supra), was allowed in the same terms vide orders dated 21.11.2000. Pursuant to directions issued therein, Govt. of NCT of Delhi passed order dated 12.02.2001, relevant part whereof reads as follows:-
In pursuance of the orders of Honble CAT dated 21/11/2000 in O.A. No. 805/2000 the following Jr. Specialists are granted the pay scale of 10000-15200/- plus other allowances with all attendant benefits from the date of their respective initial appointment on contractual basis.
4. We may, at this stage, refer to some of the relevant terms and conditions governing the appointment of the applicants, when they came to be initially appointed on the dates, as mentioned above. Clauses 5, 8, 13 and 15 would read thus:-
5. The appointee shall not be entitled to any benefit of Provident Fund, Pension, Gratuity, Medical Attendance treatment, Seniority, TA, PGA, or any other benefits which are available to the Government Servant appointed on regular basis.
8. Only consolidated pay will be admissible, no Dearness Allowance and other allowances, admissible to Employees of Central/States/UTs of India, are admissible.
13. The appointee shall be entitled for a maximum of one day Casual Leave per month with the approval of H.O.D in addition to the Govt. holidays. No other leave/vacation with pay will be admissible. However, in special circumstances Leave without Pay can be granted on the discretion of the H.O.D.
15. He/She will not be entitled to any T.A. for joining the appointment.
5. The applicants were later selected and appointed to the post of Specialist Grade-II (Medicine) with Municipal Corporation of Delhi - first respondent herein. They submitted their resignations and joined their new assignment in 2005. One of the applicants filed OA No. 1587/2005 for re-fixation of his pay but the same was disposed of on the statement that the applicant would take up the matter for re-fixation of his pay with the first respondent. After the applicants had joined the new assignment, they made representation for fixation/protection of their pay on the dint of their earlier serving the third respondent. We need not refer to the correspondence on that behalf between applicants and respondent nos. 1 & 2. Suffice it to mention that the claim of the applicants, as mentioned above, was rejected on 21.02.2008. It is in these circumstances, the applicants have sought issuance of appropriate writ directing the respondents to count the entire past service of the applicants under respondent no. 3 for the purpose of pensionary benefits and protection/fixation of pay on joining the service under respondent no. 1 on regular basis.
6. Pursuant to notice issued by this Tribunal respondents have entered appearance and by filing the reply contested the cause of the applicants. In the counter reply filed on behalf of Govt. of NCT of Delhi, the third respondent herein, first employer of the applicants, it is pleaded that as per clause 5 of the terms & conditions of the contractual appointment of Dr. Gulvinder Singh Jolly, first applicant herein, benefit of pension and gratuity was not there and, therefore, the question of bearing pensionary liabilities did not arise. Insofar as applicability of Rule 17 (1) of CCS (Pensions) Rules, 1972 (for short hereinafter referred to as Pension Rules) is concerned, while reproducing the rule, it is pleaded that in the Health & Family Welfare Department, all regular employees on the establishment prior to 2004 were generally required to subscribe towards General Provident Fund only. The provision of rule 17 (1) of Pension Rules relates only to participation in the Contributory Provident Fund and the applicants were never required to contribute to any of the funds either GPF or CPF and, therefore, rule 17 (1) of Pension Rules would not be applicable.
7. In the counter reply filed on behalf of respondent nos. 1 & 2, it has, inter alia, been pleaded that the representation of first applicant dated 26.02.2007 was sent to Medical Superintendent, Maharshi Balmiki Hospital, Govt. of NCT of Delhi by them for supplying requisite information/documents in his case and in turn the Medical Superintendent informed them that applicant no. 1 was working as Junior Specialist (Medicine) on contract basis and as such, he was not eligible for GPF or CPF subscription. Medical Superintendent further informed vide letter dated 26.12.2007 that the contract of the applicant did not provide provision for pensionary benefits, therefore, the question of bearing pensionary liabilities did not arise. The applicants were working in Govt. of NCT of Delhi on contract basis and as such they were not entitled for counting of past service for any purpose as rendered by them in Govt. of NCT of Delhi before joining MCD and, therefore, present Original Application deserves to be dismissed.
8. We have heard the learned counsel for the parties and with their assistance examined the records of the case.
9. Admittedly, the applicants came to be appointed on contract basis. Some of the terms of their appointment we have reproduced hereinbefore. The applicants were appointed on 12.03.1999 and 22.09.2003 respectively. Their appointment was purely on contract basis for a period of six months or till regular appointment was made, whichever was to be earlier. Their appointment could be terminated at any time (on either side) by giving one months notice or by paying one months salary without assigning any reason or failure to complete the initial period of three months to the satisfaction of the competent authority. They were appointed on consolidated salary of Rs.15,000/- per month. We may only briefly state that this Tribunal in the matter of Dr. Lalit Mainie (supra) issued directions to the respondents to continue the applicants in service paying them the same pay scales as were being paid to the regularly appointed Junior Specialist Grade-II in the Government of India primarily for the reason that the post of Junior Specialist in Govt. of NCT of Delhi had not been encadered, and the Ministry of Health was not in a position to initiate the recruitment process. The Government of India, in the circumstances as mentioned above, had suggested that it was not possible to appoint Junior Specialist and, therefore, Govt. of NCT of Delhi was permitted to go on appointing doctors on regular/ad hoc/contract basis. Once the applicants were to be continued in service, it was held by the Tribunal that they will be entitled to pay scales as were being paid to the regularly appointed Junior Specialist Grade-II with all attendant benefits from the date of their respective initial appointments on contractual basis. In the earlier part of the order in paragraph 5, it was observed that Junior Specialist appointed as the applicants would be entitled for continuance on the same terms on which the regular Specialists were appointed under the Central Health Services with all attendant benefits like NPA, etc. While granting the relief, as mentioned above, the Tribunal relied upon a decision of the Principal Bench in the matter of Dr. (Mrs.) Sangeeta Narang & Others Vs. Delhi Administration & Others, 1998 (6) ATC 405 and also the judgment of Honble High Court in the matter of Govt. of NCT of Delhi Vs. Dr. V.S. Chauhan, etc. (CWP No. 3641/1997 decided on 11.09.1998). The relief given in Dr. (Mrs.) Sangeeta Narangs case (supra) is reproduced hereunder:-
Hence, we quash the impugned orders in all these applications and hold that all the Junior Medical Officers, Grade-II appointed purely on ad hoc basis would be entitled to the same pay scale of Rs.700-1300 and allowances as also the same benefits of leave, maternity leave, increment on completion of one year and other benefits of service conditions as are admissible to the Junior Medical Officers appointed on regular basis in the pay scale of Rs.700-1300. SLP filed against the judgment aforesaid was dismissed by Honble Supreme Court. It appears that judgment on similar issue was also passed by Honble Delhi High Court in Dr. Chauhans case (supra).
