WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 1 of 22 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 2521/1988 & CM No.7564/2006 (u/S 151 CPC for stay) % Date of decision: 20th April, 2010 MANAGEMENT OF MUNICIPAL CORPORATION OF DELHI ..... PETITIONER Through: Ms. Saroj Bidawat, Advocate Versus DELHI ADMNINISTRATION & ORS. ..... RESPONDENTS Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates AND + W.P.(C) 3569/1996 SEVTI DEVI ..... PETITIONER Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates Versus PRESIDING OFFICER, LABOUR COURT-IV, DELHI & ANR. .... RESPONDENTS Through: Ms. Saroj Bidawat, Advocate AND + W.P.(C) 3658/1996 KAMLA DEVI ..... PETITIONER Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates Versus PRESIDING OFFICER, LABOUR COURT NO. IV DELHI & ANR. ..... RESPONDENTS Through: Ms. Saroj Bidawat, Advocate WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 2 of 22 AND + W.P.(C) 4575/1996 SMT. S. SACHDEVA ..... PETITIONER Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates Versus THE PRESIDING OFFICER, LABOUR COURT NO.VI, DELHI & ANR. …. RESPONDENTS Through: Ms. Saroj Bidawat, Advocate AND + W.P.(C) 5555/1998 & CM No.10729/1998 (u/S 151 CPC for stay) MANAGEMENT OF MUNICIPAL CORPORATION OF DELHI ..... PETITIONER Through: Ms. Saroj Bidawat & Mr. Mukesh Gupta, Advocate Versus PRESIDING OFFICER, LABOUR COURT-VI & ANR. ..... RESPONDENTS Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates AND + W.P.(C) 6096/2002 & CM No.10394/2002 (u/S 151 CPC for stay) MUNICIPAL CORPORATION OF DELHI ….. PETITIONER Through: Ms. Saroj Bidawat, Advocate Versus USHA SHARMA @ USHA BAKSHI & ANR. ..... RESPONDENTS Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 3 of 22 AND + W.P.(C) 8349/2003 & CM No.13514/2003 (u/S 151 CPC for stay) MUNICIPAL CORPORATION OF DELHI ….. PETITIONER Through: Ms. Saroj Bidawat, Advocate Versus SMT. RAKESH KUMARI ….. RESPONDENT Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates AND + W.P.(C) 44/2003 & CM No.51/2003 (u/S 151 CPC for stay) MUNICIPAL CORPORATION OF DELHI ….. PETITIONER Through: Ms. Saroj Bidawat, Advocate versus SMT. M. BHATNAGAR ..... RESPONDENT Through: Mr. Ashok Aggarwal with Mr. Anuj Aggarwal & Ms. Swarnima Aggarwal, Advocates CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? RAJIV SAHAI ENDLAW, J. 1. These eight writ petitions entail common questions of law & fact and are being listed together. WP(C) No.2521/1988 is the main petition of the MCD challenging / impugning the award dated 13th May, 1988 of the Industrial Tribunal. The other petitions are off-shoots of the said award. WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 4 of 22 2. The award impugned in WP(C) No.2521/1988 was made on the following reference: “Whether all those „B‟ Grade Staff Nurses and Auxiliary Nurses, Midwives, who have completed three years services and are posted against the post of „A‟ grade staff nurse should be promoted to „A‟ grade staff nurse with retrospective effect, and, if so, what directions are necessary? Whether anomaly in the pay scales of „B‟ grade staff nurse and auxiliary Midwives or nurses be removed with retrospective effect i.e. from 01.01.1973 and if so what further directions are necessary?” 3. It was the claim of the workmen before the Industrial Tribunal that: (i) The petitioner MCD has been running a large number of medical institutions. (ii) In the said medical institutions, the petitioner MCD had created two types of staff nurses namely Grade „A‟ Staff Nurses and Grade „B‟ Staff Nurses; a third category known as Auxiliary Nurse / Midwives also existed. The pay-scales and other benefits of the three categories differed. Also, the nurses in Ayurvedic Hospital, Haiderpur had been placed in a lower pay scale than the Grade „B‟ Nurses in the other institutions. (iii) Grade „B‟ Staff Nurses and Auxiliary Nurses / Midwives are normally deputed against the sanctioned posts of Grade „A‟ Staff WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 5 of 22 Nurses and even otherwise are made to carry-on duties at par with Grade „A‟ Staff Nurses successfully for several years. (iv) While Grade „A‟ Staff Nurses have the promotional avenue to the post of Matron, there is no such channel of promotion for Grade „B‟ Staff Nurses or the Auxiliary Nurses / Midwives. (v) It was thus claimed that Grade „B‟ Staff Nurses who had been working on the post of Grade „A‟ Staff Nurses be declared as entitled to the scale of Grade „A‟ Staff Nurses. Instances of 27 such nurses were specifically given. (vi) That though the work of Grade „B‟ Staff Nurses, Auxiliary Nurses/ Midwives was the same but they had been placed in different pay scales. Relief was also claimed for equalization of the pay scales of all the Grade „B‟ Staff Nurses including the nurses in Ayurvedic Hospital, Haiderpur. 