North Delhi Municipal … vs Ram Naresh Sharma on 3 August, 2021


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Supreme Court of India

North Delhi Municipal … vs Ram Naresh Sharma on 3 August, 2021

Author: Hrishikesh Roy

Bench: Sanjay Kishan Kaul, Hrishikesh Roy

                                                                          REPORTABLE
                                          SUPREME COURT OF INDIA
                                        CIVIL APPELLATE JURISDICTION

                                          Civil Appeal No. 4578 of 2021
                                    (Arising out of SLP (C) No). 10156/2019)



                         North Delhi Municipal Corporation           Appellant(s)

                                                   VERSUS


                         Dr. Ram Naresh Sharma & Ors.                Respondent(s)

                                                     WITH


                         Civil Appeal No. 4579/2021 (@SLP(C) No. 10159/2019)


                         Civil Appeal No.4580/2021 (@SLP(C) No. 10160/2019)


                         Civil Appeal No.4581/2021 (@ SLP(C) No. 10928/2019)


                         Civil Appeal No.4582/2021 (@SLP(C) No. 10925/2019)


                         Civil Appeal No.4583/2021 (@SLP(C) No. 12046/2019)


                         Civil Appeal No.4584/2021 (@SLP(C) No. 19288/2019)


                         Civil Appeal No.4585/2021 (@SLP(C) No. 19287/2019)
Signature Not Verified

Digitally signed by
Charanjeet kaur
Date: 2021.08.03
17:11:04 IST
                         Civil Appeal No.4586/2021 (@SLP(C) No. 24693/2019)
Reason:




                                                      1
                             JUDGMENT


HRISHIKESH ROY, J.

1. Leave granted. These appeals are directed against the judgment

and order dated 15.11.2018 passed by the High Court of Delhi

whereby the Court upheld the common final order dated 24.08.2017

of the Central Administrative Tribunal, Principal Bench [hereinafter

referred to as the ‘Tribunal’ for short] and dismissed the petitions filed

by the North Delhi Municipal Corporation [hereinafter referred to as

the ‘NDMC’ for short]. The Tribunal declared that the applicants who

are ayurvedic doctors covered under AYUSH are also entitled to the

benefit of enhanced superannuation age of 65 years (raised from 60

years), just like the allopathic doctors. The entitlement of the

respondents to continue in service upto 65 years and receive due

remuneration for the same is the only issue to be considered in these

cases. For the sake of convenience, the relevant facts are taken from

SLP (C) No. 10156 of 2019.

2. Prior to 31.05.2016, the retirement age was 60 years for the

General Duty Medical Officers [‘GDMO’ for short] of the Central Health

Scheme [‘CHS’ for short], the Dentists and Doctors covered under

2
AYUSH (including ayurvedic doctors). At that stage, the Government

of India, Ministry of Health and Family Welfare issued the order dated

31.05.2016, with immediate effect, enhancing upto 65 years, the age

of superannuation of the specialists of Non­teaching and public health

sub­cadres of CHS and GDMOs of CHS. This was followed by

consequential amendment of the Fundamental Rules, 1922 by Gazette

Notification dated 31.05.2016 of the Department of Personnel

Training. On 30.06.2016 the NDMC adopted the Government of India

order by issuing office order dated 30.06.2016 and enhanced the

retirement age to 65 years for the Allopathic doctors working in the

NDMC. The Office Memorandum issued by the Ministry of Health and

Family Welfare on 30.08.2016 then clarified that the enhanced

superannuation age granted by order dated 31.05.2016 is applicable

to GDMOs of CHS i.e. the allopathic doctors and municipal

corporations and others were given the liberty to take their own

decision on the matter, on the applicability of the Ministry’s decision

on enhancement of superannuation age. Thus, the ayurvedic doctors

were not seen to have been covered by the Ministry’s order dated

31.05.2016.

3

3. The above led to several Original Applications (OA) filed by the

ayurvedic doctors, before the Tribunal. The respondent Dr. Ram

Naresh Sharma and other ayurvedic doctors sought the benefit of the

Government decision and the office order of NDMC, for it to be made

applicable to the ayurvedic doctors as well. On 09.12.2016 an interim

order was passed by the Tribunal to the following effect.:

“In the meantime, it is directed that the
Applicant may be allowed to continue in service
on the post held by him beyond the date of his
retirement/superannuation till further orders,
however, he will not be paid any salary nor
shall this order confer any right or equity in
favour of the Applicant.”

