Central Administrative Tribunal - Delhi
H P Sharma & Others vs Union Of India & Others on 4 March, 2011
Central Administrative Tribunal Principal Bench, New Delhi M.A.No.2468/2010 in O.A.No.1325/2008 This the 4th day of March 2011 Honble Dr. K.B.S. Rajan, Member (J) Honble Dr. Veena Chhotray, Member (A) H P Sharma & others ..Applicants (By Advocates: Shri Ranbir Yadav and Ms. Anzu Varkey) Versus Union of India & others ..Respondents (By Advocate: Shri Krishan Kumar) O R D E R on MA Dr. K.B.S. Rajan:
This Tribunal disposed of OA No. 1325 of 2008 on 16-12-2008 with the following directions:-
4. As we find that in the opening paragraph 1 of the OA, a specific challenge has been made as to omission/commission of the respondents to place the promotional post in the same pay scale as of feeder category. As per trite law and definition of promotion in Union of India & Ors. Vs. Pushpa Rani, 2008 (9) SCC 242, promotion would entail discharge of higher duties and also upgradation in the pay scale. In such view of the matter, we are of the considered view without dwelling upon the issue of parity of the applicants with their counterparts of NICD & NMEP, an anomaly, which even on being detected by the respondents is yet to be rectified. OA stands disposed of with a direction to the respondents to take up this anomaly for its removal with the concerned authorities and be rectified by a speaking order to be passed within three months from the date of receipt of a copy of this order. No costs.
2. As the aforesaid order was not complied with, CCP No. 378 of 2009 was passed and the Tribunal disposed of the same on 28-10-2009 stating, In view of an order passed by the respondents, giving liberty to the applicant to assail this order in an appropriate proceedings, CP stands disposed of. Notices are discharged.
3. In fact, on 27-10-2009, the respondents had passed an order, a copy of which was handed over to the Bench on 28th October, 2009 and it was based on that order that the CCP was closed. The said order daed 27th October, 2009 inter alia reads as under:-
Thus it is clear from the instruction contained in the Department of Expenditure O.M. No.169/2/2000-IC dated 24.11.2000 that the cadre of Laboratory Technician and Senior Laboratory Technician in Safdarjung Hospital is required to be restructured before higher pay scale is granted for the post of Senior Laboratory Technician. Accordingly action is being initiated to restructure the cadre of Laboratory Technician in Safdarjung Hospital and after restructuring the cadre of Laboratory Techincian in Safdarjung Hospital and after restructuring the cadre, matter will be taken up with Ministry of Finance for removal of the anomaly in the pay scale of Senior Laboratory Technician in compliance of the directions of the Honble CAT.
Since this is a policy decision to be taken by Ministry of Health & Family Welfare in consultation with Ministry of Finance, it is taking some time in complying with the directions of the Honble CAT otherwise there is no intentional delay. Ministry of Health & Family Welfare never had any intention of flouting the orders of the Honble CAT and deeply regrets the delay in compliance of the order.
4. M.A. 2468 of 2010 has been filed, praying for a direction to the respondents to pass an appropriate order in consonance with the direction issued by the Tribunal on 16-12-2008.
5. Respondents had on notice being issued stated at the time of after notice hearing that they have forwarded the case to the Ministry of Finance, Department of Expenditure for their concurrence.
6. The respondents have now passed a speaking order vide order dated Nil, which reads as under:-
The Speaking Order in the matter of H.P. Sharma & Ors. CP No.378/09 in O.A.1325/08 The matter of O.A.NO.1325/2008, MA No.1031/08 filed by Shri H.P. Sharma & Ors. thereafter the Contempt Petition No.378/09 filed in the above O.A. has been examined by the Ministry of Finance, Deptt. of Expenditure vide U.O.No.17(5)/E.III(B)/2011 dated 28.02.2011 and proposal for placement of Sr. Lab Technician in the pay scale of Rs.5500-8000 has not been found feasible on the basis of the following grounds:
Placement of the Laboratory Technician in the pre-revised pay scale of Rs.1400-2300 corresponding to Rs.4500-7000 was on the basis of a specific recommendation of the Fifth CPC. No such specific recommendation was made for the post of Sr.Lab Technicians as the post of Sr. Lab Technician was already in the pay scale of Rs.1400-2300.
As per the CCS (RP) Rules, 1997, the Techncians with either a Degree in Science or Diploma in Engineering have been placed in the pre-revised pay scale of Rs.5000-8000/-. In the instant case, the Sr. Lab Technician is the promotional post of Lab. Technician. The educational qualification of the post of Lab. Technician is a Matriculate and Diploma in Medical Laboratory. Thus, required eligibility criteria for placement of the post of Sr. Lab. Technician in the scale of Rs.5000-8000 is not fulfilled.
