Central Administrative Tribunal - Delhi
Pawan Kumar vs Govt. Of Nct Of Delhi on 11 January, 2012
Central Administrative Tribunal
Principal Bench
OA NO. 282/2011
New Delhi this the 11th day of January, 2012
Honble Mr.G.George Paracken, Member (J)
Honble Dr. A.K.Mishra, Member (A)
Pawan Kumar
s/o Shri Bhagwat Singh
ECG Technician
ARuna Asaf Ali Govt. Hospital
5, Rajpur Road,
Delhi-110054.
. Applicant
(By Advocate: Ms. Kamlakshi Singh)
Versus
Govt. of NCT of Delhi
Through Chief Secretary,
New Secretariat, Players Building,
I.T.O., New Delhi.
Joint Secretary (Health)
Govt. of NCT of Delhi
1, Jawahar Lal Nehru Marg,
New Delhi.
Medical Superintendent
Arun Asaf Ali Hospital,
Civil Lines, Delhi-110054.
.. Respondents
(By Advocate: Ms. Renu George)
O R D E R
Honble Shri George Paracken:
This is the second round of litigation by the applicant before this Tribunal. Earlier he had filed OA No.616/2008 which was disposed of by directing the respondents to give the same benefits as was granted by this Tribunal in the case of Victoria Massey & anr. Vs. NCT of Delhi & ors. in OA-1330/2007 and OA-1331/2007 decided on 23.7.2008 by a full bench.
2. In Victoria Masseys case, the background of the appointment of the applicant therein made by the respondents was considered in detail. What was under challenge in the said OA was an attempt on the part of the respondents in denying the benefit of equal pay to the applicants therein on the strength of their circular dated 3.2.2005 which, according to the respondents, has been issued in supersession to their earlier circular dated 12.9.2002. The said circular dated 3.2.2005 reads as under:
It is informed that the Finance Department, Govt. of NCT of Delhi, in a matter regarding grant of equal pay to contractual staff as given to regular incumbents, has decided not to pay regular scales of pay to contractual staff except the beneficiaries of Honble CAT orders.
Therefore all the Head of Hospitals and Medical Institution under Government of National Territory of Delhi are hereby requested to implement the above decision of Finance Department strictly. This Tribunal held that the aforesaid circular should not have been permitted to be utilized by the respondents to withhold the benefits granted to the applicants which have been adjudged as admissible by a catena of judgments of this Tribunal as upheld by Honble High Court. This Tribunal has considered the fact that the engagement of applicants therein was on an offer that they were being recruited for regular appointment at a time of distress. They continued for years together, and by a binding decision, which had attained finality, a sizeable, if not a majority of the persons situated like the applicants were getting salary at par with regular staff. Therefore, to a minority, the benefit could not have been denied. The operative part of the said order was 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 appropriately 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 aforementioned order and other similar orders before the Honble High Court of Delhi in Writ Petition No. WP (C) No.8476/2009 with WP (C) No.279/2008, WP (C) No.8764/2008 and WP (C) No.8844/2008 (arising out of order of this Tribunal in Victoria Masseys case) and WP (C) No.884/2008). The High Court, vide its judgment dated 22.5.2009, disposed of those writ petitions by a common order making certain modifications in the aforesaid order of the full bench. The relevant part of the said judgment reads as under:
Therefore, as regards grant of same salary and allowance to the respondent herein, which are admissible to regularly appointed staff nurses, there cannot be any quarrel the respondents will, therefore be entitled to those benefits.
However, next question which arose for consideration is as to whether WPC Nos. 8476/09 with 279/08, 8764/08, 8844/08 Page 4 of 6 these respondents were still working on contract basis and have not been regularized can be held entitled to grant of increments as well as promotion. We are posing this question because of directions contained in judgment dated 03/07/07 passed by the Tribunal in O.A. 1857/06 which is the subject matter of writ petition no. 8476/2008. These directions are in the following terms:
Taking the totality of facts and circumstances into consideration, we come to the conclusion that applicant is entitled to all the benefits in terms of salary, allowances, promotion etc. which have been extended to other Staff Nurses, who were recruited during the period of strike of nurses in the year 1998."
