Sudhir Kumar, Member (A):

These 6 OAs were clubbed for the purposes of hearing together, and, therefore, are being decided through a common order. For the purpose of convenience, the facts may be described on the basis of the OA 3997/2011.

OA 3997/2011

2. The applicant has submitted that she had been performing the duties as Staff Nurse with the Respondent No.3 as a contractual employee since 2005 without any complaint whatsoever. Thus, she has claimed that she has attained the status of a permanent employee, though treated as contractual employee, on account of the nature of her appointment. All of sudden, without issuing any notice to her, and without asking for any explanations, the Respondent No.3 removed/terminated her services on 16.05.2011, though vacancies requiring her to perform duties in the hospital were still existing. After such removal/termination, the applicant made a representation dated 18.05.2011 through Annexure P-1 (page-24 of the OA), requesting the respondents to take her on duty, and to post her at any other hospitals, such as Lok Nayak Hospital, GB Pant Hospital, Bhagwan Mahavir Hospital, or even at the Directorate of Health Services, where vacancies of Staff Nurse are still existing. However, since the respondents have not taken her on duty, she has filed the present OA seeking the protection of the order passed by this Tribunal on 19.08.2011 in OA 950/2011 along with OAs 951, 952, 953, 954 & 955/2011 in Subhash Chandra vs. Govt. of NCT of Delhi & Ors., which cases, she has claimed, were similar in nature.

3. It has been submitted by the applicant that she was appointed as Staff Nurse in the year 2005, though no appointment letter was issued to her, and only a notice was pasted on the Notice Board, and her name had appeared therein. As per the directions given in the said Notice, she had joined the services and was working continuously with the Respondent No.3. She has also cited the case of 10 other Staff Nurses, who were working on contract basis with Maharishi Balmiki Hospital of NCT of Delhi, and on the joining of the regularly recruited incumbents against the sanctioned posts of Staff Nurses, those 10 Staff Nurses were relieved from that Hospital through office order dated 09.03.2009, and they were asked to report to the Medical Superintendent of Chacha Nehru Bal Chikistsalaya, Shastri Nagar, and they have been working in that second hospital on contractual basis since then. She has pointed out that those 10 Staff Nurses, accommodated in another hospital through Annexure P-2 order dated 09.03.2009, were appointed in 2008, much after her appointment in 2005. She has also submitted that the directions of Additional Secretary (Health), Govt. of NCT of Delhi dated 23.03.2009 have also not been followed in her case, even though in that circular it had been directed that the services of the existing contractual paramedical staff, like Staff Nurses, may be continued and all the paramedical staff rendered surplus due to regular appointment may be adjusted in the other Hospitals having clear vacancies, though engagement of fresh or additional contractual staff was ordered to be stopped, and it was directed that no Hospital shall move any proposal for engagement of fresh contractual staff.

4. It was submitted by the applicant that though vacancies are still existing in every Hospital of the respondents, for the reasons best known to them, they have not accommodated her in another Hospital, like the 10 other Staff Nurses accommodated on 09.03.2009 through Annexure P-3. She has, therefore, submitted that since more than 1000 vacancies are existing in the hospitals run by the respondents, and even now no regular appointments have been made through the Delhi Subordinate Staff Selection Board (DSSSB for short), the termination of her contractual services is in gross violation of the cited instructions dated 23.03.2009. It was further submitted that even this Tribunal had earlier in OA 2413/2003, decided on 14.01.2005, and in OA 1400/2001, decided on 21.07.2003, ordered the respondents not to terminate the services of contractual Staff Nurses till the regular appointments as per rules are made to the posts held by the applicants. She has filed a copy of the said judgments through Annexure P-4 (pages 29 to 42 and 43 to 47). As already mentioned above, the applicant has also claimed that her case is fully covered by the judgment dated 19.08.2011 passed in OA 950/2011 and other related cases through Annexure P-5 (pages 48 to 57 of the OA).

