Delhi High Court
Govt. Of Nct Of Delhi And Ors. vs Dr. Anita Nanda And Ors. on 23 September, 2002
Equivalent citations: 2003(68)DRJ717
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. Interpretation of a notification dated 12.04.1999 is in question in this writ petition, which arises out of a judgment and order dated 16.03.2001 passed by the Central Administative Tribunal, Principal Bench, New Delhi (hereinafter for the sake of brevity referred to as, 'the Tribunal') in O.A. No. 2590 of 2000 whereby and whereunder the Original Application filed by the respondents herein was allowed.
F A C T S:-
2. The unofficial respondents, who are 18 in number, were appointed as Medical Officers on contract basis for a period of 89 days on a consolidated salary of Rs. 6,000/- with certain persons. However, they were allowed to continue in service. In 1999, they filed an Original Application before the Tribunal praying therein for parity in pay and allowances and other benefits of service conditions as admissible to other Medical Officer (Homeopathy) (hereinafter for the sake of brevity referred to as, 'MO(H)') appointed on regular basis in the pay-scale of Rs. 8,000/- Rs. 13,500/- +.Non Practicing Allowances. By a judgment and order dated 08.05.2000, the said Original Application was allowed with the following directions to the petitioners herein:-
"Applicants should be continued in service till regular appointments are made to the post and applicants should be treated as having continued in service from the date of their first appointment ignoring the artificial break of one or two days in their service. In the event of the posts being filled by regular recruits, the same shall be adjusted against vacant posts and only after all the vacant posts are filled should regular recruits replace the present applicants and such replacements shall be on the basis of last come first go basis. Respondents are further directed to grant age relaxation to the applicants to the extent of the service put in by them on contract basis in case they apply for regular appointment. We also direct the respondents to grant to the applicants same scale of pay and allowance, leave, increment, medical facilities and also other benefits of service conditions as applicable to other MOs (H) from the date of their initial appointment".
The said order has been complied with.
Admittedly when the said Original Application was pending, an advertisement was issued for filling up the posts of Medical Officers in terms of the recruitment rules wherefor notification was issued on 12.04.1999 and the requisition was sent to the Union Public Service Commission (hereinafter for the sake of brevity referred to as, 'UPSC') for regular appointment of 37 posts of Medical Officers, which included 18 posts filled up by the respondents on contract basis.
Pursuant to and in furtherance thereof a large number of candidates including the respondents herein had applied therefor. Allegedly, the respondents had also appeared at the written examination conducted by the UPSC on 18.03.2001. It is further alleged that some of them had also appeared at the interview.
However, in the meanwhile, they filed another Original Application before the Tribunal, which was marked as O.A. No. 2590 of 2000, wherein the prayed for regularization of their services in the post of Medical Officer or in the alternative directing the petitioners herein to treat them as a separate bloc for the purpose or regularization and their cases be considered therefore on the basis of their past work, service record and conduct.
By reason of the impugned judgment dated 16.03.2001, the said Original Application has been allowed by the Tribunal directing:-
"10. On a perusal of the case, we are of the considered view that the applicants' case is covered by Note I, Column (11) of the R/Rules of 1999 (supra) as they were initially appointed as MOs(H) by a duly constituted selection committee after their names were sponsored by the Employment Exchange. In view of this position, we allow the present OA and direct the respondents to send records of the applicants to UPSC to enable the Commissioner to consider regularization of the applicants against the post of MO(H) as per Rules..."
3. Mr. V.K. Shali, the learned Counsel appearing on behalf of the petitioners, would raise a short contention in support of the present writ petition. The learned counsel would contend that the learned Tribunal misdirected itself in passing the impugned judgment insofar as it failed to take into consideration that the purported notification dated 12.04.1999 was applicable only in relation to those who had been holding regular posts. In any event, the learned counsel would contend that as the respondents herein in their Original Application did not pray for the said relief. In any event, the said Original Application was barred under the principles of res judicata. In support of the aforesaid contentions, reliance has been placed on Director, Institute of Management Development, U.P. v. Smt. Pushpa Srivastava .
4. Mr. P.P. Rao, the learned senior counsel appearing on behalf of the respondents, on the other hand, would submit that the cause of action for the second Original Application arose only when an advertisement had been issued for direct recruitment and not prior thereto. The learned senior counsel would submit that in view of the fact that a subsequent cause of action had arisen, the principles of res judicata or constructive res judicata shall not apply.