4. The petitioner MCD contested the claim by contending: (i) That the nurses working in Ayurvedic Hospital, Haiderpur are actually Dais / Midwives, a Class-IV post and are not nurses. (ii) That as per the recruitment rules approved by MCD for different posts in the medical institutions of MCD, Grade „B‟ Staff Nurses are not promoted to Grade „A‟ because they do not fulfill the WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 6 of 22 qualification of Grade „A‟ Staff Nurses; they are neither registered with the Nursing Council nor qualified as Grade „A‟ Staff Nurses as per the requirement of the Indian Nursing Council Act, 1947. Only those Grade „B‟ Staff Nurses who acquire the qualification prescribed for Grade „A‟ Staff Nurses can be promoted to that grade. Neither of the 27 Grade „B‟ Nurses working against the posts / vacancies of Grade „A‟ Staff Nurses and whose instance was given in the claim petition have the requisite qualification of a Grade „A‟ Staff Nurse. (iii) That the nature of work of Grade „B‟ Staff Nurses is different from that of Auxiliary Nurses / Midwives. 5. The Tribunal found: (a) That the petitioner MCD in its written statement had neither admitted nor denied that the 27 Grade „B‟ Staff Nurses had been working for last several years against the posts / vacancies of Grade „A‟ Nurses. It was noted that most of the said 27 Grade „B‟ Staff Nurses had been working as Grade „A‟ Staff Nurses for between three to twenty years. (b) That the standard of training of Grade „B‟ Staff Nurses is slightly lower than those of Grade „A‟ Staff Nurses. For admission to the course of Grade „B‟ Staff Nurse, the candidate was required to WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 7 of 22 have been educated till 8th standard only and was not required to have a training in the nursing of men. If a Grade „B‟ Staff Nurse wanted to become a Grade „A‟ Staff Nurse or General Nurse, she was required to undergo further training of six months after 4 to 5 years of service as a Grade „B‟ Nurse and to also pass the General Nursing Examination. (c) That as per the Circular dated 27th March, 1973 of the MCD, all the Grade „B‟ Staff Nurses who had worked for five years were given the option to undertake training for six months and pass general nursing examination for promotion as Grade „A‟ Nurse. (d) Vide another Circular dated 4th July, 1974 all the Grade „B‟ Staff Nurses were given option to undergo only the training for six months to be promoted as Grade „A‟ Staff Nurse. The requirement of passing the General Nursing Examination was deleted. (e) That there was no Rule under which a Grade „B‟ Staff Nurse who had worked for a long period as a Grade „A‟ Staff Nurse became entitled to the emoluments of a Grade „A‟ Staff Nurse. 6. The Tribunal held: (a) That as per common sense a person who had worked for more than three years in a capacity, knows all the duties and functions of that post; to require a Grade „B‟ Staff Nurse who had worked as a Grade „A‟ Staff Nurse for more than 20 years, to undergo a training WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 8 of 22 for six months to be entitled to the emoluments of a Grade „A‟ Staff Nurse was ridiculous; if a person is unfit to work against a particular post even after working against that post for more than twenty years, six months training will certainly not improve the efficiency of that incumbent. (b) A person who is working against a post for a number of years cannot be subsequently told that he is not entitled to promotion. Reliance was placed on Smt. Lajwanti Bhatnagar Vs. MCD 1977 RLR Note 70, Dwarka Prasad Chandral Vs. The District Education Officer, Jabalpur 1986 (1) SLJ 355 & Bharat Singh Vs. Union of India 1987 (3) SLJ 423. (c) The Tribunal as such held that all the Grade „B‟ Staff