Central Administrative Tribunal - Delhi
Delhi Nurses Union (Regd.) vs Union Of India Through on 9 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.141 of 2012 Misc. Application No.109/2012 Order reserved on : 20th April, 2012 Pronounced on : 9th May, 2012 HONBLE SHRI JUSTICE S. C. SHARMA, ACTING CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) 1. Delhi Nurses Union (Regd.), HQ. Dr. Ram Manohar Lohia Hospital, New Delhi. 2. Mrs. S. N. Kalra W/o N. A. Kalra, R/o House No.29, Ward No.1, St. Johns Church Compound, New Delhi-110030. Applicants ( By Ms. Tamali Wad, Advocate ) Versus 1. Union of India through Secretary, Ministry of Health & Family Welfare (Nursing Section), Nirman Bhawan, New Delhi. 2. Secretary, Ministry of Finance, Department of Expenditure, North Block, New Delhi. 3. Director General of Health Services, Directorate General of Health Services, Government of India, Nirman Bhawan, New Delhi-110001. 4. Secretary, Ministry of Personnel, Public Grievances & Pension, Department of Personnel & Training, Government of India, North Block, New Delhi. 5. Medical Superintendent, Safdarjung Hospital & VMCC, New Delhi-110029. 6. medical Superintendent, Lady Hardinge Medical College & Smt. S.K. Hospital, New Delhi. 7. Medical Superintendent, Dr. Ram Manohar Lohia Hospital, New Delhi. 8. Medical Superintendent, Kalavati Saran Children Hospital, New Delhi. Respondents ( By Shri Ashish Nischal for Shri Rajinder Nischal for Respondents 1, 2, 4 & 6; Shri D. S. Mahendru for Respondent No.5, Advocates ) O R D E R Justice S. C. Sharma, Acting Chairman:
Instant Original Application has been instituted for the following reliefs:
(a) Summon the relevant records pertaining to grant of as well as revocation of the 3rd Financial upgradation under MACPS to Nursing personnel (ANS/DNS cadre) in various Central Government Hospitals in Delhi.
(b) Quash and set aside the Office Memorandum No. A.11015/01/2011-N dated 9.12.2011 issued by the Respondent No.1.
(c) Quash and set aside order No.3-2/2011-Admn.(III)N/SS1/2011 dated 20.12.2011 issued by Safdarjung Hospital (Respondent No.5) & order no. F.No.-23-2/NS (Admn.)/11/6858 dated 30.12.2011 issued by the Dy. Director Admn, DGHS, Lady Hardinge College and Smt. S. K. Hospital (Respondent No.6).
(d) Issue appropriate orders directing the Respondents not to issue any further order(s) revoking the 3rd Financial upgradation in Grade Pay Rs.6600/- under the MACPS from the ANS/DNS cadre in PB-3 Rs.15600-39100 in Hospitals under the Central Government.
(e) Issue appropriate directions to the Respondents not to take any further action for recovery etc. in pursuance of Office Memorandum No.A.11015/01/2011-N dated 9.12.2011 issued by the Respondent No.1.
(f) Issue appropriate directions to the Respondents to re-fix the pay of the applicants in PB-3 Rs.15600-39100 plus Grade Pay Rs.6600/- with all consequential benefits as per law.