4. By the common final order dated 24.08.2017, the Tribunal

accepted the discrimination argument advanced by the ayurvedic

doctors vis­à­vis the allopathic doctors. Accordingly, it was held that

the applicants were entitled to same service conditions including the

enhanced age of superannuation to 65 years, as made applicable to

doctors (GDMOs) working under the CHS, in terms of the order dated

31.05.2016 of Ministry of Health and Family Welfare. Thus, the

employer was directed to allow the ayurvedic doctors to continue in

service till the age of 65 years. It was clarified that in case any of the

applicants had been made to superannuate at the age of 60 years,

4
he/she shall be reinstated and be permitted to serve until the age of

65 years.

5. Aggrieved by the above decision of the Tribunal, the appellant

NDMC preferred Writ Petitions before the High Court of Delhi. During

the pendency of writ petition, on 24.11.2017, the Ministry of

Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homeopathy

(‘AYUSH’ for short), Government of India, issued an order whereby it

was communicated that the superannuation age of AYUSH doctors is

also enhanced to 65 years w.e.f. 27.09.2017, i.e. the date of approval

of Union Cabinet. It was however directed that the doctors shall hold

administrative positions only until age of 62 years and thereafter,

their service shall be placed in non­administrative positions.

6. It may be noted that the High Court on 26.09.2017 in WP(C)

8704/2017 arising out of OA 2712/ 2016 (NDMC vs. Dr. Santosh

Kumar Sharma), had passed the following interim order:

“**** **** *** ***
Since the private respondents are still working
under the orders as passed by the Tribunal, the
respondents may continue to work, if they so
desire without receiving any salary as of now.

We are inclined to permit the respondents to
continue to serve this interim order, since
learned counsel for the private respondents have
stated, on instructions, that in case the
5
petitioner succeeds, they shall not claim any
equity on account of the fact that they have
rendered services under the order of the Court.

The respondents shall remain bound by their
said statements.”

7. When the Writ Petition 637/2018 arising out of O.A. 4026/2016

of the respondent Dr. Ram Naresh Sharma came up for consideration,

the High Court on 23.01.2018 while issuing notice passed an interim

order to the following effect.

“In the meantime, the operation of the impugned
order shall remain stayed on the same terms as
recorded in the interim order dated 26.09.2017,
passed in W.P.8704/2017”

8. The Writ Petitions challenging the Tribunal’s common order

dated 24.08.2017 were heard analogously and were dismissed

affirming the Tribunal’s conclusion in favor of the ayurvedic doctors.

The Tribunal noted in its order that although initially the benefit of

policy decision of government to enhance the retirement age was

confined to allopathic doctors but subsequently the policy decision

was made applicable to other category doctors (including ayurvedic

doctors), covered by AYUSH. Significantly, while the NDMC has

adopted the Ministry’s decision but those ayurvedic doctors of the

6
NDMC who fall in the window between 31.05.2016 and 26.09.2017,

are deprived of getting the benefit of the enhanced retirement age. In

other words, only those retiring on or after 27.09.2017, could aspire to

serve until 65 years.

9. The High Court in the analogous judgment referred to the case

of Dr. Pratibha Sharma who was employed as an ayurvedic doctor

under the East Delhi Municipal Corporation [‘EDMC’] and observed

that her employer, unlike the NDMC, has not adopted the Government

decision dated 24.11.2017 to enhance the retirement age to 65 years

for the AYUSH category doctors. Taking note that Dr. Pratibha

Sharma’s employers had not adopted the AYUSH Ministry’s decision

dated 24.11.2017, it was left open to the EDMC to deal with her case

as deemed appropriate. With such finding and observation, the WPs

came to be dismissed upholding the view taken by the Tribunal in

favor of the ayurvedic doctors and consequential direction was issued

to the NDMC to disburse payment of arrears of salary and allowances

to the ayurvedic doctors, who continue to serve with the NDMC

beyond the age of 60 years. Specific direction was also issued on their

entitlement to salary and other allowances till they superannuate at

7
the age of 65 years. Aggrieved by the said decision of the High Court of

Delhi, the present Appeals are filed.

