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Dr. Neena Shad w/o Dr. Sunil Choudhary v. Municipal Corporation of Delhi, Town Hall - Case No. 10/2010 [2010] INCAT 994 (28 April 2010)

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

NEW DELHI

Transferred Application No.10/2010

This the 28th day of April, 2010

HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN

HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)

Dr. Neena Shad w/o Dr. Sunil Choudhary,

R/O C-5/38, Yamuna Vihar,

Delhi-110053. Applicant

( In person )

Versus

Municipal Corporation of Delhi,

Town Hall, Delhi-110006

through its Commissioner. Respondent

( My Ms. Reetika Chawla for Shri Arun Bhardwaj, Advocate )

O R D E R

Justice V. K. Bali, Chairman:

Dr. Neena Shad, the applicant herein, who, it may though prima facie appear to us, to have been meted out with discriminatory treatment, perhaps cannot be granted any relief. The applicant filed Writ Petition bearing WP(C) No.11791/2009 before the Honble High Court of Delhi under Article 226 of the Constitution, seeking a writ in the nature of mandamus directing the respondent to treat her similar to other doctors working on same terms and conditions, on which she was employed. The said writ petition has since been transferred to this Tribunal and numbered as Transferred Application No.10/2010.

2. The facts as set out in the Application reveal that the applicant was appointed on contractual basis with the respondent Corporation as Ayurvedic Vaid [Medical Officer (Ayurvedic)] on 25.11.2002 after selection on competitive basis through a walk-in interview conducted by the respondent in the year 2000. Forty-one doctors were selected as Medical Officer (Ayurveda) on contract basis through the said walk-in interview. The respondent again conducted a walk-in interview and employed 26 more doctors as Medical Officer (Ayurveda) on contract basis in the year 2005. In all, 67 doctors were appointed on contract basis on same conditions. The contractual appointment was for six months initially or till such time the post was to be filled up on regular basis through UPSC, whichever was to be earlier. Services of the whole batch of contractual Ayurvedic Medical Officers were being extended from time to time continuously without break. Each extension was for a period of six months at a time. It is the case of the applicant that these contractual Ayurvedic doctors are continued through an automatic extension route after expiry of each extension period, with prior approval of the competent authority, though formal extension letters are issued by Additional Deputy commissioner (Health) to such doctors during the extended period to meet internal requirements, such as salary, leave and other allowances. Contractual appointment of the applicant had always been extended along with the whole batch of 67 ayurvedic doctors from time to time, continuously since her joining in the year 2002. It is her case that she always discharged her duties diligently and with full dedication for around six years without break. The letters of extension have been placed on records as Annexure P-2 (colly). Husband of the applicant was also appointed on same terms and conditions as Medical Officer (Ayurveda) on contractual basis and joined his duties on 21.12.2001 and was senior to the applicant. The last period of extension of the applicant expired on 7.5.2008. The petitioner was continued in service along with the whole batch of 67 contractual ayurvedic doctors with prior approval of competent authority. It is her case that suddenly on 2.7.2008, Deputy Health Officer (ISM) posted Dr. Kamlesh Sharma at the dispensary where the applicant was already posted, without any further orders for the applicant. There was only one post of Medical Officer (Ayurveda) at the said dispensary. The applicant insisted to continue her duties parallel to Dr. Kamlesh Sharma but she was stopped forcibly by Dr. Sharma and asked to leave the dispensary premises in a very perplexed way. Constrained thus, the applicant contacted higher authorities about her further duties but she got no response. She was constrained to sit idle for two days while she found an envelop dropped at her residence, containing an office order issued by Additional Deputy Commissioner (Health) dated 3.7.2008 (Annexure P-5). It was stated in the said office order that Her period of contract has expired on 07.05.2008. The Competent Authority has not approved her re-engagement and hence, she is no more in Municipal services. Similar office order was communicated in respect of husband of the applicant at their residence. The couple tried their best to explore the probity of the vague office orders communicated to them by Addl. Dy. Commissioner (Health) as mentioned above, but got no clarification about the same. Eversince then, the applicant and her husband have not been posted anywhere and their services have been discontinued. All other contractual Ayurvedic doctors, even those who are junior to the applicant and her husband, are stated to be continuing in service.

