Govt. Of Nct Of Delhi & Anr. vs Dr.Pawan Kumar N.Mali & Ors.
2011 Latest Caselaw 620 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No. 5983/2010


%                          Date of Decision: 03.02.2011


Govt. of NCT of Delhi & Anr.                              .... Petitioners

                        Through:   Mrs. Jyoti Singh Sr. Advocate with
                                   Mr.Amandeep Joshi, Advocates


                                   Versus


Dr.Pawan Kumar N.Mali & Ors.                              .... Respondents

                        Through:   Mr.Sanjay Visen, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.     Whether reporters of Local papers may be YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?     NO
3.     Whether the judgment should be reported in NO
       the Digest?



ANIL KUMAR, J.

*

1. The petitioners, Govt. of NCT of Delhi & Anr., have challenged the

order dated 2nd February, 2010 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi in OA No.183 of 2009, titled

„Dr.Pawan Kumar N.Mali & others vs. The Secretary, Ministry of Health

& Family Welfare Department & Anr.‟ allowing the OA and directing the

petitioners that the respondents would be eligible for appointment to

the post of Medical Officer (Ayurveda) from the date three other persons

selected along with the applicants, were appointed, however, they will

not be entitled for back wages, but the period will be counted for

increments, and their pay will be fixed taking that period into

consideration and that period would also be counted towards seniority

of the respondents and they would be entitled to be placed in the

pension scheme which was applicable in 2003 i.e. Pension Scheme of

1972.

2. The brief facts to comprehend the dispute are that the Ministry of

Health & Family Welfare, Govt. of NCT of Delhi in the Directorate of ISM

& H advertised 13 posts of Medical Officer (Ayurveda) in the year, 2000.

3. The recruitment to the said 13 posts was done by the Union

Public Service Commission by holding a written examination which was

held on 10th February, 2002. The interviews were also conducted and

13 Medical Officers were recommended for posting after their results

were published on 28th September, 2002 and 04th October, 2002. The

recommendation letters dated 18th October, 2002 were sent to the

persons who were selected by the Union Public Service Commission,

pursuant to which the Govt. of NCT of Delhi/petitioners offered

appointments to the applicants on regular basis. The selected

candidates accepted the terms and conditions of the Offer of

Appointment letter given by the petitioners, and their medical

examination was also conducted.

4. Since the process of selection took considerable time, the doctors

who were appointed on contractual basis by the petitioners, filed OA No.

3353/2002 before the Tribunal seeking their regularization. The doctors

who were appointed on contractual basis, were declined the relief of

regularization by the Tribunal on 8th January 2003. Subsequently out

of the 13 Medical Officers appointed on contractual basis, 3 officers

namely Dr. Raghu Ram, Dr. Neelesh and Dr. Lalji joined the department

on 20th January 2003. The rest of the Medical Officers were awaiting

their medical fitness examination. Before the remaining 10 Medical

Officers could have joined the department after their placement, the

doctors who were appointed on contractual basis filed a writ petition

against the order of the Tribunal dismissing their claim for

regularization. By order dated 23rd January 2003 the High Court

directed the department to maintain "Status Quo" with regard to the

doctors who were appointed on contractual basis, which resulted in the

respondents not being allowed to join the duties in the Directorate of

ISM&H in 2003 except for the three doctors who had already joined the

department on 20th January 2003.

5. Ultimately, on 11th August, 2005 and 13th August 2005 the writ

petitions of the doctors who were appointed on contractual basis

seeking regularization were dismissed. After the dismissal of the writ

petitions, on 19th August, 2005 the petitioners issued Order

No.F.1/97/2001/Ay. Unani/DISMH/Pt.File.I, directing the respondents

to join their duties. The respondents, thereafter, joined the duties with

the petitioners.

6. The respondents contended that at the time the Offer was given to

them and was accepted by them and they were medically examined, the

Central Civil Service (Pension) Rules, 1972 were applicable. However, on

1st January, 2004 a new pension scheme was adopted by the Govt. of

NCT of Delhi, Ministry of Finance, Department of Economic Affairs by

Notification no. F No.5/7/2003/-ECB&PR dated 22nd December, 2003.

Since the duties were given to the respondents w.e.f. 19th August, 2005,

the case of the respondents was considered under the new pension

scheme against which the respondents submitted the representations

seeking parity with Dr.Raghuram, Dr.Nilesh Ahuja & Dr.Lalaji who were

selected with the respondents and who had also been given Offer of

Appointment at the same time as the respondents. Though, the

respondents had undergone the medical examination, however, they

could not be given placement on account of the interim order passed in

the writ petition filed by the doctors who were appointed on contractual

basis seeking their regularization. The representation of the

respondents was however, rejected by the petitioners. The respondents

gave a legal notice and thereafter, challenged the order of the petitioners

by filing OA No.183 of 2009 before the Central Administrative Tribunal,

Principal Bench, New Delhi. The reliefs claimed by the respondents was

to set aside the order dated 24th July, 2008 and to direct the petitioners

to grant the increments and consequential service and pensionary

benefits to them at par with the other doctors who were regularly

selected with the respondents, however, who were assigned duties in

2003.

