Central Administrative Tribunal - Delhi
Namrata Singh vs All India Institute Of Medical Sciences on 24 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1903/2010 New Delhi, this the 24th day of March, 2011 CORAM: HONBLE MRS MEERA CHHIBBER, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER(A) 1. Namrata Singh, Dietician, R/o D-114 (w), Kidwai Nagar, New Delhi 23 2. Swapna Chaturvedi, Dietician, R/o 1287, Sector-D, Pocket-I, Vasant Kunj, New Delhi 70 3. Anuja Agarwala, Dietician, R/o 306, Type III, A.V. Nagar, New Delhi 49 4. Gurdeep Kaur, Assistant Dietician, R/o Flat No.260, FF, DDA Flats, Pocket-B, Sukhdev Vihar, New Delhi 25 5. S.V. Suma, Assistant Dietician, Department of Dietetics, AIIMS, New Delhi 29 6. Mala Manral, Assistant Dietician, 227, Sector-3, Type-3, Sadiq Nagar, New Delhi 7. Monita Gahlot, Assistant Dietician, Department of Dietetics, AIIMS, New Delhi-29 8. Shally Khurana, Assistant Dietician, F-13/3, Krishna Nagar, Delhi 51 9. Rekha Pal, Assistant Dietician, JPNA TC Raj Nagar, (Basement Kitchen), New Delhi 10. Anjali Bhola, Assistant Dietician, R/o H-4/67-68, Bengali Colony, Mahavir Enclave, Palam 45 11. Vasundhara Singh, Assistant Dietician, E-703, Ispatika Apts., Plot No.29, Sector-4, Dwarka, New Delhi-75 12. Jasmine Kaur, Assistant Dietician, G-203, Neel Padam Kunj Aptts, Vaishali, Ghaziabad 13. Vasundra Mishra, Assistant Dietician, A-24, Retreat Apartments, 20 IP Extension, Patparganj, New Delhi-92 14. Richa Jaiswal, Assistant Dietician, Department of Dietetics, AIIMS, New Delhi-29 Applicants (By Advocate:Shri B.K. Barera) VERSUS 1. All India Institute of Medical Sciences through its Director, Ansari Nagar, New Delhi 110 029 2. Union of India Through its Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi 3. The Secretary, Department of Expenditure, Ministry of Finance, Govt. of India, North Block, New Delhi Respondents (By Advocate:S/Shri Sanjeev Joshi & Som Prakash) O R D E R Dr. Veena Chhotray, Member (A):
Applicants, fourteen in number, are Assistant Dieticians and Dieticians of AIIMS seeking pay parity with their claimed counterparts, respectively the Dieticians and Senior Dieticians under the Central Govt. Hospitals. This has been sought, as was being paid till the 4th CPC, w.e.f. 1.1.1996. By way of relief, besides a direction for grant of benefit of the claimed pay scales w.e.f. 1.1.1996, the OA seeks payment of costs of litigation in their favour as also any other order deemed fit by the Tribunal.
On behalf of the applicants, the learned counsel Shri B.K. Barera and for the respondents the learned counsel, Shri Sanjeev Joshi would argue before us. We have carefully considered the submissions of the learned counsels and perused the material on record.
2. The applicants belong to Dietician Cadre in the All India Institute of Medical Sciences (AIIMS). Assistant Dietician is the entry level post in this cadre and Dietician the next promotional post. However, in the hospitals under the Central Government there is no post of Assistant Dietician. In these hospitals the entry level post is Dietician followed by the next higher rung of Senior Dieticians post. It is stated in the OA that till the 4th CPC the Assistant Dieticians of AIIMS had been getting the same pay scale as that of Dieticians under the Central Government hospitals i.e. Rs.1640-2900 (IV CPC Scale). Similarly, the Dieticians of AIIMS as well as the Senior Dieticians of the Central Government hospitals had both been getting the pay scale of Rs.2000-3500.
The grievance of the applicants is that from the Vth CPC onwards this pay parity has been disturbed and the pay scales of the applicants have been placed on a lower footing. Thus, in the Vth CPC the Assistant Dieticians of AIIMS have been given the scale of Rs.5500-9000 as against the higher scale of Rs.6500-10500 given to the Dieticians of the Central Government hospitals. In case of the Dieticians of AIIMS and the Senior Dieticians of Central Government hospitals are respectively Rs.6500-10500 and Rs.8000-13500. This inequality has been carried in the VIth CPC also.