5. The applicant has further submitted that the respondents have failed to apply the principle of last in, first out in her case, as she is an appointee of 2005, while the contractual Staff Nurses appointed in 2008 are still working under Respondent No.3. She has submitted that the principle of last in, first out has to be applied based on the availability and non-availability of the posts in all the appointments by Respondent No.1, and any removal in any other way is absolutely illegal, and cannot be permitted to stand. She has further submitted that her Appointing Authority was the Director, Delhi Health Services, but the letter of termination of her contractual appointment has been issued by the Deputy Medical Superintendent, an Authority lower in rank than that the Appointing Authority, and on that count also, the impugned order is illegal, and cannot be allowed to stand. The applicant had, therefore, alleged victimization, and pick and choose policy having been adopted by the respondents, and has submitted that the letter dated 23.03.2009 issued by the Additional Secretary (Health) operates as promissory estoppel against the Government, and the services of all the contractual Nurses, who were working as on that date, i.e. on 23.03.2009, could not be terminated in the manner as she has been removed from the job. In the result, the applicant has prayed for the following reliefs:

(a) direct the respondents to take the applicant on duty with immediate effect and also to pay the salary and other dues of the applicant from 16.05.2011 onwards till the applicant is reinstated in the position of Staff Nurse in any of the hospitals run by Govt. of N.C.T. of Delhi and quash and set aside the letter dated 16.05.2011 issued by the respondent no.3;

(b) direct the respondents to pay in future the full benefits including the salary and other benefits including increment as being paid to other similarly placed employees; and

(c) direct the respondents to pay all other consequential benefits and also award costs in favour of the applicant.

OA 4163/2011

6. The applicant of this case had filed an almost exactly similar applications but as an additional document, filed an office order dated 02.07.2010 issued by the Deputy Medical Superintendent/Head of Office of Pt.Madan Mohan Malviya Hospital regarding the notice for walk-in-interview for appointment of Staff Nurses on consolidated monthly remuneration basis issued through Annexure P-1A (page-24) and by the Directorate of Health Services of GNCTD (page 24A of the OA). In his case, he had been appointed as a contractual employee in 2007, and his services had been terminated on 06.05.2011, on account of the joining of the regularly recruited Staff Nurse.

OA 4164/2011

7. The sole applicant of this case had also been appointed as a contractual Staff Nurse in the year 2008, and consequent upon the joining of the regularly recruited Staff Nurse, his contractual services had been terminated with effect from 27.06.2011 F/N, through order of the same date produced by him through Annexure P-1. However, all the facts of the case are the same as in OA 3997/2011, and he has also prayed for the same relief for quashing the order dated 27.06.2011.

OA 4174/2011

8. The sole applicant of this case had been appointed as a contractual employee in the year 2005 with the Respondent No.3, and his services were terminated on 11.05.2011, on the joining of the regularly recruited Staff Nurse, and has filed an exactly similarly worded OA, even including the relief portion of the OA.

OA 4177/2011

9. The sole applicant of this case was appointed as a contractual employee in the year 2008 with the Respondent No.3, and was similarly removed/terminated on 06.05.2011, on the joining of the regularly recruited Staff Nurse. She had also filed an exactly similarly worded OA, as the first OA, even including the relief portion.

OA 4364/2011

10. The sole applicant of this case had been appointed as a contractual Staff Nurse in the year 2005 with the Respondent No.3, and she has been removed/terminated from services on 06.10.2011, on the joining of the regularly recruited Staff Nurse, and she had also filed an exactly similarly worded OA, as the first OA, even including the relief portion. The only extra document, which she has filed, was the certificate issued to her on 19.10.2011 by the Medical Superintendent of her Hospital, to certify that she had worked as Staff Nurse on contractual basis from 22.09.2005 to 06.10.2011 on consolidated remuneration basis in Eye Ward, Eye OT, and her work was sincere, honest and that she will excel in her life.

11. The respondents had filed their counter reply in all these cases except in OA 4147/2012. In their counter reply in the leading case OA No.3997/2011, the respondents submitted that the applicant therein had been engaged by the Directorate of Health Services, GNCT of Delhi, vide letter dated 29.08.2005, on contract basis for a period of 89 days initially through Annexure R-1, and that the applicant had joined duties through upon accepting the assignment through her acceptance dated 02.09.2009, with full knowledge that it is purely a contract assignment for 89 days initially, and can be terminated at any stage by the Competent Authority, without any notice. The respondents also submitted that this contractual appointment was further extended through Annexure R-3, and in pursuance of the Instructions dated 14.09.2007, the applicant was re-appointed with effect from 12.11.2007 for a period of 11 months, or till a regular incumbent joins the post whichever is earlier, on the basis of her consent to the terms and conditions mentioned in the letter of offer of engagement on contract basis. On completion of said 11 months period, after one days break, fresh contractual appointment was again granted to the applicant with effect from 12.10.2008 to 12.07.2011, on the basis of her satisfactory work.