(g) Pass any other and further order which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Pleadings of the parties may be summarized as follows:
It has been alleged by the applicants that applicant No.1 is the Delhi Nurses Union, which is an association of serving and retired Nurses from various hospitals in Delhi under the Central Government, and affiliated to the All India Government Nurses Federation, formed inter alia for the purposes of protecting and safeguarding the interests of the nursing staff, and is a registered society. Instant OA has been instituted on behalf of senior nursing personnel working as Assistant Nursing Superintendent (ANS)/Deputy Nursing Superintendent (DNS) (Non-Functional). After implementation of the 6th CPC, they have been drawing their pay in the PB-3 Rs.15600-39100 + Grade Pay Rs.5400 w.e.f. 01.01.2006. Most of the nursing personnel of various hospitals, such as Safdarjung Hospital, Lady Hardinge College and Smt. S. K. Hospital, and Dr. Ram Manohar Lohia Hospital are stated to have completed more than 30 years of continuous regular service with the respondents, and that they have not got adequate promotional opportunities, having attained only two promotions and/or one financial upgradation under the previous ACP scheme, and each of them have stagnated for ten years or more in the same grade pay and have reached PB-3/GP Rs.5400 after two promotions only in a career of more than 30 years. The respondent No.4 on 19.05.2009 issued an office memorandum notifying the Modified Assured Career Progression Scheme (hereinafter to be referred as MACPS) for the Central Government civilian employees. The MACPS was issued as per recommendations of the 6th CPC in supersession of the previous ACP scheme of August, 1999. In view of the MACPS, pay drawn in the pay band and the grade pay allowed thereunder shall be taken as the basis for determining the terminal benefits in respect of the retiring employees. A communication was issued by the Ministry of Health & Family Welfare on 21.12.2010 clarifying that with effect from 01.09.2008 benefits of MACPS shall be granted in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands as prescribed in the CCS (RP) Rules, 2008. The Central Government has introduced a third financial upgradation under the MACPS for its employees on completion of 30 years of regular service, unlike the previous ACP scheme of 1999 which envisaged only two financial upgradation after 12 and 24 years of service. The purpose of MACPS is to give impetus by way of financial benefits only to the employees who have been continuously in service for more than 10/20/30 years and are stagnating for ten years or more in the same grade pay on account of lack of promotional opportunities. Since the 6th CPC recommended merger of posts in the pre-revised pay scales of Rs.6500-10500 and Rs.7500-12000, the Assistant Nursing Superintendents (ANS) in the pre-revised scale of Rs.6500-10500 and Dy. Nursing Superintendents (DNS) in Rs.7500-10500 (pre-revised) have been placed in the merged higher revised pay scale of Rs.8000-13500 and w.e.f. 01.01.2006 and have been drawing their revised pay in recommended PB-3 in the scale of Rs.15600-39100 with grade pay of Rs.5400. The immediate next higher grade pay in PB-3 is Rs.6600. However, the respondent No.1 has not accepted the merger of ANS and DNS cadres. MACPS stipulates that promotions/financial upgradation granted under ACP in the pre-revised pay scales which carry the same grade pay due to merger of pay scales/upgradation of posts recommended by the 6th CPC would be ignored while granting upgradation to the next higher grade pay under MACPS. MACPS is purely personal and it is merely a placement in the next higher grade pay and nothing more. The applicants who were drawing the Grade Pay of Rs.5400 in PB-3 consequent to their pay revision w.e.f. 01.01.2006 and were entitled for third financial upgradation on satisfaction of the criteria laid down under the scheme were granted the next higher Grade Pay of Rs.6600 in PB-3 w.e.f. 01.09.2008. Their pay was re-fixed in PB-3 Rs.15600-39100 + GP Rs.6600 in place of PB-3 Rs.15600-39100 + GP Rs.5400. In the case of retiring senior nursing personnel their pension was fixed in terms of para 21 of Annexure-I to the MACPS. That all of a sudden without any basis in a most arbitrary and discriminatory manner the respondent No.1 issued impugned office memorandum dated 09.12.2011 on the advice received from the respondent No.2 and directed all hospitals to immediately review the cases where the third upgradation under MACPS had been granted to ANS on completion of 30 years of regular service. Fixation of pay scales under the MACPS is governed strictly in terms of the scheme itself and cannot be equated to the pay fixation on promotion. MACPS envisages grant of the immediate next higher Grade Pay in the revised pay band of the concerned employee, whereas in case of promotion from one grade to another in the same grade pay, the Government servant will be granted an additional increment on account of his promotion. MACPS is not a promotion and merely because despite merger of pay scales the normal channel of promotion for ANS continues to be DNS in the same pay band with same grade pay, the same cannot be the reason to hold that eligible ANS in PB-3 are to be granted the benefit of third financial upgradation under MACPS only in Grade Pay Rs.5400 and not in the next higher Grade Pay of Rs.6600. The impugned office memorandum dated 09.12.2011 followed by orders dated 20.12.2011 and 30.12.2011 withdrawing with immediate effect the third financial upgradation under MACPS in the Grade Pay of Rs.6600 and re-fixing the pay of the applicants in Grade Pay of Rs.5400 are said to be illegal. That all senior nursing personnel in the ANS/DNS cadre in AIIMS have been granted the Grade Pay of Rs.6600 as the third financial upgradation under MACPS, vide order dated 07.01.2011, and that the applicants who are identically placed cannot be discriminated against and deprived of the said benefit, and hence the impugned orders need to be quashed. Hence, this OA.
