[Cites 12, Cited by 0]
Delhi High Court
Govt. Of Nct Of Delhi And Anr vs De. Yoginder Gupta And Anr on 10 March, 2026
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 10.02.2026
Judgment pronounced on: 10.03.2026
Judgment uploaded on: 10.03.2026
+ W.P.(C) 1265/2018 & CM APPL. 9919/2025
GOVT. OF NCT OF DELHI AND ANR .....Petitioners
Through: Mrs. Avnish Ahlawat, SC
GNCTD-Services, Mr. Nitesh
Kumar Singh, Ms. Aliza Alam
and Mr. Mohnish Sehrawat,
Advs.
versus
DR. YOGINDER GUPTA AND ANR. .....Respondents
Through: Mr. Ankur Chhibber, Mr.
Anshuman Mehrotra, Mr. Arjun
Panwar, Mr. Amrit Koul, Ms.
Muskaan Dutta and Mr. Prahil
Sharma, Advs. for R-1.
Mr. Vardhman Kaushik, Adv.
for R-2.
Mr. Ujjal Banerjee, Mr. Rohan
J. Alva, Mr. Anmol Sehgal, Mr.
Anant Sanghi, Advs. for R-3 to
23.
Mr. S.B. Upadhyay, Sr. Adv.
with Ms. Kumud Lata Das, Mr.
Nishant Kumar, Mr. Harshajay
Singh, Mr. Siddhant Narayan
and Ms. Pooja Rathore, Advs.
for impleaded Respondents -
Dr. R.N. Das, Dr. Anupma
Singh and Dr. Dinesh Chawla.
Ms. Meghna De and Ms. L..
Gangmei, Advs. for applicant in
CM APPL.9919/2025.
+ W.P.(C) 5221/2018
DR. P.S. SARANGI & ORS .....Petitioners
Through: Mr. Vikas Singh, Sr. Adv. with
Mr. Varun Singh, Ms. Deepieka
Signature Not Verified
Signed By:JAI
NARAYAN
Signing Date:10.03.2026 W.P.(C) 1265/2018 and connected matters Page 1 of 49
19:07:40
Kalia, Ms. Bhumi Sharma and
Mr. Sudeep Chandra, Advs.
Mr. Kirtiman Singh, Sr. Adv.
with Mr. Ujjal Banerjee, Mr.
Rohan J. Alva, Mr. Anmol
Sehgal, Mr. Anant Sanghi, Mr.
Ritwik Saha, Advs.
versus
GOVT. OF NCT OF DELHI & ORS .....Respondents
Through: Mrs. Avnish Ahlawat, SC
GNCTD-Services, Mr. Nitesh
Kumar Singh, Ms. Aliza Alam
and Mr. Mohnish Sehrawat,
Advs.
Mr. Vardhman Kaushik, Adv.
for R-2.
Mr. Shanker Raju and Mr.
Nilansh Gaur, Advs. for R-4 to
R-11
+ W.P.(C) 10928/2019 & CM APPL. 55140/2019
DR. KUMUD BHARTI .....Petitioner
Through: Mr. Mukesh Kumar and Mr.
Parkash Chander, Advs.
versus
GOVT. OF NCT OF DELHI AND ORS. .....Respondents
Through: Mrs. Avnish Ahlawat, SC
GNCTD-Services, Mr. Nitesh
Kumar Singh, Ms. Aliza Alam
and Mr. Mohnish Sehrawat,
Advs. for R-1.
Mr. Vardhman Kaushik, Adv.
for R-2.
+ W.P.(C) 167/2019
DR. MAHESH CHAUHAN .....Petitioner
Through: Mr. Neeraj Kumar Gupta, Adv.
versus
GOVT. OF NCT OF DELHI AND ORS. .....Respondents
Signature Not Verified
Signed By:JAI
NARAYAN
Signing Date:10.03.2026 W.P.(C) 1265/2018 and connected matters Page 2 of 49
19:07:40
Through: Mrs. Avnish Ahlawat, SC
GNCTD-Services, Mr. Nitesh
Kumar Singh, Ms. Aliza Alam
and Mr. Mohnish Sehrawat,
Advs.
Mr. Vardhman Kaushik, Adv.
for R-2.
+ W.P.(C) 4929/2019, CM APPL. 21908/2019, CM APPL.
21909/2019 & CM APPL. 65124/2025
DR. RADHA DUBEY .....Petitioner
Through: Mr. Rakesh Khanna, Sr. Adv,
Mr. Shree Prakash Sinha, Mr.
Rakesh Mishra, Ms. Asmita,
Mr. Rishabh Kumar, Advs.
versus
GOVT. OF NCT OF DELHI AND ORS. .....Respondents
Through: Mrs. Avnish Ahlawat, SC
GNCTD-Services, Mr. Nitesh
Kumar Singh, Ms. Aliza Alam
and Mr. Mohnish Sehrawat,
Advs.
Mr. Vardhman Kaushik, Adv.
for R-2.
+ W.P.(C) 7531/2022, CM APPL. 23035/2022, CM APPL.
23036/2022, CM APPL. 23037/2022, CM APPL. 23038/2022
& CM APPL. 6628/2025
DR REETA MONGIA .....Petitioner
Through: Mr. Varun Singh, Mr. Shikher
Upadhyay and Ms. Bhumi
Sharma, Advs.
Mr. Santosh Kumar, Sr. Adv.
with Mr. Vijay Kumar, Adv. for
Petitioner No.3.
versus
GOVT OF NCT OF DELHI & ORS. .....Respondents
Through: Mrs. Avnish Ahlawat, SC
GNCTD-Services, Mr. Nitesh
Kumar Singh, Ms. Aliza Alam
Signature Not Verified
Signed By:JAI
NARAYAN
Signing Date:10.03.2026 W.P.(C) 1265/2018 and connected matters Page 3 of 49
19:07:40
and Mr. Mohnish Sehrawat,
Advs. for R-1.
Mr. Vardhman Kaushik, Adv.
for R-2.
+ W.P.(C) 835/2020
DR. MEERA SAINI AND ORS. .....Petitioners
Through: Mr. Ujjal Banerjee and Mr.
Anmol Sehgal, Advs.
versus
GOVT. OF NCT OF DELHI AND ANR. .....Respondents
Through: Mrs. Avnish Ahlawat, SC
GNCTD-Services, Mr. Nitesh Kumar
Singh, Ms. Aliza Alam and Mr.
Mohnish Sehrawat, Advs.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE AMIT MAHAJAN
JUDGMENT
ANIL KSHETARPAL, J.
1. The present Writ Petitions seek to set aside the Orders dated
23.05.2017, 25.07.2019, 20.08.2018, 19.02.2019, 23.12.2021 and
23.09.2019 [hereinafter referred to as „Impugned Orders‟] passed by
the learned Central Administrative Tribunal, Principal Bench, New
Delhi [hereinafter referred to as „the Tribunal‟], in various Original
Applications („OAs‟). Since the issues are common, with the consent
of learned Counsel representing the parties, all these Writ Petitions are
disposed of by this common order.
2. For the sake of convenience, the expression "Applicants" shall
hereinafter be used as a compendious reference to Respondent No.1 in
W.P.(C) 1265/2018 as well as to the Petitioners in the connected Writ
Petitions, unless the context otherwise requires.
3. By the Impugned Order dated 23.05.2017, passed in O.A.
Nos.604/2014 and 238/2015, the Tribunal rejected the claim of the
concerned Applicants for the grant of seniority by counting their
contractual service, while directing that such period be considered
only for the limited purpose of qualifying service towards pension, in
accordance with the applicable rules. Further, vide the Impugned
Order dated 23.12.2021 passed in O.A. No.3556/2018, the Tribunal
directed to consider the period spent on contractual service for the
purpose of qualifying service towards pension, however, it said that
the same shall be subject to the decision of this Court in the Writ
Petition filed assailing the decision of the Tribunal in O.A.
No.604/2018, i.e., W.P.(C) 1265/2018.
4. By the Impugned Orders dated 25.07.2019 and 23.09.2019,
passed in the O.A. Nos.4442/2014 and 2837/2019, respectively, the
Tribunal, while consistently rejecting the claim for grant of seniority
by counting contractual service, granted limited relief of counting
such service towards qualifying service for pension, however, in the
Impugned Orders dated 20.08.2018 and 19.02.2019 in O.A.