12. However, when the regularly recruited Staff Nurse Ms. Anita was posted to the Respondent No.3 Hospital through Annexure R-4 order dated 03.05.2011, engagement of the applicant was terminated, as per the terms and conditions already accepted by her, vide impugned office order dated 16.05.2011. It was submitted that the services of the applicant could have been so terminated, as while accepting the contractual appointment on 02.09.2005 through Annexure R-2 for 89 days, and later the contractual appointment for 11 months on the basis of R-3 dated 14.09.2007, the applicant had on both occasions accepted that her engagement was purely on contractual basis, and it shall be deemed to have automatically come to an end on expiry of contractual period of engagement, or till a regularly recruited incumbent joins, whichever is earlier.

13. It was further submitted that since the engagement of the applicant was only to respondent no.3 Hospital, and when the regularly recruited incumbent had joined the respondent-Hospital, no vacancy existed in that Hospital for the applicant, and that there is no provision for transfer of such contractual employees to other Hospitals of Delhi Government. It was further submitted that no instructions were received by the respondents regarding continuation of surplus contractual staff even after joining of the regularly recruited incumbents. The respondents had, therefore, cited the Honble Apex Court judgment in the State of Punjab vs. Baldev Singh (1991) 6 SCC 172 to submit that precedents have to be examined in the light of the law declared in the facts of the case concerned, and that a decision of the court takes its color from the questions involved in the case, in the context of which it is rendered, and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of the Apex Court, and that it is neither desirable nor permissible to pick out a word or a phrase or a sentence from a judgment of the court, divorced from the context of the question under consideration, and then treat it to be the complete law declared by the Apex Court.

14. It was further submitted that only two Staff Nurses, including the applicant, were working on contract basis with Respondent no.3, Hospital, and since the Heads of the Departments of the Hospitals have been directed to decide themselves regarding the issue of termination or otherwise in respect of the contractual staff engaged, consequent upon the joining of the regularly recruited staff Nurses, services of both the contractual Staff Nurses had been terminated, and that there has been no discrimination or arbitrary action on the part of the respondent Hospital. It was further submitted that the applicant is bound by the terms and conditions of the letter of her engagement on contract basis, and she cannot now claim reliefs beyond those terms and conditions. It was further submitted that when there is a binding contract, the terms and conditions of the contract are paramount, and would override all other considerations, and the applicant has not claimed any breach of contract, but has rather impliedly admitted that her termination was, indeed, in terms of the contract and, therefore, there can be no subsisting grievance.

15. It was further submitted that now there is no post vacant in the Hospital against which the applicant can be adjusted, whether on contract or any other basis, and that no promise was ever made to the applicant, whether in particular or in general, and the principle of estoppel cannot, therefore, apply in the instant case, and the averment of the applicant in this regard was denied.

16. In their counter reply filed in OA 4163/2012 on 06.02.2011, the respondents had taken a preliminary objection therein that the applicant had not made any representation to the respondents for redressal of his grievance, and since he has not exhausted the remedies by making a representation to the respondents, under Section 20 of the AT Act, the OA should be dismissed in limine for not exhausting the alternative remedies before approaching the Tribunal. In this context, the respondents had cited the judgment of the Apex Court in S.S.Rathore vs. State of M.P., AIR 1990 SC 10 [LQ/SC/1989/443] , relied upon by this Tribunal in its order dated 19.09.2011 in OA 1299/2011 in Brij Mohan Verma vs. Municipal Corporation of Delhi. The respondents had further cited the Honble Apex Court judgment in Om Prakash Srivastava vs. Union of India (2006) 6 SCC 207 [LQ/SC/2006/646] to submit that since the applicant has not complained about violation of any terms of his contract, no cause of action had accrued in his favour, and the applicant does not have any legal and sustainable grievance, and, therefore, the OA is not maintainable.