3. The respondents have contested the case by filing their counter reply and have denied the facts alleged in the OA. It has been admitted by the respondents that the MACP Scheme contains provision for grant of three financial upgradations at the intervals of 10, 20 and 30 years of continuous regular service, and that the Scheme envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as per CCS (Revised Pay) Rules, 2008. The hierarchical structure of the nursing cadre along with their respective Grade Pay is as under:
Sl. No. Designation Pay Band Grade Pay
1. Staff Nurse PB-2 Rs.4600/-
2. Nursing Sister PB-2 Rs.4800/-
3. Asstt. Nursing Supdt. PB-3 Rs.5400/-
4. Dy. Nursing Supdt. PB-3 Rs.5400/-
5. Nursing Supdt. PB-3 Rs.6600/-
It is pleaded that the Staff Nurse is entitled to grant of third MACP on completion of 30 years of regular service to the grade of Dy. Nursing Superintendent in PB-3 Grade Pay Rs.5400, and that the feeder grade to the post of Dy. Nursing Superintendent is Asstt. Nursing Superintendent having the same Grade Pay of Rs.5400. That both the feeder and promotional grades are in the same Pay Band with the same Grade Pay, and hence in the instant case MACP would have to be given only in PB-3 with Grade Pay of Rs.5400, as the normal channel of promotion is to this Grade and MACP is only a fall back option. Instructions were issued by the Government to the concerned hospitals to review the cases of grant of MACPS to ANS on completion of 30 years of service. The promotional avenues of the nursing personnel are as under:
S. No. Post Pay-Band Grade Pay Mode of Recruitment
1. Staff Nurse PB-2 Rs.4600/- Direct Recruitment
2. Nursing Sister PB-2 Rs.4800/- By promotion from Staff Nurse
3. Assistant Nursing Superintendent (ANS) PB-3 Rs.5400/- By promotion from Nursing Sister
4. Deputy Nursing Superintendent (DNS) PB-3 Rs.5400/- By promotion from Assistant Nursing Superintendent
5. Nursing Superintendent PB-3 Rs.6600/- By promotion from Deputy Nursing superintendent ANS and DNS have been granted the revised pay structure of Grade Pay of Rs.5400/- in PB-3. It is pleaded that the MACP is to be given only in PB-3 with Grade Pay of Rs.5400/- as the normal channel of promotion is to this Grade and MACP is only a fall back option, and accordingly, ANS have been granted MACP in the Grade Pay of Rs.5400/- only, which is the Grade Pay of DNS (the normal channel of promotion) by granting one additional increment, and that since the promotional post of ANS to the grade of DNS carries the Grade Pay of Rs.5400/-, the financial upgradation under third MACP to ANS cannot exceed this. That the OA lacks merit and is liable to be dismissed.
4. In response to the counter reply filed on behalf of the respondents, the applicants have filed their rejoinder affidavit and in the rejoinder they have reiterated the facts which have been alleged in the OA.
5. We have heard Ms. Tamali Wad, advocate for the applicant, Shri Ashish Nischal for respondents 1, 2, 4 and 6 and Shri D. S. Mahendru for respondent No.5, and perused the entire facts of the case.