Nos.1246/2017 and 4018/2016, respectively, even the benefit of
counting such service for pension was declined.
5. Therefore, the issue that arises for consideration before this
Court is whether the period of contractual service rendered by the
Applicants, prior to their regular appointment in accordance with the
Recruitment Rules, is liable to be counted for the purpose of seniority;
and, if not, whether such period is required to be reckoned at least
towards qualifying service for pension under the applicable service
rules.
FACTUAL MATRIX:
6. In order to appreciate the controversy in its proper perspective,
it is necessary to notice the relevant facts, as emerging from the
respective OAs and the Impugned Orders passed therein.
7. With the coming into force of the constitutional framework
under Article 239AA of the Constitution of India, the Government of
National Capital Territory of Delhi (GNCTD) was constituted in the
year 1992. Consequent thereto, a number of hospitals, dispensaries
and health centres were established under its administrative control,
and certain existing medical institutions were also placed under
GNCTD for the purpose of providing healthcare services to the
residents of Delhi.
8. At the relevant time, there was no independent cadre of doctors
under the GNCTD. The medical requirements of the institutions
functioning under GNCTD were met either by drawing doctors from
the Central Health Services („CHS‟) on deputation/placement, or by
engaging doctors on contractual basis.
9. The Applicants in the present batch of matters were initially
engaged by the Health and Family Welfare Department of GNCTD
[hereinafter referred to as „the Health Department‟] on an contractual
basis on various dates against sanctioned posts. The engagements
were made for fixed tenures, which were extended from time to time.
A consolidated chart, indicating the relevant years/dates of (i.) initial
contractual engagement, (ii.) regular appointment, and (iii.)
discontinuation (where applicable), is set out herein below for ready
reference:
W.P.(C) O.A. No. Year of Date of Period of
No. initial Regular Discontinua
Contractual appointme tion of
engagement nt service (if
any)
1265/2018 604/2014 1999 23.12.2009 -
5221/2018 238/2015 1996-2006 23.12.2009 -
10928/2019 4442/2014 2002 23.12.2009 -
167/2019 1246/2017 2000 23.12.2009 -
4929/2019 4018/2016 1996 03.11.2010 23.11.2007 -
02.11.2010
7531/2022 3556/2018 1996 23.12.2009 -
835/2020 2837/2019 1999-2006 23.12.2009 -
10. It was the case of the Applicants in the OAs that the
engagement of doctors on contractual basis was preceded by an
assessment process and such assessment was at a level equivalent to
that adopted for appointment to the regular CHS cadre, and the duties
discharged by them during the contractual period were identical to
those performed by regularly appointed doctors. However, it is not in
dispute that at the stage of such initial engagement, the appointments
were not made through the regular selection process contemplated
under the applicable Recruitment Rules.
11. In the year 1997, certain contractual doctors engaged under
GNCTD filed O.A. Nos.2564/1997, 2984/1997 and connected matters
before the Tribunal, claiming parity in pay scale and service benefits
with regularly appointed Junior Medical Officers (JMOs) under CHS,
contending that despite selection through public advertisement and
discharge of identical duties, they were paid only a consolidated
remuneration of Rs.6,000/- per month. The Tribunal allowed the OAs
and directed that the contractual doctors be granted the same pay
scale, allowances and service benefits, including leave and
increments, as admissible to regularly appointed JMOs, deemed their
service to be continuous notwithstanding minor contractual breaks,
and further directed consideration of age relaxation to the extent of
contractual service rendered, if they appeared before UPSC for regular
appointment.
12. In the year 2006, the GNCTD took a policy decision to
constitute its own independent health cadre. Vide Cabinet Decision
No.1139 dated 13.11.2006, it was resolved to form a new service
titled "Delhi Health Services" („DHS‟) for managing health delivery
in the GNCTD. At the official level, it was agreed that the initial
constitution of the new cadre would comprise:
i. Members of the CHS who opted to join the proposed
DHS cadre; and
ii. Individuals appointed by the GNCTD on a contractual
basis against ex-cadre posts from the year 1995-1996 onwards, as
per the advice of the Ministry of Health and Family Welfare.
13. It was further agreed that, for future management of the new
service, the Ministry would not fill vacant posts of General Duty
Medical Officers („GDMOs‟) and Non-Teaching Specialists (NTSs)
under CHS, and such vacant posts would instead be transferred to the
proposed DHS cadre.
14. The aforesaid policy proposal was thereafter approved by the
GNCTD Cabinet and consequential steps were initiated for
operationalising the new cadre. In consultation with the Ministry of
Health and Family Welfare, it was decided that, at the first instance,
the GDMOS and NTSs cadres would be constituted, with the Public
Health and Teaching cadres to be added at a later stage.
15. Pursuant thereto, and in consultation with the Union Public
Service Commission („UPSC‟), the Delhi Health Services (Allopathy)
Rules, 2009 [hereinafter referred to as „the 2009 DHS Rules‟] were
notified w.e.f. 23.12.2009.
16. The 2009 DHS Rules specifically provided for the initial
constitution of the service. Rule 6 of the 2009 DHS Rules [hereinafter
referred to as „Rule 6‟] assumes significance in the context of the
dispute in the present case. It provides for the initial constitution of the
service by deeming officers appointed under the CHS Rules, 1996 and
serving in the GNCTD, upon exercising option, as members of the
service in their respective grades, and further by regularising
contractual appointees appointed on or before 18.12.2006, subject to
assessment of suitability and fulfillment of prescribed qualifications,
at the entry level of the concerned sub-cadre.
17. Upon the coming into force of the 2009 DHS Rules, and with a
view to effecting the initial constitution of the DHS by including
eligible contractual doctors, the UPSC undertook an assessment of
suitability in terms of Rule 6(2). Assessment Boards were constituted,
and between 27.03.2012 and 04.04.2012, the suitability of 532
doctors, comprising 320 GDMOs and 212 NTSs, was evaluated.
18. All the Applicants in the present batch of matters were found
suitable in the said assessment process, and their names were
recommended for inclusion in the respective sub-cadres by the UPSC.
Consequent upon the recommendations of the UPSC, the GNCTD
issued orders dated 15.05.2012 appointing the said doctors to their
respective sub-cadres under the DHS with immediate effect.
19. Thereafter, vide letter dated 30.04.2013, the GNCTD informed
the UPSC that the doctors inducted into the DHS pursuant to the
suitability assessment had represented that their date of induction
should not be later than 23.12.2009, i.e., the date of notification of the
2009 DHS Rules. Upon consultation with the Law Department, the
Health Department recommended the grant of ab initio regular status
w.e.f. 23.12.2009. The UPSC concurred with this proposal and, vide
letter dated 16.01.2014, approved adoption of 23.12.2009 as the date
of induction under Rules 5(2) and 6(2) of the 2009 DHS Rules.
Consequent thereto, a Notification dated 20.08.2014 was issued.
20. Vide the aforesaid Notification dated 20.08.2014, the names of
528 Medical Officers were notified as having been inducted into the
DHS at the stage of initial constitution of the service w.e.f.
23.12.2009.
21. Further, the Health Department initiated steps for finalisation of
the seniority of GDMOs and NTSs Cadre under the 2009 DHS Rules.
In this regard, revised tentative seniority lists for the aforesaid two
cadres were published on 08.03.2018 and 13.03.2018, respectively.
22. At this stage, it is necessary to advert to the peculiar facts of
W.P.(C) 4929/2019 arising out of O.A. No.4018/2016. As noticed in
the Impugned Order, the Petitioner therein had proceeded on leave for
20 days from 03.04.2006 to 22.04.2006 and did not rejoin within the
stipulated period. Consequently, her contractual services were
terminated vide order dated 23.11.2007 [hereinafter referred to as
„Termination Order‟]. The challenge to the termination before the
Tribunal, and thereafter before this Court, did not succeed. However,
in SLP No.23809/2010, the Supreme Court, vide interim order dated
16.08.2010, directed that the Petitioner be taken back into service. In
compliance thereof, she was reinstated on 03.11.2010. The SLP was
ultimately disposed of on 19.08.2015 with a direction that the
Petitioner be treated as eligible to be considered for regularization by
the UPSC. Significantly, the Termination Order was not set
aside/touched upon by the Supreme Court.
