Deepika S. Kumar vs Government Of NCT Of Delhi And Ors

The applicant has filed this Original Application (OA) seeking the following reliefs:-

"(i) grant of proper pay scale (minimum of Rs.70775/- per month) at present from the date of her initial appointment till the date of her reinstatement alongwith all consequential benefits i.e. revision of pay scale, increments thereof, payment of all arrears, allowances DA, BP, GP, HRA, CCA, TA, NA, WA, UA, GPF, DGHS, CGEGIS and commensurate contribution towards the Provident Fund (@25% per month) ESI, Bonus, Leave encashment, paid leave, gratuity, ACP etc. at par with her counter parts primarily Ms. Urmila designation Staff Nurse working at Aruna Asaf Ali Govt. Hospital, 5, Rajpur Road, Delhi-110054, along with interest @ 18% p.a. from the date it became due till the date of actual payment along with costs, expenses and suitable compensation to the applicant.

ii. Pass any other Order(s) which this Hon'ble Tribunal deems fit and proper under the facts and circumstances of the case at hand".

The material averments in this OA are that the applicant is a qualified Nurse. She fulfilled all the eligibility criteria as per applicable Recruitments Rules of respondents' office for the post of Nurse (Grade A). The respondents published a public advertisement on 07.05.1998 in Times of India (Daily Newspaper) for appointment on the post of Staff Nurse (Grade-A). Applicant applied for the said post. She submitted all her eligibility documents and testimonials. Upon perusal and consideration of the same by the Appointment Authority, she was called for interview and other eligibility tests. She qualified through the same and was ultimately appointed as regular, sanctioned, continuous post of Staff Nurse (Grade A) by the respondents. Since her initial appointment, applicant had been working honestly, diligently and sincerely to the satisfaction of the superiors and there was no complaint of any kind against her. The service record of the applicant is impeccable, neat and clean. Further, the applicant had been working as Staff Nurse (Grade A) with the respondents since 1998 on regular, continuous and permanent basis, vide appointment letter dated 08.05.1998 (Annexure A-1). It may be noted that the appointment of the applicant was made by the competent authority on regular, permanent and sanctioned post of Staff Nurse. That the said appointment was made after checking and verification of her educational qualifications and other eligibility criteria as stipulated in the advertisement. Since day one, the applicant was duly qualified and eligible as per the applicable Recruitment Rules. Thereafter, the applicant has been continuously working as Staff Nurse with the respondents and was posted to different hospitals, namely, Aruna Asaf Ali Hospital from time to time till her retirement on 30.09.2016 vide order dated 29.09.2016 (Annexure A-2).

The applicant has further submitted that she is duly qualified and eligible as per the rules and regulations of employment applicable by the respondents and her eligibility was tried and tested by the respondents from time to time. Subsequently, she has been found fully fit as per rules and all the eligibility criteria were fulfilled by her. Her employment conditions, such as, appointment, working hours, transfer, allocation of duties, payment of salaries etc. are being directly controlled and supervised by the respondents itself through its concerned officials. Since beginning, the applicant has been working in the premises of the respondents purely for and on behalf of the respondents, as such, the duties being performed by the applicant, were of essential, primary and permanent in nature. The said work/job, as performed by the applicant for the respondents are essential/perennial in nature and is primary and basic to the functioning and working of the respondents since its inception. However, despite all this, by way of unfair labour practice, the respondents has been illegally and unjustifiably branding the applicant's employment as the same is on "contract basis" thereby depriving the applicant of proper pay scale, increments, promotions, career progression, emoluments, applicable allowances, leave encashment, bonus, ESI, EPF, gratuity etc. and other applicable benefits. Despite applicant's consistent demand for the same, the respondents refused to accede to her legitimate claims, without any rhyme or reason. Further, the applicant from time to time made submissions and requests to the management for regularization of her services and payment of all consequential as well as monetary and non monetary benefits on the principle of "equal pay for equal work". However the same was not entertained by the management without any rhyme or reason. Copy of the representations dated 15.06.2016 is annexed herewith as Annexure A-3. She has further submitted that the work carried out by her is necessary for the functioning of the respondents' organization as the same was perennial in nature. Despite that the applicant was kept in lower pay scale category not commensurate with her post. Moreover, the above illegal and unjustified practice of respondents to deny the regular and proper pay and all benefits of regular employee to the applicant is that he was working on Contract Basis. It is now established that job of Staff Nurse has become an important, integral and essential part of the working of the management. She has been termed as working on contract basis just to deny the regular salary and allowances, which is totally illegal, unfair and unconstitutional.

