Central Administrative Tribunal - Delhi
K. Upendra Mohan S/O K. Mohan Swamy, ... vs Government Of India Represented By ... on 8 November, 2006
ORDER N.D. Dayal, Member (A)
1. These seven applications have been taken up together in view of the common points of fact and law involved therein. For the sake of convenience the facts have been taken from OA No. 791/2006.
2. The applicants are Radiographers with the Ordnance Wing of the Ministry of Defence working at different stations and are aggrieved by the impugned orders passed by the authorities whereby the higher pay scale of Rs. 5000-8000 granted to them is sought to be discontinued and the pay scale downgraded to Rs. 4500-7000 from 1.1.1996 in view of the 5th CPC recommendations that Radiographers with minimum qualification of three year diploma in the relevant field are only eligible for the pay scale of Rs. 5000-8000. As such, while the pay scale was to be downgraded, the excess payments already made on account of having extended the higher pay scale would be waived. The applicant in OA No. 791/2006 was appointed in 1999 as Radiographer in the pay scale of Rs. 5000-8000 but served with a notice on 20.7.2005 asking him to show cause as to why the pay scale should not be downgraded since the 5th CPC had recommended the pay scale of Rs. 5000-8000 for Radiographers with minimum educational qualification of three years diploma, which he did not possess.
3. On receipt of such notice seven years after joining service, the applicant in his response emphasized that he was appointed after implementation of 5th CPC recommendations directly as Radiographer in the scale of pay of Rs. 5000-8000 and at that time there was no such requirement, therefore, it would be arbitrary, demoralizing and financially difficult for him if such a decision was implemented. However, his plea was turned down by the impugned order dated 16.8.2005.
4. It has been submitted that such downgrading amounts to reduction in rank and the explanation offered by the applicant to the show cause notice has not been considered. While on the one hand at the time of recruitment no such condition was imposed, the anomaly committee supported their case and Dark Room Assistant who is junior was recommended the pay scale of Rs. 1320-2040 (PR) and, therefore, Radiographer being senior was to be placed in Rs. 5000-8000, which was the revised scale. Even the clarifications on ACP Scheme envisaged the next higher scales to be Rs. 5500-9000 and Rs. 6500-10500 for the Radiographer which was an isolated post and this makes it clear that the Radiographer was consciously fixed at Rs. 5000-8000. As such, the downgrading of the pay scale would have serious consequences and also affect the future increments and pension, which would be illegal and unconstitutional.
5. In this background, the applicant has prayed for quashing of the impugned order dated 16.8.2005 with all consequential benefits and to pass any other order as may be found fit and proper in the circumstances of the case. The other applicants as well have sought quashing of the impugned orders and prayed that the pay scale of Rs. 5000-8000 for Radiographers be upheld with consequential benefits.
6. The respondents have in their reply opposed the applicants' prayer and the main ground taken by them is that the impugned orders were issued in terms of the recommendations of the 5th CPC for grant of scale of Rs. 5000-8000 to Radiographers as minimum qualification required is three years diploma which the applicants do not have. Therefore, having been erroneously granted the higher pay scale of Rs. 5000-8000 it is now required to be downgraded. The certificate required to be produced at the time of appointment by Radiographers was only one year diploma in radiography and not three years. Therefore, it is not a reversion/reduction in rank but merely correcting the position in order to extend the proper pay scale in accordance with the 5th CPC recommendations.
7. We have heard the learned Counsel for both parties and perused the material on record in these cases. During the hearing of this matter, some of the OAs have been transferred from outlying Benches of the Tribunal to the Principal Bench and that is how all of them have come together. By interim orders status quo in relation to the pay scale already drawn by the applicants prior to the impugned orders was directed to be maintained and continued from time to time. It has been brought to our attention that at pages 21-37 in OA No. 791/2006, the applicant has enclosed copy of order dated 13.4.2002 passed by the Principal Bench of this Tribunal in OA Nos. 2672/2003, 2748/2002 and 2438/2002 wherein a similar matter relating to the pay scale of Senior Radiographers/Radiographers in various hospitals of Government of NCT of Delhi had been dealt with. The pay scale of Rs. 5000-8000 which had been given to them from 1.1.1996 was replaced by pay scale of Rs. 4500-7000. It was contended therein on behalf of respondents that the minimum qualification had been raised to three years diploma by the 5th CPC and the pay scale of Rs. 5000-8000 had, therefore, been lowered. The applicants had, on the other hand, alleged hostile discrimination with respect to various Central and State departments where the higher pay scale of Rs. 5000-8000 was allowed to be drawn by Radiographers. The respondents had explained that the grades of Radiographer have been divided in terms of the recommendations of the 5th CPC and based upon the promotional grades and the law on the subject the respondents had taken steps to give effect to the prescribed qualification and method of selection which lies entirely within the domain of the Executive. The Tribunal having noted the recommendations of the 5th CPC did not find any recommendation with regard to three years diploma and the qualifications of Radiographer did not appear to have been touched upon. The revised pay rules based on the recommendations of the 5th CPC were also not found to indicate any reference to the enhanced qualification. It was held that in the event of ambiguity in the recommendations, extraneous factors could not have been taken into consideration. The higher pay scale had been accorded to the applicants in those three OAs without any misrepresentation on their part and the allegation of invidious discrimination needed to be looked into as it amounted to creating a class within a class. Therefore, as the issue required reconsideration by the Government the respondents were directed to re-examine the entire matter in the light of the observations made and take a final decision within a stipulated period of time. Till then status quo with respect to applicants in the context of the present pay scale was ordered to be maintained and that recovery shall not be given effect to.
8. Keeping in view the above orders passed by the Tribunal and the similarity of the present cases, it was felt that similar directions could be issued in the present set of cases as well, which was not opposed at the Bar. We, therefore, direct the respondents to re-examine the question of down gradation of the pay scale from Rs. 5000-8000 to Rs. 4500-7000 keeping in view the grounds taken by the applicants in these OAs and in the light of observations of this Tribunal in the order passed on 13.4.2006 in OA Nos. 2672/2003, 2748/2002 and 2438/2002, and take a final decision within a period of three months from the date of receipt of a copy of this order. Till then status quo with respect to the applicants in the context of the present pay scale be maintained and no recovery shall be made as it has already been decided by the respondents to waive the same. The OA is disposed of accordingly. No costs.