Delhi High Court

Govt. Of Nct Of Delhi & Ors. vs Dipika S. Kumar on 22 May, 2009

Author: V. K. Jain

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No. 8476/2009
                                       WITH
                              W.P.(C) No. 279/2008
                              W.P.(C) No. 8764/2008
                              W.P.(C) No. 8844/08


1.     WP (C) No. 8476/2009

GOVT. OF NCT OF DELHI & ORS.                 ..... Petitioner
                     Through: Ms. Geeta Luthra and
                              Mr. Parinay D. Shah, Advocates
              versus


DIPIKA S. KUMAR                                       ..... Respondent

                              Through:     Ms. Kamlakshi Singh and
                                           Mr. Saundarya Singh, Advocates

2.     WP(C) No. 279/2008

HELAN PETER                                           ..... Petitioner
                              Through:     Ms. Kamlakshi Singh, Advocate

                     versus

NCT OF DELHI & ORS                                      ..... Respondent
                              Through:     Mrs. Avnish Ahlawat, Advocate

3.     W.P.(C) No. 8764/2008

GOVT OF NCT OF DELHI                                   ..... Petitioner
                  Through :                Mr. V.K. Tandon with
                                           Ms. Manpreet Kaur, Advocates

                     Versus

VICTORIA MASSEY                                         ..... Respondent
                              Through :    Ms. Kamlakshi Singh and
                                           Mr. Saundarya Singh, Advocates



 4.      W.P.(C) No.8844/2008


GOVT. OF N.C.T. FOD ELHI                                 ..... Petitioner
                    Through:               Mr. V.K. Tandon with
                                           Ms. Manpreet Kaur, Advocates


                     versus


GULAB RABBANI                                           ..... Respondent
                              Through:     Ms. Latika Choudhary, Advocate


       CORAM:
       HON'BLE MR. JUSTICE A.K.SIKRI
       HON'BLE MR. JUSTICE V.K. JAIN

A.K.SIKRI,J (ORAL)

1. The respondents in all these petitions have sought directions to fix

their emoluments on the basis of equal pay for equal work, in the light of order

passed by Division Bench of this Court in Civil Writ Petition No. 1493/03 and

the notification dated 12/09/02 issued by the Government of NCT of Delhi. It

is not in dispute that similarly situated staff nurses, who were initially appointed

on contract basis for a period of 89 days and whose services continued

thereafter as well either by the petitioners of their own or on the strength of

judicial orders, were not given the pay scales which are given to the regular staff

nurses. This was the issue which arose in Civil Writ Petition No. 1493/03 and

this Court directed that they are entitled to the same pay scale on the principle of

equal pay for equal work. We also note that same issue came up for

consideration before the Full Bench of the Tribunal in O.A. No. 1330/07 and

O.A. No. 1331/07. Entire position in this behalf is summarized by the Full

Bench in the following manner:

"Several of the Staff Nurses initially engaged on contract basis, although were for a certain period being paid consolidated pay, as a result of the directions of the Tribunal, as upheld by the High Court, presently are getting salary as is admissible to a regular staff, in all respects. It is also pointed out that in the meanwhile there was proposal for regularization of eligibles by prescribing for a test and some of the staff nurses were successful in the selection and have been absorbed by the Establishment. But as far as the applicants are concerned, they have not been able to cross the hurdle of test. But this is altogether a different issue and in any case irrelevant for the adjudication of the present O.A.

What is under challenge is the attempt of the respondents to deny the benefits of equal pay to the applicants herein on the strength of a circular, which had been issued on 03/02/2005, which, according to the respondents, have superseded the circular dated 12/09/2002. The presence of circular had been highlighted only when the matter was being heard by the Division Bench. A copy of the same has been made available to us as issued by the Additional Secretary to the Government of NCT. It reads as following: "It is informed that the Finance Department, Government 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 Hon'ble 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."

The applicants in the O.A. have only made reference to the representations submitted by them requesting the respondents to pay the higher emoluments submitted later on. Perhaps, they have not been informed of the impediment brought by circular dated 03/02/2005. Although

it is not under specific challenge, we feel that the larger question whether the applicants will be entitled to salary on par with the regular staff could be gone into notwithstanding the presence of the abovesaid circular, without driving them for further round of litigation, and overruling technicalities.

The circular would show that the attempt and effort is to confine the benefits of higher emoluments only to persons who had obtained orders from CAT. Although the respondents argue for a position that this course is legally permissible, we do not think it may be a satisfactory approach. If the circular is held as operative, it may result in.

(a) Different principles of payment of salary to persons similarly working in the same institution;

(b) There will be indirect suggestion to such employees, who could not get the benefits so far to approach the Tribunal and get orders similar to the orders, which had been secured by their colleagues.

Both the circumstances are not to be encouraged especially as coming from Governmental Authorities. Withholding of pay, declared as admissible and due to the staff members, to a section of staff cannot be considered as good governance. By becoming penny wise, the Government would be pound foolish, since the credibility of the organization and who are responsible for running it would be at stake."

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

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