The applicant has further submitted that she is entitled to proper pay scale and consequential benefits etc. from her initial date of appointment along with pay, allowances and all other emoluments etc. as granted to her counterparts working with management on the principle of "equal pay for equal work" guaranteed under Articles 14, 16 and 19 of Constitution of India. That, in fact, there is virtually no difference between the working and functioning of the applicant and her counterparts working with the respondents with regard to eligibility criteria, educational qualifications, departmental control, supervision, nature of job, place of working and employment conditions. Despite the fact that applicant has been deprived of her entitlements by the respondents, she sent legal notices dated 07.04.2016 and 13.03.2010 to management but they did not pay any heed to it (Annexure A-4 (Colly.). In this regard, applicant has relied on the following judgments passed in her cases as well as in the case of Swarn Kanta Bhatia and Another:-

"i. W.P. (C) No. 4966/1999 titled as Dipika S. Kumar & Others Vs. NCT of Delhi and Others decided on 16.01.2002 by the Hon'ble High Court of Delhi.

ii. W.A. No. 904/2002 titled as Govt. of NCT of Delhi and Others Vs. Dipika S. Kumar & Others decided on 15.03.2004 by the Hon'ble High Court of Delhi.

iii. O.A. No. 1857/2006 titled as Mrs. Dipika S. Kumar Vs. NCT of Delhi and Others decided on 03.07.1997 by the Central Administrative Tribunal, Principal Bench, New Delhi.

iv. W.P. (C) No. 8476/2009 and connected cases titled as Govt. of NCT of Delhi and Others Vs. Dipika S. Kumar and connected cases decided on 22.05.2009 by the Hon'ble Delhi High Court.

v. SLP (Civil) Nos.14208/2009 titled National Capital Territory of Delhi and Others Vs. Swarn Kanta Bhatia and Another decided on 09.07.2009 by the Hon'ble Supreme Court which was dismissed.

In view of above judgments, applicant is seeking regular pay scale with effect from 1998 and other benefits i.e. from the date of her initial appointment. She has also submitted that respondents were well aware of the fact that the applicant is entitled to all the emoluments, pay scale and leaves of various kinds at par with regular employees since 1998. The contractual employees even otherwise are now entitled to similar leaves at par with regular employees as has been held by the Hon'ble High Court Delhi in W.P. (C ) No.6798/2002 - Sonia Gandhi and Others Vs. Govt. of NCTD and Others decided on 06.11.2013. It is pertinent to mention that Govt. of NCT of Delhi has filed an SLP before the Hon'ble Supreme Court in the case of Sonia Gandhi which was later on withdrawn by the respondents.

The applicant has further submitted that her counterparts, namely, Ms. Swarn Kanta (Employee no. 134329) and Ms. Urmila were given much higher grade pay upto Rs.70,775/- but she has been denied same pay scale, grade pay, net pay without any rhyme or reason. Furthermore, they were also appointed with the applicant having same role, responsibility, working, post, job, etc. Accordingly, applicant has prayed that OA be allowed and she should be given the same benefits as given to their counter-parts, that too with effect from her initial joining as Staff Nurse.

The respondent No.3-NDMC has filed his short reply and pleaded that the applicant has not disclosed as to for which period she had worked with the answering respondents and for which period, the salary to the applicant has been paid by the respondents. Even none of the representations annexed by the applicant along with the OA are given to the respondents. Hence the present OA is not maintainable so far as NDMC is concerned as they have nothing to do.

The remaining respondents, i.e., 1 to 3 have filed their counter and submitted that applicant was working in this hospital w.e.f. 28.04.2004 on contract basis and worked in Aruna Asaf Ali Government Hospital, GNCTD till 30.09.2016. She states that her pay is not at par with her counterpart(s) for which she has put forth many representations and worked in the said hospital till 30.09.2016 but was paid up to August, 2016, last month's pay was withheld on account of leave calculation issues. Further, she has referred to case of another staff nurse Ms. Urmila who, according to the applicant joined on the same date, but according to the respondents, Urmila's date of appointment is 8.10.2003 and coincidently working in the same Aruna Asaf Ali Government Hospital where the applicant worked on contractual capacity. Another such case she has referred is of a contractual staff nurse, namely, Ms. Swarn Kanta Bhatia who had been working at Sanjay Gandhi Hospital, under Health & Family Welfare Department, GNCT of Delhi. They have further submitted that the employees having similar status as that of applicant are being paid as per policies of Government and there is no difference made amongst the contractual staff nurses working in this hospital, for instance pay slips for the months of April 2015 and April 2016 in respect of (i) Ms. Deepika, (the applicant herein), (ii) Ms. Urmila, a regular staff nurse and (iii) Ms. Preeti Dass, who is another contractual staff nurse are taken herein for comparison purpose only. Besides this, the photocopies of PBR in respect of Ms Swarn Kanta Bhatia are also enclosed with the counter, as provided by Sanjay Gandhi Memorial Hospital in response to an email from this hospital. She has been governed by the policy of the Government in this regard and whatever due and allowed by the Government to the similarly placed employees in this hospital have been given to her as well.

The same is extended in the judgment dated 22.05.2009 of Hon'ble High Court in WP (C) No. 8476/2009 - Government of NCT of Delhi and others Vs. Deepika S Kumar. The operative part of the same reads as under:-

"...In case the petitioner had given to those nurses appointed on contract bases benefits of increments, then it would be extended to the respondents herein as well on the principal of equality and equal treatment. However if such a benefit has not been granted to other similarly situated staff nurses appointed on contract basis, then the respondents herein also shall not be entitled to benefit of either increment for promotion."..