6. In view of the admitted facts by the parties in the OA as well as in the counter and rejoinder, we are of the opinion that the controversy involved in the case for adjudication is very narrow. It is an admitted fact that instant OA has been instituted on behalf of the Assistant Nursing Superintendents (ANS) working in various hospitals, and we have to adjudicate that if some ANS stagnates for a period of ten years, whether she would be entitled for the financial benefit of third MACP, and what benefit would be available to such ANS. It is also admitted fact that DNS is a promotional post in the same Grade Pay in PB-3. After implementation of the 6th CPC, these two posts were merged. There were two different scales of pay of Rs.6500-10500 and Rs.7500-12000 for ANS and DNS, and after merger a unified scale of pay band came into existence for both the posts of Rs.15600-39100 with Grade Pay Rs.5400/-. The dispute is whether an ANS not promoted to the higher post for a period of ten yeas would be entitled to the benefit of MACP with Grade Pay of Rs.5400/- or Rs.6600/- in PB-3. It has been alleged by the applicants that in view of the introduction of the MACP, an employee is entitled for grant of third MACP upgradation in the next higher Grade Pay, and if an ANS is in the Grade Pay of Rs.5400/-, then while granting the benefit of 3rd MACP, she would be entitled for the next higher Grade Pay of Rs.6600/-. It has also been stated by the applicants that they were drawing Grade Pay of Rs.5400/- in PB-3 consequent to their pay revision w.e.f. 01.01.2006 and were entitled to the third financial upgradation on satisfaction of the criteria laid down under the Scheme in the next higher Grade Pay of Rs.6600/- in PB-3 w.e.f. 01.09.2008, and accordingly their pay was re-fixed in PB-3 Rs.15600-39100 + Grade Pay Rs.6600/- in place of Rs.15600-39100 + Grade Pay Rs.5400/- while granting the benefit of third MACPS, but this order was withdrawn by the respondents in a most arbitrary and discriminatory manner vide office memorandum dated 09.12.2011 on the advice received from the respondent No.2 and directed all hospitals to immediately review the cases where the 3rd upgradation under MACPS had been granted to ANS on completion of 30 years of regular service. It is a fact that the grant of financial upgradation under MACPS is not a promotion; rather it is a financial upgradation when promotion is not available to an ANS after completion of 30 years of service. Hence, it is not going to make any difference if for the post of DNS, the promotional post, the Grade Pay is Rs.5400/-, but the benefit is to be granted of Grade Pay in the next higher Grade Pay. The respondents in their counter reply have alleged that it is a fact that MACPS envisages merely placement in the next higher Grade Pay, but DNS is a promotional post and ANS is the feeder cadre for the promotional post of DNS and both are in PB-3 with Grade Pay Rs.5400/-. An ANS, after promotion on the post of DNS will be entitled for the Grade Pay of Rs.5400/-, whereas ANS, the feeder cadre, on grant of third MACPS upgradation will be in the Grade Pay of Rs.6600/-, and it would be against the principles. That the normal channel of promotion is to this Grade and MACPS is only a fall back option.
7. We have to adjudicate what has been provided in the MACP Scheme. Annexure-I is the copy of the MACPS introduced as per recommendations of the 6th CPC. It is also an admitted fact that as per provisions of MACPS, an employee is entitled for the next higher Grade Pay while granting third MACPS upgradation. What is the meaning of immediate next Higher Grade Pay. All the ANS will be in the Grade Pay of Rs.5400/- and the DNS, which is the promotional post, will also be in the Grade Pay of Rs.5400/-. The criteria for promotion is entirely different. While granting promotion to ANS to DNS, one would be entitled for one additional increment and then her pay is to be fixed at the next higher stage, whereas while granting benefit of MACPS, one is entitled for the next higher Grade Pay. It is immaterial that ANS, the feeder cadre, and DNS, the promotional cadre, are in the same Grade Pay of Rs.5400/-, and while granting the benefit of MACPS, ANS will draw higher Grade Pay of Rs.6600/- in comparison to DNS, the promotional post, of Rs.5400/-. Earlier while granting the benefit of MACPS, the pay of the applicants was fixed with Grade Pay Rs.6600/-. Annexure A-6 is the copy of the order dated 01.04.2011 fixing the pay of the applicants in PB-3 with Grade Pay Rs.6600/-. It has been issued by the Government of India, Office of Medical Superintendent, Safdarjung Hospital & VMMC, New Delhi, but afterwards this Grade Pay was revised and the said order was withdrawn, and Grade Pay of Rs.5400/- was granted to the applicants. It has also been stated by the applicants that their counter-parts in AIIMS are getting the Grade Pay of Rs.6600/-. Earlier they were in the scale of PB-3 Rs.15600-39100 + Grade Pay Rs.5400/-, and were granted the next higher Grade Pay of Rs.6600/- under MACPS, and it has not been stated by the respondents that this order has been reviewed. When the counter-parts of the applicants in AIIMS are getting the same higher Grade Pay of Rs.6600/-, then how the applicants can be discriminated. Annexure A-5 contains answers to certain frequently asked questions on MACPS. At serial number 6, the point of doubt, Whether the promotions in same grade would be counted for the purpose of MACPS? has been replied as follows:
