* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No. 8476/2009 WITH W.P.(C) No. 279/2008 W.P.(C) No. 8764/2008 W.P.(C)No. 8844/08 1. WP (C) No. 8476/2009 GOVT. OF NOT OF DELHI & ORS. Petitioner Tlirough; Ms. Geeta Lutlira and Mr. Parinay D. Shall, Advocates versus ¥ DIPIKA S. KUMAR Respondent Tlirough: Ms. Kamlakshi Singh and Mr. Saundarya Singh, Advocates ^ 2. WP(C)No. 279/2008 HELAN PETER Petitioner Thi'ough: Ms. Kamlakshi Singh, Advocate versus NCT OF DELHI & ORS Respondent Tlirough: Mrs. Avnish Ahlawat, Advocate 3. W.R(C) No. 8764/2008 GOVT OF NCT OF DELHI Petitioner ^ Tlirough: Mr. V.K. Tandonwith Ms. Manpreet Kaur, Advocates Versus VICTORIA MASSEY Respondent Through : Ms. Kamlakshi Singh and Mr. Saundarya Singh, Advocates WPC Nos. 8476/09 with 279/08, 8764/08, 8844/08 Page 1 of 6 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 4. W.P.(C) No.8844/2008 GOVT. OF N.C.T. FOD ELHI Petitioner Through; Mr. V.K. Tandon with Ms. Manpreet Kaur, Advocates versus GULAB RABBAM Respondent Tlirough: Ms. Latika Choudhary, Advocate CORAM: > HON'BLE MR. JUSTICE A.K.SIKRI HON'BLE MR. JUSTICE V.K. JAIN # # A.K.SIKRIJ (ORAL) 1. The respondents in ail these petitions have sought directions to fix tlieir emoluments on the basis of equal pay for equal work, in the light of order passedby DivisionBench of this Courtin Civil Writ PetitionNo. 1493/03 and the notification dated 12/09/02 issued by the Government of NCT of Delhi. It is not in dispute that similarly situated staff nurses, who were initially appointed on contract basis for a period of 89 days and whose services continued thereafter as well either by the petitioners of their own or on the strength of judicial orders, were not given the pay scales which are given to the regular staff nurses. This was the issue which arose in Civil Writ Petition No. 1493/03 and this Court directed that they are entitled to the same pay scale on the principle of equal pay for equal work. We also note that same issue came up for WPC Nos. 8476/09 with 279/08, 8764/08, 8844/08 Page 2 of 6 consideration before the Full Beiich of the,Tribunal in O.A. No. 1330/07 and O.A. No. 1331/07. Entire position in this behalf is summarized by the Full Bench in the following manner: "Several of the Staff Nurses initially engaged on contract basis, although were for a certain period being paid consolidated pay, as a result of the directions of the Tribunal, as upheld by the High Court, presently are getting salary as is admissibleto a regular staff, in all respects. It is also pointed out that in the meanwhilethere was proposal for regularization of eligibles by prescribing for a test and some of the staff nurses wei e successful in the selection and have been absorbed by the Establishment. But as far as the applicants are concerned, they have not been able to cross "y the hurdleoftest. Butthis is altogethera differentissueand in any case irrelevant for the adjudication of the present O.A. What is under challenge is the attempt of the respondents ^ to deny the benefitsofiqiialpay to the applicantshereinon the strength of a circular, which had been issued on 03/02/2005, which, according to the respondents, have supersededthe circular dated 12/09/2002; The presence of circular had been highlighted only v/hen the matter was being heard by the Division Bench. A copy of the same has been made available to us as issued by the Additional Secretary to the Government of NCT. It reads as following: "It is informed that the Finance Department, Government of NCT of Delhi, in a matter regarding grant of equal pay to contractual staff as given to regular incumbents, has decided not to pay regular scales of pay to contractual staff except the beneficiaries of Hon'ble CAT orders. Therefore all the Head of Hospitals and Medical ^ InstitutionunderGoverimientofNationalTerritory'ofDelhi are hereby requested to implement the above decision of Finance Department strictly." . The applicants in the O.A. have only made reference to the representations submitted by them requesting the respondents to pay the higher emoluments submitted later on. Perhaps, they have not been informed of the impediment brought by circular dated 03/02/2005. Although WPC Nos. 8476/09 with 279/08, 8764/08, 8844/08 ' Page 3 of 6 a it is not under specific challenge, we feel that the larger questionwhethertlie applicantswill be entitledto salaryon par with the regular staff could be gone into notwithstanding the presence of the abovesaid circular, without driving them for further round of litigation, and overruling technicalities. The circular would show that the attempt and effort is to confine the benefits of higher emoluments only to persons who had obtained orders from CAT. Although the respondentsargue for a positionthat this course is legally pemiissible, we do not think it may be a satisfactory approach. If the circularis held as operative,it may result in. (a) Different principlesof payment of salary to persons similarly working in the same institution; (b) There will be indirect suggestion to such employees, who could not get the benefits so far to approach the Tribunal and get orders similar to the orders, which had been secured by their colleagues. Both the circumstances are not to be encouraged especially as coming from Governmental Authorities. Withliolding of pay, declared as admissible and due to the staff members, to a section of staff cannot be considered as good governance. By becoming penny wise, the Government would be pound foolish, since the credibility of the organization and who ai'e responsible for running it would be at stake." Therefore, as regards grant of same salary and allowance to the respondentherein, which are admissible to regularly appointed staff nurses, there cannot be any quarrel the respondentswill, therefore be entitled to those benefits. However, next question which arose for consideration is as to whether WPC Nos. 8476/09 with 279/08, 8764/08; 8844/08 Page 4 of 6 these respondents were still working on contract basis and have not been regularized can be held entitled to grant of increments as well as promotion. We are posing this question because of directions contained in judgment dated 03/07/07passed by the Tribunal in O.A. 1857/06which is the subject matter of writ petition no. 8476/2008.These directionsare in the following terms: Taking the totality of facts and circumstances into consideration, we come to the conclusion that applicant is entitled to all the benefits in terms of salary, allowances, promotion etc. which have been extended to other Staff Nurses, who were recruited during the period of strike of nurses in the year 1998." 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. Li the absence of regularization, question of consideration of cases for promotion also would not arise. Wliile 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 incrementsor not. In case the petitionerhad 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 aforesaidterms. Petitioner shall work WPC Nos. 8476/09 with 279/08, 8764/08, 8844/08 Page 5 of 6 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. Dasti. MAY 22, 2009 mr WPC Nos. 8476/09 with 279/08, 8764/08, 8844/08 A.K.SIKRI, J V.K. JAIN,U Page 6 of 6