{"id":203084,"date":"2002-09-23T00:00:00","date_gmt":"2002-09-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/govt-of-nct-of-delhi-and-ors-vs-dr-anita-nanda-and-ors-on-23-september-2002"},"modified":"2019-01-24T04:16:48","modified_gmt":"2019-01-23T22:46:48","slug":"govt-of-nct-of-delhi-and-ors-vs-dr-anita-nanda-and-ors-on-23-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/govt-of-nct-of-delhi-and-ors-vs-dr-anita-nanda-and-ors-on-23-september-2002","title":{"rendered":"Govt. Of Nct Of Delhi And Ors. vs Dr. Anita Nanda And Ors. on 23 September, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Govt. Of Nct Of Delhi And Ors. vs Dr. Anita Nanda And Ors. on 23 September, 2002<\/div>\n
Equivalent citations: 2003 (68) DRJ 717<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.B. Sinha, C.J.<\/p>\n
1. Interpretation of a notification dated 12.04.1999 is in
\nquestion in this writ petition, which arises out of a
\njudgment and order dated 16.03.2001 passed by the
\nCentral Administative Tribunal, Principal Bench, New
\nDelhi (hereinafter for the sake of brevity referred to as, ‘the
\nTribunal’) in O.A. No. 2590 of 2000 whereby and
\nwhereunder the Original Application filed by the
\nrespondents herein was allowed.\n<\/p>\n
 F A C T S:-\n<\/p>\n
2. The unofficial respondents, who are 18 in number, were
\nappointed as Medical Officers on contract basis for a period
\nof 89 days on a consolidated salary of Rs. 6,000\/- with
\ncertain persons. However, they were allowed to continue in
\nservice. In 1999, they filed an Original Application before
\nthe Tribunal praying therein for parity in pay and
\nallowances and other benefits of service conditions as
\nadmissible to other Medical Officer (Homeopathy)
\n(hereinafter for the sake of brevity referred to as, ‘MO(H)’)
\nappointed on regular basis in the pay-scale of Rs. 8,000\/-
\nRs. 13,500\/- +.Non Practicing Allowances. By a judgment
\nand order dated 08.05.2000, the said Original Application
\nwas allowed with the following directions to the petitioners
\nherein:-\n<\/p>\n
 “Applicants should be continued in service till regular appointments are made to the post and applicants should be treated as having continued in service from the date of their first appointment ignoring the artificial break of one or two days in their service. In the event of the posts being filled by regular recruits, the same shall be adjusted against
\nvacant posts and only after all the vacant
\nposts are filled should regular recruits replace the present applicants and such replacements shall be on the basis of last
\ncome first go basis. Respondents are further directed to grant age relaxation to the applicants to the extent of the service put in by them on contract basis in case they apply
\nfor regular appointment. We also direct the respondents to grant to the applicants same scale of pay and allowance, leave, increment, medical facilities and also other benefits of service conditions as applicable to other MOs (H) from the date of their initial appointment”.\n<\/p>\n
The said order has been complied with.\n<\/p>\n
Admittedly when the said Original Application was
\npending, an advertisement was issued for filling up the
\nposts of Medical Officers in terms of the recruitment rules
\nwherefor notification was issued on 12.04.1999 and the
\nrequisition was sent to the Union Public Service
\nCommission (hereinafter for the sake of brevity referred to
\nas, ‘UPSC’) for regular appointment of 37 posts of Medical
\nOfficers, which included 18 posts filled up by the
\nrespondents on contract basis.\n<\/p>\n
Pursuant to and in furtherance thereof a large number of
\ncandidates including the respondents herein had applied
\ntherefor. Allegedly, the respondents had also appeared at
\nthe written examination conducted by the UPSC on
\n18.03.2001. It is further alleged that some of them had
\nalso appeared at the interview.\n<\/p>\n
However, in the meanwhile, they filed another Original
\nApplication before the Tribunal, which was marked as O.A.