10. The Respondents in SLP (C) No. 19288/2019 (Dr. Brijesh

Kumari) and SLP (C) No. 19287/2019 (Dr. Mohd. Ahmed Khan) are

Ayurvedic and Unani doctors respectively, working under the South

Delhi Municipal Corporation [‘SDMC’]. Dr. Brijesh Kumar was

supposed to retire on 31.07.2017 upon attaining age of 60 years,

whereas Dr. Mohd. Ahmed Khan was supposed to superannuate on

31.05.2017. Dr. Brijesh Kumar filed O.A. 2503/2017 in the Tribunal,

which came to be decided on 05.09.2017. In its order the Tribunal,

relied on its earlier judgment in the matter of Dr. Santosh Sharma,

whereby the respondents were allowed to continue in service till they

attain the age of 65 years. Similarly, Dr. Khan’s application came to

be decided on 21.09.2017 with like consequences. Aggrieved by these

orders, Writ Petitions were preferred by the SDMC impugning the

judgments by the Tribunal. These Writ Petitions were dismissed by the

Delhi High Court on same day i.e. 27.03.2019 vide judgments in W.P.

(C) No. 1776/2018 and W.P.(C) No. 1769/2019. In this Court, the

SDMC has averred that the order of AYUSH Ministry dated

24.11.2017 has been adopted by the SDMC on 31.10.2018, but the

8
approval for the same from the House of SDMC, is still pending.

Hence, it cannot be said that the SDMC has adopted the order of

AYUSH Ministry dated 24.11.2017.

11. The respondent in SLP (C) 24693/2019, Dr. Lata A. Dupare, was

working as a dental surgeon under CGHS, Nagpur. Dr. Lata was

supposed to retire on 31.05.2016. The Tribunal by an order dated

17.11.2017 in O.A. 3795/2017 citing its own judgment in Dr. Santosh

Sharma, and Dr. H. P. Singh vs. Union of India 1 gave her the benefit of

extended superannuation age. Aggrieved by this order, the Union

preferred a W.P.(C) 3210/2019 in the High Court of Delhi which came

to be dismissed on 01.04.2019.

12. We have heard the learned counsel appearing for the appellants

and the respondents. Questioning the legality of the impugned

decision, Mr. R. Balasubramaniam, learned senior counsel contends

that the benefit of enhanced retirement age should have been

extended only w.e.f. 27.09.2017 as per the AYUSH Ministry’s decision,

as there is limited scope for interference on a cut­off date, stipulated

by the government. The interim order dated 26.09.2017 in W.P.

8704/2017 of the High Court is read by the counsel to argue that

1 O.A. 3321/2016.

9
while the respondents were permitted to continue in service beyond 60

years, they are disentitled to claim any equitable relief by way of

arrear of salary on account of the fact that they remained in service

under interim orders of the court. The financial implication for the

employer is highlighted by the learned senior counsel to argue that

the appellants should not be burdened with the liability to disburse

the unpaid arrear salary to the respondents.

13. On the other hand, the learned counsel for respondents argue

that relief to the respondents was granted by the Tribunal and by the

High Court by concluding that the action of the authorities in

treatment of the allopathic doctors vis­à­vis the ayurvedic doctors was

discriminatory and violative of Art. 14 of Constitution. Accordingly, it

is argued that there can be no separate service condition in so far as

the superannuation age is concerned between allopathic and other

category doctors, particularly when the AYUSH Ministry itself on

24.11.2017 has enhanced the retirement age for the non­allopathic

doctors w.e.f. 27.09.2017, in tune with the Ministry’s order dated

31.05.2016.

10

14. Ld. Sr. Counsel for appellant relied on judgment of this Court in

U. P. State Brasswar Corporation Ltd. and Anr. vs. Uday Narain

Pandey2, and argued that while earlier, awarding full arrears of salary

was the practice, under the prevalent pragmatic view of the issue, the

Court should determine the award of back wages based on facts and

circumstances of each case. For the Bench, Justice S. B. Sinha in

Uday Narain Pandey (supra) stated that:

“17. Before adverting to the decisions relied
upon by the learned counsel for the parties, we
may observe that although direction to pay full
back wages on a declaration that the order of
termination was invalid used to be the usual
result but now, with the passage of time, a
pragmatic view of the matter is being taken by
the court realizing that an industry may not be
compelled to pay to the workman for the period
during which he apparently contributed little or
nothing at all to it and/ or for a period that was
spent unproductively as a result whereof the
employer would be compelled to go back to a
situation which prevailed many years ago,
namely, when the workman was retrenched.”

