Chander Kanta vs Delhi Dental Council And Anr

Neena Bansal Krishna, J

Writ Petition under Articles 226/227 of Constitution of India has been filed by the Petitioner for passing appropriate directions against the Respondents to jointly and severally pay consequential retirement benefits due to the Petitioner, as equally admissible to Govt. of NCT of Delhi employee (Lower Division Clerk) on or after the date of retirement on 31.08.2005 and also to direct the Respondents to consider her for grant of Assured Career Progression (ACP)/ Modified Assured Career Progression (MACP), as applicable in her case.

The facts as narrated by the Petitioner are that pursuant to her Application dated 22.02.1973, as per decision of EC meetings of Delhi Dental Council (DDC) dated 21.03.1973, she was appointed as Lower Division Clerk (LDC) in the pay scale of Rs.110-180/- p.m. plus allowances, on probation, vide the Appointment Letter dated 24.03.1973. Thereafter, GBM was held on 25.05.1974, and her services were confirmed and she was made a regular employee in Delhi Dental Council (DDC) w.e.f. 22.06.1974, vide Confirmation Letter dated 01.06.1974. As per the Confirmation Letter dated 01.06.1974, the terms and conditions governing her services were the same as those applicable on "Delhi Administration Employees".

The Petitioner retired/superannuated on 31.08.2005, but has not been paid her accrued recruitment dues, as applicable to Delhi Administration Employees. However, immediately on her retirement, she was given re-appointment on contract basis w.e.f. 05.09.2005 to 30.11.2005 at a consolidated salary of Rs.6000/- p.m., vide Memorandum/Letter dated 15.09.2005.

Despite the Petitioner's re-appointment, her retirement dues were not paid. Vide separate Memorandum No. DDC/2005/1009 dated 15.09.2005, DDC assured her that the retirement benefits accruing upon her superannuation on 31.08.2005, shall be paid to her only after the grant in aid is received from Govt. of NCT of Delhi.

The Petitioner claimed that her salary for the period from March, 2003 to July, 2004 was initially withheld and was released subsequently, pursuant to her representations. However, despite several representations and communications addressed to the concerned authorities, her retiral dues have still not been disbursed till date.

Pursuant to the continuous representations made by the Petitioner since 2006, NCT of Delhi, her case was heard on 18.09.2007 before the Deputy Secretary, Public Grievance Commission, and she was paid salary dues amounting to Rs. 1,53,454/-, for a period of 13 months. Thereafter, the case was disposed of on 04.10.2007. However, her retiral benefits still remained unpaid.

The Petitioner further submits that, since DDC failed to release her retiral dues during the proceedings before the Public Grievance Commission, GNCTD, except for payment of her salary dues, she approached the Delhi Commission for Women. However, observing the negative approach adopted by the Registrar, DDC, the Delhi Commission for Women eventually closed the proceedings, vide Order dated 24.05.2011.

The Petitioner further submitted that thereafter, on advice, she filed an OA No. 2988/2012 in CAT(PB), New Delhi on 04.09.2012. The Notices were issued to the Respondents, but it was found that Notification under Section 14(3) CAT Act, 1985 in respect of DDC, was not notified and the Petitioner thus, withdrew her OA on 31.10.2012 to avail an appropriate remedy before the competent forum, in accordance with law.

The Petitioner then re-consulted and was advised that DDC/Respondent No. 1, being an autonomous body wholly funded through grants from the Government of NCT of Delhi, constitutes an instrumentality of the State within the meaning of Article 12 of the Constitution of India. It is further asserted that DDC/Respondent No. 1 is a statutory body established under the Dentists Act, 1948, and that the Respondent No.2/ Govt. of NCT Ministry of Health, New Delhi also fall within the ambit of'State'. Accordingly, the present Writ Petition has been instituted and is maintainable.

