Central Administrative Tribunal - Delhi
Om Prakash & Ors. Etc. Etc vs Mcd & Anr. -Respondents on 23 December, 2009
Central Administrative Tribunal Principal Bench TA No.1398/2009 with TA-1406/2009, TA-311/2009, TA-310/2009, TA-328/2009, TA-495/2009, TA-265/2009, TA-270/2009, TA-268/2009, TA-240/2009, TA-237/2009, TA-267/2009, TA-239/2009, TA-827/2009, TA-1399/2009, TA-1400/2009, TA-1401/2009, TA-1402/2009, TA-1403/2009, TA-1404/2009, TA-1405/2009, TA-271/2009, TA-269/2009, TA-288/2009, TA-241/2009 TA-308/2009 and TA-940/2009. New Delhi this the 23rd day of December, 2009. TA-1406/2009 Om Prakash & Ors. Etc. Etc. -Applicants (As per Memo of Parties) -Versus- MCD & Anr. -Respondents (As per Memo of Parties) Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Memo of Appearance: Applicants through Shri Anand Nandan, Shri Anuj Agarwal, Shri Javed Ahemd, Shri Rishi Kesh, Shri Anil Singhal and Shri Rajiv Dewan, Advocates. Respondents through Ms. Madhu Tewatia, Ms. Sidhi Arora, Shri Alok Singh for Shri Sanjeev Sabharwal, Shri Mukesh Gupta, Ms. P.L. Gautam, Shri Umesh Joshi and Shri Shakeel Ahmed for Shri Gaurang Kanth, Advocates. O R D E R Honble Mr. Shanker Raju, Member (J):
Part-IV of the Constitution of India under Directive Principles of State Policy in Article 41 recognizes right to work as a duty enjoined upon State to secure, which is enforceable under Article 37 of the Constitution of India.
2. A Constitution Bench of the Apex Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress & others, AIR 1991 SC 101 has slightly fallen short of declaring right to employment as a Fundamental Right guaranteed to a citizen of this country. However, a Division Bench of the Apex Court in Anuj Garg v. Hotel Association of India & others, (2008) 3 SCC 1, ruled as under:
Right to be considered for employment subject to just exceptions is recognized by Article 16 of the Constitution. Right of employment itself may not be a fundamental right but in terms of both Articles 14 and 16 of the Constitution of India, each person similarly situated has a fundamental right to be considered therefor.
3. In Union Public Service Commission. v. Dr. Jamuna Kurup & others, (2008) 2 SCC (L&S) 1115, in the context of Delhi Municipal Corporation Act, 1957 held that as employee is not defined under the Act, this connotes to include all employees, including contractual employees. However, in Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd., (2007) 1 SCC (L&S) 270 on the basis of a decision of the Apex Court in Secretary, State of Karnataka & others v. Umadevi (3) & others, (2006) 4 SCC 1, in the context of public employment ruled that in judicial review it is impermissible to the Court to interfere on compassion only. A financial burden cannot be imposed on State, on insistence on regularization of temporary employees, who are not required regularly or permanently.
4. With the above backdrop of law regarding employment a brief introduction to the Delhi Municipal Corporation Act, 1957 is relevant for adjudication. As the Delhi is still to have a complete Statehood, Municipal Corporation Act was promulgated in 1957. Apart from it, the New Delhi Municipal Council Act of 1994 as well as Delhi Cantonment Board were promulgated with an object to govern all administrative matters and day-to-day problems, civic in nature, to be dealt with by local bodies.
5. Under Section 490-A of the Delhi Municipal Corporation Act the control through Lieutenant Governor over MCD is of Central Government and the Central Government delegate the powers to Commissioner or any other authority. Recently by legislation the powers of MCD and control to some extent has been brought under the purview of Government of National Capital Territory of Delhi. After the duly elected Councilors formulate the Municipal Corporation, Section 54 of the Act empowers the Central Government through a notification, power to appoint Commissioner and as per Section 59 he is enjoined to exercise all powers and perform all duties conferred upon him and also to exercise supervision and control over the Act and proceedings of all Municipal Officers/employees subjection to the Regulations made.