15. The above ratio in Uday Narain Pandey (supra) is however not

attracted to the matters before us, as there is significant difference in
2 (2006) 1 SCC 479

11
the factual matrix. In the cited case, the respondent­worker had not

re­joined or continued his employment after his retirement, and was

asking for wages for work, he did not actually render. Whereas, in this

bunch of cases, it is undisputed that the respondent doctors have

continuously served in hospitals till attaining the enhanced age of

superannuation i.e. 65 years vide the AYUSH Ministry order dated

24.11.2017 and by virtue of interim order of the High Court dated

26.09.2017. In other words, they have been productive not only for

the patients but also for their employers.

16. The learned senior counsel for appellant by placing reliance

upon the HC interim order submits that respondent doctors are not

entitled to remuneration and unpaid arrears as they were serving in

the hospitals on the strength of the Court’s interim order. Such

argument for appellants cannot however be accepted in light of the

principle ‘Actus Curiae Neminem Gravabit’. Explaining the principle,

Justice B. S. Chauhan speaking for this court in Kalabharati

Advertising vs. Hemant Vimalnath Narichania3, stated the following:

3 (2010) 9 SCC 437

12
“15. …The maxim “Actus Curiae neminem
gravabit”, which means that the act of the Court
shall prejudice no­one, becomes applicable in such
a case. In such a situation the Court is under an
obligation to undo the wrong done to a party by the
act of the Court. Thus, any undeserved or unfair
advantage gained by a party invoking the
jurisdiction of the Court must be neutralised, as the
institution of litigation cannot be permitted to confer
any advantage on a party by the delayed action of
the Court.”

17. Bearing in mind the above legal principle the Interim order of

Delhi High Court dated 26.09.2017 in our opinion cannot be the basis

to deny salary and arrear benefits to respondents. The said interim

order merged with the final judgment dated 15.11.2018 and all

consequential benefits of employment were due to the respondents.

Therefore, when the respondents worked and served patients, the

basic benefit of salary cannot be denied to the doctors.

18. This Court in case of Central Electricity Supply Utility of Odisha

vs. Dhobei Sahoo and Ors.4, stated that:

“51….Till the declaration is made, the incumbent
renders service and when he has rendered
service he cannot be deprived of his salary.

Denial of pay for the service rendered
tantamounts to forced labour which is

4 (2014) 1 SCC 161

13
impermissible. When an appointment is
admitted and the incumbent functions in the
post and neither suspended nor removed from
service, he is entitled to get salary, for it is his
legal right and it is the duty of the employer to
pay it as per the terms and conditions of the
appointment.…”

The above ratio correctly sets out the employers’ responsibility to

pay the wages for the productive employees serving under them.

19. In the case of New Okhla Industrial Development Authority &

Anr. vs. B. D. Singhal & Ors. 5, this Court while dealing with a

comparable issue, declined to give retrospective application to the U.P.

State Government order dated 30th September 2012, which extended

the age of superannuation from 58 years to 60 years. The arrears of

salary to respondent employees who had retired on 31 st August, 2012,

upon attaining the age of 58 years was also denied. But that case can

have no application in the present appeals since facts are

distinguishable. There are two vital factual differences, which need to

be considered. Firstly, the Allahabad High Court retrospectively

applied the U.P. State Government order dated 30 th September 2012,

from 29th June 2002 i.e. the day on which recommendation for

extending the age of superannuation was made. Whereas, in the case

5 2021 SCC OnLine SC 466, C.A. No. 2311 of 2021

14
at hand, on 31.05.2016 a notification was issued which was

expeditiously implemented. Secondly, arrears of salary were

disallowed, because the respondent­employees in New Okhla

Industrial Development Authority had not worked even a single day

after retiring, on attaining 58 years of age. But, in the present case,

respondent­doctors have been working continuously without break,

pursuant to the Interim order of the Delhi High Court dated

26.09.2017. Hence, based on these two distinguishing aspects, the

ratio in New Okhla Industrial Development Authority cannot in our

opinion be applicable here, to defeat the legitimate expectation of the

respondents.