The Petitioner submits that, in terms of the conditions of service dated 01.06.1974, she served as a confirmed employee of DDC from 22.06.1974 till her superannuation, on 31.08.2005. It is stated that DDC, being a statutory autonomous body under the Government of NCT of Delhi, is obligated to extend retiral and pensionary benefits equivalent to those available to employees of the Delhi Administration, which are equally applicable to the Petitioner. It is further contended that the Government of NCT of Delhi, through its concerned Ministry of Health, is equally responsible for ensuring payment of such retiral benefits, through DDC. In the event of failure on the part of DDC, the Government of NCT of Delhi is duty-bound to secure payment of the Petitioner's entire retiral dues accrued as on 31.08.2005 and to continue disbursing pension, in accordance with the Pension Rules applicable to employees of the Government of NCT of Delhi, particularly since DDC is wholly dependent upon grant-in-aid provided by the Government of NCT of Delhi.

It is further submitted that, a legitimate expectation was created in her favour pursuant to the Letter dated 01.06.1974 issued by DDC, on the basis of which she continued in service and did not seek employment elsewhere. It is contended that, had she been aware that retiral benefits equivalent to those available to employees of the Delhi Administration would not be extended to her, she may not have continued in service with DDC. Having availed her services continuously from 22.06.1974 till 31.08.2005, DDC cannot now resile from its representation and deny her the retiral benefits due to her.

Reliance is placed on D.S. Nakara and Others v. Union of India decided on 7.12.1982; Pepsu Road Transport Corporation Patiala v. Mangal Singh and Others decided on 12.05.2011. It is asserted that the Respondents are bound to act in accordance with Articles 14 and 16 of Constitution of India.

The Petitioner further states that she was drawing the last salary in August 2005 as under:

Basic pay Rs.5750/-

Dearness pay Rs.2875/-

Dearness allowance Rs.l466/-

at the rate of 17%

HRA Rs.2588/-

CCA Rs.300/-

T.A. Rs.100/-

_______________________________

Rs. 13079/-

_______________________________

The Petitioner further contends that, on the aforesaid grounds, she is entitled to receive her retiral dues.

It is further submitted that, upon her superannuation on 31.08.2005, she became entitled to the following retiral benefits:

Pension Rs.4312/- p.m. w.e.f. Sept 2005 till the actual payment.

DCRG Rs. 1,66,502/-

Commutation Rs.2,02,950/-

Leave Encashment Rs. 1.00,910/-

____________

Total Rs.4.74.674/-

___________________

In addition thereto, the Petitioner submits that she is also entitled to the benefits under the ACP/MACP Schemes, and if any other consequential

or admissible benefits are found payable, directions be issued to DDC and the Government of India for release of the same in her favour.

Dental Council of Delhi/DDC which was created under Dentists Act, 1948 grants, following retirement benefits to its employees, are payable:

(i) Pension

(ii) Gratuity

(iii) Leave encashment

(iv) Commutation

(v) ACP/MACP.

Respondent No. 1/DDC, in its Counter Affidavit, has raised preliminary objections that the present Petition is barred by limitation and discloses no cause of action. It is further alleged that the Petitioner was merely a casual employee appointed by the then Registrar without inviting any Application and without undergoing any process of interview or selection.

Respondent No. 1 has denied the authenticity of the alleged Letters dated 24.03.1973 and 01.06.1974, stating that no such documents are available in the records of DDC. It is also contended that no Minutes of the Executive Committee Meeting dated 21.03.1973 or the General Body Meeting dated 25.05.1974, allegedly approving her appointment as LDC in the pay scale of Rs.110-180/-, are traceable in the official records. Further, it has been asserted that there is no explanation as to how the Petitioner's Probation period concluded on 22.06.1974 when, as per the alleged Appointment letter dated 24.03.1973, she was placed on probation for six months commencing from 22.03.1973. Accordingly, the documents relied upon by the Petitioner are stated to be unauthenticated and are not available in the records of DDC.