\nNo. 2590 of 2000, wherein the prayed for regularization of
\ntheir services in the post of Medical Officer or in the
\nalternative directing the petitioners herein to treat them as
\na separate bloc for the purpose or regularization and their
\ncases be considered therefore on the basis of their past
\nwork, service record and conduct.\n<\/p>\n
By reason of the impugned judgment dated 16.03.2001,
\nthe said Original Application has been allowed by the
\nTribunal directing:-\n<\/p>\n
 “10. On a perusal of the case, we are of the
\nconsidered view that the applicants’ case is
\ncovered by Note I, Column (11) of the R\/Rules
\nof 1999 (supra) as they were initially
\nappointed as MOs(H) by a duly constituted
\nselection committee after their names were
\nsponsored by the Employment Exchange. In
\nview of this position, we allow the present OA
\nand direct the respondents to send records of
\nthe applicants to UPSC to enable the
\nCommissioner to consider regularization of the
\napplicants against the post of MO(H) as per
\nRules…”\n<\/p>\n
3. Mr. V.K. Shali, the learned Counsel appearing on behalf of
\nthe petitioners, would raise a short contention in support
\nof the present writ petition. The learned counsel would
\ncontend that the learned Tribunal misdirected itself in
\npassing the impugned judgment insofar as it failed to take
\ninto consideration that the purported notification dated
\n12.04.1999 was applicable only in relation to those who
\nhad been holding regular posts. In any event, the learned
\ncounsel would contend that as the respondents herein in
\ntheir Original Application did not pray for the said relief.
\nIn any event, the said Original Application was barred
\nunder the principles of res judicata. In support of the
\naforesaid contentions, reliance has been placed on  Director,
\nInstitute of Management Development, U.P. v. Smt. Pushpa
\nSrivastava<\/a> .\n<\/p>\n
4. Mr. P.P. Rao, the learned senior counsel appearing on
\nbehalf of the respondents, on the other hand, would
\nsubmit that the cause of action for the second Original
\nApplication arose only when an advertisement had been
\nissued for direct recruitment and not prior thereto. The
\nlearned senior counsel would submit that in view of the
\nfact that a subsequent cause of action had arisen, the
\nprinciples of res judicata or constructive res judicata shall
\nnot apply.\n<\/p>\n
As regards the applicability of the said notification, the
\nlearned senior counsel would contend that the background
\nfor issuance of the said notification should be taken into
\nconsideration for the purpose of interpretation thereof.
\nAccording to the learned senior counsel, Dr. Jatinder Singh
\n& Others filed several Original Applications before the
\nTribunal, which was marked as O.A. No. 1259 of 1990 and
\nothers and by reason of an order and judgment dated
\n08.10.1991, the said Original Applications being O.A.No.
\n1259 of 1990 and other cases were allowed by the Tribunal
\nwith several directions, which are as under:-\n<\/p>\n
“20. The applications are, therefore, allowed and disposed to with the following orders and directions:-\n<\/p>\n
(i) The respondents are directed to refer the cases of the applicants and those similarly situated to the Union Public
\nService Commission for the purpose of regularisation of their service as Medical Officers. They should be treated as forming a separate block for the purpose of regularisation. Regularisation should be based on the evaluation of work and service records of the applicants and those similarly situated. The respondents shall do the needful in the matter within a period of four months from the date of receipt of this order.\n<\/p>\n
(ii) After the services of the applicants are regularized through the Union Public Service Commission, their seniority shall be reckoned from the date of their initial appointment on ad hoc basis as Medical Officers, after condoning the technical breaks in their ad hoc service. The services rendered by them curing the period of operation of the stay order passed by the Tribunal shall also count as service for the purpose of regularisation.\n<\/p>\n
(iii) After regularisation of the services of the applicants as indicated in (i) and (ii) above, the respondents will be at liberty to post the applicants as Medical Officers at places where vacancies exists. Till they are so regularized, the respondents are directed to accommodate the applicants at their present places of posting in the Hospital at Delhi. The interim orders already passed in these cases are hereby made absolute.\n<\/p>\n
(iv) Till the applicants are to be regularized, they should be entitled to the same pay scales, allowances and benefits of leave,
\nincrements etc., and other benefits of service conditions as are admissible to regularly appointed Medical officers. In the facts and circumstances, we do not direct the respondents to pay them arrears of pay and allowances for the Post Period.”\n<\/p>\n
It was submitted that except with regard to the matter
\nrelating to fixation of seniority, the Apex Court in the year
\n1993 in Civil Appeal arising out of SLP (C) Nos. 13578-84
\nof 1992 upheld the same.\n<\/p>\n
According to the learned senior counsel, thus, Dr. Jatinder
\nSingh & Ors. became entitled to be appointed in the service
\nde hors the rules. Having regard to the fact that the
\nrespondents herein had acquired experience, the learned
\nsenior counsel would submit that those, who are in service
\nfor more than 3 years, in terms of the decision of  Dr.