23. The Petitioner thereafter claimed entitlement to the pay scale
and other service benefits at par with the recruits of the year 1996. The
said claim was rejected by the Department vide order dated
16.11.2015, which led to the filing of O.A. No.4018/2016. The
Tribunal, upon consideration, dismissed the said O.A.
24. Further, insofar as pensionary benefits and applicability of the
old pension scheme were concerned, the Health Department, vide
order dated 18.07.2017, rejected the claim by holding that grant of the
old pension scheme would be contrary to Rules 14(c) and 9(4) of the
2009 DHS Rules.
25. Meanwhile, aggrieved by the fixation of 23.12.2009 as the date
of induction for all purposes, the Applicants approached the Tribunal
by filing separate OAs. The principal grievance raised was that they
had rendered long years of service on a contractual basis prior to
23.12.2009. Though their initial engagements were for limited
periods, the same were extended from time to time and, according to
them, without any substantive break in service.
26. It was contended before the Tribunal that from the date of their
initial appointment on a contractual basis, the Applicants had been
discharging duties identical to those performed by regularly appointed
doctors under CHS and, thereafter, under the DHS. Emphasis was laid
on the fact that their initial appointments were made pursuant to
public advertisement and after assessment by duly constituted Boards
of GNCTD. On that premise, it was urged that their initial entry was
not dehors the 2009 DHS Rules and that the entire length of service
rendered on an contract basis ought to be taken into account for the
purpose of seniority.
27. The Applicants accordingly sought a direction that their
seniority be reckoned from the date of their initial contractual
engagement and that they be accorded regular status from that date
with all consequential benefits. In addition to seniority, a claim was
also raised in certain matters that the period of contractual service be
counted towards qualifying service for pension, on the ground that
such service was continuous in nature and rendered against sanctioned
posts.
28. In essence, the challenge before the Tribunal was to the
Notification dated 20.08.2014, to the extent it confined the benefit of
induction and seniority to 23.12.2009. The Applicants sought
recognition of their pre-2009 contractual service both for purposes of
inter se seniority and, in the alternative or additionally, for reckoning
qualifying service under the applicable pension rules.
29. A brief chart indicating (i) the findings/remarks recorded in the
respective Impugned Orders, and (ii) the reliefs now prayed for before
this Court in the present Writ Petitions, has been prepared for ready
reference:
W.P. O.A. Remarks in the Relief sought before
(C) No. Impugned Order this Court
No.
1265/ 604/ i. Seniority from the date Setting aside the
2018 2014 of initial contractual Impugned Order dated
appointment declined; 23.05.2017, thereby
granting seniority from
ii. Contractual service date of initial contractual
directed to be counted engagement; and
only towards qualifying counting of the entire
service for pension, pre-2009 service for all
subject to rules. consequential benefits,
including pension.
5221/ 238/ Same view as in O.A. i. Setting aside the
2018 2015 604/2014. Impugned Order dated
23.05.2017 to the extent
that the Tribunal rejected
the claim of the
Petitioners for grant of
seniority.
ii. Quashing the
Notification dated
20.08.2014.
10928 4442/ i. Seniority claim rejected; i. Setting aside the
/2019 2014 ii. Contractual service Impugned Order dated
permitted to be counted 25.07.2019.
towards qualifying service
for pension. ii. Quashing/Modifying
the Notification dated
20.08.2014.
iii. Setting aside or
modifying the Rule 9(4)
of the 2009 DHS Rules.
167/ 1246/ i. Benefit of counting i. Setting aside the
2019 2017 contractual service for Impugned Order dated
pension refused in view of 20.08.2018, thereby
ineligibility under granting seniority from
applicable pension rules. initial engagement and
direction to count
contractual service also
for pensionary benefits.
ii. Quashing the Rule
14(2)(c) of the 2009
DHS Rules.
4929/ 4018/ i. In view of the i. Quashing the
2019 2016 termination dated Impugned Order dated
23.11.2007 and break in 19.02.2019, thereby
service, continuity not recognising the entire
accepted and also parity in service, including the
pay and seniority rejected. period prior to
termination for seniority.
ii. Pension claim also
declined in light of Rules ii. Granting of parity in
14(c) and 9(4) of the 2009 pay and pension under
DHS Rules. the old pension scheme.
7531/ 3556/ i. Contractual service i. Setting aside the
2022 2018 directed to be considered, Impugned Order dated
however, relief is made 23.12.2021, thereby
subject to the outcome of granting unconditional
W.P.(C) 1265/2018. counting of contractual
service for seniority and
pension without being
made subject to other
Writ Petitions.
ii. Quashing the Rules
6(2), 9(4) and 14(2)(c) of
the 2009 DHS Rules.
835/ 2837/ i. Seniority from initial i. Quashing the
2020 2019 contractual appointment Impugned Order dated
declined. 23.09.2019.
ii. Contractual service ii. Quashing the Rules
directed to be counted for 6(2), 9(4), 14(2)(b),
pension in accordance 14(2)(c).
with rules.
iii. Quashing the revised
tentative seniority list
dated 08.03.2018 and
13.03.2018.
30. Thus, across the Impugned Orders, the Tribunal‟s analysis
proceeded primarily on the following factual premises:
i. The initial engagement of the Applicants was not through
the regular recruitment process prescribed under the Recruitment
Rules;
ii. Regular appointment was made only after due selection;
iii. Seniority is ordinarily reckoned from the date of regular
appointment unless statutory rules provide otherwise; and
iv. Counting of past service for pension is governed by
specific statutory provisions, distinct from principles governing
seniority.
31. It is in the aforesaid factual and legal backdrop that the present
batch of Writ Petitions has been preferred, assailing the findings of the
Tribunal to the extent adverse to the respective Petitioners.
CONTENTIONS ON BEHALF OF THE GNCTD:
32. Heard learned Counsel for the parties at length and, with their
able assistance, perused the paperbook.
33. The submissions advanced by the learned Counsel for the
GNCTD, common to the present batch of matters, are as under:
i. The Applicants were initially engaged purely on
contractual basis for fixed tenures to meet administrative
exigencies. Such engagements were not made through the regular
recruitment process prescribed under the applicable Recruitment
Rules and did not confer any right to regular appointment or to
seniority. The mere fact that such engagements were preceded by
an advertisement or assessment does not elevate them to
appointments made in accordance with the statutory recruitment
rules.
ii. The 2009 DHS Rules constitute a complete code in
respect of constitution of the cadre, induction and fixation of
seniority. Under Rule 6(2), contractual doctors appointed on or
before 18.12.2006 could be considered for induction only upon
assessment of suitability by the UPSC and upon being found fit.
It is only upon such induction that they became members of the
service. Therefore, seniority could not, in law, be reckoned from
a date prior to their deemed appointment under the 2009 DHS
Rules.
iii. The adoption of 23.12.2009, i.e., the date of notification
of the 2009 DHS Rules, as the date of induction for the purpose
of seniority was not arbitrary, but was done after due consultation
with the Law Department and with concurrence of the UPSC.
The Notification dated 20.08.2014 merely gave effect to this
considered decision and ensured uniformity at the stage of initial
constitution.
iv. Seniority is a statutory right and must flow strictly from
the rules. In the absence of any provision in the 2009 DHS Rules
permitting retrospective seniority from the date of contractual
engagement, no such benefit can be granted. Contractual service,
by its very nature, does not create a lien on a post nor form part
of cadre service unless specifically provided.
v. The entitlement to count past service for pension is
governed by specific statutory provisions. In certain matters, the
Tribunal granted limited relief of counting contractual service
towards qualifying service, subject to fulfillment of the
applicable rules. However, in O.A. Nos.1246/2017 and
4018/2016, such relief was rightly declined as the Applicants did
not satisfy the statutory conditions or were governed by the New
Pension Scheme. Reliance is placed on Rules 14(c) and 9(4) of
the 2009 DHS Rules to submit that grant of the old pension
scheme would be contrary to the said Rules.
vi. Insofar as W.P.(C) 4929/2019 is concerned, it is
submitted that the Petitioner therein suffered termination of
service on 23.11.2007 on account of unauthorized absence.