6. Section 44 in Chapter-IV of the D.M.C. Act enumerates municipal authorities, which includes under Section 44 a Standing Committee. Further Committees are appointed under Section 65 by the Standing Committee.
7. The proceedings of business by the Corporation is laid down under Chapter-V from Sections 72 to Section 82, where under Section 78 after the voting under the direction of the Presiding Officer in the meeting result of the voting shall be the deemed Resolution of the Corporation. Private Resolutions are of two kinds, one, which is made in the House with the majority view passing it and the other one is a private Resolution. However, there is no distinction between these Resolutions, as Resolutions have no legal sanctity as to their enforceability in law before the Court. However, this has to be implemented by the representative of the Corporation, i.e., Commissioner to fulfill and comply with the decision of the House.
8. Section 90 of the Act empowers the Commissioner on laying before the Standing Committee schedule of permanent post and creation of temporary posts, which, inter alia, includes Group A, B and C posts.
9. Section 92 enjoins Commissioner with an authority to employ temporary or permanent municipal officers and servants.
10. With the backdrop of the MCD Act, these TAs based on common facts, with an identical question of law, are being disposed of through this common order, with the consent of the parties.
11. As a lead case, we take up and discuss the facts in TA-1406/2009 Om Prakash & others v. M.C.D. & Anr., where by way of an amended Writ Petition (TA) a direction has been sought against the respondents, restraining them from disengaging the services of the applicants, who are working as Domestic Breeding Checkers/Health Workers (hereinafter referred to as DBC), for the last several years till regularization of their services. A direction is also sought not to employ any person junior to the applicants and to delete the names of those in the seniority prepared in 2006, who have not given their particulars. Lastly, regularization has been sought as per the existing policy. An order passed in all these Writ Petitions (TAs) maintained status quo with regard to the services of the applicants.
12. Right to health and a safe life is a Fundamental Right guaranteed to a citizen of this country. State within its meaning, including Central Government, has a fundamental duty to protect its citizens as a Government from the diseases which are spread in its atmosphere and are vector borne diseases like Malaria, Chickengunia and Dengue.
13. With hectic all round efforts and concern had been shown due to global warming, as a result of which environmental balance got disturbed and with rise of temperature not only the sea levels are coming up but also it has posed a hazard in spread of vector borne diseases, as the atmosphere would go friendly to the mosquitoes, including Aedes. Every year as we witness in Delhi spurt of Malaria, Chickengunia and Dengue right from the onset of the year till December, as these vector borne diseases and life of mosquitoes is extended throughout the year the menace of these diseases with modesty rate has forced Government to introduce National Vector Bornee Diseases Control Programme on the direction of the Ministry of Health and Family Welfare, whereby apart from 12 zonal level task forces, DBC are being engaged on contract basis initially. Every effort is made to prevent the diseases. The applicants, who are working since 1996 when Dengue fever in Delhi resulted in death of thousands of citizens and was treated almost as a epidemic, applicants are being deployed on contract basis on a consolidated salary from May of the year to November under various programmes for eradication of mosquitoes and other vector borne diseases. In 2006, respondents had notified a seniority of workers on the basis of year of initial engagement, which led to filing of Writ Petition Nos. 476-497/2006 - Ashok Kumar & Ors. v. M.C.D. & Ors. before the High Court of Delhi, which resulted in a direction dated 13.1.2006 to the respondents to prepare seniority lists of domestic breeding checkers/health workers with effect from 1996 and not any date subsequent thereto. Several Writ Petitions have been filed, lastly Writ Petition No.17104-88/2006 - Arjun Singh v. Municipal Corporation of Delhi. A batch of Writ Petitions was disposed of by a Single Bench of the High Court wherein apart from showing concern and directing respondents to take effective steps to prevent vector borne diseases being spread, cognizance has been taken of there being no sanction posts of DBC/Health Workers and the employment was on temporary basis on the expiry of which they are again asked to re-employ in the next season had almost worked for more than 10 years. However, it is also observed that the nature of job performed by them, their requirement and need is for the entire year, having taken so on the assertion of the petitioners counsel that the due process of eligibility criteria being met by the applicants their appointments are