\nJatinder Singh’s case (Supra) should be directed to be
\nregularized.\n<\/p>\n
It was contended that it is beyond any cavil of doubt that
\nfor appointment in the said posts, selection was held and
\ntheir names were sponsored by the Employment Exchange.\n<\/p>\n
It was submitted that at the relevant point of time there
\ndid not exist any such rule and in that view of the matter,
\nthe said Rules were made and according to the learned
\nsenior counsel in terms thereof the persons who could be
\nregularly appointed, they should be regularly appointed
\nand those who are working should be assessed as if they
\nare in service from the initial date by the UPSC as a
\nseparate bloc.\n<\/p>\n
5. The respondents were appointed admittedly on contract
\nbasis on a consolidated salary of Rs. 6,000\/- for a period of
\n89 days. The relevant portion of the offer of appointment
\nissued to the respondent No. 1 herein dated 02.05.1997 is
\nas follows:-\n<\/p>\n
“The Director, ISM & Homoeopathy Govt. of NCT of Delhi is pleased to appoint Dr. Anita Nanda to the post of Medical Officer on the following terms and conditions:-\n<\/p>\n
1. The post is purely on contract basis for a period of 89 (Eighty Nine) days. The appointment can be terminated at any time (on either side) by giving one mont’s notice or by paying one month’s salary without assigning any reason or failure to complete the period of three months to the satisfaction of the competent authority.\n<\/p>\n
2. The consolidated pay of the post is Rs. 6,000\/- per month.\n<\/p>\n
… … … … …\n<\/p>\n
7. The appointee will not be granted any claim or right for regular appointment to the post.\n<\/p>\n
… … … … …”\n<\/p>\n
The terms and conditions mentioned in the said offer of
\nappointment were accepted by the appointees without any demur whatsoever.\n<\/p>\n
6. Before the learned Tribunal, the petitioners herein had
\ncategorically denied and disputed that the respondents
\nwere selected through a regular selection process. Before
\nthe learned Tribunal, the respondents merely raised a plea
\nthat in terms of Note I in Column 11 of the recruitment
\nrules for the post of Junior Medical Officer (H) (in short,
\n‘JMO(H)) notified on 12th April, 1999, which has since
\nbeen re-designated as MO(H), their suitability should be
\nassessed for appointment to the upgraded post of MO(H) in
\nthe pay-scale of Rs. 8,000\/- — Rs. 13,500\/- and if they are
\nso assessed suitable, they would be deemed to have been
\nappointed to the said post. The learned Tribunal noticed:-\n<\/p>\n
 “9. …If assessed and not found suitable for appointment to the upgraded scale of pay he\/they shall continue to be in the revised scale of rs. 6500-10500 and his\/their case would be reviewed every year. According to the counsel, the applicants were appointed through Employment Exchange by a selection process and therefore they are to be appointed on regular basis under the aforesaid clause of R\/Rules.”\n<\/p>\n
7. It was, therefore, not a case of the respondents as has been
\ncontended before us by Mr.Rao that so far as the question
\nof holder of regular post is concerned, the same was only
\nconfined to the post of JMO, which have since been re-designated
\nas Medical Officer and not in the case of Medical Officer, who were directly appointed.\n<\/p>\n
8. The notification dated 12.04.1999 was issued by the
\nLieutenant Governor in exercise of the power conferred
\nupon him under the Proviso appended to Article 309 of the