3.1 It is the case of the applicants that the posts in question are comparable. The OA avers about the prescribed qualifications for the entry level post in AIIMS i.e. an Assistant Dietician being higher than those of the entry level post of Dietician in the Central Government hospitals. Whereas in case of the former the prescribed qualifications are M.Sc (Nutrition) {as per the clarifications in the counter reply the mention Foods and Nutrition in the OA needs to be suitably modified] with two years experience in the line / large teaching hospitals : in the latter case it is M.Sc (Foods and Nutrition) or B.Sc (Home Science) with PG Diploma in Dietetics + 1 year practical experience in Dietetics (Para 4.2).
3.2 The duties and responsibilities of these posts are also averred to be identical in nature. Para 4.4 of the OA states about these involving individualized patient care, teaching and experience. Further, apart from clinical duties the Dieticians are also involved in administration of the department (Para 4.4).
3.3 The main thrust of the applicants is on historical pay parity. As per the averments in the OA, the down grading of these scales in the AIIMS is both arbitrary and discriminatory. Para 4.5 states the grievance of the applicants regarding the exclusion of the Dieticians cadre from the benefits given in the Vth CPC, while implementing these recommendations in respect of other cadres in the AIIMS. It is also submitted that as per the recommendations of the VIth CPC the scale 6500-10500 had been recommended in cases where the entry level qualification is Post-Graduate. Non-implementation of the same in respect of the Dieticians cadre in the AIIMS has been challenged. According to the applicants, this is a clear anomaly originating since the Vth CPC and being carried forward to the VIth CPC. On this ground a violation of the Articles 14 and 16 of the Constitution has also been alleged.
3.4 Para 4.11 of the OA adverts to the decision of the Delhi High Court in the WP (C) No.3005/2008 (Dr. Manju Vatsa vs. The Director AIIMS) and contends that as per this decision according to Regulation 35 of the AIIMS Regulations 1999, all the employees of AIIMS are entitled to get the same pay scale and allowances as are admissible to the employees of comparable status in the Central Government.
3.5 The OA reveals about the applicants having submitted a number of representations to the respondents on the subject (Annex A/3 colly). However, these representations both by the affected individuals as well as through their Association are stated not to have evoked any response from the respondents.
3.6 It is also the averment in the OA that the application is within the limitation period as per the AT Act. The learned counsel, Shri B.K. Barera, contending that the present case was one of continuing wrong and hence the bar of limitation not being applicable, would cite the decision of a Coordinate Bench of the Tribunal in the OA 330/1989 (Mohd. Salim Akhtar vs Union of India & Anr [(1992) 20 Administrative Tribunals Cases 622] 4.1 The claims have been opposed by the respondents on whose behalf a detailed counter affidavit has been filed. Preliminary Legal Objections of the present OA being barred by delay and latches as well as Limitation as provided under the Administrative Tribunal Act have been raised. Besides the prayer in the OA are averred to be beyond the scope of judicial review as per the settled law.
4.2.1 Substantively also the claims are stated to be misconceived. As per the respondents the Dieticians cadre in the AIIMS has in fact better avenues for promotion; a fact alleged to have been concealed by the applicants. Even otherwise also the OA is stated to be erroneous in as much as the concept for equal pay for equal work would not be applicable in case of different employers.
4.2.2 The stand of the respondents as reiterated in their counter affidavit is that the hierarchal chain in the Dieticians cadre is dis-similar in both the cases. Further, the conditions of service as well as recruitment in AIIMS are stated to be different and distinguished in AIIMS from those in the Central Govt. hospitals.
4.2.3 Rebutting the claims of historical parity, it is averred that the same would not confer any legal right on the applicants.
4.3.4 In reply to Para 4.3 it is averred that the pay scales of employees of the AIIMS are required to be fixed as per Rule 7 (iv) from time to time. Further the reply to para 4.5 avers about the recommendations of the Central Pay Commissions not being applicable to the employees of the AIIM on mutatis mutandis basis. On the other hand the same has to be decided by a conscious decision by the competent authorities, considering the relevant rules and the facts and circumstances.
