Courts to observe wide discretion whilst dealing with grievances of frontline workers: Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 30th April 2021 W.P.(C) 4755 2021 ALL INDIA INSTITUTE OF MEDICAL SCIENCES ...Petitioner Through: Mr. Atul Kumar and Ms. Archana Kumari Advocates. ELSY JACOB & ORS. ..... Respondents Through: Dr. M.P. Raju Advocate for Mr. E. J. Varghese for R 1 to R 52. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL RAJIV SAHAI ENDLAW J. VIA VIDEO CONFERENCING] CM No. 14640 2021Allowed subject to just exceptions and as per extant rules. The application is disposed of. W.P.(C) No.4755 2021 & CM No.14639 2021This petition under Article 226 of the Constitution of India impugns the order dated 31st October 2019 of the Central Administrative Tribunal CAT) Principal Bench New Delhi allowing O.A. No.4342 2014 preferred by the respondents no.1 to 52 being Nurses Grade II in the petitioner All India Institute of Medical SciencesNo.4755 2021 The respondents no.1 to 52 filed the O.A. aforesaid pleading thatthe respondents no.1 to 52 from time to time on different dates from the year 1996 onwards were interviewed by the Competent Authority and appointed on ad hoc basis to the temporary post of Sister Grade II in the petitioner AIIMS initially for a period of 3 months against leave vacancies etc. the letters of appointment issued to the respondents no.1 to 52 on such appointment besides providing that the appointment was ad hoc and initially for a period of 3 months further specified the monthly payand which monthly pay was “with usual allowances” of the subject pay scale it was also a stipulation in the appointment letter that the appointment was subject to the respondents no.1 to 52 having the prescribed qualification and furnishing documents in proof thereof however the services of the respondents no.1 to 52 were continued even after expiry of 3 months without interruption though after the date of such ad hoc appointment of respondents no.1 to 52 process of regular appointments to the post of Sister Grade II in the petitioner AIIMS took place and though the respondents no.1 to 52 and or some of them participated in the selection process for regular appointment but none of them was selected or appointed and however in the year 2004 each of the respondents no.1 to 52 was appointed on a regular basis on the terms and conditions mentioned in the letters of appointment then issued to each of them. Though the respondents no.1 to 52 claimed several reliefs in the O.A. from which this petition arises but at the time of hearing confined the reliefs to that of counting of the service rendered by the respondents W.P.(C) No.4755 2021 no.1 to 52 on ad hoc basis for fixation of seniority and consideration of the respondents no.1 to 52 for promotion to the post of Sister Grade I as per Recruitment Rules on the basis of such seniority. Since the reliefs with respect to seniority and promotion were also claimed in the O.A. the respondents no.1 to 52 who were applicants before CAT in their O.A. besides impleading the petitioner AIIMS also impleaded respondents no.53 to 62 herein who were are also holding the post of Sister Grade II in petitioner AIIMS but who were appointed on regular basis though after the date of ad hoc appointment of the respondents no.1 to 52 but before the date of regular appointment in the year 2004 of respondents no.1 to 52 since the said reliefs sought were likely to affect their seniority and promotion. A perusal of the impugned order of CAT does not show the respondents no.53 to 62 herein to have contested the claim of the respondents no.1 to 52 qua seniority and promotion and which relief was likely to affect the respondents no.53 to 62 herein. The counsel for the respondents no.1 to 52 appearing on advance notice caveat also on enquiry confirms that the respondents no.53 to 62 inspite of notice did not file any reply to the O.A. or otherwise contest the O.A. of the respondents no.1 to 52. The counsel for the petitioner as well as the counsel for the respondents no.1 to 52 are also ad idem that the respondents no.53 to 62 have also not impugned the order of CAT though affecting their seniority and promotion. W.P.(C) No.4755 2021 It can thus safely be assumed that the respondents no.53 to 62 whose seniority and time of promotion even if affected by the relief granted by CAT to respondents no.1 to 52 are not aggrieved therefrom. 