Anamika Pandey And Ors vs Lieutenant Governor Of Delhi & Ors

Anil Kshetarpal, J

Through these connected Writ Petitions, the Petitioners assail the common order dated 13.04.2023 [hereinafter referred to as the'Impugned Order'] passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi [hereinafter referred to as'Tribunal']. By the Impugned order, the learned Tribunal disposed of O.A. Nos. 11/2023 and 12/2023, along with several connected proceedings.

Since the Respondents in all three Writ Petitions are common and the matters arise out of a common factual background, with the consent of learned counsel representing the parties, the Petitions were heard conjointly and are being disposed of by this common judgment.

For the sake of clarity, the link between the Original Applications and the present Writ Petitions is noted. W.P.(C) No. 8252/2023 arises from O.A. No. 12/2023, while W.P.(C) Nos. 14442/2023 and 14572/2023 arise from O.A. No. 11/2023, filed by distinct sets of applicants therein.

FACTUAL MATRIX:

The present Petitions concern the engagement of the Petitioners as Superintendents (Hospital Managers) in hospitals under the Government of NCT of Delhi. It is not in dispute that the Petitioners came to be appointed on a contractual basis in 2019 pursuant to a public advertisement and selection, and that the appointments, as issued, were contractual in nature, initially for a tenure of one year, with provision for extension.

It is also common ground that the contractual engagements of the Petitioners were extended from time to time. According to the Respondents, the last approved extension came to an end on 30.06.2022, and no further extension was granted by the competent authority thereafter. The Petitioners, on the other hand, assert that work continued to be taken from them even beyond 30.06.2022 and that salary was not released with effect from 01.07.2022. In the Writ Petitions arising out of O.A. No. 11/2023, it is contended that the concerned Petitioners continued to work till 14.02.2023, but were not paid wages for the period commencing on 01.07.2022.

The proceedings before the learned Tribunal arose in the above backdrop. Broadly, the Applicants before the Tribunal questioned their discontinuance, objected to replacement through outsourcing, sought continuance and the relief of regularization, and also raised the grievance regarding non-payment of salary beyond 30.06.2022. By the Impugned Order, the learned Tribunal dismissed the Original Applications.

During the course of hearing before this Court, the Respondents placed on record a subsequent affidavit stating, inter alia, that no fresh contractual personnel would be engaged on outsourced basis against the posts earlier held by the Petitioners and that the Health & Family Welfare Department, GNCTD, does not require the post of Hospital Manager in future, having regard to the availability of sufficient regular cadre officers and other personnel to perform the requisite functions.

In the light of the aforesaid subsequent stand, and having regard to the course adopted by learned counsel for the parties before this Court, the controversy in the present petitions stands substantially narrowed. No live issue now survives for substantive adjudication insofar as the prayers relating to continuance on the post of Hospital Manager or replacement through outsourcing are concerned. The only issue that survives for consideration is the Petitioners' claim for wages/pay for the period after 30.06.2022 during which, according to them, work continued to be taken from them. This issue was specifically kept open during the hearing before this Court.

Insofar as the broader prayer for regularization/absorption / inclusion in a regular cadre is concerned, the same was part of the reliefs claimed. However, in view of the subsequent stand of the Respondents on affidavit as noticed above, and the limited controversy which now survives in these petitions, no direction in that regard is called for in the present Petitions.

The surviving issue must, therefore, be examined on its own merits.

SUBMISSIONS ON BEHALF OF THE PETITIONERS

Learned counsel for the Petitioners submits that the learned Tribunal approached the matter on an unduly narrow footing by treating the controversy principally as one of regularization, while failing to address the distinct grievances raised on the record. It is submitted that the Petitioners had specifically questioned their discontinuance, the proposed recourse to outsourcing, and the non- payment of salary after 30.06.2022. Learned counsel further urged that the Petitioners had been appointed against sanctioned posts after a public process of advertisement and selection, and that the broader reliefs claimed in the petitions arose in that backdrop.