Though she was taken back into service pursuant to interim
orders of the Supreme Court, the Termination Order was never
set aside. There was thus a clear break in service, rendering her
claim of continuity for seniority or pension untenable.
vii. The Tribunal has correctly held that seniority cannot be
granted from the date of initial contractual appointment, and
counting of such service for pension, if permissible, must strictly
conform to the governing rules. The present Writ Petitions,
according to the GNCTD, seek a benefit which is neither
contemplated under the 2009 DHS Rules nor supported by
settled principles governing service jurisprudence.
34. No other submissions have been advanced by the learned
Counsel for the GNCTD.
CONTENTIONS ON BEHALF OF THE RESPONDENTS IN
W.P.(C) 1265/2018:
35. The submissions advanced by the learned Counsel for the
Respondents in the W.P.(C) 1265/2018, as urged before this Court,
are summarised hereunder:
i. Pension is not a bounty but a valuable right earned for
past service and constitutes a measure of social security post-
retirement. Any interpretation of the Rules which arbitrarily
denies pensionary benefit, despite long and continuous service
rendered against sanctioned posts, would defeat the object of the
pension scheme.
ii. Reliance is placed on S.D. Jayaprakash & Ors. v. Union
of India1; State of H.P. v. Sheela Devi2; and Uday Pratap
Thakur v. State of Bihar3, to contend that service rendered on
contractual or work-charged basis prior to regularization is liable
to be counted towards qualifying service for pension, where the
2025 SCC OnLine SC 973
2023 SCC OnLine SC 1272
2023 SCC OnLine SC 527
rules so permit. It is further urged that the CCS (Pension) Rules,
1972 [hereinafter referred to as „CCSP Rules‟] must be construed
purposively and any restrictive interpretation defeating legitimate
pensionary benefits ought to be eschewed.
iii. Placing reliance on decisions of various High Courts in
Indian Institute of Technology v. Dr. Praveen Kumar4; Vasant
Gangaram v. State of Maharashtra5; and Harbans Lal v. State
of Punjab6, it is submitted that where the initial engagement was
pursuant to a valid advertisement and the service continued
without break, the employee cannot be deprived of pensionary
benefits merely because regularization was granted from a later
date.
36. No other submissions have been advanced by the learned
Counsel for the Respondents in the aforesaid Writ Petition.
CONTENTIONS ON BEHALF OF THE PETITIONERS IN
W.P.(C) 5221/2018:
37. The submissions advanced by the learned Counsel for the
Petitioners in the W.P.(C) 5221/2018 are summarised hereunder:
i. The initial appointments of the Petitioners on contractual
basis were made against sanctioned posts after due advertisement
and selection, in a manner known to law. In the absence of any
specific rule to the contrary, continuous length of service must
ordinarily be taken into account for determining seniority,
2025 SCC OnLine Jhar 3350
(1996) 10 SCC 148
2010 SCC OnLine P&H 8181
consistent with Articles 14 and 16 of the Constitution of India.
Reliance is placed upon the decisions of the Supreme Court in
State of U.P. v. Manbodhan Lal Srivastava7; and A Janardhana
v. Union of India & Ors.8
ii. Placing reliance on the decision in Vijay Dhankar & Ors.
v. GNCTD & Ors.9, it is urged that Rule 6(2) of the 2009 DHS
Rules recognises the validity of prior contractual appointments at
the stage of initial constitution, and therefore the Petitioners‟ past
service deserves due weightage.
iii. Insofar as pension is concerned, the employees who had
been working continuously prior to 01.01.2004, though
regularised subsequently, are entitled to have their qualifying
service counted from the initial date of appointment. Reliance is
placed on Harbans Lal (supra); Sheela Devi (supra) and S.D.
Jayaprakash (supra) to submit that past contractual service,
when followed by regularisation, must be counted towards
pensionary benefits.
38. No other submissions have been made on behalf of the learned
Counsel representing the Petitioners in the aforesaid Writ Petition.
ANALYSIS AND FINDINGS IN W.P.(C) 1265/2018 AND
5221/2018:
1958 SCR 533
(1983) 3 SCC 601
2012 SCC OnLine CAT 4728
39. This Court has considered the rival submissions advanced on
behalf of the GNCTD as well as the respective
Respondents/Petitioners in W.P.(C) 1265/2018 and W.P.(C)
5221/2018. Since both matters arise out of the common Impugned
Order dated 23.05.2017, passed in O.A. Nos.604/2014 and 238/2015
and involve overlapping issues of seniority and pension, they are
being examined together.
A. Whether contractual service is liable to be counted for seniority
in the case of the present fact.
40. The principal submission of the GNCTD is that the Applicants
were initially engaged purely on contractual basis and not through the
regular recruitment process contemplated under the applicable
Recruitment Rules. It is urged that the 2009 DHS Rules constitute a
complete code and that, in the absence of any express provision
granting retrospective seniority, no such benefit can be claimed.
41. On the other hand, the Applicants contend that their
appointments were made against sanctioned posts after due
advertisement and assessment, they discharged duties identical to
regularly appointed Doctors and their induction under Rule 6(2) of the
2009 DHS Rules is itself a recognition of the validity and continuity
of their prior service.
42. At the very outset, it is pertinent to refer to some of the relevant
rules of the 2009 DHS Rule. The same are extracted as under:
"2. Definitions.-
In these rules, unless the context otherwise requires-
(a) "Commission" means the Union Public Service
Commission.
(b) "Controlling Authority" means the Health and Family
Welfare Department, Government of NCT of Delhi.
(c) "Duty Post" means any post, whether permanent or
temporary, specified in Schedule-II.
(h) "Service" means the Delhi Health Service (Allopathy).
(i) "Sub Cadre" means any of the two streams of the Service,
namely General Duty, and Non teaching Specialist as the case
may be.
***
5. Members of the Service.-
(1) The following persons shall be members of the Service,
namely:-
(a) Persons appointed under sub-rule (5) of rule 4.
(b) Persons appointed to duty posts under rule 6, and
(c) Persons appointed to duty posts under rule 7.
(2) A person, appointed under clause (b) of the Sub-rule (1) shall,
on such appointment, be deemed to be the member of the Service in
the appropriate Grade applicable to him in Schedule-II.
(3) A person appointed under clause (c) of the Sub (1) shall be the
Member of the Service in the appropriate grade applicable to him
in Schedule-II from the date of such appointment.
***
6. Initial Constitution of the Service.-
(1) All the officers appointed under the Central Health Service
Rules, 1996, who are working in the Government of NCT of Delhi
as on the date of publication of these rules in the official gazette
and who opt to be part of this service shall be deemed to have been
appointed under these rules and they shall be members of the
service in the respective grades.
(2) All officers appointed on contract basis/ad-hoc basis on or
before 18th December 2006, i.e., the date of issue of the
Government of Delhi‟s O.M. No.
F.70/49/2006/H&FW/SSHFW/463-475 dated 18th December,
2006, on the basis of their suitability as assessed by the
Commission and requisite educational qualifications and
experience prescribed for the post and being found fit, shall be
deemed to have been appointed under these Rules and assigned to
the Sub- Cadre of General Duty Medical Officers or Non-teaching
Specialists, as the case may be, and they shall be members of the
Service at the entry level of the respective Sub-Cadre at the initial
constitution stage.
***
9. Seniority.-
(1) The relative seniority of members of the service appointed to a
grade in the respective sub-cadres or in the respective specialty of
the sub-cadre of the Service, as the case may be, at the time of
initial constitution of the service under rule 6(1), shall be as
obtaining on the date of commencement of these rules.
Provided that if the seniority of any such members had not been
specifically determined on the said date, the same shall be
determined on the basis of the rules governing the fixation of
seniority as were applicable to the members of the Service prior to
the commencement of these rules or in consultation with the
Commission as the case may be.
(2) The seniority of officers recruited to the Service other than
those appointed under rule 6(1) shall be determined in accordance
with the general instructions issued by the Government in the
matter from time to time.