Nurses, Auxiliary Nurses and Midwives who had completed three years service against the post of Grade „A‟ Staff Nurses are entitled to the pay of Grade „A‟ Staff Nurses for the period during which they worked against the post of Grade „A‟ Staff Nurses. They were also held entitled to be promoted as Grade „A‟ Staff Nurses. All the Grade „B‟ Staff Nurses and Auxiliary Nurses / Midwives who had worked for more than ten years as Grade „A‟ Staff Nurses were held entitled to the pay of Grade „A‟ Staff Nurses from the date of the reference namely 27th June, 1979. They were directed to be promoted as Grade „A‟ Staff Nurses from the date of the publication of the award. WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 9 of 22 (d) As far as the disparity in the pay scale of Grade „B‟ Staff Nurses and Auxiliary Nurses / Midwives and nurses of Ayurvedic Hospital, Haiderpur was concerned, the Tribunal held that the witnesses of the MCD could not demonstrate the difference in the duties. It was held that the difference in pay was a distinction without any difference. The Auxiliary Nurses / Midwives were found to have performed same functions as in the same hospital and were thus held entitled to the same pay scale as a Grade „B‟ Staff Nurses. 7. Aggrieved from the aforesaid award, the present petition was preferred. Rule was issued and operation of the award stayed vide ex parte order dated 24th November, 1988. However, subsequently vide order dated 10th August, 1989, on the application of the petitioner for interim stay, it was held that the concerned workmen being then still in service with the petitioner MCD and the effect of the award being of payment of extra salary to them, it would be unjust to deprive the workmen of the benefits of the award till the award is set aside. It was held that in the event of the writ petition being allowed, excess payment, if any made to the workmen in question could be adjusted towards payment of future dues and / or from the retiral benefits payable to them. Accordingly, the ex parte stay of operation of the award was vacated and the petitioner MCD was directed to pay to the concerned workmen enhanced salary as awarded by the Industrial Tribunal and subject to the final decision of the writ petition. The petition however has remained pending for the last over twenty years. At one stage, it was dismissed WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 10 of 22 due to non prosecution by the petitioner MCD and restoration was applied for only after two years of such dismissal. Be that as it may, it falls for adjudication whether any interference is called for in the award aforesaid. 8. At the outset, I may state that apart from the merits, this is not found to be a fit case for exercise of discretion under Article 226 of the Constitution of India. The workmen involved are nurses. The work of a nurse especially in government hospitals is extremely arduous in nature. Nursing is a noble profession. It is not merely an occupation to earn a living but a benevolent service. The nursing of the sick, said Florence Nightingale is a vocation as well as a profession. Nurses live in the midst of distressing atmosphere and the Tribunals / Courts cannot shut their minds to the said reality while dealing with the issues relating to the nursing profession. 9. Most of the nurses are from economically weaker sections of the society. This Court having not deemed it appropriate to stay the operation of the award and having particularly directed the petitioner MCD to make payments in terms of the award and a long time of over twenty years having now elapsed, it would be extremely harsh and unjust if nurses, a large number of whom may have in the interregnum retired, are now to be directed (in the event of the petition succeeding) to refund the excess amount so received by them. In fact, I find that this Court in MCD Vs. Krishna Sharma MANU/DE/1351/2003 had dismissed a writ petition against the order of the Labour Court upholding the entitlement of the respondent nurses in that case to the amounts in terms of the award impugned in this petition. Directing the nurses who have received payments in terms of the WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 11 of 22 award to refund the amount would not only put them to extreme hardship but would also be impracticable. For the nurses who continue to remain in service of the petitioner MCD, setting aside of the award may mean adjustment of the entire retiral benefits against the payments already received by them in the last over twenty years in terms of the award. 