Furthermore, it is contended that confirmation of service can only take effect upon successful completion of the prescribed probation period and cannot operate retrospectively, from a prospective date. It is also submitted that DDC is merely a regulatory body constituted for the purpose of regulating qualified dental practitioners, who obtain registration with the Council, and only such registered practitioners are entitled to practice within the GNCT of Delhi. According to Respondent No. 1, the affairs and expenses of the Council are managed substantially from the registration fees and other charges collected from dental practitioners, along with grant-in-aid received from the Government.

Subsequently, when the Petitioner approached the Delhi Commission for Women, she did not produce the alleged letter dated 24.03.1973 and relied only upon the letter dated 01.06.1974. It is submitted that, without conducting any detailed examination of the matter or verification of official records, the said Letter was presumed to have been issued by the then Registrar, O.P. Dhalla.

However, Respondent No. 1 has disputed the validity of the said letter on the ground that the then Registrar, being a private dental practitioner, lacked the authority to issue any communication granting pay scales or service benefits equivalent to Government posts and it may have issued the same erroneously or without knowledge of the requisite formalities. It is further asserted that no General Body Meeting was held on the alleged date and no Minutes in support thereof, are available on record. Respondent No. 1 has also stated that the members of DDC serve as in honorary capacity and do not draw any salary.

Additionally, it is stated that the Council never maintained any regular staff on its rolls, except one Lower Division Clerk (LDC) and one Peon, whose salaries were paid by the Registrar, who himself was elected from amongst the member dental practitioners and discharged his functions, in an honorary capacity. It is stated that DDC is a small organisation with only two employees and is not governed by any pensionary scheme. According to Respondent No. 1, no contributions towards Provident Fund or similar retiral benefits were ever made on behalf of such employees, who, in fact, were merely casual employees of the Council.

However, the Petitioner was fully aware that she had been appointed only as an LDC under DDC and not as a regular Government employee. It is further alleged that the Petitioner was overage at the time of her appointment and had not undergone any written examination, typing test, interview, or any other formal selection process for appointment to the post of LDC. On these grounds, it is asserted that the Petitioner has not approached this Court with clean hands.

In light of the above, the Petitioner earlier raised grievances regarding non-payment of salary and retiral benefits by way of Complaint dated 10.05.2007 before the Public Grievance Commission. During the course of the proceedings, Mr. A.K. Mishra, Consultant, Delhi Dental Council, informed the Commission that the Petitioner's claim for retiral benefits was untenable and that only the grievance pertaining to unpaid salary required consideration. Thereafter, the unpaid salary for a period of 17 months amounting to Rs.1,53,454/- was duly released to the Petitioner by cheque vide cheque no.649821 dated 30.11.2005, pursuant to which her grievance stood resolved vide Order dated 18.09.2007.

It was further stated that the other person, Mr. L.C. Sharma, Peon, retired on 30.04.1999 and he also being aware that it was not a Government job, did not raise any issue with respect to retirement benefits or otherwise. He was always aware that he was only entitled to salary.

It is also contended that appointment to a pensionable Government post, can only be made in accordance with the prescribed Government Rules and procedures. It is submitted that an Applicant is required to satisfy the eligibility criteria, fulfil the conditions stipulated under FR 10, and be declared medically fit, before appointment.

Further, Government servants are required to make prescribed contributions towards Provident Fund and other retiral benefit schemes, in order to avail pensionary benefits. In the present case, no such contributions towards Provident Fund or any other retiral account were ever made on behalf of the Petitioner, as she was not a Government servant but merely a casual employee appointed by an autonomous body.

Furthermore, it is stated that the present Writ Petition is liable to be dismissed on the ground of delay and laches, inasmuch as the Petitioner retired from service on 31.08.2005 and has approached this Court after an inordinate delay.

On merits, it has been reaffirmed that DDC is a statutory body constituted under Dental Council (Delhi) State Rules, 1951 framed under Section 55 of Dentists Act, 1948 and it is the State Dental Council of NCT of Delhi responsible for maintenance of register of dentists, who are engaged in the practice of dentistry in the NCT of Delhi and is engaged in providing the services of registration, renewal of registration and transfer of registration to dentists.