4.3.4 The case of Dr. Manju Vatsa is averred not to be applicable in the present case, nor Regulation 35 of AIIMS Act as the fixation of pay has to be decided as per the statutory rules.
4.3.5 The learned counsel Shri Sanjeev Joshi would also submit that the facts of Mohd. Salim Akhtars case were distinguishable and this decision could not be relied upon to claim any exemption from estoppel by limitation.
5.1 In the matter of claims for pay parity, sounding a note of caution against unwarranted judicial interference, laying down the basic law on the subject in Union of India & Anr vs P.V. Hasriharan & Anr {1997 (2) SLR 233} the Honble Apex Court had observed:
Fixation of pay scales is the function of the Govt. which normally acts on the recommendation of a Pay Commission. Besides, it is important to recognize that change of pay scale of a category has a cascading effect.
This well established principle of law was reiterated in State of Bihar & Ors vs. Bihar Veterinary Association & Ors [(2008) 2 SCC (L&S) 111]. In this case a mechanical application of the principle of equal pay for equal work was not favoured; besides the adverse consequences by way of the possible cascading effects and multiple litigations were also taken note by the Honble Apex Court.
In Union of India & Anr vs S. Thakur {(2009) 1 SCC (L&S) 329} even the limited scope of judicial review in such matters was delineated as only in cases where the impugned decision was found to be unreasonable, unjust and prejudicial to a section of the employees.
5.2 While dealing with claims for pay parity, the law has undergone a sea change. In State of Punjab & Anr vs Surjeet Singh & Anr {(2009) 2 SCC (L&S) 696}, the Honble Apex Court reiterated the important proposition of law laid down in its earlier judgment in State of Haryana & Ors vs Charanjeet Singh & Ors {(2006) 9 SCC 321}. In this case, a modification in the principle of equal pay for equal work was introduced stating that equal pay can only be given for equal work of equal value. Further, the Doctrine of wholesale identity got propounded by the Honble Apex Court in Surjeet Singhs case:
Para 24. It is no longer in doubt or dispute that grant of the benefit of the doctrine of equal pay for equal work depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity. The Honble Apex Court had also observed that whereas in the 1970s and 80s the Apex Court had been liberally applying the principle, in its recent decisions it had been insisting upon strict pleadings and proofs to support the claims of parity. Besides, the burden of proof was held to be clearly on the claimant.
In State of West Bengal & Anr vs West Bengal Minimum Wages Inspectors Association & Ors {(2010) 2 SCC (L&S) 1} clarifying that the principle of equal pay for equal work is not a Fundamental Right but a Constitutional goal, the Honble Apex Court held that post-pay revisions claims of parity could not be granted automatically. The following dicta were observed:-
In matters of pay revision parity could not be claimed automatically only on the basis of previous equal pay, but by establishing that the persons claiming post revision parity were discharging identical or similar duties to those of the reference category.
6. Juxtaposing the above principles of law with the factual gamut of the present case; admittedly the claims for pay parity are against different employers. The All India Institute of Medical Sciences is an Autonomous Institute governed by its own Regulations and as per the averment in the counter reply the pay revisions on the basis of the recommendations of the Central Pay Commission are not automatically mutatis mutandis extendable to its employees. On the other hand, the pre-requisite is a conscious decision on the part of the competent authorities as per the rules and the facts.