11. CAT has allowed the aforesaid two reliefs claimed by the respondents no.1 to 52 and directed the petitioner AIIMS to count the services rendered by the respondents no.1 to 52 on ad hoc basis before their regular appointment in the year 2004 in fixing their seniority and for the purposes of promotion to higher grade etc. reasoning that from the letter of appointment of each of the respondents no.1 to 52 on ad hoc basis it was crystal clear that they were appointed in a pay scale and were given increments every year and that on regular appointment their pay was protected and fixed at a higher level than the entry level pay that in a meeting held on 18th January 2014 of the Nursing Union with the Director of petitioner AIIMS it was informed that the period of service rendered by the respondents no.1 to 52 on ad hoc basis followed by regular appointment would be counted for pensionary benefits allotment of accommodation etc. but not as qualifying service for voluntary retirement and not for the purposes of seniority and promotion that though usually seniority of an employee would be counted only from the date of his appointment as per Recruitment Rules but in view of the peculiar facts of the case i.e. of the respondents no.1 to 52 having beenappointed after an interview by a Competent Authority appointed in a pay scale given increments every year though their initial appointment was for 3 months only continued uninterruptedly till 2004 given a pay scale higher than the entry level pay scale on regular appointment in the year 2004 W.P.(C) No.4755 2021 taking into account all the increments they had earned from the date of initial appointment on ad hoc basis given protection of pay earned on ad hoc basis at the time of regular appointment given the benefit of period of ad hoc service for pensionary benefits and for allotment of accommodation and both of which also affected the respondents no.53 to 62 herein they were also entitled to the relief of seniority including for promotion and that the respondents no.53 to 62 herein inspite of service had not entered appearance or contested the claim of the respondents no.1 to 52 herein. 12. The counsel for the petitioner AIIMS has contended that though the respondents no.1 to 52 were interviewed prior to their ad hoc appointment but not by the Selection Committee in accordance with the Recruitment Rules that the ad hoc appointment of the respondents no.1 to 52 was not in pursuance to any public advertisement or through Employment Exchange but through word of mouth and that the respondents no.1 to 52 were not subjected to any probation and thus the period of their ad hoc service cannot be counted for the purposes of seniority and promotion and the same would be contrary to the Recruitment Rules. 13. We have however enquired from the counsel for petitioner AIIMS why the respondents no.1 to 52 at the time of regular appointment in the year 2004 were not subjected to probation. 14. No answer is forthcoming. W.P.(C) No.4755 2021 seniority. 15. The counsel for the petitioner AIIMS then contends that if the impugned order of CAT is sustained it would open a pandora’s box qua 16. The respondents no.1 to 52 in their O.A. before CAT impleaded respondents no.53 to 62 herein for the reason of the relief claimed qua seniority and promotion being prejudicial to respondents no.53 to 62. The respondents no.53 to 62 as aforesaid did not contest the claim of the respondents no.1 to 52 and have also not challenged the relief granted by CAT to respondents no.1 to 52. The petitioner AIIMS also though in this petition has pleaded that grant of seniority and promotion as aforesaid to the respondents no.1 to 52 will open a pandora’s box before CAT did not plead that there were any others besides the respondents no.53 to 62 whose seniority or promotion was likely to be affected by the relief claimed by the respondents no.1 to 52. Even in this petition a vague plea of pandora’s box being opened is taken without any particulars. The bogey of pandora’s box being opened unless the Court intervenes cannot be raised without laying down any foundation therefor. We are thus not inclined to agree with the said submission. 17. Be that as it may even if there were to be some legal merit in the contentions aforesaid of the counsel for the petitioner AIIMS this petition against the order dated 31st October 2019 of CAT has come up before this Bench during the prevalent pandemic which has been raging across the country now for the last more than one year and during which time the medical healthcare professionals particularly Nurses to which profession the respondents no.1 to 52 belong have sacrificing their own personal W.P.(C) No.4755 2021 comforts and life rendered immense services to the fellow citizens of Delhi and elsewhere. Till now the citizens of Delhi including us have been expressing appreciation the efforts of the medical healthcare workers professionals and our gratitude to the Nursing fraternity only in words. Today if on technicalities of law we set aside the relief granted by CAT to respondents no.1 to 52 Nurses and to grant of which relief the other Nurses i.e. respondents no.53 to 62 who alone would have been affected therefrom have not objected the words of appreciation and gratitude expressed till now would sound hollow and empty to the respondents no.1 to 52 and in these times when they are rendering services beyond their call of duty and much beyond the hours they are required to work affect their morale. It cannot also be lost sight of that the respondents no.1 to 52 have worked as Nurses and performed the same duties as regular appointees for the period of which they are claiming seniority. The technicality of law at this hour should not be allowed to come in their way. 18. Fortunately we are adjudicating this lis in exercise of our powers under Article 226 of the Constitution of India and in which jurisdiction as per dicta of the Supreme Court in Taherakhatoon Vs. Salambin Mohammad2 SCC 635 consistently followed in Chandra Singh Vs. State of Rajasthan 6 SCC 545 Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. 