(3) The seniority of persons recruited to the Service in accordance
with subrule (5) of rule 4 shall be fixed in the manner provided
therein.
(4) The protection, if any accorded in towards increments drawn
by the doctors who worked on contract/ad hoc basis prior to
placement at the initial constitution stage shall not be taken into
account for determining the length of service or seniority for
consideration for promotion on time scale basis subsequent to their
placement at the initial constitution stage.
***
14. Pension & other conditions of Service.-
(1) The conditions of service of the members of the service in
respect of matters not expressly provided for in these rules, shall,
mutatis mutandis and subject to any special orders issued by the
Government in respect of the service, by the same as those
applicable to officers of the Central Civil Services in general.
(2) (a) Officers appointed under Sub-Rule (1) of Rule 6, prior to
1.1.2004, before the commencement of these Rules, shall be
governed by the CCS (Pension) Rules, 1972.
(b) Officers appointed under Sub-rule (1) of Rule 6, after
1.1.2004, shall be governed by the new Pensions Scheme.
(c) Officers appointed under Sub-rule (2) of Rule 6 will be
governed by the new Pensions Scheme, applicable after
1.1.2004.
***
16. Power to relax.-
Where the Government is of the opinion that it is necessary or
expedient so to do, it may, by order, for reasons to be recorded in
writing, and in consultation with the Commission, relax any of the
provisions of these rules with respect to any class or category of
persons."
43. A conjoint reading of Rules 2, 5 and 6 of the 2009 DHS Rules
makes the legislative scheme abundantly clear. "Service" under Rule
2(h) of the said Rules is a defined expression referring specifically to
the DHS (Allopathy). Membership of that Service is not automatic
upon rendering duties for the Health Department. It accrues only in
the manner contemplated under Rule 5 of the said Rules. Rule 5(1)
exhaustively enumerates the categories of persons who shall be
members of the Service. Clause (b) thereof brings within the fold only
those "appointed to duty posts under Rule 6". Thus, entry into the
Service is statutorily structured and is traceable to a specific source of
appointment under the 2009 DHS Rules.
44. Rule 6, in turn, is a transitional provision dealing with "Initial
Constitution of the Service." Sub-rule (1) pertains to officers already
borne on the CHS who opted to join the newly constituted cadre. Sub-
rule (2) carves out a separate enabling window for contractual
appointees appointed on or before 18.12.2006, but subjects their
induction to an essential precondition, assessment of suitability by the
Commission and fulfillment of prescribed qualifications. Only upon
such assessment and being found fit are they "deemed to have been
appointed under these Rules" and assigned to the Sub-Cadre "at the
entry level" at the initial constitution stage.
45. The expression "deemed to have been appointed under these
Rules" cannot be read in isolation. The deeming fiction is expressly
tied to the stage of "initial constitution" and to assignment "at the
entry level" of the respective sub-cadre. The legal fiction, therefore, is
limited and purposive. It facilitates absorption into the newly created
cadre without undergoing a fresh process of open recruitment. It does
not, either expressly or by necessary implication, relate back the
appointment to the date of initial contractual engagement. To read
such retrospectivity into Rule 6(2) would amount to judicial
legislation.
46. This interpretation is reinforced by Rule 9 of the 2009 DHS
Rules. Rule 9(1) specifically preserves the relative seniority of those
appointed under Rule 6(1), i.e., CHS officers, as obtaining on the date
of commencement of the Rules. In contrast, there is no corresponding
provision granting preservation or carry-forward of seniority to those
inducted under Rule 6(2). On the contrary, Rule 9(4) explicitly
stipulates that protection accorded in respect of increments drawn
during contractual service prior to placement at the initial constitution
stage "shall not be taken into account for determining the length of
service or seniority" for promotional purposes thereafter. The
statutory intent is, therefore, explicit. Past contractual service may
receive limited financial protection, but it is not to be reckoned for
seniority within the cadre.
47. The structure of Rule 9 thus draws a clear distinction between
(i) preservation of existing seniority in the case of officers already
borne on a regular cadre, and (ii) fresh integration at the entry level in
the case of contractual appointees. If the rule-making authority had
intended to confer retrospective seniority upon such appointees, it
would have so provided in express terms, particularly when it
consciously addressed the subject of seniority in detail.
48. The cumulative effect of Rules 5, 6 and 9 of the 2009 DHS
Rules is that membership of the service, fixation of seniority and
determination of pensionary regime are all anchored to the statutory
event of appointment under the 2009 DHS Rules. The prior
contractual engagement, though a factual precursor, does not by itself
constitute entry into the service. It is only upon induction, pursuant to
assessment by the UPSC, that the appointee acquires the legal status
of a "member of the Service".
49. The presence of Rule 16 of the 2009 DHS Rules conferring a
power to relax, also assumes significance. Where the rule-making
authority intended flexibility, it expressly provided a mechanism for
relaxation in consultation with the UPSC. In the absence of invocation
of such power, the Court cannot, under the guise of interpretation,
dilute the plain language of the Rules to create a benefit of
retrospective seniority which the statutory scheme consciously
withholds.
50. In light of the above statutory architecture, it becomes evident
that the Tribunal correctly appreciated that the Applicants‟ initial
contractual engagement was dehors the cadre and that their regular
entry into the service occurred only upon induction under Rule 6(2).
51. The reliance placed by the Petitioners in W.P.(C) 5221/2018 on
Manbodhan Lal Srivastava (supra) and A. Janardhana (supra) does
not advance their case beyond a point. Those decisions reiterate that,
in the absence of a specific rule to the contrary, continuous length of
service may be relevant. However, in the present case, there exists a
specific statutory framework governing induction and seniority,
namely the 2009 DHS Rules. Once the field is occupied by statutory
rules, general equitable principles cannot override the scheme of the
Rules.
52. Further, the reliance placed by the Petitioners in W.P.(C)
5221/2018 on Vijay Dhankar (supra) is misconceived. In the said
decision, the Tribunal examined the constitutional validity of Rule
6(2) of the 2009 DHS Rules and upheld the prescription of 18.12.2006
as a rational cut-off date for inclusion of contractual appointees at the
stage of initial constitution of the DHS, subject to suitability
assessment by the UPSC. The judgment merely affirms the policy
competence of the Government in structuring the initial constitution of
a newly created service and does not hold that prior contractual
service must be granted retrospective seniority or weightage beyond
what is expressly provided in the Rules. On the contrary, it recognises
the limited and conditional nature of induction under Rule 6(2), and
therefore does not advance the Petitioners‟ claim for reckoning past
contractual service for seniority or promotional benefits.
53. Equally, the contention that delay on the part of the State in
framing the Rules should not prejudice the Applicants cannot lead to
conferment of seniority dehors the Rules. Seniority is a statutory right.
It cannot be claimed on the basis of long service alone, particularly
when such service was admittedly contractual and not borne on the
cadre.
54. This Court also finds merit in the submission of the GNCTD
that contractual engagement, by its very nature, does not create a lien
on a post nor does it confer membership of the service. The deeming
provision in Rule 6(2) operates only from the stage of initial
constitution and cannot be extended by implication to rewrite the date
of entry into service for purposes of seniority.
55. In view of the above, this Court is of the considered opinion
that the Tribunal was justified in declining the prayer for reckoning
seniority from the date of initial contractual engagement.
56. The challenge to the Notification dated 20.08.2014, whereby
23.12.2009 was fixed as the date of induction into the DHS pursuant
to Rule 6(2), also does not merit interference. The said Notification
merely operationalised the statutory scheme by specifying the date on
which the Petitioners stood inducted at the entry level after due
process, and does not create or extinguish rights dehors the 2009 DHS
Rules. In the absence of any demonstrated arbitrariness or violation of
the 2009 DHS Rules, no ground for interference in the exercise of writ
jurisdiction is made out.
B. Whether contractual service is liable to be counted for pension
57. The next and more nuanced issue pertains to pensionary
benefits. In W.P.(C) 1265/2018, the Tribunal directed that the period
rendered by the Applicants on contractual basis be taken into
consideration towards qualifying service for pension, subject to and in
accordance with the applicable rules.
