Deen Dayal Upadhyaya Hospital ... vs Mahesh Bhardwaj & Ors.
2013 Latest Caselaw 756 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment Reserved on : February 08, 2013
                            Judgment Pronounced on :February 15, 2013

+                           WP(C) 4863/2012

         DEEN DAYAL UPADHYAYA HOSPITAL REPRESENTED
         BY ITS MEDICAL SUPERINTENDENT & ORS. ..... Petitioners
                  Represented by:Ms.Zubeda Begum, Advocate and
                  Ms.Sana Ansari, Advocate.

                                    versus

         MAHESH BHARDWAJ & ORS.                .... Respondents
                 Represented by:Mr.PawanK.Bahl, Advocate,
                 Mr.Harish Kumar, Advocate and Mr.Kamal Singh,
                 Advocate.

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J.

1. A dead issue is being flogged by the writ petitioners.

2. The facts.

3. Para-medic employees working on contract basis in various hospitals established by the Government of NCT Delhi started claiming pay parity with regularly appointed para-medical staff. They started claiming increments and various allowances which were being paid to regular employed para-medical staff.

4. Noting a conflict between view taken by two Division Benches of the Central Administrative Tribunal, OA No.1330/2007 Mrs.Victoria Massey Vs. NCT of Delhi was referred to a Full Bench of the Tribunal.

Answering the reference and simultaneously deciding OA No.1330/2007 vide order dated July 23, 2008, the Full Bench opined that there being complete similarity in the work performed by the contractual employees they would be entitled to be paid same wages including allowances as also increments as were paid to regular employees.

5. The said decision of the Tribunal was challenged before this Court vide WP(C)No.8764/2008 Government of NCT of Delhi Vs. Victoria Massey. Three other writ petitions including WP(C)No.8476/2009 were decided by a common order dated May 22, 2009. The Division Bench noted the underlined paragraphs of the opinion of the Full Bench of the Tribunal :-

"Several of the Staff Nurse 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 OA.

What is under challenge is the attempt of the respondents to deny the benefit 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, had 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 direction of Finance Department strictly."

The applicants in the OA 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."

6. After noting the aforesaid paragraphs of the opinion of the Full Bench of the Tribunal, the Division Bench observed :-

"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."

7. But on the subject of being entitled to the grant of increments as well as promotions, noting the following directions issued by the Tribunal :-

"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 Division Bench observed :-

"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 other increment or promotion. All these writ petitions are disposed of in the aforesaid terms. Petitioner shall work 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 OA. 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."

8. Needless to state the view taken by the Division Bench of this Court is a partial modification of the directions of the Full Bench of the Tribunal in Victoria Massey‟s case.

9. As per the view taken by the Division Bench of this Court, contract para-medical employees would be entitled to same pay and benefit as regular employees but in the minimum of the pay scale without grant of any increment unless they could show to the Tribunal that similarly situated contractual employee was being granted benefit of increments.

10. The reason is obvious. There cannot be complete parity between contractual employees and those who undergo selection process and are appointed as regular employees. On the principle of „same work same pay', if there is complete identity of work between contractual

employees and regular employees a court can direct same basic salary and allowances to be paid. But with reference to one set of persons not having undertaken the selection process and the second set having undertaken the selection process, the court could deny the benefit of increments.

11. This is the view taken by the Division Bench of this Court in Victoria Massey‟s case.

12. The view taken by this Court has attained finality as far as this Court is concerned because challenge to the decision of the Division Bench before the Supreme Court failed when Leave to Appeal was declined.

13. Impugned order passed by the Central Administrative Tribunal on November 01, 2011 has noted that the view taken by the Full Bench of the Tribunal in Victoria Massey‟s case when OA No.1330/2007 was decided was partially modified by a Division Bench of this Court and thus has directed that the respondents would be entitled to the same benefit as was accorded by the Division Bench of this Court in Victoria Massey‟s case.

14. The challenge by the writ petitioner by predicating a stand resting on the opinion of the Supreme Court in the decision reported as (2006) 9 SCC 321 State of Haryana &Ors. Vs. Charanjit Singh &Ors.and (2009) 9 SCC 514 State of Punjab &Anr. Vs. Surjit Singh &Ors.is neither here nor there for the reason as far as this Court is concerned an identical issue of payment of wages to contractually employed para-medics in various hospitals of the Government of NCT Delhi has attained finality and the law of precedent compels us to adopt the same view which was taken by a co-ordinate Bench of this court. This would mean that just as Victoria Massey and other persons who had approached the Tribunal

earlier were required to be paid wages at the minimum of the scale which would include all allowances as are paid to regular employees, sans an annual increment, we direct that similar would be the position of the respondents; a view correctly taken by the Tribunal.

15. The writ petition is dismissed but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE FEBRUARY 15, 2013 rk