\nConstitution of India regarding the method of appointment
\nto the post of MO(H) in the Directorate of ISM &
\nHomoeopathy, Govt. of NCT of Delhi.\n<\/p>\n
9. By reason of the said Rules, therefore, the procedure had
\nbeen had down, the relevant portion whereof reads thus:-\n<\/p>\n
11<\/span><\/p>\n
12<\/span><\/p>\n
13<\/span><\/p>\n
14<\/span><\/p>\n
Direct Recruitment:(Vote:  1. The suitability of a regular
\nholders of the posts of Junior Medical Officer (Homoeopathy) [since redesignated as Medical Officer
\n(Homoeopathy)]
\nand Nan-regular Medical Officer (Homoeopathy)
\nwill be initially assessed by the Commission for appointment to the
\nupgraded post of Medical Officer (Homoeopathy)
\nin the scale of Rs. 8000-1350O. If assessed suitable they shall
\nbe deemed to have been appointed to the post at the initial
\nconstitution. If assessed not suitable for appointment to the upgraded
\nscale of pay he \/ they shall
\ncontinue to be in the revised scale of Rs. 6500-10500
\nand his \/ their case would be
\nreviewed every year.\n<\/p>\n
Not applicable<\/p>\n
Group ‘A’ DPC’ For Considering
\nConfirmation<\/p>\n
Consultation with UPSC necessary while making Direct
\nRecruitment<\/p>\n
(1) Chief Secretary Govt Of Delhi\n<\/p>\n
-Chairman<\/p>\n
(2) Secretary concerned in GNCT
\nof Delhi – Member<\/p>\n
(3) HOD concerned unless he is
\nEx-Officio Secretary in GNCT of Delhi -Member<\/p>\n
Note: The proceeding of the DPC
\nrelating to confirmation of a direct recruit shall
\nbe sent to the Commission for approval. If however these are not
\napproved by the Commission a fresh meeting
\nof the DPC to be presided over by the Chairman or a member of the UPSC shall
\nbe held.\n<\/p>\n
The aforesaid Note I relates to direct recruitment. Such
\ndirect recruitment would be for the post of MO(H) in the
\npay-scale of Rs. 8,000\/- — Rs. 275\/- — Rs. 13,500\/-. The
\nclassification of the post was General Central Service
\nGroup ‘A’ Gazetted Non-Ministerial. The age limit for the
\ndirect recruits was stated as under:-\n<\/p>\n
“Not exceeding 35 years<\/p>\n
Note : 1 — Relaxable for Govt. Servants up to 5 years in accordance with the instructions or orders issued by the Central Govt.\n<\/p>\n
Column 11 thereof deals with the method of recruitment
\nwhether by direct recruitment or by promotion or by
\ndeputation \/ transfer and percentage of the vacancies to be
\nfilled by various methods.\n<\/p>\n
10. It is, therefore, not a case where direct recruitment was to
\nbe made from amongst those who were already in service.
\nIt is now a well-settled principle of law that a literal
\nmeaning should be attributed and recourse to
\ninterpretation of a statute should be made only when it is
\nnot clear and \/ or unambiguous. Note I must be read with
\nNote II. As Note I refers to the suitability of the regular
\nholders of the posts of JMO(H), since re-designated as MO,
\nand MO(H), there is no reason as to why the words regular
\nholders of posts should not be read both in respect of
\nJMO(H), since re-designated as MO, and MO(H). Both
\ncategories were to be placed in the scale of pay of
\nRs. 8,000\/- — Rs. 13,500\/-, only when they are assessed
\nsuitable, they would be deemed to have been appointed to
\nthe said post and in the event they are not assessed
\nsuitable for appointment to the upgraded scale, they would
\nbe deemed to be in the revised pay-scale of Rs. 6,500\/- —
\nRs. 10,500\/- and their cases would be reviewed every year.