As regards the applicability of the said notification, the learned senior counsel would contend that the background for issuance of the said notification should be taken into consideration for the purpose of interpretation thereof. According to the learned senior counsel, Dr. Jatinder Singh & Others filed several Original Applications before the Tribunal, which was marked as O.A. No. 1259 of 1990 and others and by reason of an order and judgment dated 08.10.1991, the said Original Applications being O.A.No. 1259 of 1990 and other cases were allowed by the Tribunal with several directions, which are as under:-
"20. The applications are, therefore, allowed and disposed to with the following orders and directions:-
(i) The respondents are directed to refer the cases of the applicants and those similarly situated to the Union Public Service Commission for the purpose of regularisation of their service as Medical Officers. They should be treated as forming a separate block for the purpose of regularisation. Regularisation should be based on the evaluation of work and service records of the applicants and those similarly situated. The respondents shall do the needful in the matter within a period of four months from the date of receipt of this order.
(ii) After the services of the applicants are regularized through the Union Public Service Commission, their seniority shall be reckoned from the date of their initial appointment on ad hoc basis as Medical Officers, after condoning the technical breaks in their ad hoc service. The services rendered by them curing the period of operation of the stay order passed by the Tribunal shall also count as service for the purpose of regularisation.
(iii) After regularisation of the services of the applicants as indicated in (i) and (ii) above, the respondents will be at liberty to post the applicants as Medical Officers at places where vacancies exists. Till they are so regularized, the respondents are directed to accommodate the applicants at their present places of posting in the Hospital at Delhi. The interim orders already passed in these cases are hereby made absolute.
(iv) Till the applicants are to be regularized, they should be entitled to the same pay scales, allowances and benefits of leave, increments etc., and other benefits of service conditions as are admissible to regularly appointed Medical officers. In the facts and circumstances, we do not direct the respondents to pay them arrears of pay and allowances for the Post Period."
It was submitted that except with regard to the matter relating to fixation of seniority, the Apex Court in the year 1993 in Civil Appeal arising out of SLP (C) Nos. 13578-84 of 1992 upheld the same.
According to the learned senior counsel, thus, Dr. Jatinder Singh & Ors. became entitled to be appointed in the service de hors the rules. Having regard to the fact that the respondents herein had acquired experience, the learned senior counsel would submit that those, who are in service for more than 3 years, in terms of the decision of Dr. Jatinder Singh's case (Supra) should be directed to be regularized.
It was contended that it is beyond any cavil of doubt that for appointment in the said posts, selection was held and their names were sponsored by the Employment Exchange.
It was submitted that at the relevant point of time there did not exist any such rule and in that view of the matter, the said Rules were made and according to the learned senior counsel in terms thereof the persons who could be regularly appointed, they should be regularly appointed and those who are working should be assessed as if they are in service from the initial date by the UPSC as a separate bloc.
5. The respondents were appointed admittedly on contract basis on a consolidated salary of Rs. 6,000/- for a period of 89 days. The relevant portion of the offer of appointment issued to the respondent No. 1 herein dated 02.05.1997 is as follows:-
"The Director, ISM & Homoeopathy Govt. of NCT of Delhi is pleased to appoint Dr. Anita Nanda to the post of Medical Officer on the following terms and conditions:-
1. The post is purely on contract basis for a period of 89 (Eighty Nine) days. The appointment can be terminated at any time (on either side) by giving one mont's notice or by paying one month's salary without assigning any reason or failure to complete the period of three months to the satisfaction of the competent authority.
2. The consolidated pay of the post is Rs. 6,000/- per month.
... ... ... ... ...
7. The appointee will not be granted any claim or right for regular appointment to the post.
... ... ... ... ..."
The terms and conditions mentioned in the said offer of appointment were accepted by the appointees without any demur whatsoever.
6. Before the learned Tribunal, the petitioners herein had categorically denied and disputed that the respondents were selected through a regular selection process. Before the learned Tribunal, the respondents merely raised a plea that in terms of Note I in Column 11 of the recruitment rules for the post of Junior Medical Officer (H) (in short, 'JMO(H)) notified on 12th April, 1999, which has since been re-designated as MO(H), their suitability should be assessed for appointment to the upgraded post of MO(H) in the pay-scale of Rs. 8,000/- -- Rs. 13,500/- and if they are so assessed suitable, they would be deemed to have been appointed to the said post. The learned Tribunal noticed:-
"9. ...If assessed and not found suitable for appointment to the upgraded scale of pay he/they shall continue to be in the revised scale of rs. 6500-10500 and his/their case would be reviewed every year. According to the counsel, the applicants were appointed through Employment Exchange by a selection process and therefore they are to be appointed on regular basis under the aforesaid clause of R/Rules."
