Gauhati High Court
Gs 164900A Pharmacist Pramod Kumar ... vs The Union Of India & 4 Ors on 17 December, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 2660/2014
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
17.12.2015
Heard Ms. M. Bhattacharyya, learned counsel for the
petitioners and Ms. R. Devi, learned Central Govt. Counsel for the
respondents.
2. 8 petitioners have joined together and have filed the present writ petition jointly.
3. By filing this petition under Article 226 of the Constitution of India petitioners seek a direction to the respondents to confer them equal status with Pharmacists serving in Central Government departments and also to upgrade the status of Pharmacists in General Reserve Engineer Force (GREF).
4. Case of the petitioners is that petitioners are diploma holders in Pharmacy and are registered as Pharmacists with their respective State Pharmacy Council as per the provisions of Pharmacy Act, 1948. They were recruited as Pharmacists in GREF where they are now serving. It may be mentioned that at an earlier point of time the post of Compounder was renamed as Pharmacist. However, in the course of re-organization of GREF, the post of Pharmacist was abolished and those working as Pharmacist like the petitioners were adjusted as nursing staff. It is stated that none of the Pharmacists were retrenched following such abolishment and they were all adjusted against vacant posts of Leading Hand (Nursing). It is stated that as per Assured Career Progression (ACP) Scheme, 22 Pharmacists who were adjusted as Leading Hand (Nursing) were granted first financial upgradation on completion of 12 years of service and second financial upgradation on completion WP(C) No. 2660 of 2014 Page 1 of 5 of 24 years of service as per guidelines issued by the Department of Personnel & Training (DOPT), Govt. of India.
5. 6th Central Pay Commission recommended merger of the post of Leading Hand (Nursing) with the post of Supervisor (Nursing). First Track Committee constituted by the Central Government to look into various issues arising out of the recommendations of the 6th Central Pay Commission recommended revised pay structure for Pharmacists. Following such recommendation, Ministry of Finance, Govt. of India had suggested enhancement of grade pay of Pharmacists at various stages starting from entry level.
6. Grievance of the petitioners is that the said benefit has not been extended to the petitioners though Controller General of Defence Accounts had clarified on 29.04.2011 that Pharmacists in GREF are entitled to revised pay structure.
7. With the above grievance, present writ petition has been filed.
8. Notice in this case was issued on 30.05.2014.
9. Respondents have filed a common affidavit. Stand taken in the affidavit is that as per Recruitment and Promotion Rules, 1982, Pharmacists of GREF were placed in the pay scale of Rs. 330-10-380-EB-15-560 which was revised from time to time as per recommendations of the 5th Central Pay Commission and 6th Central Pay Commission. It is however stated that the post of Pharmacist in the Border Roads Organization (BRO) which is the same as GREF, was abolished w.e.f. 08.07.1991 but the serving Pharmacists have been retained in lieu of Leading Hand (Nursing) WP(C) No. 2660 of 2014 Page 2 of 5 till they exit from the force. It is contended that basic pay and grade pay of Rs. 2800/- has been correctly granted to the petitioners as per recommendations of the 6th Central Pay Commission. It is however admitted that the earlier ACP Scheme has been replaced by Modified ACP Scheme (MACP) w.e.f. 01.09.2008 which provides for three financial upgradations on completion of 10 years, 20 years and 30 years of regular service. Since the post of Pharmacist has been abolished and the incumbents are only serving in lieu of Leading Hand (Nursing), question of upgradation of their status as Pharmacists in the GREF at par with Pharmacists serving in other Central Government Departments does not arise.
10. During the pendency of the writ petition, an Interlocutory Application was filed by the petitioners stating that directions have been issued by the DOPT on 10.06.2015 providing for financial upgradation of the Pharmacists suffering stagnation in service. The said application was registered as IA No. 2000/2015. It was pointed out by the learned counsel for the petitioners that such financial upgradation has been provided to employees in the Central Government services including to Pharmacists serving in the Indian Army. Learned Central Government Counsel however informed the Court that GREF authorities had not received any instruction for implementation of modified ACP Scheme for Pharmacists in terms of the recent DOPT guidelines dated 10.06.2015.