\nIt is, therefore, clear that the cases of those, who were in
\nthe scale of Rs. 6,500\/- — Rs. 10,500\/- were only required
\nto be considered and, thus, the words “regular holders of
\nposts” must be given its due meaning having regard to the
\nsaid aforementioned background fact. We are, therefore,
\nnot inclined to agree with the submission of Mr. Rao to the
\neffect that MO(H) were not required to be the holders of
\nregular posts. Even such a contention, as noticed
\nhereinbefore, had not been raised before the learned
\nTribunal.\n<\/p>\n
11. It may be true that in a given case, a statute may have to
\nbe considered having regard to the factual backdrop
\nleading to the enactment thereof, but we do not find any
\nsubstance in the facts and circumstances of the case that
\nthe said Rules wee made having regard to the decision of
\nthe learned Tribunal in  Dr. Jatinder Singh’s case (Supra),
\nwhich has been upheld by the Apex Court. The said case
\nof Dr. Jatinder Singh & Ors. stood absolutely on a different
\nfooting. They were appointed at a point of time when the
\nother Doctors went on strike. The learned Tribunal in its
\njudgment dated 08.10.1991 had noticed:-\n<\/p>\n
  “19. All the Medical Doctors before us and those similarly situated were recruited at a time when the respondents had to meet the crises arising out of a strike by Doctors in the
\nHospitals at Delhi in June, 1989. Their
\nappointment was in public interest and they
\nhad to discharge their duties in difficult
\ncircumstances and despite various threats
\nfrom the striking Doctors. They are also fully
\nqualified for regular appointment, except that
\nthey were not recruited through the Medical
\nServices Examination held by them is on par
\nwith that of regular Medical Officers. In our
\nopinion, the applicants and those similarly
\nsituated deserve to be regularized by treating
\nthem as forming a separate block and on the
\nbasis of evaluation of their work and service
\nrecords. After they are so regularized, it will
\nbe open to the respondents to post the
\napplicants at places where vacancies exist.”\n<\/p>\n
The respondents herein do not fulfill the said condition.\n<\/p>\n
It would, therefore, be incorrect to contend that the said
\nRules were made keeping in view the said decision of  Dr.
\nJatinder Singh’s case (Supra). Neither any such case has
\nbeen made out by the respondents in their said Original
\nApplication before the Tribunal, nor there exists any
\nmaterial in support thereof.\n<\/p>\n
12. Furthermore, had the respondents relied upon the decision
\nof the learned Tribunal in  Dr. Jatinder Singh case (Supra)
\nwhich was rendered on 08.10.1991, there was absolutely
\nno embargo on their part to rely thereupon in the said
\nOriginal Application and pray for regularisation of their
\nservices in the light thereof. They were not required to wait
\ntill the aforementioned Rules were enacted. In the earlier
\nOriginal Application, the learned Tribunal by an order
\ndated 08.05.2000 directed as follows:-\n<\/p>\n
 “9. We, therefore, direct the respondents that the applicants should be continued in service till regular appointments are made to the post and applicants should be treated as having continued in service from the date of their first appointment ignoring the artificial break of one or two days in their service. In
\nthe event of the posts being filled by regular recruits, the same shall be adjusted against vacant posts and only after all the vacant posts are filled should regular recruits replace
\nthe present applicants and such replacements shall be on the basis of last come first go. Respondents are further
\ndirected to grant age relaxation to the applicants to the extent of the service put in by them on contract basis in case they apply for regular appointment. We also direct the respondents to grant to the applicants same scale of pay and allowance, leave, increment, medical facilities and also other benefits of service conditions as are applicable to other MOs (H) from the date of their initial appointments.”\n<\/p>\n
It is, therefore, idle to contend that their cases are covered
\nby the aforesaid decision of the learned Tribunal in  Dr.