17. The respondents had further cited the Honble Apex

Court judgment in the case of State of UP vs. Neeraj Awasthi and Others (2006) 1 SCC 667 [LQ/SC/2005/1268] , wherein it has been held that the Executive does not have powers to make recruitment de hors the statutory rules, which law has been reiterated with overwhelming force by the Constitution Bench of the Honble Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi (3) and Others (2006) 4 SCC 1 [LQ/SC/2006/324] : AIR 2006 SC 1806 [LQ/SC/2006/324] , to submit that the applicant was only engaged on contract basis as per the terms and conditions of the contract, to fill a specific gap, which gap has now ceased to exist, with the joining of the regularly recruited incumbent, and there is no sustainable grievance of the applicant that may attract judicial scrutiny, and, therefore, it was pleaded that the OA is not maintainable. It was further submitted that even if there were regular vacancies of Staff Nurse earlier, the applicant cannot be allowed to claim appointment against those in violation of the statutory rules. It was further submitted that it is a matter of policy for the respondents to decide whether a post has to be filled on contractual or on regular basis, and the applicant cannot interfere with such administrative and policy decisions of the respondents. Ms.Alka Sharma, learned counsel for the respondents, had filed similar counter replies in OA 3997/2011, OA 4163/2011 and OA 4177/2011. She was, however, not present on the date of final hearing of these clubbed cases.

OA 4164/2011

18. In the counter reply filed in this OA on 18.04.2012, similar submissions were made by the respondents. On the point of prayer for transfer of the contractual services of the applicant from one Hospital to another, the respondents had produced the circular dated 25.01.2011 issued by the Deputy Secretary, Health & Family Welfare, Govt. of NCT of Delhi, by which it has been clarified that since the appointment on contractual basis is not a regular mode of recruitment, and such contractual arrangements against the available Group B & C level vacancies have been made by the individual Hospitals, it would not be possible to permit any inter-departmental transfer of such contractual staff, and such contractual appointments made by the Hospital is specific to that Hospital only, and, therefore, in the event of any contractual appointee in a Hospital becoming surplus on account of filling up of the vacancy on regular basis, her/his contract will stand terminated, and such contract appointee will not be appointed even against vacant post of any other category, even if such vacant post exists, as the original contractual appointment of the employee was done against a specific post.

19. The respondents had further denied the applicability of the earlier instructions of the Additional Secretary (Health) issued through letter dated 23.03.2009 mentioned in para-2 & 3 above, to the case of the applicant, as the services of the applicant had been terminated on account of posting of a regular incumbent against the sanctioned post, on substantive basis, and the subsequent direction issued by the Govt. of NCT of Delhi through Annexure R-IV dated 25.01.2011, as cited above. It was, therefore, prayed that the OA has no merit, since the Honble Apex Court has in a catena of judgments observed that the contractual employee has no right to continue in a post in the event of regular appointment to the particular post in a substantive capacity. Therefore, it was prayed that the OA may be dismissed.

OA 4177/2011

20. As mentioned above also, the respondents had in this case also filed a counter reply on 06.02.2012, exactly similar worded as in the case of OA 4163/2011, and, therefore, those contentions need not be repeated.

OA 4364/2011

21. In the counter reply filed on 24.02.2012, apart from other similar/parallel arguments the respondents had submitted that the applicant initially joined duty in the hospital purely on contractual basis, and that since one regularly recruited Staff Nurse had joined, and the engagement of the applicant was specific to the respondent-Hospital, the earlier cited instructions issued on 09.03.2007 by the Maharshi Balmiki Hospital could not be made applicable to the present applicant appointed by the present respondents, as there was no provision for transfer of such contractual employees from one Hospital to another. It was further denied that any instructions had been received regarding continuation of surplus contractual staff even after the regularly selected incumbent joins in the vacant post on substantive basis. It was submitted that in the termination of the applicants engagement was imperative, and there was no scope to continue a surplus staff in the absence of the sanctioned post, and that the termination order was in order since the Heads of Department of the Hospitals have been delegated the powers of engagement of the contractual employees, as well as their termination consequent upon joining of the regularly selected staff. In the result, the respondents had prayed that the OA is not maintainable and deserves to be dismissed.

