IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SERVICE MATTER

WP(C).No.109/2008

Date of Decision : November 17, 2008

Dr. Avinash Kumar and Ors. ..... Petitioners

Through: Mr.Prashant Jain with
Mr.Umesh Sinha, Advs.

Versus

Ministry of Labour and Employment and Ors.

..... Respondents
Through: Ms.Rekha Palli, Adv. with
Ms. Punam Singh, Adv .for
respondents 2 to 7

S.N. AGGARWAL, J. (Oral)

1. The only short question that needs consideration in this writ petition is
whether the petitioners who were appointed as Senior Resident Doctors in
different ESI hospitals on contractual basis for a period of one year in
January, 2008 are entitled to traveling allowance of Rs.800/- per month paid
to those Senior Resident Doctors in the said hospitals who were appointed
on regular basis against vacancies for a term of 3 years.

2. The respondents had issued an advertisement which is at page 35 of the

paper book and invited applications from eligible doctors for their
appointment to the post of Senior Residents on 3 years tenure basis subject
to renewal/extension every year. The applications could be made by eligible
doctors for their consideration for appointment to the post of Senior
Residents by 30.11.2007. It was mentioned in the said advertisement that the
Senior Residents who may be appointed in different hospitals under ESI
shall be entitled to emoluments of Rs.10,940/- in the first year, Rs.11,295/-
in the second year and Rs.11,650/- in the third year plus other allowances as
admissible under the Rules. It was further mentioned in the said
advertisement that the emoluments payable to Senior Residents shall be
reduced by Rs.325/- per month in case of PG Diploma Holders and by
Rs.650/- per month in case of those without diploma/PG Degree. This
advertisement was superceded and a fresh advertisement was issued by the
ESI for inviting applications separately for its different hospitals from
eligible doctors for their appointment to the post of Senior Residents on
contractual basis for a period of 1 year instead of 3 years mentioned in the
earlier advertisement or till the time the vacant post of GDMOs are filled up,
whichever is earlier. The applications in terms of the said subsequent
advertisement could be made by the eligible doctors by 26.12.2007. The
petitioners had applied pursuant to the said subsequent advertisement for
their consideration for appointment to the post of Senior Residents in the
hospitals of ESI on contractual basis for 1 year. This subsequent
advertisement stipulated that the consolidated sum of Rs.23,000/- shall be
paid to the Senior Residents appointed on contractual basis for 1 year. These
subsequent advertisements are at pages 41 to 44 of the paper book. The
petitioners are stated to have been selected and were appointed on different
dates in January/February, 2008 to the post of Senior Residents in the
hospitals under the control of ESI. Their said appointment was on
contractual basis for a period of 1 year or till the time regular appointment
against vacant post of GDMOs are made, whichever is earlier.

3. The petitioners are stated to have made a representation to the respondents

for grant of same pay as paid to the regular appointed Senior Residents in
the hospital. This representation made by the petitioners was considered
favorably by the respondents and the respondents vide their letter dated
27.2.2008 (Annexure R-1 to the counter affidavit at page 57 of the paper
book) agreed to pay the same pay to them as was mentioned in its earlier
advertisement at page 35 of the paper book. The letter dated 27.2.2008 by
which the respondents revised the consolidated amount of Rs.23,000/- to a
regular pay scale is relevant and is extracted below:- ?No.Z-17(11)1/2007-
Med. VI Dated- 27/2/2008 To All The Medical Superintendents ESIC Model
Hospital/ESI Hospital ________________________________
________________________________ Sub: Appointment of Senior
Resident Doctors on contract basis Sir, I am directed to refer to Hqrs. Office
letter No.A-12(16)/-1/2007-Med.IV dated 24/8/2007 on the subject
mentioned above and to say that the emoluments payable to the Senior
Resident have been reviewed. As a result of this review, I am directed to
convey the approval of the Director General to the payment of emoluments
to Senior Resident engaged under the Scheme, as under :- Pay including
NPA ? Rs.10,940/- per month for Post Graduate Degree Holders. It would be
reduced by Rs.325/- per month for Diploma Holders and the same will be
reduced by Rs.325/- per month for Diploma Holders and the same will be
reduced by Rs.650/- per month in case of those who do not have any PG
Degree or Diploma. In addition they would be entitled for DP, DA (revised
from time to time) and HRA, CCA as per rates applicable to ESIC
employees in their State. The above emoluments are in lieu of Rs.23,000/-
(consolidated) fixed earlier. The revised emoluments will be payable to all
the Senior Residents engaged under the new Scheme. This issues with the
concurrence of the Financial Commissioner. Yours faithfully, sd/- (B.B.Puri)
Joint Director (Med.)?