7. The Tribunal relied on „Telecommunication Engineering Service

Association (India) & Anr. v. Union of India & Anr.‟ 1994 Supp. (2) SCC

222 holding that in the event of re-fixation of seniority and notional

promotion with retrospective effect, the employees would be entitled

only to re-fixation of their pay which should not be less than that of

those who were immediately below them, however, they would not be

entitled to back wages. In the circumstances, though the seniority and

other benefits were given by the Tribunal from the date the three

doctors who were selected on regular basis were allotted duties,

however, the tribunal did not grant them any back wages. The Tribunal

also held that the respondents would be entitled to be placed in the

pension scheme which was applicable in 2003 i.e. Pension Scheme of

1972.

8. The petitioners have challenged the order of the Tribunal,

contending inter-alia, that if the respondents could not join the

department in 2003, it was not on account of any fault of the

Government, but on account of the status quo order granted with

respect to services of ten doctors who were appointed on contract basis,

because of which their services could not be terminated and the

respondents could not be assigned duties. It is also asserted that

though Offer of Appointment was issued to the respondents on 08th

October, 2002, consequent to which they were required to contribute

compulsorily to the GP Fund and Group Insurance Scheme, but they

did not contribute to the same and in the mean time, a new pension

scheme was notified on 22nd December, 2003 which came into effect

from 01st January, 2004 and therefore, the new scheme is applicable on

the respondents. According to the petitioners, though the back wages

have been declined to the respondents on the principal of "No Work No

Pay", but still they have been awarded increments for two years and

they are also to be granted seniority which according to the petitioners

is illegal and not sustainable.

9. The writ petition was opposed by the respondents who have filed

counter affidavits dated 30th November, 2010 contending inter-alia, that

the petitioners have distorted the facts and there is no illegality or un-

sustainability in the order of the Tribunal which has relied on the

precedents of the Supreme Court and has declined the back wages, but

has granted seniority and increments from the date, the three regular

doctors similarly placed as that of the respondents were assigned the

duties after their appointment.

10. Referring to the new pension scheme, it is contended that it has

been made applicable to all the new recruits to the Central Government

Service from 1st January, 2004. According to the learned counsel for the

respondents, the respondents cannot be construed to be new recruits

after 1st January, 2004 as Offers of Appointment were given to them in

2003, and they were accepted by them as well and all of them had

undergone the medical test. According to the respondents all the

formalities for their appointments were concluded except that they had

not been given placement in view of the status quo order dated 23rd

January 2003.

11 We have heard the learned counsel for the parties in detail. It is

well settled that an order of Court cannot prejudice anyone (actus curiae

neminem gravabit). This position has been explained by the Supreme

Court, in ONGC v. Assn. of Natural Gas Consuming Industries, AIR

2001 SC 2796, where it was held that an interim order of the court

cannot enure beyond the life of the substantive proceeding, when the

litigant, ultimately loses on the merits of the case, and that the maxim

entitles the succeeding party to be put back into a position which

existed, at the time when no interim order subsisted. In Karnataka Rare

Earth v. Senior Geologist, Deptt. of Mines and Geology, (2004) 2 SCC

783 it was held by the Supreme Court that when on account of an act

of the party, persuading the court to pass an order, which at the end is

held as not sustainable, has resulted in one party gaining advantage

which it would not have otherwise earned, or the other party has

suffered an impoverishment which it would not have suffered but for

the order of the Court and the act of such party, then the successful

party finally held entitled to a relief, assessable in terms of money at the

end of the litigation, is entitled to be compensated in the same manner

in which the parties would have been if the interim order of the court

would not have been passed. As also observed in the case of Sunil

Kumar Sharma v. State of U.P. and Ors. 2002 (4) AWC 3172, where it

was held that interim orders of the Court cannot prejudice or non-suit a

party against whom it is issued unless it attains finality. Passing of an

ad-interim order is generally by way of exception to the general rule that

no order be passed against a person without hearing and it is on the

basis of equity of preserve 'situation' so that final relief is not lost. But

granting relief or passing a decree on the basis of something done under

ad-interim order will amount to granting undue advantage over the

other party.