7. It was, therefore, not a case of the respondents as has been contended before us by Mr.Rao that so far as the question of holder of regular post is concerned, the same was only confined to the post of JMO, which have since been re-designated as Medical Officer and not in the case of Medical Officer, who were directly appointed.
8. The notification dated 12.04.1999 was issued by the Lieutenant Governor in exercise of the power conferred upon him under the Proviso appended to Article 309 of the Constitution of India regarding the method of appointment to the post of MO(H) in the Directorate of ISM & Homoeopathy, Govt. of NCT of Delhi.
9. By reason of the said Rules, therefore, the procedure had been had down, the relevant portion whereof reads thus:-
11 12 13 14Direct Recruitment:(Vote: 1. The suitability of a regular holders of the posts of Junior Medical Officer (Homoeopathy) [since redesignated as Medical Officer (Homoeopathy)] and Nan-regular Medical Officer (Homoeopathy) will be initially assessed by the Commission for appointment to the upgraded post of Medical Officer (Homoeopathy) in the scale of Rs. 8000-1350O. If assessed suitable they shall be deemed to have been appointed to the post at the initial constitution. If assessed not suitable for appointment to the upgraded scale of pay he / they shall continue to be in the revised scale of Rs. 6500-10500 and his / their case would be reviewed every year.
Not applicable Group 'A' DPC' For Considering Confirmation Consultation with UPSC necessary while making Direct Recruitment (1) Chief Secretary Govt Of Delhi
-Chairman (2) Secretary concerned in GNCT of Delhi - Member (3) HOD concerned unless he is Ex-Officio Secretary in GNCT of Delhi -Member Note: The proceeding of the DPC relating to confirmation of a direct recruit shall be sent to the Commission for approval. If however these are not approved by the Commission a fresh meeting of the DPC to be presided over by the Chairman or a member of the UPSC shall be held.
The aforesaid Note I relates to direct recruitment. Such direct recruitment would be for the post of MO(H) in the pay-scale of Rs. 8,000/- -- Rs. 275/- -- Rs. 13,500/-. The classification of the post was General Central Service Group 'A' Gazetted Non-Ministerial. The age limit for the direct recruits was stated as under:-
"Not exceeding 35 years Note : 1 -- Relaxable for Govt. Servants up to 5 years in accordance with the instructions or orders issued by the Central Govt.
Column 11 thereof deals with the method of recruitment whether by direct recruitment or by promotion or by deputation / transfer and percentage of the vacancies to be filled by various methods.
10. It is, therefore, not a case where direct recruitment was to be made from amongst those who were already in service. It is now a well-settled principle of law that a literal meaning should be attributed and recourse to interpretation of a statute should be made only when it is not clear and / or unambiguous. Note I must be read with Note II. As Note I refers to the suitability of the regular holders of the posts of JMO(H), since re-designated as MO, and MO(H), there is no reason as to why the words regular holders of posts should not be read both in respect of JMO(H), since re-designated as MO, and MO(H). Both categories were to be placed in the scale of pay of Rs. 8,000/- -- Rs. 13,500/-, only when they are assessed suitable, they would be deemed to have been appointed to the said post and in the event they are not assessed suitable for appointment to the upgraded scale, they would be deemed to be in the revised pay-scale of Rs. 6,500/- -- Rs. 10,500/- and their cases would be reviewed every year. It is, therefore, clear that the cases of those, who were in the scale of Rs. 6,500/- -- Rs. 10,500/- were only required to be considered and, thus, the words "regular holders of posts" must be given its due meaning having regard to the said aforementioned background fact. We are, therefore, not inclined to agree with the submission of Mr. Rao to the effect that MO(H) were not required to be the holders of regular posts. Even such a contention, as noticed hereinbefore, had not been raised before the learned Tribunal.
11. It may be true that in a given case, a statute may have to be considered having regard to the factual backdrop leading to the enactment thereof, but we do not find any substance in the facts and circumstances of the case that the said Rules wee made having regard to the decision of the learned Tribunal in Dr. Jatinder Singh's case (Supra), which has been upheld by the Apex Court. The said case of Dr. Jatinder Singh & Ors. stood absolutely on a different footing. They were appointed at a point of time when the other Doctors went on strike. The learned Tribunal in its judgment dated 08.10.1991 had noticed:-
"19. All the Medical Doctors before us and those similarly situated were recruited at a time when the respondents had to meet the crises arising out of a strike by Doctors in the Hospitals at Delhi in June, 1989. Their appointment was in public interest and they had to discharge their duties in difficult circumstances and despite various threats from the striking Doctors. They are also fully qualified for regular appointment, except that they were not recruited through the Medical Services Examination held by them is on par with that of regular Medical Officers. In our opinion, the applicants and those similarly situated deserve to be regularized by treating them as forming a separate block and on the basis of evaluation of their work and service records. After they are so regularized, it will be open to the respondents to post the applicants at places where vacancies exist."