4. Ms.Rekha Palli, learned counsel appearing on behalf of the petitioners has

referred and relied upon two judgments of the Hon'ble Supreme Court in
State of Karnataka Vs. G. Halappa AIR 2002 SC 2427 and State of Haryana
and Ors. Vs. Charanjit Singh and Ors. JT 2005 (12) SC 475 and on the
strength of these two judgments she has contended that since the petitioners
were appointed on contractual basis, they are not entitled to traveling
allowance claimed by them in this writ petition.

5. I have carefully considered both the above judgments. They are not
applicable to the relief of traveling allowance claimed by the petitioners.

6. It is not in dispute that the appointment of petitioners in the hospitals of

ESI is on contractual basis for a period of 1 year. It is also not in dispute that
the earlier advertisement by which applications were invited from eligible
doctors for their appointment on 3 year tenure basis mentioned that the
doctors so appointed shall be entitled to all allowances as are admissible
under the Rules. The problem arose when the respondents issued a fresh
advertisement and invited applications for making appointment of Senior
Residents against vacant post of GDMOs in the hospital on contractual basis
for a period of one year stipulating that the doctors selected for said
appointment shall be entitled to a consolidated sum of Rs.23,000/-. The
petitioners' representation against discrimination in the matter of
emoluments was examined by the respondents themselves and they vide
their letter dated 27.2.2008 referred above agreed to pay the same
emoluments to the petitioners as were payable to the regular senior residents
in the first year in terms of their earlier advertisement at page 35 of the paper
book.

7. Ms.Rekha Palli, learned counsel appearing on behalf of the respondents

has contended that the respondents had taken a conscious decision and had
deliberately excluded the traveling allowance being granted to the petitioners
while agreeing to grant them the same pay and allowances as admissible to
Senior Residents appointed in the hospitals against 26 regular posts. This
argument, in the opinion of this Court, appears to be misconceived and is not
tenable on the facts of this case. Ms. Rekha Palli appearing on behalf of the
respondents admits that traveling allowance is paid to Senior Residents who
are appointed in the ESI hospitals against 26 regular posts.

8. From the submission of the counsel for the respondents, it appears that
unequal treatment in the matter of grant of traveling allowance is meted out
to the petitioners and the same cannot be accepted. I am of the opinion that
the traveling allowance claimed by the petitioners is an expense incurred by
the petitioners for attending to their duties in the hospital. The petitioners in
the present writ petition do not claim for their regularisation or fixation of
their salary taking into account the period of their contractual appointment.
The contractual appointment by its very nature is different from a regular
appointment. It is true that no parity can be drawn in the matter of
contractual appointment and regular appointment. However, since the
respondents themselves are paying allowances like DA, HRA, CCA on the
basic pay to the petitioners during the period of their contractual
appointment, the respondents cannot be allowed to discriminate with the
petitioners by refusing them travelling allowance which is admittedly paid
by them to the regularly appointed Senior Residents. Hence, the respondents
should pay the same pay and allowances including traveling allowance to the
petitioners till they are in their employment in terms of appointment letter
issued to them for their contractual appointment in January/February, 2008.

9. Mr.Prashant Jain, appearing on behalf of the petitioners on instructions

from his clients has given up all other claims in the present writ petition
except the claim for traveling allowance paid to the regularly appointed
Senior Residents in ESI Hospital and for that reason this Court need not go
into the merits of other reliefs claimed by the petitioners in this petition.

10. In view of the above and having regard to the facts and circumstances of
the case, the respondents are hereby directed to grant same pay and
allowances including traveling allowance to the petitioners as are paid by
them to the regularly appointed Senior Residents in their hospitals. The
arrears of traveling allowance with effect from the date of their initial
appointment be paid to them within a period of 6 weeks from today.

11. This writ petition is disposed of in above terms leaving the parties to
bear their own costs.

Sd/-
S.N.AGGARWAL, J