58. The GNCTD has assailed even this limited relief, contending
that officers inducted under Rule 6(2) are statutorily governed by Rule
14(2)(c) and, consequently, by the New Pension Scheme, and that the
Rules do not envisage reckoning of pre-induction contractual service
for pensionary purposes.
59. The Applicants, on the other hand, rely upon the decisions in
Sheela Devi (supra) and S.D. Jayaprakash (supra) to contend that
past contractual service, followed by regularisation, must be counted
towards qualifying service for pension where the governing rules so
permit.
60. At this juncture, it becomes relevant to refer to some of the
provisions of the CCSP Rules, which are extracted hereunder:
"3. Definitions.-
(1) In these rules, unless the context otherwise requires:
(q) „Qualifying Service‟ means service rendered while on duty
or otherwise which shall be taken into account for the
purpose of pensions and gratuities admissible under these
rules.
***
13. Commencement of qualifying service.-
Subject to the provisions of these rules, qualifying service of a
Government servant shall commence from the date he takes charge
of the post to which he is first appointed either substantively or in
an officiating or temporary capacity:
Provided that officiating or temporary service is followed without
interruption by substantive appointment in the same or another
service or post.
Provided further that:
(a) in the case of a Government servant in a Group „D‟ service
or post who held a lien or a suspended lien on a permanent
pensionable post prior to the 17th April, 1950, service
rendered before attaining the age of sixteen years shall not
count for any purpose, and
(b) in the case of a Government servant not covered by clause
(a), service rendered before attaining the age of eighteen years
shall not count, except for compensation gratuity.
(c) the provisions of clause (b) shall not be applicable in the
cases of counting of military service for civil pension under
Rule 19.
***
17. Counting of service on contract.-
(1) A person who is initially engaged by the Government on a
contract for a specified period and is subsequently appointed to the
same or another post in a substantive capacity in a pensionable
establishment without interruption of duty, may opt either:
(a) to retain the Government contribution in the Contributory
Provident Fund with interest thereon including any other
compensation for that service; or
(b) to agree to refund to the Government the monetary benefits
referred to in Clause (a) or to forgo the same if they have not
been paid to him and count in lieu thereof the service for which
the aforesaid monetary benefits may have been payable.
(2) The option under sub-rule (1) shall be communicated to the
Head of Office under intimation to the Accounts Officer within a
period of three months from the date of issue of the order of
permanent transfer to pensionable service, or if the Government
servant is on leave on that day, within three months of his return
from leave, whichever is later.
(3) If no communication is received by the Head of Office within
the period referred to in sub-rule (2), the Government servant shall
be deemed to have opted for the retention of the monetary benefits
payable or paid to him on account of service rendered on
contract."
(Emphasis supplied)
61. A plain reading of the aforesaid provisions indicates that the
CCSP Rules do not adopt an inflexible approach in excluding pre-
regularisation service. While Rule 13 provides that qualifying service
ordinarily commences from the date of first appointment to a post,
whether substantive, officiating or temporary, it expressly permits
counting of temporary or officiating service where it is followed,
without interruption, by substantive appointment.
62. More significantly, Rule 17 specifically contemplates a
situation where an employee initially engaged on contract is
subsequently appointed substantively in a pensionable establishment,
and enables such contractual service to be counted, subject to exercise
of option and compliance with the prescribed conditions. The
statutory framework, therefore, recognises that prior contractual
service is not per se alien to pensionary reckoning. Its inclusion
depends upon fulfilment of the conditions stipulated therein.
63. It is in this statutory backdrop that the Tribunal examined the
matter. In the Impugned Order, it noticed that qualifying service
ordinarily begins from substantive appointment. At the same time, it
recorded that where service has been rendered against sanctioned
posts and is followed by regularisation without interruption, the CCSP
Rules themselves contemplate counting of such service, if the
statutory requirements are met. The direction issued is thus rooted in
the text of the CCSP Rules.
64. The Tribunal also adverted to its earlier findings in O.A.
No.2564/1997, where the Applicants, though styled as contractual
appointees, were held entitled to parity in pay on the principle of equal
pay for equal work. That determination recognised the substantive
nature of duties discharged by them against sanctioned posts. While
such a finding does not, by itself, confer pensionary entitlement, it
constitutes a relevant factual backdrop in examining whether the
nature of service rendered can be considered under the pension rules.
65. This Court is conscious that the statutory scheme contains clear
internal limitations which cannot be overlooked. Rule 9(4) of the 2009
DHS Rules incorporates an express embargo by stipulating that the
protection, if any, granted in respect of increments earned during the
contractual period prior to placement at the stage of initial constitution
shall not be reckoned for determining length of service or seniority for
promotion on time-scale basis.
66. Similarly, Rule 14(2)(c) of the 2009 DHS Rules mandates that
officers appointed under Rule 6(2) shall be governed by the New
Pension Scheme applicable after 01.01.2004. The language employed
is explicit and admits of no discretion. These provisions demonstrate
that while the Rules make a structured accommodation for induction
of contractual appointees, they simultaneously impose clear
boundaries in matters of seniority and pension regime.
67. However, this Court is equally guided by the settled principle
that pension is not a matter of grace but a deferred portion of
compensation for past service. Pensionary provisions, being measures
of social security, must receive a fair and beneficial construction. At
the same time, it is equally trite that the right to pension must emanate
from, and be circumscribed by, the governing statutory rules.
68. The view taken by the Tribunal also finds support in subsequent
judicial pronouncements. In Sheela Devi (supra), the Supreme Court
recognised that where employees had rendered contractual service
which was later followed by regularisation, such service could not be
ignored for pensionary purposes if the governing rules permitted its
reckoning. The principle was reiterated in S.D. Jayaprakash (supra),
where the Court, in the context of temporary and contractual
appointees subsequently regularised, directed that the pre-
regularisation service be considered in terms of Rule 17 of the CCSP
Rules. These decisions underscore that the determinative factor is not
the nomenclature of the initial appointment, but whether the statutory
mechanism enables counting of such service upon subsequent
substantive appointment.
69. Similar reasoning is discernible in Dr. Praveen Kumar (supra),
where the Jharkhand High Court examined the applicability of the
pension regime in light of the date of initiation of the recruitment
process, and in Harbans Lal (supra) decision by the Punjab and
Haryana High Court, wherein the daily-wage service preceding
regularisation was directed to be counted towards qualifying service
for pension. While each of these decisions turned on their respective
statutory frameworks, the common thread is that service rendered
continuously against sanctioned posts and followed by regularisation
cannot be excluded from pensionary consideration by a purely
formalistic approach. It is this principle, subject always to the
controlling statutory rules, that informs and sustains the limited
direction issued by the Tribunal in the present case.
70. Viewed in that perspective, it is the considered view of this
Court that the Tribunal has not conferred any blanket or automatic
benefit upon the Applicants. It has merely directed that the period of
contractual service be considered towards qualifying service "in
accordance with the applicable rules." Such a direction does not dilute
the embargo under Rule 9(4) nor does it override Rule 14(2)(c). It
mandates only a rule-compliant examination within the statutory
framework.
71. This Court, therefore, finds no infirmity in the approach
adopted by the Tribunal in O.A. Nos.604/2014 and 238/2015 in
directing consideration of past contractual service for pension, subject
to satisfaction of statutory preconditions. The direction neither creates
a right dehors the 2009 DHS Rules nor expands their scope, it merely
ensures that service, if otherwise admissible under the CCSP Rules, is
not excluded by a mechanical or hyper-technical application of the
statutory scheme.
72. In view of the foregoing discussion, this Court holds that:
i. The Applicants are not entitled to reckoning of seniority
from the date of their initial contractual engagement.
ii. The fixation of 23.12.2009 as the date of induction under
the 2009 DHS Rules does not suffer from illegality warranting
interference.
iii. The direction of the Tribunal to consider counting of
contractual service towards qualifying service for pension, in
accordance with the applicable rules, is justified and does not call
for interference.
73. Consequently, W.P.(C) 1265/2018 and W.P.(C) 5221/2018 are
liable to be dismissed, subject to the above observations.
74. In view of the findings of this Court on the principal questions
relating to (i) reckoning of seniority from the date of initial contractual
engagement, and (ii) counting of such service towards qualifying
service for pension, which constituted the core controversy in the
present batch, this Court now proceeds to examine each Writ Petition
separately on its own facts and the reliefs claimed therein.