The respondents herein do not fulfill the said condition.
It would, therefore, be incorrect to contend that the said Rules were made keeping in view the said decision of Dr. Jatinder Singh's case (Supra). Neither any such case has been made out by the respondents in their said Original Application before the Tribunal, nor there exists any material in support thereof.
12. Furthermore, had the respondents relied upon the decision of the learned Tribunal in Dr. Jatinder Singh case (Supra) which was rendered on 08.10.1991, there was absolutely no embargo on their part to rely thereupon in the said Original Application and pray for regularisation of their services in the light thereof. They were not required to wait till the aforementioned Rules were enacted. In the earlier Original Application, the learned Tribunal by an order dated 08.05.2000 directed as follows:-
"9. We, therefore, direct the respondents that the applicants should be continued in service till regular appointments are made to the post and applicants should be treated as having continued in service from the date of their first appointment ignoring the artificial break of one or two days in their service. In the event of the posts being filled by regular recruits, the same shall be adjusted against vacant posts and only after all the vacant posts are filled should regular recruits replace the present applicants and such replacements shall be on the basis of last come first go. Respondents are further directed to grant age relaxation to the applicants to the extent of the service put in by them on contract basis in case they apply for regular appointment. We also direct the respondents to grant to the applicants same scale of pay and allowance, leave, increment, medical facilities and also other benefits of service conditions as are applicable to other MOs (H) from the date of their initial appointments."
It is, therefore, idle to contend that their cases are covered by the aforesaid decision of the learned Tribunal in Dr. Jatinder Singh's case (Supra) or otherwise.
What has been directed by the learned Tribunal in the earlier Original Application being O.A. No. 2108 of 1999, it is evident that the respondents were given the benefit of the same scale of pay and allowances, etc. till the posts are filled up by regular recruits.
13. This aspect of the matter had also been considered by this Court at a great length in CWP No. 7217 of 2000 titled Shri Shankar Nath Tiwary and Ors. v. Delhi Subordinate Services Selection Board and Ors. and other connected matters disposed of on 23.07.2002.
14. It is now a well-settled principle of law that regularisation is not a mode of recruitment. ( See R.N. Nanjundappa v. T. Timmaiah and Anr..
Thus, the direction of the learned Tribunal to the effect that the records of the applicants be sent of UPSC to enable the Commission to consider regularization would be contrary to the recruitment rules.
15. In Director, Institute of Management Development's case (Supra), the Apex Court distinguishing the case of Jacob M. Puthuparambil and Ors. etc. etc. v. Kerala Water Authority and Ors. etc. JT 1990 (4) SC 27, which was relied upon by the learned Tribunal in Dr. Jatinder Singh's case (Supra), inter alia on the ground that there exist a statutory rule, it was held that the appointment purely ad hoc and contractual for a limited period does not confer any right upon the holders thereof. It was observed:-
"23. In the instant case, there is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end.
24. If the matter is viewed from this angle, that being the only view, we find no difficulty whatever in setting aside the impugned judgment which is accordingly set aside."
16. It is a well-settled principle of law that the status of a person can be changed only in terms of a statute or statutory rules and not otherwise. The recruitment rules do not provide for change of status of the respondents herein either directly or indirectly. ( See State of M.P. v. Dharambir ).
17. Furthermore, now, it is a well-settled principle of law that a decision is an authority for what it decided and not what can logically be deduced there from. It is also well settled that a little difference in facts or additional facts may bring in a lot of difference in arriving at a conclusion. A decision, as is well known, is not to be read as a statute. Directions issued by the Supreme Court under Article 142 of the Constitution of India are not to be treated as precedent. (See Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. ).
Furthermore, we may also notice that by reason of the said decisions in the Civil Appeal arising out of SLP (C) Nos. 13578-84 of 1992, the Apex Court did not lay down any law within the meaning of Article 141 of the Constitution of India.
18. So far as the submission of Mr. Shali to the effect that the application was barred under the principles of res judicata is concerned, it cannot be accepted. The earlier Original Application was filed in 1999; the advertisement was made in February, 2000; the judgment in the earlier case was passed on 16.03.2000; and the written examinations were held on 18.03.2000, the respondents, thus, could not have taken a chance by not appearing at the said written examinations and if some of them had appeared at the said written examinations having regard to the fact that subsequent recruitment rules had come into force, they cannot be permitted to take a different stand.
19. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. This writ petition is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.