DDC is not a pensionable establishment. It is an autonomous body constituted by the Ministry of Health by notification Dated 30.08.1951 read with Dentists Act, 1948 whereby Section 55 of the Act, ibid, a set of Dental Council (Delhi) State Rules 1951 are prescribed and notified for DDC to function.

As per the service book records with the DDC, the Petitioner was not sponsored either by the local Employment Exchange, the University Employment Exchange, Staff Selection Board or any specialized Agency including any formal advertisement in any daily newspaper, for the purpose of appointment with the DDC to the post of LDC. She had been appointed without undergoing any formal selection to the post. In addition, her appointment suffers from the following anomalies:

(i) No letter of offer for terms and conditions was either issued to her or accepted by the official concerned.

(ii) She had not undergone medical examination required to be conducted as per statutory provision of FR 10 for entering into Government service.

(iii) The character and antecedents to establish her identity as to whether she was a fit person to be retained in Government service, was also not subjected to verification by Police authorities/DC's Office as provided in Government of India confidential OM No.18011/9 (s)/78-ESH (B) dated 02.07.1985.

(iv) The date of birth of the Petitioner is 28.08.1945 and on her date of appointment, i.e., 23.03.1973, she was 27 years, 6 months and 26 days old. This entails that she was already overage for the appointment in DDC against the standard age prescribed for the post of LDC in the Government allied services. Further, no relaxation in upper age limit appears to have been obtained from the higher authorities in the case as sequel available in government job services.

(v) As LDC, she was given only a time scale of the post of LDC. Similarly, no entry has been recorded in the service book for crossing of the efficiency bar by the petitioner in time scale. She was not even appointed in a quasi-permanent capacity.

Therefore, as per the FR 10 and Government decision on Family Pension communicated in Ministry of Finance through OM No. 1 (10)-E.V (B)/78 dated 27.01.1979, no person can be appointed without being first medically examined.

Moreover, Fundamental Rule 16 contemplates that a Government servant may be required to subscribe to a Provident Fund, Family Pension Fund, or any other similar fund in accordance with the prescribed Rules.

It is contended that both grievances raised by the Petitioner, namely non-payment of salary and retiral benefits, pursuant to Complaint dated 10.05.2007 before the Public Grievance Cell, were duly considered, and the arrears of salary amounting to Rs.1,53,454/- were subsequently, released to her.

However, the Petitioner raised the issue before the Delhi Commission for Women only after a lapse of nearly five years and, in those proceedings, allegedly relied upon a purported Notification issued under Section 20 of the Dentists Act, 1948 concerning the Pension/Family Pension-cum-General Provident Fund-cum-Retirement Gratuity Regulations, 2001, which, according to Respondent No. 1, was a fabricated and misleading document, produced with the intent to mislead the Delhi Commission for Women.

It is asserted that the Delhi Dental Council Rules, 1951 do not contain any provision for grant of retiral or pensionary benefits to its staff, including the Registrar, DDC. It is, therefore, contended that the said Rules exclusively govern the service conditions of the employees of DDC and, in the absence of any provision relating to retirement benefits therein, no such entitlement can be claimed by the Petitioner.

On merits, all averments made in this Petition have been denied.

The Petitioner in her Rejoinder Affidavit, reaffirmed her assertions as made in the Petition.

A formal Counter Affidavit was also filed by Respondent No. 2, NCT of Delhi, Ministry of Health wherein it was stated that the Petitioner was an employee of DDC and retired therefrom. DDC is a body constituted under the Delhi Dental Council Rules, 1951 and Section 55 of the Dentists Act, 1948, and is entrusted with the responsibility of maintaining the register of dentists practising within the NCT of Delhi. It is further contended that the dispute pertaining to service and retiral benefits, is essentially between the Petitioner and Respondent No. 1, with which the Respondent No.2 has no concern.