to be treated as regular. It is observed that vide Resolution No.1664 of MCD 1100 posts of Malaria Beldars in regular pay scales have been created. It has been observed that continuous appointments of applicants from 1996 as DBC/Health workers, taking cue from the decision of the Apex Court in Umadevi (supra) as the applicants had continued for 10 years, the impediment of the respondents as to non-sanction posts and seasonal working of applicants ranging from 4-10 months was also considered, only then directions have been issued to the MCD to examine the issue of deployment on regular man force and in such an event to create regular posts. If a decision is taken the candidatures of applicants therein were also to be considered as per the seniority list, giving due consideration of age relaxation etc. However, minutes of the meeting conveyed as per the dicta of the Court (supra) on 6.7.2008 the following decision has been arrived at:
7. After detailed deliberations following issues were discussed before arriving at any decision:
a) Activity of Domestic Breeding Checking is not cover under Guidelines of National Vector Borne Disease Control Programme.
b) Delhi being Capital city, Domestic Breeding Checking is done as an additional activity and this extra manpower for domestic breeding checking is deployed only in Delhi to get Community Participation and not in any other state.
c) This manpower is deployed for specific season only for a period of 6-7 months for a specific work of Domestic Breeding Checking Only and they have no role during non transmission Season.
d) It is neither technical acceptable nor feasible to cover all the houses for domestic breeding checking every week. To cover all the houses more than 13000 persons are required and still a number of Breeding Sites can remain undetected because the Mosquito causing dengue fever breeds in domestic and Peri domestic areas.
e) Engagement of such manpower on regular basis will increase the financial burden to MCD 4 times for an activity which is not covered under the programme guidelines.
8. After examining all the above facts and judgment of Honble Court it was unanimously decided that regular posts of Domestic Breeding Checkers can not be created and the services of these contractual man power which is required only for mosquito Breeding Season can not regularised.
14. This has been assailed by the applicants. Learned counsel of applicants as a subsequent event have also highlighted before us that insofar as the period, which is non-breeding period for which no salary was paid and when a contempt No. 536/2008 was dismissed LPA No.-----------389/2009 in the case of Vinod Kumar & Ors. v. K.S. Mehra & Ors., a decision by the High Court on 31.8.2009 clearly ruled that applicants being seasonal workers, paying them wages for non-breeding season does not arise as the breeding season is from May to November. This decision when assailed in SLP No.219/2009, an order passed on 23.11.2009 gave liberty to move an application for payment of salary in the present TAs.
15. Learned counsel would further contend that a private motion in the MCD had passed a Resolution that these DBC/Health workers should be made regular with immediate effect, which is now to be implemented by the respondents. During the course of hearing, learned counsel of applicants, at the outset, would contend that as per the Action Plan of 2000 for vector borne diseases by the MCD on an information received under RTI about 3500 vacancies for DBC are on the strength of the MCD, as such, it is stated that against which applicants could be considered for regular appointments. Learned counsel states that in the disguise of seasonal work, whereas the mosquito breeding is perennial in nature and need constant vigilant and preventive action, the work of applicants is perennial throughout the year and as such applicants possessing all requisite qualification and experience, direction of the High Court in earlier Writ Petitions has been turned down on extraneous grounds, which is an exploitation by the MCD of DBC/Health workers, which cannot be countenanced under the Constitution of India. It is also stated that in NDMC, which is a Council dealing with health sanitation and hygiene of New Delhi area the cadre of DBC being regular is an invidious discrimination to the applicants by not making them regular as Delhi for the purpose of vector borne diseases and mosquitoes breeding cannot be segregated and once one of the parts of Delhi with poor sanitation conditions, regular staff for Malaria and other vector borne diseases control is established, non-establishment of such a staff in MCD, which has a larger area and more reporting of vector borne diseases, has no intelligible differentia and being a hostile discrimination, having no nexus with the object sought to be achieved, an invidious discrimination under Articles 14 and 16 of the Constitution of India is made out. It is stated that fundamental right to be treated at par in employment under Articles 14 and 16 of the Constitution of India has been denied to them.
