Allowed

Puran Chandra Tiwari v. State of Uttarakhand through Principal Secretary

Uttarakhand HC6 Jul 2022WPSS/408/2012

Case brief

AI extract

What is this about?

This writ petition challenged the withholding of benefits and allowances for contractual employees of a medical college upon its takeover by the State of Uttarakhand. The Court held employees entitled to basic pay, dearness allowance, and other allowances from the date of takeover until regularization.

What did the court decide?

Respondent to calculate and submit differential dues within three months for disbursement within four months; entire exercise completed within seven months.

Puran Chandra Tiwari Vs State of… — Pension and Retirement Benefits | Uttarakhand HC (2022)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 408 of 2012 (S/S)

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Puran Chandra Tiwari & Ors. ….. Petitioners Versus

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State of Uttarakhand & Anr. …..Respondents

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Present:

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Mr. Alok Mahara, the learned counsel for the petitioners. Mr. Pradeep Hairiya, the learned Standing Counsel for the respondents.

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Date of hearing and judgement : 06.07.2022

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Sri S.K. Mishra, J.

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(Upon hearing the learned counsel for the parties, this Court made the following judgment:

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The petitioners in this case are about 102 class III and Class IV employees of Government Medical College, Rampur Road, Haldwani, earlier run by Uttarakhand Forest Hospital Trust, which is also known as Dr. Susheela Tiwari Memorial Medical College and Hospital, Haldwani and they have sought the following reliefs:-

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(i) Issue a writ, order or direction in the nature of mandamus declaring withholding of benefits from the petitioners after pronvincialization of the Haldwani Medical College as arbitrary and illegal.

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(i-a) To declare the hostile declaration meted out against Class III and Class IV employees of the medical college Haldwani, in the matter of grant of benefits and allowances as arbitrary and illegal.

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(i-b) To issue a writ, order or direction in the nature of mandamus commanding the respondents to grant all benefits and allowances to the petitioners which were granted to them while serving under the trust in the same manner as the benefits and allowances payable to contract faculty members of

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the medical college earlier are being paid to them upon provincialization of the medical college.

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(i-c) To issue a writ, order or direction in the nature of mandamus commanding the respondents to give all benefits admissible to the petitioners in terms of the decision taken by management committee of the trust in its 37^th meeting held on 06.09.2006, along with arrears and interest on delayed payment.

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(ii) Issue a writ order or direction in the nature of mandamus directing the respondent no. 1 to issue necessary instructions to respondent no. 2 for releasing all benefits which petitioners were earlier getting but were withheld upon provincialization of the medical college.

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(iii) Issue a writ order or direction in the nature of mandamus directing the respondent no. 2 to forthwith make payment of the monitory dues illegally withheld from them, along with arrears and also to pay interest on the delayed payment of these dues.

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(iv) Issue a writ, order or direction in the nature of mandamus restraining respondent no. 1 from making any alteration in the condition of service of the petitioners as existing before provincialization of the medical college which may have any prejudicial effect upon them.

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2. In the year 1989, the Uttarakhand Forest Hospital Trust was created by the erstwhile State of Uttar Pradesh. The fund of the Trust was provided by the Government of Uttar Pradesh. After creation of the State of Uttarakhand in the year 2000, necessity of the medical college was felt by the State Government.

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Ultimately, due to the efforts made by the State Government, Medical Council of India granted permission to the Uttarakhand Forest Hospital Trust to establish a medical college at Haldwani, thus, Dr. Sushila Tiwari Memorial Forest Hospital, Haldwani, became a teaching hospital of medical college and became functional from the academic session 2004-05. The Secretary of the Trust was the appointing authority in respect of posts below the pay scale of Rs. 800013500 per month. These petitioners have participated in the selection process held in the year 2006 and were given contractual appointment for one year on 03.10.2009. However, they have been working uninterruptedly since then. The contract has been extended from year to year but no fresh appointment letter was issued to them.

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3. On 04.02.2010, the Board of Trustees of the Trust passed a resolution to the effect that the State Government should take all the assets and the liabilities of the Trust and the post created by the Trust would be merged in the Medical Education Department of the State Government. It was further decided that the State Government shall accept all contractual employees (teaching and non-teaching) in the same capacity. This was a condition of transfer of the medical college from the Trust to the State Government. Respondent no. 1 agreed to accept all the conditions of the transfer as specified in the minutes of the aforesaid meeting dated 04.02.2010. Ultimately, on 30.04.2010,

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respondent no. 1 issued a notification whereby Haldwani Medical College was taken over from the Trust with all assets and liabilities on ‘as is where is’ basis. The Secretary of the Trust referred the question of regularization of the petitioners to the State Government. In between 06.05.2010 and 11.12.2010, the Principal of the Medical College recommended that the case of the petitioners for regularization should be taken up. Subsequently, the petitioners were regularized in the month of December 2016. The dispute at present is for the period between 30.04.2010 till the absorption of the petitioners as regular employees of the medical college and hospital.

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4. The learned counsel for the medical college on the last date was directed by us to take instructions if there is any specific covenant in the document executed between the Trust and the Government or resolution of the Government regarding treatment that was given to the employees of the Trust.

