TMI Blog2021 (8) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... ors 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 payment. Appeal disposed off. - Civil Appeal No. 4579/2021 (Arising out of SLP (C) No. 10159/2019), Civil Appeal No. 4580/2021 (Arising out of SLP (C) No. 10160/2019), Civil Appeal No. 4581/2021 (Arising out of SLP (C) No. 10928/2019), Civil Appeal No. 4582/2021 (Arising out of SLP (C) No. 10925/2019), Civil Appeal No. 4583/2021 (Arising out of SLP (C) No. 12046/2019), Civil Appeal No. 4584/2021 (Arising out of SLP (C) No. 19288/2019), Civil Appeal No. 4585/2021 (Arising out of SLP (C) No. 19287/2019) and Civil Appeal No. 4586/2021 (Arising out of SLP (C) No. 24693/2019) HON'BLE MR. JUSTICE SANJAY KISHAN KAUL And HON'BLE MR. JUSTICE HRISHIKESH ROY For the Appellant : Praveen Swarup For the Respondent : Ravi Kumar Tomar And Gurmeet Singh Makker 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit 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 vis- -vis 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, he/she shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), covered by AYUSH. Significantly, while the NDMC has adopted the Ministry's decision but those ayurvedic doctors of the 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended only w.e.f. 27.09.2017 as per the AYUSH Ministry's decision, as there is limited scope for interference on a cut-off 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 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 vis- -vis the ayurvedic doctors was discriminatory and violative of Article 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 allop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Hemant Vimalnath Narichania (2010) 9 SCC 437, stated the following: 15. ...The maxim Actus Curiae neminem gravabit , which means that the act of the Court shall prejudice no-one, 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 sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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