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 on 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 WPC Nos. 8476/09 with 279/08, 8764/08, 8844/08 Page 5 of 6 out the arrears of salary payable to the respondents in terms of aforesaid directions. 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. When the aforesaid order of this Tribunal dated 23.7.2008 and the High courts judgment dated 22.5.2009 were not complied with, the applicants in those OAs have approached this Tribunal vide Contempt Petition No.686/2009 in OA-1330/2007 and connected petitioners. The contention of the respondents therein in the those Petitions was that in various hospitals in Govt. of NCT of Delhi, there were 1063 contractual nursing staff and 649 contractual paramedical staff and none fo them were given any increments except in the case of one Smt. Swaran Kanta Bhatia, contractual staff nurse working in Sanjay Gandhi Memorial Hospital, Delhi. In that case also, they have decided to take corrective measures. Petitioners, on the other hand, argued that if in the case of Swaran Lata Bhatia, if the respondents could give the increments there can be no reason or occasion to decline them the same benefit of applicants. However, this Tribunal vide its order dated 19.4.2010 disposed of those Petitions with liberty to the applicants to agitate the matter afresh, if they have got definite information to show that the increments have been given not only to Swaran Lata Bhatia but also to similarly placed persons. Pursuant to the aforesaid directions of this Tribunal, the applicant has filed the Annexure P-1 representation dated 26.6.2010 but the respondents have not considered the same and gave no reply to the applicant. Therefore, the applicant once again approached this Tribunal. The contention of the applicant is that for various other similarly placed persons, the respondents have given full pay and other allowances at par with regular employees. In support of their submissions, they have filed a copy of the writ petition No.1493/2003 Govt. of NCT of Delhi & anr. vs. Ms. Elisha Florina Boaz dated 30.9.2003 wherein the Government of NCT of Delhi has submitted before the High Court that they have decided to release full salary and allowances to the respondents herein. Accordingly, that petition was closed. Again, vide Annexure P-6 letter dated 6.7.2009, in reply to a query under the RTI Act, 2005, the Head of Department of Ayurvedic & Unani Tibbia College, New Delhi stated that all the ad hoc and contractual lecturers are getting their salaries in PB-III in the pay scale and they were getting salaries equal to the regular employees. They were also been granted annual increments. Further, they have produced a copy of the increment certificate dated 6.5.2009 in the name of Ms. Annu Deswal, who is a contractual employee working in the Delhi State Cancer Institute, Delhi. By office order No.354 dated 3.3.2010, the Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi has allowed workmen on contract basis to draw remuneration equal to the regular pay scale w.e.f. 19.7.2009 in view of the Tribunals order dated 23.7.2008 in OA-1331/2007 titled Swaran Kanta Bhatia vs. Govt. of NCT of Delhi & others (supra). Though, the respondents challenged the aforesaid order of this Tribunal before the High Court of Delhi in WP (C) No.7426/2009 Sanjay Gandhi Memorial Hospital vs. Swarankanta & Ors., the Honble High Court dismissed the same vide order dated 13.3.2009. The respondents had filed SLP No.14208/2009 against the aforesaid order before the Supreme Court of India but the same was also dismissed vide order dated 9.7.2009. Later on, the Govt. of NCT of Delhi vide its office memorandum No. F.4(73)/Fin. (Estb-III)/2010-11/dsi/338 dt. 24.09.2010 allowed the grant of Non-productivity Linked Bonus (Ad-hoc) Bonus for the year 2006-07 to 2009-10 to a large number of para medical staff working in GTB Hospital, Shahdara and they in turn vide office order No.F.2.(289)/E/II/GTBH/2010 dated 31.1.2011 granted the same to all its staff.
5. The respondents have filed their reply stating that the applicant being an ECG Technician working on contract basis, is not entitled for benefits such as increment, leave except as per terms and conditions of the contract. Regarding grant of benefits of 6th Pay Commission was concerned, while for the regular employees it was effective w.e.f. 1.1.2006 but the contractual employees like staff nurses and pra medical staffs were allowed those benefits only w.e.f. 1.9.2008 as per circular No.F.8182/TRC/H&FW/2008/8282-8314 dated 14.11.2008 and subsequent circular No.F.8/82/TRC/H&FW/008/224-225 dated 13.1.2009 issued by Govt. of NCT of Delhi (Annexure B&C). According to the said circular dated 14.11.2008, the remuneration for the para medical staff, who are engaged on contract basis in various hospital/medical institutions under the Govt. of NCT of Delhi has been revised from 1.9.2008 which is as under:
S.No. Category of paramedical staff Existing consolidated remuneration Revised consolidated remuneration
1. Staff Nurse Rs.10,575/- Rs.16,200/-
2. Occupational Therapist/Physiotherapist Rs.10,575/- Rs.16,200/-
3. ECG/Laboratory/OT/CSSD Technicians Rs.9,518/- Rs.10,000/-
4. Jr. Radiographer/Lab. Assistant Rs.8460/- Rs.9,000/-
By the subsequent circular dated 13.1.2009, the Govt. of NCT of Delhi has directed the hospitals under them to calculate the salary in respect of paramedical staff who were not covered by circular dated 14.1.2008, by taking into account the minimum of the pay band plus grade pay of the respective post available in the Government plus 16% DA thereon, subject to the condition that such consolidated remuneration will be revised by adding revised DA at each occasion of fresh contract. However, HRA and CCA are not to be included. They have also submitted that the applicant is drawing the salary and allowances in pursuance of the order dated 18.3.2009 and in terms of High Court judgment dated 22.5.2009 in WP (C) No.8476/2009 (supra). However, they have stated that this Tribunal has passed the aforesaid order on 19.4.2010 in CP No.686/2006 in OA-1330/2007 and connected cases and accepted the plea of the department not to grant increment to staff nurses and paramedical staff. Further they have submitted that only one contractual employee Swaran Kanta Bhatia of Sanjay Gandhi Memorial Hospital has been allowed the increment and in that case respondents have decided to initiate corrective measures.