11. At this stage, it may be useful to refer to the DOPT guidelines dated 10.06.2015. Relevant portion of the DOPT guidelines dated 10.06.2015 are as follows:-
" 2. With regard to point (i) raised in your above mentioned letter, it is stated that Para 8 of Annexure-I of OM on MACPS dated 19.05.2009 provides that every financial upgradation including non-functional grades granted have to be treated as an offset against one financial upgradation under the Scheme.WP(C) No. 2660 of 2014 Page 3 of 5
The Pharmacists in the entry grade pay of Rs. 2800/- are getting the higher GP of Rs. 4200/- on completion of two years only. As such, they cannot said to be stagnating in the grade pay of Rs. 2800/- after entering into service. Non Functional Grade granted to Pharmacists (entry grade with GP Rs. 2800/-) to the next GP of Rs. 4200/- in PB-2 on completion of 2 years of service in the GP of Rs. 2800/- in PB-1 has to be treated as MACP. Therefore, they become entitled for 2nd MACP on completion of next 10 years of service i.e. total 12 years of service and further 3rd MACP on completion of 22 years of continuous service.
3. So far as the issue (ii) raised in your letter, it is informed that the MACP Scheme has come into force w.e.f. 01.09.2008 which provides financial upgradation in the grade pay hierarchy. The ACP Scheme was in operation between 01.01.2006-31.08.2008. Financial upgradations under ACP Scheme were allowed in the promotional hierarchy as per the existing hierarchy and Non Functional Upgradation was not treated as financial upgradation under ACP Scheme. Hence, the Pharmacists on completion of 12 years or 24 years of service are to be allowed financial upgradation under the ACP Scheme in the promotional hierarchy existing between 01.01.2006 to 31.08.2008.
4. As regards, point (iii) it is clarified that the Pharmacists, at the time of their placement from GP of Rs. 2800/- in PB-1 to GP of Rs. 4200/- in PB-2, they may be allowed the pay fixation benefit equal to 3% of existing basic pay and the difference in GP as consequent to such 'placement' not only the Grade Pay changes but does the Pay Band also. This is also in conformity with the para 4 of Annexure to the OM dated 19.05.2009, since it is being treated as first financial upgradation under the MACPS."
12. Way back in 1983 the Hon'ble Supreme Court in R. Viswan Vs Union of India reported AIR 1983 SC 658 had held that GREF is an integral part of the Armed Forces of the Union and the members of GREF can claim to be legitimate members of the Armed Forces within the meaning of the Article 33 of the Constitution.
13. Reference to the above decision has been made in view of the submission made by learned counsel for the petitioners that Pharmacists in the Indian Army have been provided the benefit of DOPT guidelines dated 10.06.2015 and therefore there could be no good reason to decline such benefit to the petitioners.
WP(C) No. 2660 of 2014 Page 4 of 514. Though the post of Pharmacist in GREF might have been abolished, nonetheless the fact remains that petitioners who were recruited as Pharmacist have been retained in the service of GREF as Leading Hand (Nursing) and their knowledge and skill of Pharmacy are being utilized. Till the petitioners continue their service in GREF, they would be entitled to the service benefits which the other members of GREF are entitled to. If GREF is an integral part of the Armed Forces and some benefits have been given to the members of the Armed Forces like Pharmacists in the Army, it may be necessary for the authorities in GREF to consider extending such benefit to those persons having equivalent qualification who are in the service of GREF notwithstanding abolition of their posts.
15. In such circumstances, Court is of the view that respondent No. 5 should consider the aforesaid grievance of the petitioners by taking into consideration all relevant factors and thereafter to pass a speaking order on the grievance of the petitioners. Let such decision be taken within a period of 3 (three) months from the date of receipt of a certified copy of this order. Whatever decision is taken by the respondent No. 5, the same should be communicated to the petitioners.
16. Writ petition is accordingly disposed of.
Judge aparna WP(C) No. 2660 of 2014 Page 5 of 5