The claims in the OA about the posts of Assistant Dieticians and Dieticians in AIIMS being comparable to those of Dieticians and Senior Dieticians under the Central Government hospitals have been unequivocally rebutted by the respondents. Among the several cross averments made on both the sides, we particularly note that in AIIMS the Dieticians cadre has a four-level hierarchical structure as against a three-level one under the Central Government hospitals. Whereas, the applicants have sought to down play this fact and tried to argue from a different angle altogether; the exiting scenario of the respective pay scales and the repercussions, in the event of the present claims being accepted, at different rungs of hierarchy are clear from the comparative chart enclosed with the OA as Annex. A/1. For the sake of facilitating references only the relevant extracts are being reproduced:
Vth CPC Pay Scales of Dieticians Cadre POSTS AIIMS Central Govt. Hospital Assistant Dietician Rs.5500-175-9000 Does not exist Dietician Rs.6500-200-10500 6500-200-10500 Senior Dietician Rs.8000-275-13500 8000-275-13500 Chief Dietician Rs.10000-325-15200 10000-325-15200 What we find here is an attempt on the part of the applicants to jump the gun in as much as the Assistant Dieticians, a post that does not exist under the CGHs are claiming the pay scale given to Dieticians and the latter in turn claiming those given to the Senior Dieticians. The cascading effect of acceptance of such a proposal on Senior Dieticians and Chief Dieticians in AIIMS cannot be lost sight of.
Again, applying the law laid down by the Honble Apex Court in State of West Bengal & Anr vs West Bengal Minimum Wages Inspectors Association & Ors (supra) the prime ground taken of a pay parity till the 3rd Pay Commission would not entail any legal right of extending the same in the subsequent pay revisions also.
Considering the persistent stand taken by the respondents about the service conditions and the conditions of recruitment of the Dieticians cadre in AIIMS being different from those in the CGHs; their averment in reply to para 4.4 distinguishing the nature of duties from the level of responsibilities as such is found to assume particular significance.
It is however, submitted that the same in itself does not entitle the applicants for a particular pay scale. The grant of particular pay scale would depend upon not only the nature or the volume of work, but also on the qualitative difference in conditions of recruitment and conditions of service and as regards reliability and responsibility as well. Though the functions may be the same, but the responsibilities of the two different employers do make a real and substantial difference. (emphasis supplied) The principle of law laid down by the Honble Apex Court regarding the work being of equal value also is seen to be illustrated here.
At this very stage, we may also deal with the applicants contention regarding the decision of the Honble Delhi High Court in Dr. Manju Vasta vs The Director, AIIMSs case, which again as per the respondents is not applicable in the present case. Since as per the averment (OA Para 4.11), the same was stated to be applicable to the employees of comparable status in the Central Government; as discussed above the present case does not fit the bill.
7. The fact remains that the applicants through this OA are agitating certain claims which have their genesis in the recommendations of the 5th CPC followed by those of the 6th CPC. Copies of series of representations have been enclosed with the OA (in the years 1997, 1998, 2002, 2008, 2009, 2010); however, as is trite consecutive representations as such do not extend time frame for the cause of action. This is found to be a case in which the applicants are agitating claims after lapse of more than a decade. With due respect to the applicants learned counsel, the view taken in Mohd. Salim Akhtars case (supra) on the point of non-applicability of limitation is not found to be attracted here, considering the distinguishing factual matrix in both the cases. On the other hand, we find it apt to refer to the following observations of the Honble Apex Court in Oriental Aroma Chemical Industries Limited vs Gujarat Industrial Dev. Corporation & Anr. {(2010) 2 SCC (L&S) 50}. Elucidating the rationale behind the law of limitation, the Honble Apex Court had observed:
The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay.
Further, we would also like to refer to the dicta observed by the Honble Delhi High Court in their common order dated 16.11.2010 in the WP (C) No.7358 of 2008 (Vinod Mehta & Anr vs UOI & Ors) along with WP(C) No.7406/2008 (Smita Deb Mishra vs UOI & Ors). Placing the law of limitation in its proper perspective, the following was observed:
Delay defeats equity is a principle recognized by law. Acquiescence and estoppel are principles recognized by law. A wrong which has stood for years together and upon which people have founded their actions has been recognized as incapable of being corrected after years. Only where so gross is the injustice caused and so fundamentally illegal is a wrong do courts ignore delay in resorting to judicial remedies. It is in the interest of society that grievances should be aired within the shortest possible time. This is the reason why law of limitation has been recognized as an essential part of every justice administration system.
In the present case, we find the claims being struck by the law of limitation as also delay and latches.
8. To conclude, we do not find the present OA maintainable on substantive grounds. Besides it is also hit by the law of limitation as also delay and latches. Resultantly the OA is dismissed hereby with no order as to costs.
(DR. VEENA CHHOTRAY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
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