22. We have heard the learned counsel for the applicant in all the cases. The Departmental representative was present on behalf of the respondents in OA 3997/2011, OA 4167/2011 and OA 4177/2011, as the concerned counsel could not appear for advancing her arguments. However, the learned counsel for the respondents in OA 4164/2011, OA 4174/2011 and OA 4364/2011 argued on behalf of the respondents. We have also considered the facts of the cases, and the issues raised by the applicant and the respondents. The applicants have raised the following issues:

i) that their Appointing Authority was higher in rank than the Authority in the Hospital who terminated their services;

ii) that the doctrine of promissory estoppel would apply in view of the instructions dated 23.03.2009 issued by the Additional Secretary, Health & Family Welfare, Govt. of NCT of Delhi, that the contractual staff rendered surplus in any Hospitals should be allowed to continue till persons on regular appointment have been adjusted in all the Hospitals having clear vacancies;

iii) that the respondents have not followed the principle of last to come, first to go ;

iv) that the applicants have been removed from their contractual appointment with their respective Hospitals, even though equivalent vacancies existed in the other Hospitals, and the respondents have continued to advertise for walk-in-interviews in respect of such vacancies;

v) that 10 of the similarly placed contractual appointees were adjusted on transfer basis in another Hospital through order dated 09.03.2009.

23. In their counter replies, the respondents have taken the stand that the (1) applicants have not exhausted the alternative remedies available to them and rushed to this Tribunal and therefore, the OAs are not maintainable under Section 20 of the AT Act, 1985, and (2) that there is no violation of the terms of their contract, as already provided in the letter of offer of engagement on contractual basis for a period of 11 months or till a regular incumbent joins the post, whichever is earlier, and that the services of the applicants have been terminated only after the regularly selected incumbents were posted to these Hospitals and, therefore, in the absence of any violation of their terms of contract, no cause of action has arisen in favour of the applicants; (3) that the applicants were fully in the know of the fact that their engagements were purely contractual with the condition that their services can be terminated after the appointment of regularly selected incumbents, and, therefore, they cannot claim the reliefs, as reproduced in para-4/ above.

24. We also have gone through the previous judgments of this Tribunal filed before us, in which it is seen that OA 2413/2003 decided on 14.01.2005 in Lovely Rani Arora and Others (supra) and OA 1400/2001 decided on 21.07.2003 in Victoria Massey and Ors (supra) were decided much before the Honble Apex Courts judgment in Secretary, State of Karnataka vs. Uma Devi (3) (supra), and, therefore, these two judgments of the Tribunal cited before us are obviously per incurium, and cannot constitute the law as on date. Only the judgment dated 19.08.2011 in OA 950/2011, Subhash Chandra vs. Govt. of NCT of Delhi & Ors along with 5 connected matters, was pronounced after the land mark Constitution Bench judgment of the Honble Apex Court in Secretary, State of Karnataka vs. Uma Devi (3) (supra). It is seen from that judgment that this Tribunal had noted that the services of the applicants had been terminated in violation of the directions given by the Additional Secretary (Health) as also various orders passed by this Tribunal as well as orders of the Honble High Court of Delhi not to remove the contractual Staff Nurses from the job till the vacancies are filled in up by the regular incumbents, and that those OAs were disposed of with the following directions when the existence of vacancies against which no regular/substantive appointments had been particularly noted, as follows:-

We partly allow these Original Applications with the direction to the respondents to reconsider fresh appointment or continuation of the employment of the applicants from the date their services were terminated, in the light of our observations made above. To be more specific, we would direct the respondents to go into the issue afresh as to whether the applicants need to be continued in service or re-appointed, as persons on same posts who came to be engaged later in point of time have been adjusted, there are vacancies in existence against which no regular appointments have been made so far, and the directions of the Additional Secretary (Health) that there would be no need to shunt out the contractual staff rendered surplus due to regular appointments and they need to be adjusted in hospitals having clear vacancies. If the respondents may consider that the applicants are not entitled to continue in service or even for fresh appointment on the same terms, then a speaking order shall be passed meeting the points mentioned in this order, and in that case, it would be open for the applicants to challenge the said order in separate proceedings. Let the exercise as ordained above be done by the respondents as possible and definitely within a period of four weeks from receipt of certified copy of this order. There shall, however, be no order as to costs.