3. On the facts as fully detailed above, the applicant, who appears in person, would vehemently contend that she has been discriminated and victimized by the respondent, and that there could be no reason for the respondent to throw away the husband and wife, who were far senior to those who have been retained or continued in service till date. The treatment meted out to the applicant and her husband would be violative of articles 14 and 16 of the Constitution of India, thus contends the applicant. Even in a contractual employment, if there be no requirement of some of the employees, the last appointed person has to go first, and that in the present case, there was a continued requirement of contractual employees, further contends the applicant.

4. During pendency of the writ petition before the High Court, an application seeking amendment in the writ petition was filed, which was, however, allowed by this Tribunal when the matter came to be transferred to it.

5. Pursuant to notice issued by this Tribunal, the respondent has entered appearance and filed its reply contesting the claim of the applicant. It is significant to mention that on the basic facts with regard to employment of the applicant and her husband on contractual basis, the dates of their employment, and employment of others along with the applicant on same terms and conditions, there is no dispute at all. There is no dispute either with regard to 26 doctors being appointed after appointment of the applicant on same terms and conditions. The applicant, on the basic facts as mentioned above, contends that she and her husband have been discriminated. There are hardly any arguments by the learned counsel representing the respondent to counter the plea raised by the applicant. The Transferred Application is yet sought to be dismissed on two grounds, one being that the applicant filed a writ petition earlier in point of time bearing WP(C) No.7037/2008 for exactly the same relief, which came to be dismissed by a learned Single Bench of the Delhi High Court on 26.9.2008. The LPA filed against the said order was also dismissed on 24.10.2008. Therefore, present Application would be barred by principles of res judicata, as also that the applicant has not come to this Tribunal with clean hands, inasmuch as she has suppressed filing of the earlier writ petition and the result thereof. With regard to the second objection raised as mentioned above, the applicant, who appears in person, would state that she has got the Transferred Application amended to incorporate the factum of the earlier litigation and the result thereof, to which, it is stated by the learned counsel representing the respondent that the amended Application is not as per the proposed amendment sought for by the applicant in the misc. application seeking amendment, and that such reliefs/facts have been incorporated which were not even sought to be incorporated. With regard to the first objection as raised by the learned counsel for the respondent, the applicant would contend that the present case involves her fundamental rights, and there cannot be any res judicata, particularly if no relief was sought on the ground of discrimination, and there were no pleadings to that effect, nor the matter was in issue, nor even the court had commented upon this issue.

6. When this matter came up before a learned single Judge of the High Court on 18.9.2009, the following order, insofar as the same is relevant, was passed:

By way of the present petition the Petitioner seeks a mandamus to direct the Respondent to treat the Petitioner similarly as other doctors working with the Respondent.

The Petitioner states that out of the whole batch of 41 doctors including the Petitioner, who have been working with the Respondent on similar terms and conditions, since the year 2002 continuously, only the Petitioner and her husband have not been reengaged by the Respondent till now whereas all other doctors belonging to the same batch have been reengaged.

On 7.12.2009, on the plea raised by the respondent that the applicant had earlier filed another writ petition for the same cause of action and the same relief, the Honble Judge then seized of the matter passed the following order:

Copy of the counter affidavit has today been supplied to the petitioner and counsel for the respondent says that original would be filed in the Registry during the course of the day.

Counsel for respondent has today submitted that petitioner also had filed writ petition which was dismissed. Petitioner says that in that writ petition the ground taken in the present writ petition that the discontinuance of her services, even though the same was contractual, while as many as 39 other doctors who were also being given contractual appointments for years together, are still being continued to be given extensions and that grievance of violation of Article 14 of the Constitution of India gives her an independent right to raise the grievance.

Counsel for respondent today is not in a position to refute the contention that in the earlier writ petition ground of violation of Article 14 was taken or not. However, she says that she would place on record a copy of the earlier writ petition filed by the petitioner for perusal of this Court and then matter may be heard further.

Renotify on 8th December, 2009.