The financial upgradation under the MACPS is in the immediate next higher grade pay in the hierarchy of recommended revised pay bands and grade pay as given in CCS (Revised Pay) Rules, 2008. However, if the promotional hierarchy as per recruitment rules is such that promotions are earned in the same grade pay, then the same shall be counter for the purpose of MACPS. We are not concerned here with promotion, but we have to adjudicate as to what Grade Pay would be admissible while granting the benefit of third MACPS on completion of 30 years of service without promotion, and according to the said query, the immediate next higher Grade Pay is admissible to such an employee, and the intention of granting MACPS is also the same. The respondents have not disputed that the next higher Grade Pay is to be granted while granting the benefit of third MACPS upgradation, even though they have disputed the admissibility of Grade Pay of Rs.6600/- because the ANS is the feeder cadre for the promotional post of DNS, and the Grade Pay of both ANS and DNS is Rs.5400/-. When an ANS will be promoted as DNS, then she would be entitled for Grade Pay of Rs.5400/-, whereas ANS, the feeder post, will be entitled for Grade Pay of Rs.6600/- while granting the benefit of third MACPS, but it is immaterial because promotion is entirely different and the benefit of third MACPS is different and both are to be decided on different parameters.
8. In this connection, the learned counsel for the applicants cited a judgment of the Honble High Court of Delhi in WP(C) No.3420/2010 in the matter of R. S. Sengor & others v Union of India & others, decided on 04.04.2011. The Honble High Court has held as follows:
11. Whatever may be the dispute which may be raised with reference to the language of paragraph 2 of the MACPS the illustration as per para 4 of annexure I to the OM, contents whereof have been extracted hereinabove, make it clear that it is the next higher Grade Pay which has to be given and not the grade Pay in the next hierarchical post and thus we agree with the Respondents that Inspectors have to be given the Grade Pay after 10 years of Rs.4800/- and not Rs.5400/- which is the Grade Pay of the next Pay Band and relatable to the next hierarchical post. To put it pithily, the MACPS Scheme requires the hierarchy of the Grade Pays to be adhered to and not the Grade Pay in the hierarchy of posts. Hence, in view of the judgment of the Honble High Court, it is evident that the next higher Grade Pay has to be given and not the Grade Pay in the next hierarchical post. It is immaterial that the next hierarchical post is DNS and on that post the Grade Pay is Rs.5400/-, but while granting the third financial upgradation under MACPS, the benefit is to be granted as per the provisions thereof, and it is the next higher Grade Pay which is admissible to an employee, and the next higher Grade Pay is Rs.6600/-. Since ANS is in the Grade Pay of Rs.5400/-, while granting the benefit of third MACPS, ANS will be given the Grade Pay of Rs.6600/- which is the next Grade Pay.
9. Hence, in view of the judgment of the Honble High Court of Delhi, in view of the wordings of the MACPS, as well as in view of the MACPS allowed to ANS of AIIMS, the applicants are entitled to the Grade Pay of Rs.6600/- and not Rs.5400/-. The order passed by the respondents dated 20.12.2011 is not in accordance with the MACPS and it is against the very spirit of the MACPS, and if the contention of the respondents is to be accepted, then no financial upgradation will be given to the ANS even after grant of third MACPS, which is not the intention of introduction of the MACP Scheme, and the applicants are entitled to the Grade Pay of Rs.6600/- and no recovery will be made from the applicants of the difference paid to them. The OA deserves to be allowed.
10. The OA is allowed. Orders dated 09.12.2011 and 20.12.2011 issued by the respondent Nos. 1 and 5 respectively, as well as order dated 30.12.2011 issued by the respondent No.6 are quashed and set aside. The respondents are directed to grant the benefit of MACPS to the applicants in the Grade Pay of Rs.6600/- in Pay Band 3 in the scale of Rs.15600-39100. No recovery shall be made from the applicants, and the applicants shall be entitled to the Grade Pay of Rs.6600/- in continuity of the earlier order dated 01.04.2011. The respondents shall comply with the order passed by this Tribunal within a period of one month from the date when copy of this order is communicated to them. There shall be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/