10. I find such a situation of depriving a nurse of retiral benefits after having worked for over 30/40 years to be not an equitable option. The Supreme Court in Chandra Singh Vs. State of Rajasthan AIR 2003 SC 2889 held that issuance of a writ of certiorari is a discretionary remedy and that the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India may not strike down an illegal order although it would be lawful to do so and in a given case may refuse to extend the benefit of discretionary relief to the applicant. Similarly, in Taherakhatoon Vs. Salambin Mohammad (1999) 2 SCC 635, even at the time of dealing with the appeal after grant of special leave, it was held that the Court was not bound to go into the merits and even if entering into the merits and finding an error, was not bound to interfere if the justice of the case on facts does not require interference or if the relief could be moulded in a different fashion. This Court has echoed the same views in Filmistan Exhibitors Ltd. Vs. N.C.T., 131(2006) DLT 648 by holding that even if there is a violation of law, this Court is not bound to exercise discretionary jurisdiction and in Babu Ram Sagar Vs. Presiding Officer, Labour Court MANU/DE/9235/2006 by refusing to interfere in exercise of discretionary power inspite of holding the reasons given by the Labour Court to be not convincing. I WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 12 of 22 am not inclined to exercise the discretion under Article 226 of the Constitution of India in quashing the award on this ground alone. 11. Propriety however demands a discussion on the merits also. The only contention of the petitioner MCD is that the award is contrary to the Recruitment Regulations. Vaguely it is suggested that same is also contrary to the subsequent judgment of the Supreme Court in Secretary, State of Karnataka Vs. Umadevi AIR 2006 SC 1806. It is contended that the award amounts to regularizing Grade „B‟ Staff Nurses as Grade „A‟ Staff Nurses when under the Recruitment Regulations they are not eligible to appointment as Grade „A‟ Staff Nurses. 12. I do not agree with the aforesaid contention of the counsel for the petitioner MCD. Though it was the stand of the petitioner MCD that the educational qualification and the examination for appointment as a Grade „A‟ Staff Nurses is different from that for a Grade „B‟ Staff Nurses but the petitioner MCD vide its Circular dated 4th July, 1974 supra relaxed the criteria of educational qualification and of examination and required the Grade „B‟ Staff Nurses to only undergo training of six months for promotion as Grade „A‟ Staff Nurse. There was no requirement of completing the educational qualification or to undertake any examination. The petitioner MCD cannot now turn around and contend that the educational qualification and the examination is also a necessary criteria. 13. Thus, the only question which remains for consideration is whether undergoing training of six months is essential and whether the reasoning of the WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 13 of 22 Tribunal, of requirement of such training of six months after a Grade „B‟ Staff Nurse has worked and performed duties as Grade „A‟ Staff Nurse for over twenty years as being ridiculous, requires interference. 14. Though not in relation to nurses, in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation AIR 1990 SC 371 the controversy centered around the question whether the petitioners therein were possessed of the requisite qualifications to hold the post so as to entitle them to be confirmed. The petitioners in that case had been working in the said posts for several years and had gained sufficient experience in the actual discharge of duties attached to the post held by them. The Supreme Court held that the practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. It was held that once the appointments were made as daily rated workers and the petitioners were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. Three years experience, ignoring the artificial breaks in service for short periods created by the respondent therein, was held to be sufficient for confirmation. 