\nJatinder Singh’s case (Supra) or otherwise.\n<\/p>\n
What has been directed by the learned Tribunal in the
\nearlier Original Application being O.A. No. 2108 of 1999, it
\nis evident that the respondents were given the benefit of
\nthe same scale of pay and allowances, etc. till the posts are
\nfilled up by regular recruits.\n<\/p>\n
13. This aspect of the matter had also been considered by this
\nCourt at a great length in  CWP No. 7217 of 2000 titled Shri
\nShankar Nath Tiwary and Ors. v. Delhi Subordinate Services
\nSelection Board and Ors. and other connected matters
\ndisposed of on 23.07.2002.\n<\/p>\n
14. It is now a well-settled principle of law that regularisation
\nis not a mode of recruitment. ( See R.N. Nanjundappa v. T.
\nTimmaiah and Anr..\n<\/p>\n
Thus, the direction of the learned Tribunal to the effect
\nthat the records of the applicants be sent of UPSC to
\nenable the Commission to consider regularization would be
\ncontrary to the recruitment rules.\n<\/p>\n
15. In  Director, Institute of Management Development’s case
\n(Supra), the Apex Court distinguishing the case of  Jacob M.
\nPuthuparambil and Ors. etc. etc. v. Kerala Water Authority and
\nOrs. etc. JT 1990 (4) SC 27, which was relied upon by the learned Tribunal in  Dr. Jatinder Singh’s case (Supra), inter alia on the
\nground that there exist a statutory rule, it was held that
\nthe appointment purely ad hoc and contractual for a
\nlimited period does not confer any right upon the holders
\nthereof. It was observed:-\n<\/p>\n
“23. In the instant case, there is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end.\n<\/p>\n
24. If the matter is viewed from this angle, that being the only view, we find no difficulty whatever in setting aside the impugned judgment which is accordingly set aside.”\n<\/p>\n
16. It is a well-settled principle of law that the status of a
\nperson can be changed only in terms of a statute or
\nstatutory rules and not otherwise. The recruitment rules
\ndo not provide for change of status of the respondents
\nherein either directly or indirectly. ( See State of M.P. v.
\nDharambir ).\n<\/p>\n
17. Furthermore, now, it is a well-settled principle of law that a
\ndecision is an authority for what it decided and not what
\ncan logically be deduced there from. It is also well settled
\nthat a little difference in facts or additional facts may bring
\nin a lot of difference in arriving at a conclusion. A
\ndecision, as is well known, is not to be read as a statute.
\nDirections issued by the Supreme Court under Article 142
\nof the Constitution of India are not to be treated as
\nprecedent. (See  Haryana Financial Corporation and Anr. v.
\nJagdamba Oil Mills and Anr.<\/a> ).\n<\/p>\n
Furthermore, we may also notice that by reason of the said
\ndecisions in the Civil Appeal arising out of SLP (C) Nos.
\n13578-84 of 1992, the Apex Court did not lay down any
\nlaw within the meaning of Article 141 of the Constitution of
\nIndia.\n<\/p>\n
18. So far as the submission of Mr. Shali to the effect that the
\napplication was barred under the principles of res judicata
\nis concerned, it cannot be accepted. The earlier Original
\nApplication was filed in 1999; the advertisement was made
\nin February, 2000; the judgment in the earlier case was
\npassed on 16.03.2000; and the written examinations were
\nheld on 18.03.2000, the respondents, thus, could not have
\ntaken a chance by not appearing at the said written
\nexaminations and if some of them had appeared at the said
\nwritten examinations having regard to the fact that
\nsubsequent recruitment rules had come into force, they
\ncannot be permitted to take a different stand.\n<\/p>\n
19. For the reasons aforementioned, the impugned judgment
\ncannot be sustained, which is set aside accordingly. This
\nwrit petition is allowed. However, in the facts and
\ncircumstances of the case, there shall be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Govt. Of Nct Of Delhi And Ors. vs Dr. Anita Nanda And Ors. on 23 September, 2002 Equivalent citations: 2003 (68) DRJ 717 Author: S Sinha Bench: S Sinha, A Sikri JUDGMENT S.B. Sinha, C.J. 1. Interpretation of a notification dated 12.04.1999 is in question in this writ petition, which arises out […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-203084","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nGovt. 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