6. The learned counsel for respondents has relied upon the judgment of Apex Court in the case of State of Rajasthan and others vs. Daya Lal and others, (2011) 2 SCC 429 wherein it has been held that the part time employees are not entitled to seek regularization as they are not working against the sanctioned posts. The relevant part of the said order reads as under:
8. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment 8 cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
7. Counsel for respondents has also relied upon the judgment of Official Liquidator vs. Dayanand and others, 2008 (10) SCC 1, wherein it has been held as under:
94. The principle of equal pay for equal work for men and women embodied in Article 39(d) was first considered in Kishori Mohanlal Bakshi vs. Union of India and it was held that the said principle is not capable of being enforced in a Court of law. After 36 years, the issue was again considered in Randhir Singh Vs. Union of India (supra), and it was unequivocally ruled that the principle of equal pay for equal work is not an abstract doctrine and can be enforced by reading it into the doctrine of equality enshrined in Articles 14 and 16 of the Constitution of India.
8. We have heard the learned counsel for the parties. Admittedly, the applicant has been working as an ECG Technician in Aruna Asaf Ali Hosptial under the Govt. of NCT of Delhi since 24.6.2003. Undisputedly his case is covered by the judgment of the Full Bench of this Tribunal in Victoria Masseys & Ors. cases in OA-1331/07 (supra) and 1332/2007 (supra) decided on 23.7.2008. The applicants in those cases were Mrs. Vitoria Massey and Mrs. Swaran Kanta. This Tribunal considered the background in which the aforesaid two applicants have joined the respondents. The staff nurses of various hospitals run by the then Union Territory of Delhi has resorted to indefinite strike commencing on 5.5.1998. Although action under the ESMA had been declared, the Administration had simultaneously invited applications from qualified nurses to come and join the hospitals and there was even offer for regular appointment. Accordingly, they were permitted to join during the second week of May 1998. However, later on, when the appointment orders issued to them, their period of service restricted to 89 days initially. But they continued indefinitely as the respondents required their services. Therefore, their appointments were not for a short period for which appointments on contractual basis are generally resorted to. They continued for years together and a majority of them were getting the salary at par with regular staff. Therefore, this Tribunal held that the applicants in the aforesaid OAs were entitled to count their date of entry in service as date of their initial engagements and their pay will have to be appropriately fixed in their pay scale as admissible to grade A Nurses for all purposes including annual increments but arrears will be restricted with effect from the date on which they have filed the OAs, i.e. 26.7.2007. The Honble High Court considered the aforesaid order of this Tribunal and stated the legal position that casual or contract employees are not entitled to increments and they would get at the minimum of the regular pay scale. In the absence of regularization, there was also no question of consideration of their cases for promotion. However, the High Court observed that in case the respondents have given pay parity and increments to those nurses appointed on contract basis then it would be extended to the applicants also on the principle of equality and equal treatment. However, if such benefits have not been granted to other similarly situated staff nurses appointed on contract basis, respondents were not entitled to either increment or promotion.
9. When the applicant in this case had approached this Tribunal earlier vide OA-616/2008, the aforesaid judgment of the High Court was not available. This Tribunal has, therefore, allowed this OA in terms of the order dated 3.7.2008 in Victoria Masseys case and another (supra). Applicants have demonstrated in this OA that in the various hospitals under the Govt. of NCT of Delhi and MCD, the ad hoc and contractual employees are being given salary equal to their regular employees from the date of initial appointment itself. They have also been granted non-productivity linked bonus for the year 2006-07 to 2009-10. Therefore, the staff nurses and para medical staff working in various hospitals under the Govt. of NCT of Delhi on contract basis have to be treated similarly as is the practice in many of the hospitals. They have to be given salary and allowances and other benefits at par with the regular employees. The Honble High Court has specifically held that they are not entitled for promotion so long as their services have not been regularized. The position as admitted by the respondents in CP No.686/2009 in OA-1330/2007 (supra) is that there are 1063 nursing staff and 649 para medical staff working on contract basis in various hospitals under the Govt. of NCT of Delhi. Similarly, in the hospitals run by the MCD, NDMC etc. also there will be large number of contractual employees under the categories of both nursing and para medical staff. Some of them have been working from the year 1992 onwards. It is not the case of the respondents that they do not have the requisite qualifications for performing the duties on those posts. Therefore, it would be neither in the interest of the applicant and other similarly placed persons nor of the respondents to allow them on contract basis indefinitely.
10. We, therefore, allow this OA and direct the respondents to treat the applicant at par with regular employees for all purposes except for promotion. The respondents shall pass necessary orders in this regard and grant the benefits to the applicant within a period of two months from the date of receipt of a copy of this order. With the aforesaid directions, this OA is disposed of. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
sd