10. Learned counsel representing the applicants would vehemently contend that the applicants were to be made over not only the same pay scales as were being made over to regularly appointed Junior Medical Officers Grade-II, but also all attendant benefits like provident fund, pension, gratuity, etc. For all practical purposes their service was thus regular service with the Govt. of NCT of Delhi and, therefore, by virtue of rule 17 (1) of the Pension Rules, they were within their right to seek counting of their past service for the purposes, as mentioned above.
11. Counsel defending the respondents with equal vehemence would contend that even after the Tribunal passed the order in the case of the applicants on the basis of decision in Dr. Chauhans case (supra), the order that came to be passed by the respondents was admittedly to appoint them on contract basis as would be clearly made out from order dated 12.02.2001 (Annexure P-3). It is thus urged that even though the applicants may have been accorded the pay scales of their counterparts, who were appointed on regular basis, the allowances and attendant benefits would pertain only to their pay scales, and the other benefits, that were admissible to regular employees and which have been specifically mentioned not to be given to the applicants by virtue of clause 5 of their original letter of appointment, could not be made over to them. Be that as it may. Counsel would further contend that the plea raised by the respondents that the applicants were not contributing to the Contributory Provident Fund is an admitted position. Such an averment has been made in the counter replies of both the respondents and the same has not been controverted in the rejoinder filed on behalf of the applicants. In that view of the case, rule 17 (1) of Pension Rules would be wholly inapplicable to the facts of the present case. All that is mentioned in that connection in the rejoinder is that the applicants cannot be held responsible for the fault of respondent no. 3 if they were not permitted to subscribe towards GPF/CPF.
12. Having given our thoughtful consideration to the controversy, we are of the view that the points canvassed by the learned counsel for the applicants, as mentioned above, for the desired relief have no merit whatsoever. From the facts as stated above, we are of the view that plus other allowances with all attendant benefits would be admissible to the applicants which may be attached to the regular pay scales of Junior Specialists. It may be recalled that as per initial orders of appointment of the applicants they were not to be entitled to any benefit of provident fund, pension, gratuity, medical attendance treatment, seniority, TA, PGA. In the revised order that came to be passed pursuant to directions issued by this Tribunal in the Original Application, referred to above, the applicants were again given contractual appointment only. The other conditions of their service but for the allowances and attendant benefits that may be attached to their pay of regular scales would not entitle them to any other benefits at par with the regular employees. Surely, the contractual appointment would not count as service for fixation of their pension unless they were to be regularized in the service, which relief was specifically declined in the very same Original Application in which relief with regard to regular pay scale was granted. Insofar as, however, benefit of provident fund is concerned, the same in any case would not be admissible to the applicants. The Tribunal decided the Original Application in 2001 whereas the applicants joined M.C.D. in the year 2005. It is proved on the records of the case that the applicants did not contribute towards provident fund and, surely, therefore, the employer made no contribution to the said fund in the accounts of the applicants. The applicants would not make any complaint with regard to the same. They would not claim for making contribution towards provident fund all through they remained in service of Govt. of NCT of Delhi. All that is being stated on that behalf is that it was the fault of the employer as if the applicants were making requests for allowing them to contribute towards provident fund and the employer was not permitting this to happen. Rule 17, on which exclusively depends the claim of applicants, reads as follows:-
17. Counting of service on contract (1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either-
to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service; or to agree to refund to the Government the monetary benefits referred to in Clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
(2) The option under sub-rule (1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.
(3) If no communication is received by the Head of Office within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract.
13. Bare reading of Rule 17 of Pension Rules reproduced above would clearly manifest that the same would not be applicable at all in the case of the applicants. Once they were not contributing towards the provident fund nor their employer was contributing to the said fund, there was no occasion for the applicants to have retained or forgone the same. It is only in the event when the employee agrees to refund to the government the monetary benefits i.e. contribution in the contributory provident fund with interest thereon including any other compensation for that service, the service rendered by him on contract basis, for which the aforesaid monetary benefits may have been payable, could be counted. Such are not the facts in the present case. There appears to be no merit in the only contention raised by learned counsel based upon Rule 17 of the Pension Rules, 1972, as mentioned above.
14. That being so, finding no merit in this case, we dismiss present Original Application leaving the parties to bear their own costs.
(L.K. Joshi) (V.K. Bali) Vice Chairman (A) Chairman /naresh/