IN W.P.(C)7531/2022:
75. This Writ Petition assails the Impugned Order dated 23.12.2021
passed by the Tribunal in O.A. No.3556/2018.
76. The submissions advanced on behalf of the GNCTD are in line
with the contentions already noticed in Paragraph No.33 hereinabove.
It is reiterated that seniority cannot be claimed from the date of initial
contractual engagement and that any counting of such service must
strictly conform to the statutory framework under the 2009 DHS
Rules and the applicable pension rules.
77. The Petitioners contend that they were appointed on a
contractual basis in the year 1996 against sanctioned posts and had
rendered continuous service prior to their induction under the 2009
DHS Rules. It is urged that once their suitability was assessed by the
UPSC under Rule 6(2) and they were inducted at the stage of initial
constitution, their past service ought to be duly recognised both for
seniority and pension.
78. The principal grievance, however, is directed against the nature
of the relief granted by the Tribunal. It is submitted that although the
Tribunal directed consideration of the period spent on contractual
service, it made such consideration subject to the outcome of W.P.(C)
1265/2018.
79. A perusal of the Impugned Order dated 23.12.2021 shows that
the Tribunal did not grant unconditional relief. While directing the
Respondents to consider the counting of the contractual service, the
Tribunal expressly made the same subject to the decision of this Court
in W.P.(C) 1265/2018, which involved an identical issue concerning
seniority and pension.
80. In the preceding part of this judgment, this Court has already
adjudicated upon the issues which formed the basis of the conditional
direction. At the cost of repetition, this Court has held that:
i. Seniority cannot be granted from the date of initial
contractual engagement; and
ii. Counting of such service for pension is permissible only
in accordance with the applicable statutory rules.
81. In that view of the matter, the conditional direction issued by
the Tribunal no longer survives as contingent. The issue having now
been decided in the present batch, the relief granted in O.A.
No.3556/2018 must operate in terms of the conclusions recorded
herein.
82. Accordingly, it is clarified that the Petitioners in W.P.(C)
7531/2022 shall not be entitled to seniority from the date of their
initial contractual engagement. However, their claim for counting of
contractual service towards qualifying service for pension shall be
examined by the GNCTD strictly in accordance with the applicable
pension rules and in terms of the principles upheld in Paragraph
Nos.57-71 above.
83. With the above clarification, W.P.(C) 7531/2022 stands
disposed of.
IN W.P.(C) 10928/2019:
84. This Court now proceeds to examine W.P.(C) 10928/2019,
which arises out of O.A. No.4442/2014 and challenges the Impugned
Order dated 25.07.2019 passed by the Tribunal.
85. The submissions advanced on behalf of the GNCTD are in
consonance with the contentions already recorded in Paragraph No.33
hereinabove.
86. On behalf of the Petitioners, it is contended that they were
appointed in the year 2002 after due advertisement and selection
against sanctioned posts and continued to serve without interruption.
It is urged that the nature of duties discharged by them was identical
to that of regularly appointed doctors and that their subsequent
induction under Rule 6(2) was merely a formal recognition of their
long-standing service.
87. The Petitioners assail the Impugned Order insofar as it rejects
their claim for seniority from the date of initial contractual
engagement and seek quashing/modification of the Notification dated
20.08.2014. A further challenge is laid to Rule 9(4) of the 2009 DHS
Rules, contending that the same operates to their detriment in matters
of seniority and pension.
88. A perusal of the Impugned Order dated 25.07.2019 shows that
the Tribunal, while rejecting the claim for seniority from the date of
initial contractual appointment, directed that the period of contractual
service be counted towards qualifying service for pension, subject to
the governing rules.
89. The issue relating to seniority from the date of initial
contractual engagement stands concluded by the findings of this Court
in Paragraph Nos.40-56 above. This Court has held that in the
presence of a specific statutory framework under the 2009 DHS Rules,
seniority cannot be claimed retrospectively from the date of
contractual engagement, and that the fixation of 23.12.2009 as the
date of induction does not warrant interference.
90. Insofar as the challenge to Rule 9(4) of the 2009 DHS Rules is
concerned, this Court finds that the said Rule forms part of the
statutory scheme governing the constitution and conditions of service
under the DHS. The Petitioners have not demonstrated that the Rule is
ultra vires the parent statute or violative of any constitutional
mandate. Merely because its operation does not advance their claim
for retrospective seniority would not render it invalid.
91. As regards pension, the Tribunal has granted limited relief by
directing counting of contractual service towards qualifying service in
accordance with the applicable rules. In light of the conclusions of this
Court in Paragraph Nos.57-71, such direction is in consonance with
settled principles and does not suffer from any infirmity.
92. Accordingly, W.P.(C) 10928/2019 is liable to be dismissed. The
rejection of the claim for retrospective seniority is upheld. The
direction of the Tribunal permitting counting of contractual service for
pension, subject to statutory rules, is affirmed.
IN W.P.(C) 167/2019:
93. This Court now proceeds to examine W.P.(C) 167/2019, which
arises out of O.A. No.1246/2017 and assails the Impugned Order
dated 20.08.2018 passed by the Tribunal.
94. The submissions advanced on behalf of the GNCTD are in line
with the contentions already recorded in Paragraph No.33
hereinabove. It is submitted that seniority cannot be reckoned from the
date of initial contractual engagement. Insofar as the pension is
concerned, it is urged that the Tribunal rightly declined the benefit of
counting contractual service towards qualifying service, as the
Petitioner was governed by the New Pension Scheme and did not
satisfy the eligibility conditions under the applicable statutory
provisions.
95. On behalf of the Petitioner, it is contended that she had
rendered long years of uninterrupted contractual service against
sanctioned posts prior to her induction under the 2009 DHS Rules.
While the claim for retrospective seniority has been pressed, the
principal grievance now survives with respect to pensionary benefits.
96. Insofar as the claim for seniority from the date of initial
contractual engagement is concerned, the same stands concluded by
the findings in the earlier part of this judgment. For the reasons
already recorded, the Petitioner is not entitled to seniority from a date
prior to her induction under the 2009 DHS Rules.
97. However, with regard to pension, this Court has held that
contractual service rendered against sanctioned posts, if otherwise
continuous and followed by induction under the 2009 DHS Rules, is
liable to be counted towards qualifying service for pension, subject to
the applicable statutory provisions.
98. The Impugned Order dated 20.08.2018 declined such benefit to
the Petitioner. In view of the determination of the issue in W.P.(C)
1265/2018 and W.P.(C) 5221/2018, the Petitioner herein is entitled to
parity.
99. Accordingly, W.P.(C) 167/2019 is partly allowed. The rejection
of the claim for retrospective seniority is upheld. However, the
Impugned Order is set aside to the limited extent it denies counting of
contractual service towards qualifying service for pension. The
Respondents are directed to re-compute the Petitioner‟s qualifying
service for pension by including the period of contractual service,
subject to fulfillment of the statutory conditions, within a period of
twelve weeks.
100. The Writ Petition is disposed of in the above terms.
IN W.P.(C) 4929/2019:
101. This Court now takes up W.P.(C) 4929/2019, which arises out
of O.A. No.4018/2016 and assails the Impugned Order dated
19.02.2019 passed by the Tribunal.
102. The submissions advanced on behalf of the GNCTD are in
terms of the contentions already recorded in Paragraph No.33
hereinabove. It is contended that the Petitioner was initially engaged
on contractual basis, her services came to be terminated on 23.11.2007
on account of unauthorized absence and the said Termination Order
was never set aside.
103. It is further submitted that though the Petitioner was taken back
into service pursuant to interim orders of the Supreme Court, there
was a clear break in service between 23.11.2007 and 03.11.2010.
Consequently, any claim for continuity of service for purposes of
seniority or pension is legally untenable. It is further urged that the
Petitioner is governed by the statutory framework of the 2009 DHS
Rules and cannot claim benefits dehors the Rules.