The Respondents in support of their assertions have also filed a short note and relied upon the judgment of LG of Delhi v. V.K. Sodhi and Others (2007) SCC OnLine SC 1007; T.M. Sampath and Others v. Union of India and Others (2015) 5 SCC OnLine SC 49 and State of Maharashtra v. Bhagwan and Others (2022) SCC OnLine SC 25.

Submissions heard and record perused.

The Petitioner was appointed as a LDC in the pay scale of Rs.110- 180 plus usual allowances, as admissible under Rules of Delhi Dental Council with effect from 22.03.1973, on the terms that she shall be on probation for a period of six months and would be required to give one month's notice in case she resigns from the post. In case of termination of her services, she would be given one month's notice or one month's pay in lieu thereof. She shall not take part in activities, which would be prejudicial to the Council and "her service condition would further be governed by the Rules of the Council made from time to time".

Thereafter, vide Letter dated 01.06.1974, she was conveyed that pursuant to the General Body Meeting held on 25.05.1974, the probation period got terminated on 22.06.1974 and her services were confirmed. Furthermore, it was written that "the terms and conditions of the services are same which are applicable on Delhi Administration Employees". The Letter was issued by Dr. O.P. Dhalla, the then Registrar.

It is this condition as stated in Letter dated 01.06.1974 which has led to the confusion in the mind of the Petitioner. It is her claim that as per this Letter of Confirmation dated 01.06.1974, the terms and conditions of her service were those as were applicable on Delhi Administration Employees and thus, she raised a claim for retirement benefits from DDC on her retirement on 31.08.2005.

The short question for consideration is whether she is entitled to the terminal benefits as available to the Delhi Administration Employees.

The Respondent No.1 has explained that DDC though an autonomous body, is not a part of NCT of Delhi and has been constituted by the Ministry of Health which was governed by the Rules formulated by the Central Government vide Notification Dated 30.08.1951 read with Dentists Act, 1948 whereby Section 55 of the Act, ibid, a set of Dental Council (Delhi) State Rules 1951 are prescribed and notified for DDC to function.

It was further explained by the Respondent No. 1 that DDC is a regulatory body for regulation of genuine Dental Doctors who get themselves registered with the Council and only those who were registered, could practice in GNCT of Delhi.

The DDC is an autonomous body of which all the members are honorary, who do not draw any salary. The income is generated from registration fee or other fee received from Dental Surgeon, Dental Technicians, etc., and the grant received from the Government, if any. The Council never had any regular staff on its roles, except one LDC/ Petitioner and one Peon who were paid their salary by the Registrar, who is elected from the member Doctors only and his work is honorary. It is a small organization and is not pensionable, there being only two persons working, who are one LDC and one Peon. Moreover, they have not been making any contribution to Provident Fund, etc. In fact, they were more in the nature of casual employees of the Council.

These facts stand affirmed from the Letter dated 24.03.1973 appointing the Petitioner on probation for six months and also from Letter dated 01.06.1974 by which her probation was terminated and she was confirmed as employee of DDC.

Respondent No. 1 has contended that, although the Letter of Confirmation was allegedly issued by O.P. Dhalla, the then Registrar, he was not competent or authorised to stipulate therein that the terms and conditions of service applicable to employees of the Delhi Administration would also govern the service conditions of the Petitioner.

The Respondents have explained that no contributions towards GPF, PPF, CPF, or any similar retiral benefit scheme were ever made by the Petitioner and, therefore, her claim for pensionary and other retirement benefits is wholly untenable.

While the Petitioner claims that the service terms and conditions as available to Delhi Administration Employees was applicable to her, as per her own submissions, she served the DDC from 24.03.1973 till 31.08.2005. However, there is not even a single document produced by her to show that during her services, she was being governed by the same terms and conditions. She has also not produced even a single document to show that she was ever getting the benefits available to the Delhi Administration Employees.

