Dr. Ashok Kumar Taneja & Ors. Etc. ... vs Employees State Insurance ...
2009 Latest Caselaw 818 Del

                                   Unreportable

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) No. 2847/1998

%                                       Reserved on : February 10, 2009

                                        Pronounced on : March 13, 2009

DR. ASHOK KUMAR TANEJA & ORS.
                                                      . . . Petitioners

                    through : Ms. P. P. Khurana, Sr. Advocate with
                              Mr. Amit Anand, Advocate.

             VERSUS

EMPLOYEES STATE INSURANCE CORPORATION
                                   . . . Respondent

                 through:         Ms. Rekha Palli & Ms. Poonam Singh,
                                  Advocates.

                                  AND

                    W. P. (C) 1210-1217/2004

DR. SUNIL DESHPANDE & ORS.
                                                      . . . Petitioners

                    through : Ms. P. P. Khurna, Sr. Advocate with
                              Mr. Amit Anand, Advocate.

             VERSUS

EMPLOYEES STATE INSURANCE CORPORATION
                                   . . . Respondent

                 through:         Ms. Rekha Palli & Ms. Poonam Singh,
                                  Advocates.


CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE SURESH KAIT

      1.     Whether Reporters of Local newspapers may be allowed to see
             the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. Petitioners in all these writ petitions who are medical doctors by

profession, were initially engaged by the respondent i.e. Employees State

Insurance Corporation (ESIC) as IMO, Grade-II initially for a period of six

months on contractual basis in July, 1987. After the contractual

period/extended period was over, their services were dispensed with.

Advertisement was issued by ESIC in the year 1991 for appointments of

IMO, Grade-II on regular basis. The petitioners applied against those

posts and were selected. They were, thus, offered the posts as fresh

entrants. After some time, the petitioners laid their claim for grant of

seniority from the date of ad-hoc appointment. They also wanted benefits

by way of annual increments, arrears of salary, time-bound promotion in

the pay scale of Rs.3000-5000 after four years of service and other fringe

benefits, which are available to regularly appointed doctors, even for the

period they served on ad-hoc/contractual basis. Since this request was not

acceded to by the department, these petitioners approached the Tribunal

and filed OA No. 2343/1993. During the pendency of this OA, on 14.5.1996

they withdrew their prayer for grant of seniority from the date of ad-hoc

appointment. On other reliefs sought by the petitioners, matter was

argued before the Tribunal and by reason of judgment dated 4.11.1997,

the Tribunal has been pleased to dismiss the said OA. This OA was filed by

24 persons. One of them, namely, Dr. Ashok Kumar Taneja has filed Writ

Petition (Civil) No. 2847/1998 impugning the judgment of the Tribunal.

Eight other persons have filed second writ petition. Thus, in both the writ

petitions, petitioners are questioning the validity of same judgment.

2. Ms. Khurana, learned senior counsel appearing for the petitioners

submitted that though these petitioners were appointed on ad-hoc and

contractual basis, the appointments were made after following the regular

procedure as per Recruitment Rules and therefore, the benefit of

increments and counting of the service for the purpose of pension could

not be denied to them. We may note that these are the only two reliefs

which were pressed at the time of arguments. For this purpose, learned

senior counsel also referred to the orders dated 14.5.1996 passed in the

OA as per which the counsel for the respondent had made a statement that

the respondent would have no objection to grant the petitioners retiral

benefits from the date of their ad-hoc appointment. Operative portion of

this order reads as under

"After hearing O.A. No. 2343/93 for some time Shri Ashok Aggarwal prayed for permission to amend the relief clause in the O.A., in the light of submissions made during hearing that applicants would not press for grant of seniority from the date of ad hoc promotion of the applicants. Shri Nayyar stated that respondents would have no objection to the prayer of the applicant to amend the OA, in the light of the submissions made by Shri Aggarwal above, and further stated that the respondents would also have no objection to grant applicants retiral benefits from the date of their ad hoc appointment. Shri Aggarwal is granted 4 wks. time to file MA to amend the OA-2343/93, which should be listed on 31.7.96."

