Uttarakhand High Court
Puran Chandra Tiwari & Ors. ..... ... vs State Of Uttarakhand & Anr on 6 July, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 408 of 2012 (S/S)
Puran Chandra Tiwari & Ors. ..... Petitioners
Versus
State of Uttarakhand & Anr. .....Respondents
Present:
Mr. Alok Mahara, the learned counsel for the petitioners.
Mr. Pradeep Hairiya, the learned Standing Counsel for the
respondents.
Date of hearing and judgement : 06.07.2022
Sri S.K. Mishra, J.
(Upon hearing the learned counsel for the parties, this Court made the following judgment:
The petitioners in this case are about 102 class III
and Class IV employees of Government Medical
College, Rampur Road, Haldwani, earlier run by
Uttarakhand Forest Hospital Trust, which is also known
as Dr. Susheela Tiwari Memorial Medical College and
Hospital, Haldwani and they have sought the following
reliefs:-
(i) Issue a writ, order or direction in the
nature of mandamus declaring withholding of
benefits from the petitioners after pronvincialization
of the Haldwani Medical College as arbitrary and
illegal.
(i-a) To declare the hostile declaration meted
out against Class III and Class IV employees of the
medical college Haldwani, in the matter of grant of
benefits and allowances as arbitrary and illegal.
(i-b) To issue a writ, order or direction in the
nature of mandamus commanding the respondents
to grant all benefits and allowances to the petitioners
which were granted to them while serving under the
trust in the same manner as the benefits and
allowances payable to contract faculty members of
the medical college earlier are being paid to them
upon provincialization of the medical college.
(i-c) To issue a writ, order or direction in the
nature of mandamus commanding the respondents
to give all benefits admissible to the petitioners in
terms of the decision taken by management
committee of the trust in its 37th meeting held on
06.09.2006, along with arrears and interest on
delayed payment.
(ii) Issue a writ order or direction in the
nature of mandamus directing the respondent no. 1
to issue necessary instructions to respondent no. 2
for releasing all benefits which petitioners were
earlier getting but were withheld upon
provincialization of the medical college.
(iii) Issue a writ order or direction in the
nature of mandamus directing the respondent no. 2
to forthwith make payment of the monitory dues
illegally withheld from them, along with arrears and
also to pay interest on the delayed payment of these
dues.
(iv) Issue a writ, order or direction in the
nature of mandamus restraining respondent no. 1
from making any alteration in the condition of service
of the petitioners as existing before provincialization
of the medical college which may have any
prejudicial effect upon them.
2. In the year 1989, the Uttarakhand Forest Hospital
Trust was created by the erstwhile State of Uttar
Pradesh. The fund of the Trust was provided by the
Government of Uttar Pradesh. After creation of the
State of Uttarakhand in the year 2000, necessity of the
medical college was felt by the State Government.
Ultimately, due to the efforts made by the State
Government, Medical Council of India granted
permission to the Uttarakhand Forest Hospital Trust to
establish a medical college at Haldwani, thus, Dr.
Sushila Tiwari Memorial Forest Hospital, Haldwani,
became a teaching hospital of medical college and
became functional from the academic session 2004-05.
The Secretary of the Trust was the appointing authority
in respect of posts below the pay scale of Rs. 8000-
13500 per month. These petitioners have participated
in the selection process held in the year 2006 and were
given contractual appointment for one year on
03.10.2009. However, they have been working
uninterruptedly since then. The contract has been
extended from year to year but no fresh appointment
letter was issued to them.
3. On 04.02.2010, the Board of Trustees of the Trust
passed a resolution to the effect that the State
Government should take all the assets and the liabilities
of the Trust and the post created by the Trust would be
merged in the Medical Education Department of the
State Government. It was further decided that the
State Government shall accept all contractual
employees (teaching and non-teaching) in the same
capacity. This was a condition of transfer of the medical
college from the Trust to the State Government.
Respondent no. 1 agreed to accept all the conditions of
the transfer as specified in the minutes of the aforesaid
meeting dated 04.02.2010. Ultimately, on 30.04.2010,
respondent no. 1 issued a notification whereby
Haldwani Medical College was taken over from the Trust
with all assets and liabilities on 'as is where is' basis.
The Secretary of the Trust referred the question of
regularization of the petitioners to the State
Government. In between 06.05.2010 and 11.12.2010,
the Principal of the Medical College recommended that
the case of the petitioners for regularization should be
taken up. Subsequently, the petitioners were
regularized in the month of December 2016. The
dispute at present is for the period between 30.04.2010
till the absorption of the petitioners as regular
employees of the medical college and hospital.
4. The learned counsel for the medical college on the
last date was directed by us to take instructions if
there is any specific covenant in the document
executed between the Trust and the Government or
resolution of the Government regarding treatment that
was given to the employees of the Trust.