(Emphasis supplied).

25. In the instant cases, the termination of contracts of the applicants has been after the vacancies have been filled up by the regularly selected incumbents. Therefore, the benefit of that judgment cannot be extended to the present applicants.

26. On the contention of the applicants that their termination is illegal, as it has been done by an authority, who is lower in rank to the Appointing Authority, it is seen that this concept of law is applicable only in respect of substantive appointments to a post, and cannot ipso-facto apply in the case of contractual appointees. Moreover, the contractual appointees were so appointed only on a stop-gap-basis, and a list was put up by an authority on the Notice Board, deputing the contractual selectees therein to the different Hospitals, and those different Hospitals had then issued the orders of their contractual appointments, which were accepted by the authority concerned. Therefore, this contention of the applicants is squarely rejected.

27. The next contention of the applicants regarding the respondents having held out promissory estoppel in view of certain instructions dated 23.03.2009 issued by the Additional Secretary (Health), that their services may be continued, and that till all contractual staff are rendered surplus due to regular appointments, they may be adjusted in other Hospitals having clear vacancies, since this aspect has already been gone into by the judgment of the coordinate Bench in its order dated 19.08.2011 in OA 950/2011 Subhash Chandra and 5 related 5 cases, we would not like to add any further comments.

28. Similarly, their plea regarding last to come, first to go principle, and the plea against termination / removal even though vacancies exist in other Hospitals, and the plea that since 10 such similarly placed persons were adjusted on 09.03.2011, they should also be given the same benefits, have also been touched upon by the coordinate Bench in Subhash Chandra (supra) and therefore we would not like to make other separate comment on this matter. When those orders of the Tribunal in Subhash Chandra (supra) are read in a conjoint manner with the ratio of the law as laid down by the Constitution Bench of the Honble Apex Court in Uma Devi (3) (supra), we feel bound to state that Contractual Appointment in one Hospital does not give rise to any rights in favour of the applicants to force the respondents to provide them with contractual appointments in other Hospitals.

29. In the prayer Clause 8(b) in all these OAs, the applicants have made a similar prayer, which is reproduced as follows:-

(b) direct the respondents to pay in future the full benefits including the salary and other benefits including increment as being paid to other similarly placed employees.

30. This aspect was not covered in the judgment dated 19.08.2011 passed by the coordinate Bench but has since been comprehensively covered by another Coordinate Bench in the order dated 04.10.2012 in OA No.3617/2010 with OA No. 4371/2011 & OA No.277/2011, and, therefore, it is held that contractual and temporary employees can not be held to be entitled to either the full salary and other benefits, or increments, as has been held by the coordinate Bench on 04.10.2012 as follows:-

The relief regarding grant of regular pay scale/benefits like regular pay scales, increments, deduction of GPF, bonus etc. cannot be granted to the applicants in view of the decision of the Honble Apex Court, which are as follows:

i) Orissa University of Agriculture & Technology v. Manoj K. Mohanty, 2003 (1) SC Service Law Judgment page 363.

ii) Utkal University and another Vs. Jyotiramyee Nayak & others, 2003 (2) SC Service Law Judgment page 249.

iii) Km. Priti Chopra v. Managing Director, 2002 (2) All India Service Law Journal page 197.

iv) Mahendra Lal Jain & others v. Indore Development Authority & others, 2005 Vol.1 SCC 639.

v) State of Haryana v. Charanjit Singh, 2006 Vol.9 SCC 321.

9. The legal position in respect of casual or contract employees are not entitled to increment 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. The said benefit cannot be granted to the applicants since they are not regular employees and they are not seeking for regularization.