16. Right to Information Act, 2005 has come out with a sea change in furtherance of Fundamental Right of Freedom of Expression and to get information. This information comes from the horses mouth, i.e., by the Government and cannot be refuted, unless not found fabricated or false. We are highlighting this because most of the rebuttal of the stand taken by the respondents pursuant upon High Courts direction (supra) is based on the information received by the applicants under RTI.
17. Learned counsel of applicants contended that the applicants have neither been irregularly nor illegally appointed but worked against the sanctioned posts of Health Workers, as such their long term continuance for more than 10 years would attract the exceptional clause in Umadevi (supra). It is stated that the respondents in the counter reply have not refuted this averment and stated that applicants have been working as DBC/Health Workers and a seniority list to this effect has been prepared. Learned counsel stated that on RTI about 3500 sanctions posts of DBC are available.
18. Learned counsel stated that the applicants are not working for six to seven months but throughout the year and by referring to National Vector Borne Disease Control Programme (NVBDCP) letter by Joint Director on RTI clearly admitted that activity of domestic breeding checkers is covered under the guidelines of NVBDCP. It is stated that in capital city domestic breeding checking is being done as an additional activity. However, in the NDMC area there is a regular man force for the purpose of domestic breeding checking under the name of Anti Malaria Gangman. By vehemently relying upon the RTI information and survey by National Agency as well as International it is stated that aedes mosquitoes breeding take place throughout the year. It is further stated that dengue mosquitoes breed throughout the year and it is a scientific fact. It is further stated that as per the report by National Environmental Agency that the eggs can lie dormant even in dry conditions upto 9 months. Report by NVBDCP further confirms that the eggs of the aedes mosquito live without water for more than one year. It is also stated that there have been cases of diseased persons and deaths from dengue in the alleged non-transmission period. Aedes mosquitoes breeding was found during the alleged non-transmission period form December, 2007 to April 2008 and notices were issued to the violators at the instance of the applicants who have worked with the respondents as domestic breeding checkers under the status quo orders passed by the Honble High Court of Delhi vide orders dated 7.11.2007 and 20.11.2007.
19. Learned counsel further stated that in their counter reply the respondents have admitted that applicants are engaged by the respondents for other works also apart from the work of domestic breeding checking. They are also deputed for cholera and polio duties and are working as Health Workers. They are also doing the work of stenciling of houses. Learned counsel stated that on 27.6.1988 vide Resolution No.273 a policy of regularization has been made by the MCD, as such they are engaging DBC/Health Workers on daily wages. The respondents have already prepared a seniority list under the directions of the Honble High Court. The said seniority list had taken into consideration entire guidelines to be followed as stipulated in Umadevi (supra). The posts were advertised and the qualifications etc. were prescribed. Learned counsel stated that the salary of the applicants for the non-breeding season cannot be withheld. Reliance has been placed on a decision of the Apex Court in Nagar Panchayat, Bholanath v. Gurwinder Singh & Ors., 2006 (13) SCALE 435 and State of Punjab & Ors. v. Lakhwinder Singh & Ors., 2007 (2) SCC 502 to contend that if there is a policy of regularization the same has to be given effect to. The case of Dr. Jamuna Kurup (supra) has also been referred to. Learned counsel of applicants stated that courts refrain from interfering with the policy decisions but an executive order termed as policy decision is not beyond the pale of judicial review if the acts of the respondents are contrary to the statutory or a larger policy, as ruled by the Apex Court in Delhi Development Authority & Anr. v. Joint Action Committee Allottee of SFS Flats and Ors., 2008 (2) SCC 672. Assailing the order passed by the respondents in pursuance of the decision of the High Court a meeting was held on 26.7.2007 where deliberations on the issue and decisions arrived at are not true and correct to factual position and stated that the same by way of additional affidavit and documents through RTI stated that the applicants are discriminated and the decision is arbitrary.