15. The Supreme Court in Rattan Lal Vs. State of Haryana AIR 1987 SC 478, in relation to teachers, took note of the government exploiting the situation by making ad-hoc appointments. It was observed that the same is not a sound WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 14 of 22 personnel policy and was also held to be in breach of Articles 14 and 16 of the Constitution. It was held that the Courts cannot permit such a situation to last any longer. The government was held to be expected to function as a model employer. The Supreme Court in the said judgment directed the State Government to consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment of those teachers who had been victims of the system of 'ad-hoc' appointments. A single Judge of the Karnataka High Court in Syed Younus Ali Vs. Principal, Kendriya Vidyalaya MANU/KA/0781/1993 has also deprecated the practice of ad-hoc appointment. I find the aforesaid principles applicable to the present case also. The practice followed by the petitioner MCD of appointing Grade „B‟ Staff Nurses against the posts / vacancies of Grade „A‟ Staff Nurses and to make them work in the same fashion for several years is nothing but „ad-hocism‟ and an attempt to exploit the situation. The petitioner MCD by making the appointments in Grade „B‟ post at a lower pay-scale and making the said appointees to work against the posts / vacancies in Grade „A‟ is exploiting the nursing personnel. 16. There is merit in the contention of the respondents nurses, though not dealt with in the award of the denial of promotional avenues also. The Supreme Court in Delhi Judicial Services Association Vs. Delhi High Court AIR 2001 SC 2102 has held that stagnation for very many years for lack of promotional avenue which is inherent in the very nature of the service and limitation of other openings results in the judicial officers being less than contended in the absence of incentive or hope for a better future. Such a situation was held to be not WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 15 of 22 conducive to bring out the best in them. It was held that it is desirable from every point of view to maintain the morale and efficiency of the employees at the highest throughout their tenure. To the same effect is Dr. Ms. O.Z. Hussain Vs. Union of India AIR 1990 SC 311 where it has also been held that promotion is a normal incidence of service. Again recently in Md. Abdul Kadir Vs. Director General of Police, Assam 2009 (6) SCC 611, it has been held that if those working as ad-hoc or temporary staff for decades, are converted to regular permanent staff, that would boost their morale and efficiency. The same applies to the present case also. Moreover, considering the nature of duties to be performed by nurses, practical experience is found to far outweigh the educational qualifications and passing the qualifying exam. 17. As far as the contention of the counsel for the petitioner on the basis of Umadevi (supra) is concerned, the Supreme Court recently in Maharashtra State Road Transport Corporation Vs. Casteribe Rajya P. Karmchari Sanghatana 2009 (8) SCC 556 has reiterated that powers of the Labour Court are very wide and once an unfair labour practice on the part of the employer is established, the Labour Courts are empowered to issue preventive as well as positive directions to an erring employer and such issues pertaining to unfair labour practices were held to have been not referred to or considered in the Umadevi case. 18. It is also the case of the petitioner MCD that as per the Indian Nursing Council also the distinction between Grade „A‟ & Grade „B‟ Staff Nurses has ceased to exist. In the circumstances, for the petitioner to insist that the said difference exists is not found justified. WP(C) 2521/1988, WP(C) 3569/1996, WP(C) 3658/1996, WP(C) 4575/1996, WP(C)5555/1998, WP(C) 6096/2002, WP(C) 8349/2003 & WP(C) 44/2003 Page 16 of 22 19. The petitioner MCD has not disputed / controverted that the practice of making Grade „B‟ Staff Nurses perform the duties of Grade „A‟ Staff Nurse exists. The Tribunal has found some of 27 such nurses whose instances were given, to have performed