10 to 12 xxx xxx xxx xxx

13. On the admitted facts narrated in the preceding paragraphs it is very crystal clear that the applicants were engaged on contractual basis, initially they were engaged for 89 days, that was continued from time to time and as of now they are working. They have not completed 10 years of service on contractual basis and they are not eligible for regularization in view of the judgment of the Honble Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi & others, (2006) 4 SCC 1 [LQ/SC/2006/324] and State of Karnataka & Ors. v. K.L. Kesari & Ors., 2010 (7) SCALE 743. It is not the case of the applicants that they want regularization. They want only annual increments, leave benefit (casual leave and earned leave,) health card facilities, child care allowances etc. as has been given to regular employees, at par with regular employees. Applicants relying upon the increments given to the employees of one of the Institutions run by NCT of Delhi admitted that Cancer Institute is not notified under Section 14 of the Administrative Tribunals Act, 1985. We are of the view that the benefit given to the employees of Cancer Institute, Delhi cannot be considered that the similar benefit has to be given to the applicants. Applicants are relying upon the judgment of this Tribunal in OA-2108/1999 dated 18.05.2000. The said OA was filed by the Doctors. They are also working on contractual basis. We are of the view, that the applicants cannot compare their service at par with the Doctors, the nature and duties of the Doctors and the nature and the services of the applicants are totally different. The grievance of the applicants that the respondents should not discriminate amongst similarly situate employees as per the directions of the Honble High Court in WPC No.8476/2009 dated 22.05.2009 has to be granted to the applicants. It is relevant to extract the observations made by the Honble High Court of Delhi, which 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.

14. The said judgment of the Honble High Court of Delhi has been affirmed by the Honble Apex Court in SLP (C) No.14208/2009 dated 09.07.2009. The respondents contended that the judgment of the Honble High Court (supra) has been complied with under compulsion vide order dated 19.04.2010 in CP No.686/2009, 69/2010 and 311/2009. Respondents of their own have not sanctioned the increment to Mrs. Swaran Kanta Bhatia & applicants cannot seek the similar benefit, which has been given to Smt. Swaran Kanta Bhatia under the principle of discrimination. Applicants contended that when the similar benefits have been given to one Smt. Swaran Kanta Bhatia, respondents cannot deny the benefit to the applicants.

15. We have carefully considered the submissions of the learned counsel from either side on the ground of discrimination. Under the facts and circumstances of this case we are of the opinion that the annual increments would be granted to regular employees if the employees are appointed under the recruitment rules framed under Article 309 of the Constitution of India by inviting applications by publication in accordance with the selection procedure. Those employees are only eligible for annual increment attached to the pay scale. The pay scale shall be given to the regular employees only. In the present case the applicants are not seeking regularization of their services. They want only increments and other benefits as prayed in the OA. Admittedly the applicants are contractual employees. The increments given to the employees of an autonomous body, i.e, Cancer Institute of Delhi, the said benefit cannot be extended to the applicants. The said Institute has not been notified under Section 14 of the Administrative Tribunals Act, 1985. It is the prerogative power of the Executive to fix the pay scale to a particular post, as held by the Honble Supreme Court in R.L. Bansal v. Union of India, AIR 1993 SC 978 [LQ/SC/1992/396] . The applicants have no legal right to ask for grant of increments and other benefits since they are not regular employees, the increment granted under the court order, i.e., in CP (supra) cannot be extended to the applicants. Respondents on their own have not granted increments to Mrs. Swaran Kanta Bhatia. We have great respect to the orders of the Honble High Court. The Honble High Court has made it clear that 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.

16. We have taken care of the observations made by the Honble High Court. We have great respect to the judgment, but the Honble High Court has not laid down the law in respect of grant of increment to the employees working on contract basis.

17. Applicants have relied upon the judgment of this Tribunal in OA No.282/2011 dated 11.01.2012 in the case of Pawan Kumar v. Govt. of NCT of Delhi & Others. The said OA was filed for grant of benefit as was granted by this Tribunal in the case of Victoria Massey & Anr. V. NCT of Delhi & Ors. in OA No.1300 & 1331 of 2007, decided on 23.07.2008 and another judgment in OA No.1843/2007 dated 29.12.2011 in Swastika Bhakat & Ors. v. Govt. of NCT of Delhi & Others. The learned counsel of applicants has taken us to paragraph-8 of the said judgment. The Tribunal has decided the case based on the decision of the Full Bench in Victoria Massey (supra) and also the observations made by the Honble High Court, that in case the respondents have given pay parity and increments to those Nurses appointed on contract basis then it would be extended to the applicants also on the principle of equality and equal treatment. However, if such benefits have not been granted to other similarly situated staff nurses appointed on contract basis the respondents are not entitled to either increments or promotion.