5. The learned counsel appearing for the State and
also representing medical college produced the letter
issued by the Principal, Government Medical College,
Haldwani, Nainital. The relevant portion of the
instructions is quoted below:-
"That prior to provincialization of the Medical
College and associated Hospital, namely Dr. Susheela
Tiwari Memorial Forest Hospital Trust, on
01/05/2010, the petitioner were contractual
employees of the trust registered under Societies
Registration Act, 1860. However, before take-over of
the Medical College and Hospital, the Trust Board in
its 35th special meeting date 04/02/2010 passed a
resolution and clause no. -8 of the said resolution
pertains to contractual employees, where in, it is
specifically mentioned that "there is an existing
service contract between the trust and individual
contract employee, therefore, in case of take-over of
the Medical College/Hospital by the State
Government, the services of the working contractual
employees of the trust, shall be, as such, accepted
for the remainder of the contract period." Therefore,
even on take-over of the Medical College and
Hospital by the government from 01/05/2010 the
service conditions of the contractual employees as
agreed by and between the petitioners and Trust
before provincialization remained unchanged and
was duly honoured by respondent no. -2, till
existence of the said agreement. However, the
petitioner herein, had executed fresh service contract
after take-over of the medical college and hospital on
mutually agreed terms and conditions on
02/09/2010."
6. However, it is apparent from the record that
before take-over of the medical college and hospital,
the Trust Board in its special meeting dated 04.02.2010
passed resolution to the effect that the services of the
contractual employees of the Trust, shall be accepted
for the remainder of the contract period. Thereafter, on
take-over of the medical college by the Government on
01.05.2010, the service conditions of the contractual
employees as agreed by and between the petitioners
and the Trust before provincialization remained
unchanged and duly honoured by respondent no. 2 till
existence of the said agreement. However, the
petitioners had executed fresh contract after take-over
of the medical college and hospital on mutually agreed
terms and conditions on 02.09.2010. The letter further
reveals that the services of the petitioners were
regularized vide order dated 23.12.2016. It is also not
disputed at this stage that the petitioners continued to
work as the regular employees of the Medical College
and Hospital. As far as different treatment given to the
teaching staff i.e. Professor, Associate Professor etc., is
concerned, it is brought to our notice that the services
of the contractual employees were regulated by the
terms and conditions of the contract agreed upon
between the parties. As regard to fixation of total
emoluments in respect of contractual employees
drawing emoluments less than Rs. 8000/- per month,
as per clause 12.4 of the meeting of Management
Committee Trust, the total emoluments payable to such
a contractual employee is reckoned as per the
formula:- total fixed emoluments = initial basic salary
for the said post + dearness pay + D.A. + other
allowances (if any). However, it is further brought to
our notice that clause 12.5 of the meeting of
Management Committee Trust is related to contractual
faculties i.e., Professor, Associate Professor whereby,
such faculty members were to be paid annual increase
of Rs. 5000/- along with the other benefits, and,
therefore, the petitioners and the faculty members both
are placed in different categories, so, their terms of
appointment and service agreements are different. It
is, therefore, argued that the total emoluments drawn
by the petitioners before provincialization is Rs. 7503/-
per month and Rs. 7915/- per month. Based on the
above facts, it is argued that the grievance of the
petitioners has no substance.
7. The argument advanced by the learned counsel for
the State representing the State of Uttarakhand as well
as Government Medical College and Hospital appears to
be fallacious. In one hand, they say that income of the
petitioners is less than Rs. 8000/- per month being Rs.
7503/- per month and Rs. 7915/- per month, on the
other hand they are saying that the petitioners are not
entitled to the dearness allowance and other
allowances, whereas as per clause 12.4 of the meeting
of Management Committee Trust resolution they are
entitled to total emoluments of initial basic salary+
dearness pay+ dearness allowance + other allowances
(if any).
8. This Court is inclined to hold that the petitioners
are entitled to initiate basic pay that they were getting
on the date of the taking-over of the college by the
State of Uttarakhand i.e. 01.05.2010 along with
dearness and other allowances as admissible. There
was no dearness pay at that time. The petitioners are
entitled for basic pay + D.A. + other allowances like hill
allowance, H.R.A. etc for the period 01.05.2010 till their
regularization on 23.12.2016. However, the petitioners
are not entitled to any additional pay which was
granted @ Rs. 5000/-per month, over and above the
basic salary of the Professor, Associate Professor
because they are not teaching staff. It is also brought
to our notice that this financial burden has to be
undertaken by the State of Uttarakhand as the hospital
in question is owned and managed by the State of
Uttarakhand.
9. In that view of the matter we allow the writ
petition directing respondent no. 2 to calculate the
differential amount due to the petitioners within a
period of three months, hence, and submit the same to
respondent no. 1 i.e. Principal Secretary, Department of
Medical Education, Government of Uttarakhand,
Dehradun, who shall take appropriate steps in
allotment of money in favour of respondent no. 2, for
disbursal of the dues in favour of the petitioners within
a period of four months thereafter. The entire exercise
shall be completed within seven months, hence.
10. Accordingly, the writ petition is allowed. There
shall be no order as to costs.
11. Urgent certified copy of the judgment be provided
as per rules.
(Sanjaya Kumar Mishra, J.)
PV