20. On the other hand, learned counsel of respondents vehemently opposed the contentions and have stated that TAs are likely to be dismissed. Learned counsel stated that applicants are only contract and seasonal workers and there is no policy of appointing DBC on regular basis. It is stated that in 1996, 1000 malaria beldars were taken for each zone appointed for three weeks without screening in emergency to check breeding of mosquitoes and containment of aedes breeding for control of Dengue and Chickengunia. It is stated that they are performing non-technical duties for which no qualification or experience is required. It is stated that DBC were screened as per age criteria and qualification of being Matric pass in the year 1996 to get inducted to the seniority list of domestic breeding checkers prepared in the year 2006. Respondents have also issued a chart and documents to show that the Dengue cases are minor and deaths are very few.
21. Learned counsel would contend that as per the directions of Honble High Court dated 23.4.2007 a meeting was held under the chairmanship of Additional Commissioner (Health) to consider regularizations of DMC, where it was not found feasible. Learned counsel has relied upon a decision of the High Court in LPA No.389/2009 (supra) dated 31.8.2009 where non-transmission period was not counted for payment and the applicants have been treated as seasonal workers by a recorded finding.
22. In the additional affidavit filed by Ms. Madhu Tewatia it is denied that there are 3500 sanctioned posts of DBC in Malaria department of the MCD, whereas for six to seven months seasonal workers are employed. It is stated that for action plan of 2008 the period is from May to November and for 2009 also only temporary vacancies are created, numbering 3500 to employ seasonal workers only for a period of six months. It is stated that inadvertently the respondents omitted to qualify in the chart that the said 3500 vacant posts of DBC were vacant posts in terms of the sanction of the Commissioner granted for a period of six months only. Therefore, to the said extent there is an inadvertent error in omitting to mention that 3500 posts of DBC are seasonal/temporary vacancies based on the action plan approved by the Commissioner, MCD. Learned counsel has given the backdrop of the aedes mosquito which spreads dengue, breeds during the months when the temperature is above 16 degrees to 18 degrees centigrade and basically during monsoon season. The aedes mosquito does not breed during winter season when the temperature is below 16 degrees as due to cold the mosquitos larva goes in hibernation. It is further stated that during the non-transmission period there is no requirement for DBC. It is stated that if additional regular man power of 3500 is required, they would be idle and the Corporation has to suffer 7.5 crores towards their salaries, which has no financial status to afford it.
23. Regarding affidavit filed by the applicants on 26.8.2009, it is stated that there has been an inadvertent error in mentioning the 3500 vacant posts of DBC on the basis of action plan mentioned by the MCD. These posts cannot be converted into regular posts.
24. As regards the private Resolution is concerned, it is stated that the same has no sanctity in law and as this has not been put before the House and approved by the Commissioner, the decision to regularize DBC/Health Workers cannot be enforceable in law.
25. We have carefully considered the rival contentions of the parties and perused the material on record.
26. Right to employment may not have developed into this country as a Fundamental Right under the Constitution of India, but discrimination is antithesis to the principles of equality. In the matter of employment, if one is invidiously discriminated, it constitutes an illegality in law in decision-making process of the Government while laying down a policy. It is trite law that policy of the Government is not beyond the pale of judicial review, if it is found to be discriminatory, violative of Constitution of India or if the decision of the Government is unfair or irrational. Fairness by a model employer is minimum requirement expected from the Government. Fairness is also when a power is abused can be interfered with as ruled by the Apex Court in Meerut Development Authority v. Association of Management Studies, 2009 (8) SCALE 49.