3. He also referred to the office order no. 446/1995 (M) dated

15.6.1995 as per which certain other similarly situated doctors had been

extended the benefit of regular pay scale and the increments in the said

pay scale from the date of their ad-hoc appointment plus other service

benefits of leave, maternity leave, increment on completion of one year of

service. His submission was that there was no reason to meet out different

treatment to the petitioners herein and inaction of the respondents in not

giving the same benefits to the petitioners amounted to invidious

discrimination.

4. Learned counsel for the respondent, on the other hand, submitted

that though these petitioners were initially appointed for six months only

on contract basis. After the expiry of that period, their services were

sought to be terminated. However, they approached the Tribunal and got

ex-parte stay which was subsequently modified permitting the respondent

to terminate the services of the petitioners and ultimately all those OAs

filed by the petitioners were dismissed.

In these circumstances, it was not permissible for the petitioners to

say such a claim moreso when their fresh appointments on regular basis

were on the basis of proper selection and therefore it is the date of such

appointments which would govern all the service conditions. She also

submitted that statement given by the counsel for ESIC on 14.5.1996 was

without any authority and that is a reason that it was not acted upon later

and matter was considered by the Tribunal on merits whereafter OA was

dismissed finding no substance therein.

5. After hearing the counsel for the petitioners, we are of the opinion

that petitioners are not entitled to any relief as claimed. The Tribunal has

looked into the matter at great length and discussed all the intricacies of

the issues involved. We recapitulate that following factual position is not

in dispute:

(1) The initial appointments of the petitioners were on contract

basis. These appointments were made locally on a purely

temporary basis as stop gap arrangement pending the

availability of regular candidates selected through UPSC.

(2) Regular selection is made through UPSC. Such appointments

are made under Section 17 (3) of the Employees State

Insurance Act 1948. Therefore, it cannot be said that the

earlier appointment on contract basis were made after

following the regular procedure laid down under the rules and

the provisions of ESI Act.

(3) The services of the petitioners did not continue uninterruptedly

till their appointments on regular basis. On the contrary, after

the contractual period was over same were dispensed with. No

doubt, the petitioners worked beyond the said contractual

period for some time but the same was under the orders of the

Tribunal is earlier OAs. Those orders were also vacated and

even the OAs filed by the petitioners were ultimately

dismissed. Therefore, the regularization which the petitioners

were claiming in the first round of litigation was denied to

them.

Once we view present cases in the light of above admitted

facts, obvious answer would be that the petitioners cannot be

allowed the increments during the ad-hoc period nor can such

a period be counted towards pension.

6. No doubt, counsel for the respondents had made the statement

before the tribunal on 14.5.1996. However, there is no reason to

disbelieve that such a statement was without any authority from the

respondents more so when thereafter matters was argued on merits and

decided vide impugned judgment after considering the arguments on both

the sides and not on the basis of said statement. Interestingly, perusal of

the judgment of the Tribunal would show that it was nowhere pleaded by

the petitioners that they should be given the benefit of increment etc. on

the basis of said statement. That apart, concession of the counsel on the

point of law can be withdrawn and explained away.

7. In so far as reliance upon the office order dated 15.6.1995

concerned, we find that those orders were passed following the judgment

of the Tribunal against which Special Leave Petition was dismissed and

those orders were passed under altogether different circumstances. The

Tribunal has dealt with this aspect in detail and has found that

appointment of doctors in those cases were even initially made under

Section 17 (3) of the ESI Act which is not position in the present case.

8. It is also noted by the Tribunal that interpretation given by the

Tribunal in the said case with regard to Section 17 (3) of the ESI Act was

not accepted by the Supreme Court and the Supreme Court expressed

doubts on the correctness thereof. However, as the doctors were

eventually regularized, the Supreme Court thought it appropriate not to

decide the said appeals on merits. As against those judgments, Tribunal

took note of subsequent decisions rendered by it wherein such benefits

were refused which is clear from the following discussion contained

therein:

"12. After Dr. (Mrs.) Prem Lata Choudhary's case was decided there were two other decisions of this Tribunal in the cases of Shri (Dr.) Surender Singh Negi Vs. Employees State Insurance Corp., O. A. 581 of 1987 decided on 10.9.1992 and Dr. (Mrs.) Sunita Goel Vs. Union of India through the Employees State Insurance Corporation, O. A. No. 1048 of 1987 decided on 11.12.1992. In the both the O.As. the Tribunal took notice of the decision in the case of Dr.(Mrs) Prem Lata Choudhari (supra) and dismissed the claims of the applicants relying on a decision of the Hon'ble Supreme Court in the case of Director, Institute of Management Development U. P. Vs. Smt. Pushpa Srivastava, JT 1992 (4) SC 489. That was a case dealing with the appointment on ad hoc basis for a contractual period of six months. Their Lordships held that in such situation violation of Articles 14 and 16 of the Constitution of India does not take place because the appointment was for a specific contractual period. Because of this Apex Court's decision, Dr. (Mrs) Prem Lata Chaudhari's case was not considered and, therefore, termination was not interefered with."

On the basis of aforesaid principle of law the claim of the petitioners

herein was turned down by the Tribunal by following:

"16. In this background of the law laid down by the Apex Court, we have to examine the claims in the amended O. A. for conferring certain other benefits. In O. A. 951 of 1997 decided on 6.5.1997, the second Dr. (Mrs) Prem Lata Choudhary's case, a Division Bench of this Tribunal held that she is not entitled to count her ad hoc service for purposes of seniority. The same order No. 446/95 dated 15.6.1995, placed before us at the time of hearing, was referred to wherein Dr. (Mrs) Prem Lata Choudhary was given certain other benefits. This Tribunal said as the respondents already passed this order, their action cannot be faulted with and did not find any reason to interfere with the same. With regard to the applicants in this O. A. also if the respondents on their own want to grant retiral benefits and other benefits for the adhoc service we would not interfere; but since we are asked to decide this issue of grant of these benefits we are afraid we cannot agree to these claims. The applicants want annual increments, leave benefit, time bound promotion, medical benefits, LTC, allotment of accommodation and retiral benefits. These are all the benefits that accrue only when the person is considered regularly appointed from the date of initial ad-hoc appointment. By granting these benefits we will be ignoring the contractual nature of the job and the termination made after every 90 days or six months. These benefits accrue only to a person who is a regular member of the service. The difference in the nature of appointment between a regular appointee and ad hoc appointee will be evident from a comparison of the terms of appointment in both the situations. As mentioned above in a contract appointment the appointee was denied private practice, travelling allowance for joining the post, medical care, LTC, leave etc. but in the case of a regular employee all these restrictive conditions and clauses do not exist. Para 4 (c) of the counter affidavit clearly states that the applicants were dismissed and were re-appointed after some time. These were not specifically denied in the rejoinder. As the applicants were dismissed and as they have not impugned those dismissal orders, the applicants cannot compare themselves with the appointees regularised during 1984, We are of the considered view that granting leave, promotion benefits and other benefits prayed for would be inconsistent with the view taken that a contractual service cannot count for total length of service; and that appointees of such service are not members of the service and they cannot be given seniority over the regularly selected persons. Therefore, we are not in a position to agree with the submissions for grant of these benefits. The moment the applicants accepted their contractual nature of appointment, all the conditions in the contract are applied to them. We, therefore, hold that there is no merit in the relief claimed even in the amended O. A."

9. We are in agreement of the aforesaid view and accordingly

dismiss these writ petitions. There shall, however, be no orders as to

cost.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE March 13, 2009 rb

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) No. 1240-1217/2004

% Reserved on : February 10, 2009

Pronounced on : March 13, 2009

DR. SUNIL DESHPANDE & ORS.

. . . Petitioners

through : Ms. P. P. Khurna, Sr. Advocate with Mr. Amit Anand, Advocate.

             VERSUS

EMPLOYEES STATE INSURANCE CORPORATION
                                   . . . Respondent

                 through:         Ms. Rekha Palli & Ms. Poonam Singh,
                                  Advocates.


CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE SURESH KAIT

1. Whether Reporters of Local newspapers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

For orders, see WP (C) No. 2847/1998.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE March 13, 2009 rb