6 SCC 138 Filmistan Exhibitors Ltd. Vs. N.C.T. 131 DLT 648 Babu Ram Sagar Vs. Presiding Officer Labour Court 2006 SCC OnLine Del 1648 Pradeep Oil Corporation Vs. Union of India MANU DE 0281 2012 and Management of Municipal Corporation of Delhi Vs. Delhi Administration W.P.(C) No.4755 2021 MANU DE 0835 2010 the Court is empowered not to strike down an illegal order although it would be lawful to do so. We as a Court and as citizens of Delhi are reluctant during this time when the entire citizenry is literally in the hands of the nursing profession to which the respondents no.1 to 52 belong to take away from the respondents no.1 to 52 what has been granted to them by CAT. 19. We must also express our appreciation for the spirit of brotherhood sisterhood comradery demonstrated by the respondents no.53 to 62 herein who though possibly prejudiced from the relief granted by CAT in favour of respondents no.1 to 52 chose not to object thereto. Much can be learnt by members of other professions therefrom. 20. We thus in our discretion refuse to entertain the challenge by way of this writ petition to the order of CAT granting relief to respondent no.1 to 52 21. We however clarify that the aforesaid order having been made in the circumstances aforesaid shall not constitute a precedent on the proposition that period of ad hoc service is to be counted in computation of seniority for the purposes of promotion. APRIL 30 2021 W.P.(C) No.4755 2021 RAJIV SAHAI ENDLAW J. AMIT BANSAL J. 

Summary: In matter of appointment in the nursing fraternity, the bench of Rajiv Sahai Endlaw J. and Amit Bansal J. exercised wide discretion while allowing the promotion of 52 nurses employed at AIIMS who initially had been appointed on an ad-hoc basis. The Delhi High Court in the above matter of All India Institute of Medical Sciences v Elsy Jacob [W.P.(C) 4755/2021], provided solidarity with the nurses who have been frontline workers during the pandemic by permitting the promotion by overlooking the technicalities. The respondents no.1 to 52 filed the O.A. aforesaid, pleading that (i) the respondents no.1 to 52, from time to time, on different dates, from the year 1996 onwards, were interviewed by the Competent Authority and appointed on ad hoc basis, to the temporary post of Sister Grade-II, in the petitioner AIIMS, initially for a period of 3 months, against leave vacancies etc. however the services of the respondents no.1 to 52 were continued, even after expiry of 3 months, without interruption; (iv) though after the date of such ad hoc appointment of respondents no.1 to 52, process of regular appointments to the post of Sister Grade-II in the petitioner AIIMS took place and though the respondents no.1 to 52 and/or some of them participated in the selection process for regular appointment, but none of them was selected or appointed; and, however in the year 2004, each of the respondents no.1 to 52 was appointed on a regular basis, on the terms and conditions mentioned in the letters of appointment then issued to each of them. It was argued before the bench that though the respondents no.1 to 52 were interviewed prior to their ad hoc appointment, but not by the Selection Committee in accordance with the Recruitment Rules; that the ad hoc appointment of the respondents no.1 to 52 was not in pursuance to any public advertisement or through Employment Exchange but through word of mouth. The respondents no.1 to 52 were not subjected to any probation and thus the period of their ad hoc service cannot be counted for the purposes of seniority and promotion and the same would be contrary to the Recruitment Rules. The court referred to its power of discretion under Art. 226 of the Constitution through cases Taherakhatoon Vs. Salambin Mohammad (1999) 2 SCC 635 whose ratio consistently followed in Chandra Singh Vs. State of Rajasthan (2003) 6 SCC 545 and Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. (2005) 6 SCC 138 wherein it had been held that Court is empowered not to strike down an illegal order, although it would be lawful to do so. The bench was reluctant, during the time when the entire citizenry was literally in the hands of the nursing profession to which the respondents no.1 to 52 belong, to take away from the respondents no.1 to 52 what has been granted to them by CAT. The court further added reasoning to its wide discretion by stating that during the prevalent pandemic which has been raging across the country now for the last more than one year and during which time the medical/healthcare professionals, particularly Nurses, to which profession the respondents no.1 to 52 belong, had been sacrificing their own personal comforts and life. Till now everyone had been expressing appreciation for the efforts of the medical/healthcare workers and gratitude to the nursing fraternity, only in words however.