Further, only one staff nurse, namely, Swarn Kanata Bhatia who was working in the Sanjay Gandhi Memorial Hospital was given increment and that too on the direction of Hon'ble CAT and not as per the Policy of Government, which is evident from circulars issued in this regard from time to time. Thus, applicant has been paid all the dues since the date she joined the Aruna Asaf Ali Hopsital w.e.f. 28.04.2004 and whatever dues were allowed by the Government to the applicant and similarly placed persons working in the said hospital have been given to her as well. Hence, they have prayed for dismissal of the OA.

The applicant has filed rejoinder reiterating all the points raised in the OA. They have also filed brief synopsis of arguments on 08.08.2019 and after going the same, we find nothing new has been pointed out except the order passed by this Tribunal on 26.03.2019 to furnish a comparative statement in respect of the staff nurses including the applicant. The order dated 26.03.2019 reads as under:-

"The applicant herein was engaged as a contractual staff Nurse on 08.05.1998. Thereafter, this contractual appointment had continued from time to time and eventually the applicant was made to retire on 30th September, 2016 on attaining the age of 60 years. The applicant is aggrieved that she has not been granted the same salary structure as was granted to her similarly appointed contractual staff Nurses namely Ms. Swarn Kanta (Employee No. 134329) and Ms. Urmila who were also engaged contemporarily.

2.0. The applicant has relied upon a judgment by Hon'ble High Court in Writ Petition No. 8844/2008. The relevant part of this judgment is reproduced below :-

"The legal position in this regard is that casual or contract employees are not entitled to increments and would get pay at the minimum of the regular pay scale. In the absence of regularization question of consideration of cases for promotion also would not arise. While that is the position in law, we have no information as to whether other Staff Nurses appointed on contract basis, who had approached the Tribunal and this Court earlier for pay parity and were granted relief, have been granted increments or not. In case the petitioner had given to those nurses appointed on contract basis benefit of increment, then it would be extended to the respondents herein as well on the principle of equality and equal treatment.

However, if such a benefit has not been granted to other similarly situated staff nurses appointed on contract basis, then the respondents herein also shall not be entitled to benefit of either increment or promotion. All these writ petitions are disposed of in the aforesaid terms. Petitioner shall work out the arrears of salary payable to the respondents in terms of aforesaid directions. Arrears will be calculated from the date when these respondents filed the O.A. If the payment is not made within two weeks, respondents will be entitled to approach the Court for withdrawal of the amount deposited in the Court."

3.0. The applicant will be satisfied if the respondents submit a comparative statement in respect of the applicant and these two nurses for the parameters mentioned in the decision by Hon'ble High Court in WP No. 8844/2008.

4.0. The respondents are directed to submit a comparative statement in respect of three staff nurses indicated above, e.g. their date of appointment, whether it was on contractual or regular basis and what was the scale granted to them and what was the basic pay fixation and whether they were granted the increments to bring out the similarities and dis-similarities. In case they were regularized at same stage, these comparative details shall be given for that stage also and thereafter for the stage when they retired.

5.0. The respondents seek and are granted four weeks' time for the same. Two weeks thereafter to the applicant also to submit reply to the same.

6.0. List on 08.05.2019".

Heard the learned counsel for the parties and perused the pleadings on record.

The only issue raised by the applicant is that she is entitled to minimum of the pay scale of Rs.70775/- per month from the date of initial appointment till her date of retirement along with all consequential benefits, i.e. revision of pay scale, increments thereof, payment of all arrears, allowances DA, BP, GP, HRA, CCA, TA, NA, WA, UA, GPF, DGHS, CGEGIS and commensurate contribution towards the Provident Fund (@25% per month) ESI, Bonus, Leave encashment, paid leave, gratuity, ACP etc. at par with her counter parts. The same issue was considered by the Hon'ble Delhi High Court in W.P. ( C) No.8844/2008 and the relevant para of the same reads as under:-

"The legal position in this regard is that casual or contract employees are not entitled to increments and would get pay at the minimum of the regular pay scale. In the absence of regularization question of consideration of cases for promotion also would not arise. While that is the position in law, we have no information as to whether other Staff Nurses appointed on contract basis, who had approached the Tribunal and this Court earlier for pay parity and were granted relief, have been granted increments or not. In case the petitioner had given to those nurses appointed on contract basis benefit of increment, then it would be extended to the respondents herein as well on the principle of equality and equal treatment. However, if such a benefit has not been granted to other similarly situated staff nurses appointed on contract basis, then the respondents herein also shall not be entitled to benefit of either increment or promotion. All these writ petitions are disposed of in the aforesaid terms. Petitioner shall work out the arrears of salary payable to the respondents in terms of aforesaid directions. Arrears will be calculated from the date when these respondents filed the O.A. If the payment is not made within two weeks, respondents will be entitled to approach the Court for withdrawal of the amount deposited in the Court."

Thus seen from any angle, the applicant is not entitled for any relief on the basis of the findings rendered by the Hon'ble High Court.

In view of the above, we do not find any merit in the OA and the same is dismissed. No costs.