18. On the admitted facts narrated in the earlier paragraphs and also the observations made by the High Court in WPC No.8476/2009 with WP(C) No.279/2008, WP(C) No.8764/2008 and WP(C) No.8844/2008 it is evident that the respondents on their own have not granted increments to Swarana Kanta Bhatia. The increment was given only to that applicant as per the direction of this Tribunal in Contempt Petition No.686/2009. In our view the increment given to one of the applicants who is working on contract basis that benefit cannot be extended to others who are similarly situated. As observed in the earlier paragraphs the applicants are not seeking regularization since they are not eligible for regularization in view of the judgments of the Apex Court in the case of Umadevi (supra) and M.L. Kesari (supra). When the increment is attached to a pay scale, the pay scale will be given only to the regular employees. The increment given to the employees of the Delhi Cancer Institute cannot be considered that the similarly situated contract employees are also entitled for the increment and other benefits as prayed for. Applicants have no legal right to ask for annual increment and other benefits, their services cannot be equated with the services of the regular employees. Hence, applicants have failed to establish their case for grant of reliefs as prayed for in the OAs. The respondents are justified in their reply statement and their specific stand that they have not discriminated the applicants since the applicants are not eligible for grant of increments and other benefits as prayed in the OAs. Accordingly, OAs are liable to be dismissed.

19. OAs are dismissed but with no order as to costs.

31. Since the present OAs were not rejected at the threshold in view of the case law as exists on the ground that the applicants have chosen to approach this Tribunal directly instead of exhausting the alternative remedies at this late stage, we find it difficult, rather impossible, to reject these OAs on the ground taken by the respondents that these OAs are not maintainable, and liable to be rejected as per Section 19 of the AT Act, 1985.

32. The second ground taken by the respondents is that there has been no violation of the contract terms, as all of the applicants have been removed only when the regularly selected incumbents have joined against the vacant post, against which the applicants were earlier working on contract basis, and, therefore, no cause of action has accrued in favour of the applicants, but we are unable to agree with this contention, in view of the observations of the coordinate Bench in OA 950/2011 Subhash Chandra and other connected OAs decided on 19.08.2011.

33. It is trite law that the Courts (and Tribunals) cannot direct the Government to create posts, or to fill up already created posts, or to change its policy regarding filling up or not filling up posts, which involves financial burden, as has been held by the Honble Apex Court in a number of cases:-

(1) Commissioner, Corporation of Madras vs. Madras Corporation Teachers Mandram: (1997) 1 SCC 253 [LQ/SC/1996/1934 ;] ;

(2) Union of India vs. T.P. Bombhate: (1991) 3 SCC 11 [LQ/SC/1991/270] ;

(3) Mallikarjuna Rao & Ors. etc.etc. vs. State of Andhra Pradesh & Ors. etc.etc.: 1990 (1) SCALE 705. [LQ/SC/1990/228]

34. However, in view of the above discussion, though noting that the applicants have no vested right to claim any such adjustment on fresh Contractual Appointments in other Hospitals, as mentioned already in para 27/above, but following the judgment of this Tribunal in Subhash Chandra (supra), we also direct the respondents to consider offering fresh contractual appointments to the applicants in those other Hospitals, where vacancies are still in existence, against which no substantive/regular appointments have been made so far, and even the process of regular recruitments has not commenced, on the same terms and conditions, as the applicants were enjoying earlier till the date of termination of their contractual appointments from the respondent Hospitals, as ordered in this Tribunals order dated 19.08.2011 also. If the respondents consider that the applicants are not entitled for such fresh contractual re-appointments on the same terms and conditions even on contractual basis, then a speaking order be passed meeting the points as mentioned in the order dated 19.08.2011 passed by the coordinate Bench in OA 950/2011 (supra).

35. With the above directions, these six OAs are partially allowed. There shall be no orders as to costs.