The post of Sr. Lab Technician is a common category post and any revision of the pay scale of this post would have wide repercussions.
5th CPC in para 69.79 had given certain recommendations relating to those organizations initiating programmes combating communicable, non-communicable and other major diseases through its National Programmes and Projects for Health care, for reducing mortality, morbidity and also a salutary effect on efforts to improve the life of common man and further given recommendations for upgradation of the pay scale of the Laboratory Staff of the NMEP in Para 69.84. These recommendations were accepted and notified in the CCS (RP) Rules, 1997. On the analogy of upgradation of pay scale of Lab. Staff of NMEP, the pay scale of Lab. Staff of National Institute of Communicable Diseases (NICD) were also upgraded. Therefore, these recommendations are not applicable for the Lab. Staff of Safdarjung Hospital.
However, in view of the functional reasons, the benefits of pay fixation under FR 22 (I)(a)(1) may be granted to the Lab Technicians on promotion as Sr. Lab Technicians as per the Ministry of Finance, Deptt. of Expenditure OM dated 24.11.2000.
This speaking order is issued on the directions of the Dte.G.H.S., Ministry of health & F.W. vide their letter No. C.18018/12/2008-MH I dated 28.02.2011.
Sd/-
(Dr. K.T. Bhowmik) Addl. Medical Superintendent
7. The applicants contend that this order is nowhere near compliance as mandated in the order dated 16-12-2008.
8. Arguments were heard. The case of the applicant in the original application was that a glaring anomaly exists in that the scale of pay of both the feeder as well as promotional posts (Lab. Technicians and Sr. Lab. Technicians) are the same, i.e. 1400 2300 (equivalent to Rs 4500 7000) and further, the pay scale of Sr. Lab. Technician in comparable institutions is higher than that as available in the case of the applicants, the pay of Sr. Lab. Technicians has to be upgraded to Rs 5,000 8000. As such, the pay scale of the Sr. Lab. Technicians in the respondents organization has to be enhanced to Rs 5,000 8,000/. The Tribunal, on being satisfied with the fact that identical pay scale in the feeder and promotional posts constitutes a prima facie anomaly, without dwelling in to the comparison with the other institutions, directed the respondents to rectify the anomaly suitably.
9. The respondents have also taken up the matter with the Department of Expenditure which had now advised as contained in the order dated nil extracted above.
10. The question is whether the same is in full and complete compliance of the order of this Tribunal or there exists some more for execution.
11. The respondents have stated the reason as to what prompted the Pay Commission Recommendation to grant higher pay scale of Rs 5,000 8000 (either based on education al qualification or functional responsibilities) to the Sr. Lab. Technicians of other comparable institution, whereas in so far as the case of the respondents is concerned, the view of the Ministry of Finance is that the qualification is not as the one for which higher pay scale of Rs 5,000 8000 is prescribed and as such, instead of granting the higher pay scale, since the functional responsibilities of Sr. Lab. Technicians are higher than those of Lab. Technicians, provisions of Ru,e 22(1)(a)(1) be made available at the time of promotion to the post of Sr. Lab. Technicians.
12. The above needs full consideration. For in the case of Rajasthan High Court v. Babu Lal Arora,(2004) 9 SCC 71, the Apex Court has held as under:
One of the important indicia to find out whether an employee holds a higher post on promotion is whether such post carries higher emoluments.
13. It was a case where an individual appointed as LDC was promoted as UDC and later on further promoted as Court Fee Examiner/Stamp Reporter in a particular pay scale and further promoted as Bench Reader in the same pay scale. Respondents had treated the applicant as having got more than 3 promotions and hence denied him the benefit of selection grade which was available only if one had not got more than 3 promotions. It was in that context the Apex court, taking into account the fact that the last two posts held by the appellant therein being with the identical pay scale, whether his posting as Bench Reader amounted to a promotion, as one of the important indicia to find out whether an employee holds a higher post on promotion is whether such post carries higher emoluments. In the instant case, the fact that the respondents have themselves allowed the benefit of pay fixation under FR 22(1)(a)(1) keeping in view the functional reasons confirms that the post of Sr. Lab. Technicians carries higher responsibilities and hence higher emoluments are certainly warranted for that post. The case thus needs further consideration.
14. Respondents are directed to reconsider the matter again in the light of the above and communicate the decision to the applicant. This may be carried out within a period of three months from the date of receipt of certified copy of this order.
15. The M.A. is accordingly disposed of with the above directions.
( Dr. Veena Chhotray ) ( Dr. K.B.S. Rajan ) Member (A) Member (J) /sunil/