20. In these matters, for almost 5 years, the respondent doctors

have been providing service to countless patients, without

remuneration or benefits. Their services are utilized by the employer

in Government establishments, without demur. In this regard, the

learned senior counsel for appellant submits that paying arrear

unpaid wages to the respondent doctors will impose substantial

financial burden upon the State. Such submission cannot however be

countenanced as a fair submission by the State’s counsel. The

principle of ‘No Work, No Pay’ protects employers from paying their

15
employees if they don’t receive service from them. A corollary thereto

of ‘No work should go unpaid’ should be the appropriate doctrine to be

followed in these cases where the service rendered by the respondent

doctors have been productive both for the patients and also the

employer. Therefore, we are quite clear in our mind that the

respondents must be paid their lawful remuneration­ arrears and

current, as the case may be. The State cannot be allowed plead

financial burden to deny salary for the legally serving doctors.

Otherwise it would violate their rights under Articles 14, 21 and 23 of

the Constitution.

21. In the case of the respondent in SLP (C) 12046/2019 i.e. Dr. H.

P. Singh, it is averred by the appellants, that he has not worked after

superannuation on attaining the age of 60 years. But, there is

sufficient evidence on record to suggest that the respondent­doctor

through several representations sought to be re­appointed but it was

the employer who created impediments and did not allow the

respondent to re­join his duties in hospitals. In such circumstances,

the principle of ‘No Work, No Pay’ cannot be raised by the employers,

as it is they who had obstructed the doctor from discharging his

service. For support we may cite Dayanand Chakrawarthy vs. State of

16
Uttar Pradesh6
where this Court speaking through Justice S. J.

Mukhpadhyaya rightly held that:

“48. … If an employee is prevented by the
employer from performing his duties, the employee
cannot be blamed for having not worked, and the
principle of “no pay no work” shall not be
applicable to such employee.”

22. The common contention of the appellants before us is that

classification of AYUSH doctors and doctors under CHS in different

categories is reasonable and permissible in law. This however does not

appeal to us and we are inclined to agree with the findings of the

Tribunal and the Delhi High Court that the classification is

discriminatory and unreasonable since doctors under both segments

are performing the same function of treating and healing their

patients. The only difference is that AYUSH doctors are using

indigenous systems of medicine like Ayurveda, Unani, etc. and CHS

doctors are using Allopathy for tending to their patients. In our

understanding, the mode of treatment by itself under the prevalent

scheme of things, does not qualify as an intelligible differentia.

Therefore, such unreasonable classification and discrimination based

on it would surely be inconsistent with Article 14 of the Constitution.

The order of AYUSH Ministry dated 24.11.2017 extending the age of

6 (2013) 7 SCC 595.

17
superannuation to 65 Years also endorses such a view. This extension

is in tune with the notification of Ministry of Health and Family

Welfare dated 31.05.2016.

23. The doctors, both under AYUSH and CHS, render service to

patients and on this core aspect, there is nothing to distinguish them.

Therefore, no rational justification is seen for having different dates for

bestowing the benefit of extended age of superannuation to these two

categories of doctors. Hence, the order of AYUSH Ministry (F. No. D.

14019/4/2016­E­I (AYUSH)) dated 24.11.2017 must be

retrospectively applied from 31.05.2016 to all concerned respondent­

doctors, in the present appeals. All consequences must follow from

this conclusion.

24. In light of the above discussion, the appellant’s actions in not

paying the respondent doctors their due salary and benefits, while

their counterparts in CHS system received salary and benefits in full,

must be seen as discriminatory. Hence, we have no hesitation in

holding that the respondent­doctors are entitled to their full salary

arrears and the same is ordered to be disbursed, within 8 weeks from

today. Belated payment beyond the stipulated period will carry

interest, at the rate of 6% from the date of this order until the date of

18
payment. It is ordered accordingly. The appeals are disposed of in

above terms without any order on cost.

..……………………………….J.

[L. NAGESWARA RAO]

…………………………………J.

[HRISHIKESH ROY]

NEW DELHI
AUGUST 03, 2021.

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