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5. The learned counsel appearing for the State and also representing medical college produced the letter issued by the Principal, Government Medical College, Haldwani, Nainital. The relevant portion of the instructions is quoted below:-

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“That prior to provincialization of the Medical College and associated Hospital, namely Dr. Susheela Tiwari Memorial Forest Hospital Trust, on 01/05/2010, the petitioner were contractual

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employees of the trust registered under Societies Registration Act, 1860. However, before take-over of the Medical College and Hospital, the Trust Board in its 35^th special meeting date 04/02/2010 passed a resolution and clause no. -8 of the said resolution pertains to contractual employees, where in, it is specifically mentioned that “there is an existing service contract between the trust and individual contract employee, therefore, in case of take-over of the Medical College/Hospital by the State Government, the services of the working contractual employees of the trust, shall be, as such, accepted for the remainder of the contract period.” Therefore, even on take-over of the Medical College and Hospital by the government from 01/05/2010 the service conditions of the contractual employees as agreed by and between the petitioners and Trust before provincialization remained unchanged and was duly honoured by respondent no. -2, till existence of the said agreement. However, the petitioner herein, had executed fresh service contract after take-over of the medical college and hospital on mutually agreed terms and conditions on 02/09/2010.”

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6. However, it is apparent from the record that before take-over of the medical college and hospital, the Trust Board in its special meeting dated 04.02.2010 passed resolution to the effect that the services of the contractual employees of the Trust, shall be accepted for the remainder of the contract period. Thereafter, on take-over of the medical college by the Government on 01.05.2010, the service conditions of the contractual

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employees as agreed by and between the petitioners and the Trust before provincialization remained unchanged and duly honoured by respondent no. 2 till existence of the said agreement. However, the petitioners had executed fresh contract after take-over of the medical college and hospital on mutually agreed terms and conditions on 02.09.2010. The letter further reveals that the services of the petitioners were regularized vide order dated 23.12.2016. It is also not disputed at this stage that the petitioners continued to work as the regular employees of the Medical College and Hospital. As far as different treatment given to the teaching staff i.e. Professor, Associate Professor etc., is concerned, it is brought to our notice that the services of the contractual employees were regulated by the terms and conditions of the contract agreed upon between the parties. As regard to fixation of total emoluments in respect of contractual employees drawing emoluments less than Rs. 8000/- per month, as per clause 12.4 of the meeting of Management Committee Trust, the total emoluments payable to such a contractual employee is reckoned as per the formula:- total fixed emoluments = initial basic salary for the said post + dearness pay + D.A. + other allowances (if any). However, it is further brought to our notice that clause 12.5 of the meeting of Management Committee Trust is related to contractual faculties i.e., Professor, Associate Professor whereby, such faculty members were to be paid annual increase of Rs. 5000/- along with the other benefits, and,

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therefore, the petitioners and the faculty members both are placed in different categories, so, their terms of appointment and service agreements are different. It is, therefore, argued that the total emoluments drawn by the petitioners before provincialization is Rs. 7503/per month and Rs. 7915/- per month. Based on the above facts, it is argued that the grievance of the petitioners has no substance.

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7. The argument advanced by the learned counsel for the State representing the State of Uttarakhand as well as Government Medical College and Hospital appears to be fallacious. In one hand, they say that income of the petitioners is less than Rs. 8000/- per month being Rs. 7503/- per month and Rs. 7915/- per month, on the other hand they are saying that the petitioners are not entitled to the dearness allowance and other allowances, whereas as per clause 12.4 of the meeting of Management Committee Trust resolution they are entitled to total emoluments of initial basic salary+ dearness pay+ dearness allowance + other allowances (if any).

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This Court is inclined to hold that the petitioners are entitled to initiate basic pay that they were getting on the date of the taking-over of the college by the State of Uttarakhand i.e. 01.05.2010 along with dearness and other allowances as admissible. There was no dearness pay at that time. The petitioners are entitled for basic pay + D.A. + other allowances like hill

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allowance, H.R.A. etc for the period 01.05.2010 till their regularization on 23.12.2016. However, the petitioners are not entitled to any additional pay which was granted @ Rs. 5000/-per month, over and above the basic salary of the Professor, Associate Professor because they are not teaching staff. It is also brought to our notice that this financial burden has to be undertaken by the State of Uttarakhand as the hospital in question is owned and managed by the State of Uttarakhand.

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In that view of the matter we allow the writ petition directing respondent no. 2 to calculate the differential amount due to the petitioners within a period of three months, hence, and submit the same to respondent no. 1 i.e. Principal Secretary, Department of Medical Education, Government of Uttarakhand, Dehradun, who shall take appropriate steps in allotment of money in favour of respondent no. 2, for disbursal of the dues in favour of the petitioners within a period of four months thereafter. The entire exercise shall be completed within seven months, hence.

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Accordingly, the writ petition is allowed. There shall be no order as to costs.

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Urgent certified copy of the judgment be provided as per rules.

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(Sanjaya Kumar Mishra, J.)

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Puran Chandra Tiwari v. State of Uttarakhand through Principal Secretary

Case brief

What is this about?

What did the court decide?

Puran Chandra Tiwari v. State of Uttarakhand through Principal Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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