12. The respondents were duly selected after a written examination

and interview, and intimation about their selection was given to them

by the Union Public Service Commission pursuant to which the

petitioners had offered them appointment which was accepted by the

respondents. Once the Offer of Appointment was accepted by the

respondents and their medical examination was also done, merely

because they were not given placement on account of continuation of

the doctors who were appointed on contractual basis in respect of

whom the status quo order was passed, it cannot be held that there was

no appointment of such doctors or that they have to be treated

differently than some of the doctors who were selected along with the

respondents, but who had been given placement and appointment on

account of availability of the posts. The status quo order in respect of

the doctors on contractual basis which was ultimately vacated and the

writ petition was dismissed, will not prejudice the respondents.

13. In the circumstances, the directions of the Tribunal that though

the respondents be not given back wages from the date their colleagues

were appointed, however, they would be entitled for seniority and

increments cannot be termed to be illegal or unsustainable in the facts

and circumstances of the case. In Balwant Singh Narwal v. State of

Haryana,(2008) 7 SCC 728, at page 729 Supreme Court was concerned

with the case where an advertisement for the 18 post was issued by

Haryana Public Service Commission which were subsequently increased

to 37. The Commission declared the merit list of 30 selected candidates

on 30-9-1993 (published on 1-10-1993), which included Respondents 4

to 16. However, before the State Government could make appointment

in terms of the said list, a non-selected candidate filed WP No. 12700 of

1993 contending that only 18 posts were notified and the Commission

could not make recommendations for selection of 30 candidates. The

said writ petition was allowed by a learned Single Judge of the Punjab

and Haryana High Court on 4-4-1994 and the recommendations in

excess of the 18 vacancies were quashed on the ground that the

Commission could not make recommendations beyond the number of

posts advertised. A Division Bench dismissed the appeal against the

judgment of the learned Single Judge. The State Government appointed

only 16 as against 18 permitted by the High Court, not for want of

vacancies but on account of some technical difficulty in appointing the

other candidates. Respondents 4 to 16 who were denied appointments,

though their names were in the selected merit list of 30 candidates,

challenged the order. The Supreme Court reversed the judgment of the

High Court and set aside the judgment of the Single Judge and held

that the recommendation made by the commission were in accordance

with law and all the 30 names recommended were entitled for

appointment. Consequent thereto State Government appointed

respondents 4 to 16 as Principals. In dispute about the seniority, the

said respondents pointed out that but for the litigation they would have

been appointed along with others who had been selected and in the

circumstances they should be given seniority above those who were

appointed against subsequent vacancies. The State Government

considered the plea and accepted their request. Aggrieved by the

decision of the State Government the earlier appointees, against the

subsequent vacancies filed a writ petition contending that the selection

by commission was merely recommendatory and does not imply

automatic employment and thus respondents 4 to 16 cannot claim

seniority. High Court rejected the writ petition which was challenged in

the Supreme Court which upheld the decision of the High Court relying

on Surendra Narain Singh v. State of Bihar (1998) 5 SCC 246 holding

that candidates who were selected against earlier vacancies but who

could not be appointed along with others of the same batch due to

certain technical difficulties, when appointed subsequently, will have to

be placed above those who were appointed against subsequent

vacancies. In Surendra Narain Singh (supra) it was held by the

Supreme Court that when appointment is delayed the candidates could

not be allowed to suffer for no fault of theirs and their seniority would

be protected. Similarly the respondents who were selected with three

other doctors who were appointed but the respondents could not be

appointed on account of stay granted in respect of the services of the

doctors who were appointed on contract basis, on their appointment

would be entitled for seniority from the date they had accepted the offer

of appointment along with three other doctors who were appointed.

14. Similarly, if the new pension scheme is applicable to new recruits

from 1st January, 2004, the respondents could not be termed as new

recruits as the offers of Appointment were sent to them much prior 1st

January, 2004 and was also accepted by them and pursuant to which

they were also asked to undergo the medical examination and they were

found to be fit. The only factor is that they were not given placement in

different hospitals as the doctors who were appointed on contractual

basis were continuing on account of the status quo order granted in

their favor by the court which was ultimately vacated.

15. In the circumstances, the status quo order passed in favor of the

doctors who were appointed on contractual basis cannot prejudice the

respondents. In the circumstances, the Tribunal‟s order directing the

computation of period during which they were not placed in the hospital

for the purpose of increments and for seniority cannot be termed to be

illegal or contrary to law. For the same reasons, since the respondents

were recruited prior to 1st January, 2004 the Pension Scheme of 1972

shall be applicable to them and not the new pension scheme applicable

from 1st January, 2004 to the new recruits.

16. In the totality of the facts and circumstances, the petitioners have

not been able to make out any case of perversity or illegality in the order

of the Tribunal which shall entail any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India.

17. The writ petition, in the facts and circumstances, is without any

merit and it is, therefore, dismissed. Considering the facts and

circumstances, the parties are left to bear their own costs.

ANIL KUMAR, J.

FEBRUARY 03, 2011                              VEENA BIRBAL, J.
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