It is also pertinent to refer to Letter dated 30.11.2005 by DDC to the Petitioner informing that her salary for 17 months amounting to Rs.1,55,022/- was being paid through cheque dated 30.11.2005.

The Petitioner thereafter, gave a representation dated 20.12.2005 to DDC, wherein she again requested that her regular or contractual salary has not been paid. She further claimed that her retirement benefits accrued to her consequent to her retirement on 31.08.2005, can be paid only after grant in aid is received from Govt. of NCT of Delhi. Her services got concluded on 15.09.2005 which is also evident from Memorandum dated 15.09.2005.

She further claimed that on Retirement Letter dated 15.09.2005; much has been argued about her entitlement to the terminal benefits as available to Delhi Administration Employees, only on the basis of the Appointment Letter dated 22.06.1974 and her Memorandum dated 15.09.2005 wherein it was observed that she would get her retirement benefits from the DDC on getting the grant in aid from the Government.

In this context, it is also pertinent to refer to the Letter dated 13.11.2005 that was written by the Petitioner as well as L.C. Sharma, the Peon in DDC wherein the claim was made for clearing the salary till date, due from DDC. In this representation, there was no mention of retiral benefits, but both the two employees claimed only the salary.

This Letter was responded by DDC on 30.11.2005 wherein it was explained that her salary arrears from March 2003 to July 2004, i.e., for 17 months, amounting to Rs.1,55,022/-, was being disbursed vide cheque dated 30.11.2005 on the condition that she would submit the relevant documents and cooperate to verify the income expenditure of the last five years. It is evident that initial claim was only for the arrears of salary, which were disbursed.

She wrote a representation dated 09.01.2006 to the Principal Secretary, Delhi, Govt. of NCT of Delhi, Delhi Secretariat seeking her salary and retirement benefits. The Directorate of Health Services, GNCTD wrote a Letter dated 04.04.2006 wherein it was noted that LDC who had since retired, was not depositing the regular collection of the Council in the designated bank. It was directed that Department of Health would ensure deposit of all previous year collection in the designated bank.

Thereafter, she approached the Public Grievances Commission, Govt. of NCT Delhi, which responded through its Letter dated 18.09.2007 and eventually the arrears of salary in the sum of Rs.1,53,454/- were released to the Petitioner.

The Petitioner as per the entire record, was only a casual worker who was entitled to the salary as per the pay scale defined in her Letter of Appointment 24.03.1973. She has not been able to produce any document to show that her entitlement as per the service terms and conditions applicable to the employees of Govt. of NCT of Delhi. The entire record has been produced by DDC, to show that it was an autonomous body functioning purely on the collection made from the Doctors, Technicians, etc., in order to regulate the practice of Doctors in the NCT of Delhi. There were only two casual employees, i.e., the Petitioner as LDC and one Peon. Their salaries were paid from the collection and the grants.

There is nothing to show that they were ever entitled to the same service conditions as NCT of Delhi. There is not a single document to show that during her appointment from 1973 to 2005, she was availing the any benefits as per the terms and conditions of the Delhi Government. It is established on record that she was not entitled to terms and conditions of the Delhi Government Employee.

Even if it was written in her Appointment Letter or in her Retirement Letter, but the same cannot either work as an estoppel or as a promise to pay her the retirement benefits when the regulatory rules of DDC did not have any wherewithal or the provision for providing such terminal benefits.

The Petitioner has not asserted at any time that she was making any contribution towards CPF/PPF/GPF, to be entitled to claim such post- retirement benefits. The service of the Petitioner was not pensionable, as is evident from her own Appointment Letter and the DDC Rules. Therefore, her assertions that she is entitled to post retirement benefits/pension or commutation leave encashment, DCRG, are patently without any merit. She is not entitled to any of the post retirement benefits as claimed by her.

Conclusion:

In light of the above discussion, there is no merit in this Writ Petition, which is hereby, dismissed. Pending Applications, if any, are disposed of.