27. A policy is infected by irrationality and unfairness when the decision is highly illogical, irrational and cannot be approved of by applying the test of a common reasonable prudent man. Discrimination is when identically situated are meted out differential treatment, which has no intelligible differentia in the action of the Government and reasonable nexus with the object sought to the achieved. Health of a citizen of this country and more particularly habitants of Delhi have a right to have secured their lives and Government being the authority to look after their health any epidemic when spreads the preventive measures are the prerogative and sole responsibility of the Government and in Delhi the implementing authorities are NDMC, MCD and Cantonment Board, as per the DMC Act, 1957 is to ensure public health and to prevent spreading of diseases. Aedes mosquito, which has caused havoc and menace in 1996 claiming 100 of deaths was the concern before the High Court of Delhi in PIL where apart from directing the Government-MCD to take utmost and most efficient steps to check this menace. A reference to the task force was also made where a description to the functions performed by DBC/Health Workers was also highlighted and cognizance has been taken to their perennial nature of work for the last several years and necessity of creation of posts. Though the Court cannot create posts by a mandamus, which is the prerogative of the Government, but once a lackadaisical policy results in deprivation and discrimination in the matter of regular appointments, interference is warranted to give complete justice and also to prevent abuse of the process of law. It is very strange stand of the MCD that for the purpose of spreading of Dengue, Malaria and other vector borne diseases whereas in NDMC, which covers mostly South and New Delhi areas a regular task force has been constituted deeming and deciding on the basis of an expert opinion breeding period of aedes mosquito is perennial affair and even during the non-transmission period the epidemic and infection rises. A regular task force has been constituted with regular appointments of DBC/Health Workers as malaria jamadars. However, in old city, central Delhi and other areas, including villages where the sanitary conditions are worst and more cases are reported of vector borne diseases where more aedes mosquito are located, pre-dominantly a stand that for this part of Delhi transmission period is upto October goes against the information by experts on RTI where it is acknowledged that vector borne disease spreading by aedes mosquito like Dengue, Cholera and Malaria being perennial in nature, our common experience on judicial notice is that even in December and January these vector borne diseases have not been controlled and there are cases reported for which the State notices and warnings are published in the newspapers, shows that this epidemic has transformed into a perennial affair. The ground not to formulate a regular task force goes against the very object of State to protect the health of its citizens in an indirect manner amounts to deprivation of fundamental right guaranteed to the citizens of this country under Article 21 of the Constitution of India. If the aedes mosquitos are breeding in any part of the city of Delhi, it does not mean that it will breed perennially in New Delhi areas but would not be spread in the areas under the MCD. Such an illogical and irrational assertion and conclusion of the MCD leaves no doubt in our mind that the decision is irrational in its true perspective. The policy of denying regular appointments to the DBC/Health Workers, who, apart from performing the duties of DBC/Health Workers, are also engaged in other working of preventing of spreading of infection like Cholera, Malaria and other vector borne diseases and taken task in different disciplines. It appears that their requirement throughout the year is necessary in the circumstances. We do not find any reasonable nexus by an intelligible differentia by the MCD on their justification and grounds, which has an object not to create a regular cadre of DB/Health Workers in MCD.
28. The commonest defence by the Government in such a policy decision is the financial constraints. In our considered view when NDMC has been managing with a regular task force with lesser area, this financial constraint for MCD areas cannot be a valid ground. It is the situation and particular facts and circumstances of the case which would alone determine whether financial constraints would be an impediment for protecting rights of the citizens of this country and in one of the cases the High Court of Bombay in Union of India v. Atomic Energy Workers and Staff Union, 2005 (1) ATJ 92 over-ruled such a defence of the respondents. Moreover, if in the financial matter arbitrariness is smacked of, the same cannot be upheld, as ruled by the Apex Court in State of Kerala v. Naveena Prabhu, (2009) 1 SCC (L&S) 759. We are witnessed through documents that requirements of DBC/Health Workers is almost perennial in the wake of global warming and rise of temperature throughout the world aedes mosquitos are breeding even during non-transmission period and virtually throughout the year the transmission period is on. Though we are not experts, yet from the knowledge we acquire from press, media, including newspapers and conduct of the Government itself, whereby beyond the transmission period, as formulated by them, yet a drive as to check the epidemic by vector borne diseases, it is clear that this is perennial, for which engagement of applicants for few months is not sufficient, as what is to be achieved is the larger interest of the society and lives of the citizens, against which constraints of money may be negligible and has to be ignored in the wisdom of the Government, which is established, on arbitrariness, otherwise.