104. On behalf of the Petitioner, it is contended that she was initially
appointed in 1996 on contractual basis after due selection and had
rendered several years of service before proceeding on leave. It is
urged that she was ultimately reinstated pursuant to orders of the
Supreme Court and was directed to be treated as eligible for
consideration for regularization by the UPSC. It is submitted that the
break in service ought not to be put against her, particularly when she
was taken back into service and thereafter inducted under the 2009
DHS Rules. The Petitioner claims parity with other similarly situated
doctors in matters of seniority and pension.
105. The Impugned Order dated 19.02.2019 records that the
Petitioner‟s contractual services were terminated on 23.11.2007 due to
unauthorized absence, the challenge to the termination did not
culminate in the order being set aside and she was taken back into
service only pursuant to interim directions of the Supreme Court. The
Tribunal held that the termination order having remained intact, there
was a clear break in service.
106. Insofar as the claim for seniority from the date of initial
contractual engagement is concerned, the same stands concluded by
the findings of this Court in the earlier part of this judgment. The
Petitioner cannot claim seniority from a date prior to her induction
under the 2009 DHS Rules.
107. However, the present case stands on a distinct footing in
relation to pension. This Court has held in the other connected matters
that contractual service rendered against sanctioned posts, if otherwise
eligible under the governing rules, is liable to be counted towards
qualifying service for pension.
108. The question that arises here is whether the period prior to
23.11.2007 and the period commencing from 03.11.2010 can be taken
into account for pensionary benefits.
109. Admittedly, the Termination Order dated 23.11.2007 was never
set aside. The Petitioner was taken back into service pursuant to
interim directions, but no declaration of continuity of service was
granted by the Supreme Court. In the absence of the Termination
Order being quashed, the break in service cannot be ignored for all
purposes.
110. In these circumstances, it becomes pertinent to adjudicate
whether the Petitioner would be entitled to treat the entire period as
continuous service. However, at this stage, the contractual service
actually rendered by her prior to termination (i.e., up to 23.11.2007)
and the service rendered after her rejoining on 03.11.2010 may be
considered for purposes of qualifying service for pension, subject to
the statutory framework and excluding the interregnum period.
111. To this limited extent, the Impugned Order warrants
interference. The denial of retrospective seniority is upheld. However,
for purposes of pension, the Respondents shall compute the
Petitioner‟s qualifying service by including the periods during which
she actually rendered service on contractual basis and thereafter upon
induction, but excluding the period between 23.11.2007 and
03.11.2010.
112. W.P.(C) 4929/2019 is accordingly partly allowed in the above
terms. The necessary exercise shall be undertaken within twelve
weeks.
113. It is, however, clarified that the remaining issues arising in the
present Writ Petition shall be considered and decided after further
hearing the matter.
IN W.P.(C) 835/2020:
114. This Court now takes up W.P.(C) 835/2020, which arises out of
O.A. No.2837/2019 and assails the Impugned Order dated 23.09.2019
passed by the Tribunal.
115. The submissions advanced on behalf of the GNCTD are in
terms of the contentions already recorded in Paragraph No.33
hereinabove. It is contended that the seniority list in question was only
a revised tentative list prepared in accordance with the 2009 DHS
Rules and the Notification dated 20.08.2014 fixing 23.12.2009 as the
date of induction.
116. On behalf of the Petitioners, it is contended that the revised
tentative seniority list failed to reflect their long years of contractual
service and that there was a genuine apprehension that promotions
may be effected on its basis, thereby prejudicing their rights.
117. The Tribunal, in the Impugned Order, specifically noted that the
very nomenclature of the lists published by the Respondents was
"revised tentative seniority list". It was observed that the record was
not clear as to when the earlier tentative list had been published and
that the Applicants as well as various other employees had already
submitted their representations.
118. The Tribunal reasoned that it would naturally take some time
for the Respondents to consider the representations and finalise the
seniority list. The apprehension expressed by the Applicants that
promotions might be effected on the basis of the revised tentative
seniority list was found to be without basis.
119. The Tribunal further adverted to the order dated 07.07.2018 and
clarified that the said order merely mentioned that the tentative
seniority list may be taken into account by all the HODs in "all
protocols" till the final list was published. It was nowhere stated that
promotions would be effected on the basis of the tentative seniority
list. On this reasoning, no interference was considered warranted at
that stage.
120. In addition, the Tribunal reiterated that seniority must be
governed by the 2009 DHS Rules and that contractual service could
not be reckoned for fixation of inter se seniority in the absence of an
enabling provision.
121. The reasoning so adopted by the Tribunal is consistent with the
statutory scheme and also accords with the conclusions in the earlier
part of this judgment, wherein this Court has upheld the fixation of
seniority with reference to 23.12.2009 and have held that contractual
service cannot be counted for seniority.
122. This Court, therefore, finds no infirmity in the Impugned Order.
The challenge to the revised tentative seniority list was rightly
repelled.
123. Insofar as pension is concerned, the entitlement of the
Petitioners to counting of contractual service towards qualifying
service shall be governed by the directions issued in the W.P.(C)
1265/2018 and W.P. (C) 5221/2018.
124. W.P.(C) 835/2020 is accordingly dismissed, subject to the
observations regarding pension as recorded hereinabove.
CONCLUSION:
125. In view of the foregoing discussion, the principal issue raised in
this batch of Writ Petitions, namely, the claim of seniority from the
date of initial contractual engagement, stands answered against the
Applicants. This Court has held that, under the statutory scheme of the
2009 DHS Rules, seniority can be reckoned only from the date of
induction into the Service and not from any anterior date of
contractual engagement.
126. Insofar as pension is concerned, this Court has clarified that
contractual service rendered against sanctioned posts, if otherwise
continuous and followed by induction under the 2009 DHS Rules,
shall be counted towards qualifying service strictly in accordance with
the applicable statutory provisions, however, such counting shall not
confer any right to retrospective seniority or disturb inter se position
in the cadre.
127. The Writ Petitions are accordingly disposed of in the following
terms:
i. W.P.(C) 1265/2018 and W.P.(C) 5221/2018: The
challenge to fixation of 23.12.2009 as the date of induction and
to denial of retrospective seniority is rejected. However, it is held
that contractual service rendered against sanctioned posts shall be
liable to be counted towards qualifying service for pension,
subject to the governing statutory provisions. Hence, the said
Writ Petitions are dismissed, subject to hereinabove stated
directions.
ii. W.P.(C) 7531/2022 and W.P.(C) 10928/2019: The
rejection of the claim for retrospective seniority is upheld. The
directions of the Tribunal permitting counting of contractual
service towards pension, subject to statutory conditions, are
affirmed. Thus, W.P.(C) 7531/2022 is disposed of in aforestated
terms and W.P.(C) 10928/2019 is dismissed.
iii. W.P.(C) 167/2019: The denial of retrospective seniority
is upheld. However, the Writ Petition is partly allowed to the
extent that the Petitioner shall be entitled to counting of
contractual service towards qualifying service for pension,
subject to statutory conditions. Thus, the present Writ Petition is
disposed of in aforesatated terms.
iv. W.P.(C) 835/2020: The challenge to the revised tentative
seniority list is rejected and the reasoning of the Tribunal is
affirmed. The Writ Petition is dismissed, subject to the
observations regarding pension in terms of the present judgment.
v. W.P.(C) 4929/2019: The claim for retrospective seniority
is rejected. The Writ Petition is partly allowed to the limited
extent that, for purposes of pension, the periods during which the
Petitioner actually rendered service shall be counted towards
qualifying service, excluding the interregnum during which she
remained out of service pursuant to termination. Other issues
shall be considered on 01.04.2026. List this Petition on
01.04.2026 in the Supplementary List.
128. All pending applications, except in W.P.(C) 4929/2019, also
stand closed.
129. Before parting, this Court deems it appropriate to reiterate, in
one composite direction, that wherever relief has been granted with
respect to pension, the competent authority shall undertake the
exercise of re-computation of qualifying service strictly in accordance
with the applicable statutory framework, keeping in view the
observations contained in the present judgment. The said directions
shall be completed within a period of twelve weeks. It is clarified that
the benefit, if found admissible, shall be confined only to qualifying
service for pension and shall not, in any manner, alter the seniority or
inter se position of any member of the Service.
ANIL KSHETARPAL, J.
AMIT MAHAJAN, J.
MARCH 10, 2026
s.godara/shah