Copies of the writ petition filed by the applicant, the orders passed by the learned single Judge and the Division Bench in LPA have been placed on records by the parties. We may only refer to the relevant part of the pleadings made in the earlier writ petition No. 7037/2008, as emanating from paragraphs 14, 16, 17, 18 and grounds E and F thereof. In para 14, it was pleaded that the services of the applicant were extended on 18.1.2008 up to 7.5.2008 from 8.11.2007, and that the applicant and her husband received letters dated 3.7.2008 in which it was stated by the respondent that the competent authority had not approved their re-engagement and that the petitioner was no more in municipal service. The said communication is stated to be arbitrary and mala fide. In para 16, it was inter alia pleaded that in the year 2005 or 2006 UPSC had filled up some vacancies, and that there were about 8-10 doctors who were in excess, but they had not been removed from service. In para 17 it was pleaded that the respondent twice appointed on contract basis approximately 35 doctors with the same conditions as in the case of the applicant. Para 18 reads as follows:

18. That the services of the petitioner removed with no reason and except that the authorities did not extend the contract period. No reason has been assigned why the period of the petitioner and her husband have not been extended out of the complete list.

Grounds E and F read as follows:

E. Because no reason has been assigned why only the petitioner and her husbands services were terminated/not extended while other persons are still working with the respondent.

F. Because there were other person/doctors who are either junior or senior to the petitioner is still working with the respondents.

7. What clearly emerges from the pleadings as reflected above is that the applicant had indeed pleaded discrimination, even though the facts were not in that detail as in the present case. Whereas, in the present Transferred Application the applicant pleads appointment of 41 doctors including her, appointment of her husband earlier in point of time, and appointment of 26 doctors later, while in the earlier writ petition, the mention was of 35 doctors. Whether 35 doctors junior to the applicant were continued or more, should have made no difference. The fact of the matter is that pleadings with regard to appointment of more persons on similar terms and conditions and retention of others was specifically pleaded. Two specific grounds on discrimination were also taken. We also find that the applicant did not mention filing of her first petition and the result thereof, and tried to incorporate this in the amended Application.

8. When the matter came up for hearing before us on 25.3.2010, we recorded the following order:

We have heard arguments at considerable length. Whereas on one hand the stark fact that stares one on the face is that the applicant and her husband have been shown the exit door, all those who were appointed along with the applicant on exactly same terms and conditions and even those who came to be appointed even after three years, are continuing. The other fact which too would need serious consideration is that applicant also filed petition before High Court where one of the grounds pleaded was discrimination, but she lost the cause up to the Letters Patent Bench. These two points have to be settled by this Tribunal. Before we may do so, Mr. Bhardwaj, counsel defending the respondents, seeks time to have instructions in the matter.

List the matter again on 13.4.2010.

Shri Bhardwaj, on instructions, states that the respondent would not accommodate the applicant or her husband in any manner whatsoever.

9. Having heard the applicant and Shri Bhardwaj, learned counsel representing the respondent, we are of the view that even though, the applicant may appear to have a case of discriminatory treatment meted out to her, but because of her filing writ petition for the same relief and on the plea of discrimination as well, it would be difficult to give any relief to her. We are of the firm view that the pleadings with regard to discrimination meted out to the applicant were indeed made in the earlier writ petition filed by her, and the relief asked for, in any case, was the same as has been asked for in the present Application. The mere fact that nothing with regard to discrimination came to be referred to by the learned single Judge who dismissed the petition, may not entitle the applicant to file fresh petition for the same cause of action. Even though, as mentioned above, the plea of the applicant is based upon discrimination, the same did not come to be referred to or discussed, but once, it was taken, the applicant ought to have stressed upon the same, and if yet aggrieved, she could seek remedies like review or appeal against the orders passed by the learned single Judge/Division Bench, but fresh petition on the same plea would be impermissible. We are conscious that by virtue of provisions contained in Section 22 of the Act of 1985, the Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, but, at the same time, as per the provisions contained in the same very Section, it shall be guided by the principles of natural justice. Provisions contained in Section 11 CPC are in fact based upon the principle of natural justice that no one can be vexed twice for the same cause of action. Even if, therefore, provisions of Section 11 CPC may not be strictly applicable in the present case, principles of natural justice would come in the way of the applicant in asking for any relief having already lost her cause up to the Division Bench of the Honble High Court of Delhi.