29. A Resolution by the Corporation is as good as the Resolution on a private motion by a member. It appears that after evaluating the circumstances a private bill was presented before the House in a Special Committee constituted by the Standing Committee, namely Medical Relief & Public Health Committee, where 24 Corporators participated and resolved that DBC/Health Workers should be made regular with immediate effect is a clear finding that such a decision in the wisdom of the Corporators having been taken not only with a view to redeem hardship of applicants but also in public interest, the finding on a methodology would be put to a logical conclusion and for this a decision by the Commissioner, MCD is required. Though the issue, as raised by the respondents, on the strength of an order passed by the Delhi High Court in LPA (supra), is distinguishable and would have no connectivity, as therein the simple reference on the assertion of the respondents that applicants are seasonal workers had not gone in detail to the issue of regularization of applicants or their regular appointments, as such once the Apex Court has given liberty to the applicants to claim wages for non-transmission period the issue is wide open and has to be adjudicated on liberty granted by the Apex Court.
30. Moreover, a policy decision or a decision by the Commissioner, MCD would have to be taken not in isolation of our observations but also a conscious decision of the Corporation in a Resolution. The Commissioner being appointed by the Central Government and a representative of the Corporation, with a rational and logic, keeping in view the constitutional rights, health of the citizens of the Govt. of NCT of Delhi, should meticulously decide the issue, which has not become final, as Additional Commissioner (Health) is coram non judice to take any final decision as to regular appointments of the applicants. It is high time for the Commissioner, as the issue involves several employees and 3500 posts of DBC/Health Workers are sanctioned and when it is brought to the notice of the Court under the guise of an inadvertent mistake as these posts have been stated to be temporary by the respondent-MCD this is the guise to frustrate the claim of applicants and their valid consideration for regular appointments, as their services are required on perennial basis to check the menace of vector borne diseases. A conscious and equity-based decision is expected from the Commissioner.
31. Being non-experts, we are supported by the expert advice brought on record, which makes the issue no more res integra that the DBC/Health Workers who are continuing for so many years, as per the change in the environment on enhancement of the transmission period their services are required throughout the year and once NDMC has created a regular cadre of its own, no distinction can be made on an invidious discrimination in MCD to deprive applicants of their fundamental right of employment.
32. Resultantly, for the foregoing reasons, we dispose of all these TAs with a direction to the respondents to MCD to adopt a methodology on Resolution etc. and to provide infrastructure of regular appointments of these applicants and thereafter a conscious decision be taken to offer them regular appointments as DBC/Health Workers. In this regard, Commissioner is expected in law to take a final decision, dealing with all the contentions raised by the applicants in these Writ Petitions (TAs) and the material relied upon and also our observations made. By doing so, we are not interfering in the domain of the executive but giving guidelines on their prerogative to decide the issue, which is yet to be decided finally. A decision shall be arrived at within two months from the date of receipt of a copy of this order. On the basis of the decision the claim of applicants be processed further.
33. As regards the liberty given to applicants by the Apex Court to seek salary for the non-transmission period, we leave this issue open and after a decision by the Commissioner, MCD, if adverse to the applicants, they are at liberty to revive these TAs, agitating the issue of non-payment of wages. In such an event, law shall take its own course. The TAs are accordingly disposed of. Till then status quo shall be maintained. No costs.
(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
San.