A separate and pointed emphasis was, however, laid on the claim for wages / pay and allowances. It was submitted that, even if the Respondents were to dispute any right to future continuance or regularization, that would furnish no answer to the distinct grievance that work had, in fact, been taken from the Petitioners beyond 30.06.2022 without corresponding payment. In the matters arising out of O.A. No. 11/2023, it was specifically urged that the concerned Petitioners continued to discharge duties till 14.02.2023 and that attendance-related material, including that brought on record through MA No. 784/2023, had not received due consideration. It was also pointed out that, in the O.A. No. 12/2023, and the connected proceedings included a specific prayer for payment of salary arrears. On that basis, it was submitted that the wage claim required independent adjudicatory consideration.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

Per contra, learned counsel for the Respondents submitted that the Petitioners' appointments were, from inception, purely contractual, for a fixed tenure, and expressly governed by the terms of engagement. It was contended that extensions had been granted only from time to time and that the last approved extension came to an end on 30.06.2022, whereafter no further approval was accorded by the competent authority. On that basis, it was urged that the contractual relationship stood concluded by efflux of time and that no enforceable right to continuance, renewal, absorption or regularization survived thereafter. The Respondents also maintained that regular appointments could be made only upon completion of the requisite codal process and framing of the necessary recruitment structure, which had not come into existence.

Learned Counsel for the Respondents further relied upon the subsequent affidavit filed before this Court to submit that no fresh contractual personnel would be engaged on outsourced basis against the posts earlier held by the Petitioners, and that the Health & Family Welfare Department, GNCTD, does not require the post of Hospital Manager in future, having regard to the availability of sufficient regular manpower to handle the tasks.

ANALYSIS AND FINDINGS

Having regard to the affidavit placed on record by the Respondents, this Court is of the view that the controversy in the present Petitions stands substantially narrowed. Insofar as the prayers relating to continuance on the post of Hospital Manager and replacement through outsourcing are concerned, no live issue now survives for substantive adjudication in view of the Respondents'stand that no fresh contractual personnel would be engaged against those posts on outsourced basis and that the department does not require the post of Hospital Manager in future as sufficient regular personnel are already available.

Insofar as the broader prayer for regularization / absorption / inclusion in a regular cadre is concerned, no effective direction in that regard is called for. The appointments, as issued, were contractual in nature, the last approved extension came to an end on 30.06.2022, and the Respondents now state that the post of Hospital Manager itself is not required to be continued.

In matters of public employment, the source, nature, and terms of appointment remain determinative. A contractual engagement, even when made against a sanctioned post and after a public process, does not by that fact alone mature into a right to regularization or permanent absorption. The Respondents have maintained that the requisite codal steps for constitution of a regular cadre and for regular recruitment had not been completed. So long as that foundational framework remains absent, no direction to treat the contractual appointees as regular members of service can be issued. In that backdrop, the claim for regularization does not merit acceptance.

The only issue which, therefore, survives for consideration is whether, notwithstanding the non-extension of the contractual tenure, work was in fact taken from any of the Petitioners after 30.06.2022 and, if so, whether remuneration for such period could be denied.

In the view of this Court, the learned Tribunal did not return a determinative finding on that issue. While dealing with the contempt proceedings, the learned Tribunal noticed the Respondents' objection that the attendance material relied upon by the applicants had been signed by a non-competent authority and that the question whether the applicants had, in fact, continued to work was a disputed question of fact. The learned Tribunal also noticed the rival factual assertions regarding the period up to which work was allegedly taken. Yet, the conclusion that such disputed questions could not be adjudicated in contempt did not amount to an adjudication of the wage claim on its own merits. That issue, in substance, remained unaddressed.

If work was in fact taken from any of the Petitioners after 30.06.2022, the absence of a formal order of extension would not, by itself, answer the claim for wages / pay and allowances for the period actually worked. Conversely, wages would not be payable merely on assertion if no work was in fact taken. What is required, therefore, is a focused determination on the basis of the record.

CONCLUSION

The Petitions are, accordingly, disposed of by directing the concerned Respondent Hospitals to determine, in respect of each Petitioner in W.P.(C) Nos. 8252/2023, 14442/2023 and 14572/2023, whether, and if so for what period, work was in fact taken from such Petitioner after 30.06.2022.

Such determination shall be made on the basis of the material already placed on record before the learned Tribunal and before this Court, together with the other records, including attendance records / sheets, monthly attendance reports, duty rosters, work and conduct reports, gate-entry records, official communications, and any other relevant material available with the concerned hospital or department. A claim shall not be rejected merely because one particular category of record is unavailable, if the matter can reasonably be determined on the basis of other relevant material.

The aforesaid exercise shall be completed within a period of eight weeks from the date of this judgment. Upon such determination, the admissible wages/pay and allowances found due to each Petitioner shall be computed and released within a further period of four weeks thereafter.

If the claim of any Petitioner is disallowed, in whole or in part, a separate reasoned order shall be passed indicating the period claimed, the period found to have been actually worked, the material considered, and the reasons for disallowance.

The Petitions are disposed of in the above terms. Pending applications, if any, shall also stand disposed of.