10. The applicant in support of the plea that the present Application can be entertained despite dismissal of her writ petition and LPA by the High Court, would, however, place reliance upon the Constitutional Bench judgment of the Honble Supreme Court in Olga Tellis & Others v Bombay Municipal Corporation & Others, [1985] INSC 155; (1985) 3 SCC 545, and another decision in Sajjadanashin Sayed v Musa Dadabhai Ummer & Others, (2000) 3 SCC 350. The facts in Olga Tellis (supra), insofar as the same may be relevant in the context of the controversy involved in the present case, reveal that a writ petition was filed on Original Side in the Bombay High Court by pavement dwellers claiming reliefs similar to those claimed in the batch of writ petitions before the Supreme Court. The pavement dwellers had conceded in the High Court that they did not claim any fundamental right to put up huts on pavements or public roads and that they would not obstruct the demolition of the huts after October 15, 1981. In the writ petitions before the Supreme Court under Article 32 of the Constitution, the contention of the petitioners was that the procedure prescribed by Section 314 of the B.M.C. Act being arbitrary and unfair, it was not procedure established by law within the meaning of Article 21 and, therefore, they could not be deprived of their fundamental right to life by resorting to that procedure. A preliminary objection was raised on behalf of the respondent Corporation that in view of what was conceded by the petitioner pavement dwellers before the High Court, they were estopped from contending before the Supreme Court that the huts constructed by them on pavements could not be demolished because of their right to livelihood. The said preliminary objection was repelled by observing that the doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs, and that if a person makes a representation to another on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him, and he must make it good. It was further observed that the plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions, and further that there can be no estoppel against the Constitution. It was further observed that no individual can barter away the freedoms conferred upon him by the Constitution, and that a concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such are not the facts in hand. It is not the case of the applicant that she had abandoned the plea with regard to discrimination or conceded that she had no right to claim continuation in service based upon the fact that persons similarly situate, and even those who were junior to her, were retained. In fact, the applicant was at pains to explain that she had not raised the plea at all. It was with a view to verify the plea of the applicant as mentioned above that the learned single Judge before whom the matter came, required the parties to place the earlier writ petition filed by the applicant on records. The same, as adverted to above, raised the plea of discrimination based on same facts, even though the same have been elaborated in the present Application. Insofar as, the judgment of the Apex Court in Sajjadanashin Sayed (supra) is concerned, that may not be applicable at all to the facts of the present case. Provisions of Section 11 CPC came to be interpreted, insofar as it contains the words directly and substantially in issue. It was held that if the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. It was observed that judicial decisions have, however, held that if a matter was only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. For bar of proceedings by virtue of provisions contained in CPC, thus it was held that the earlier litigation must involve issues directly and substantially in issue, and not collaterally or incidentally.

11. Before we may part with this order, we may mention that from the pleadings made in the earlier writ petition of the applicant, we find that a complaint was made by her against Dr. Vidya Sagar Sharma, Acting Deputy Health Officer for her being sexually abused. This complaint was gone into by concerned authorities and was found to have no substance. The applicant was not satisfied with the result thereof and filed a criminal complaint before concerned court, which, at the time the earlier petition was filed, was pending. Since no pleadings have been made with regard to this issue in the present Application, nor any arguments have been raised, there would be no occasion for us to comment upon the same.

12. In view of the discussion made above, even though, prima facie it appears that the applicant may have a case for retention in service on the ground of discriminatory treatment meted to her, we are unable to grant any relief to her. The applicant appears to have chosen a wrong course of action. As mentioned above, in our view, her remedy lay in requesting the Honble High Court for review or else, approach the Honble Supreme Court for the relief. Second petition on the same ground for the same relief cannot be entertained. The same is thus dismissed. There shall, however, be no order as to costs.

( Dr. Ramesh Chandra Panda ) ( V. K. Bali )

Member (A) Chairman

/as/