Central Administrative Tribunal - Delhi
Akela Anand S/O Shri Sachida Anand vs Govt. Of Nct Of Delhi Through on 12 November, 2013
Central Administrative Tribunal Principal Bench New Delhi OA No.3036/2012 MA No.2540/2012 Order Reserved on: 05.09.2013 Order pronounced on 12.11.2013 Honble Shri V. Ajay Kumar, Member (J) 1. Akela Anand S/o Shri Sachida Anand, R/o 523, Sarvodya Seva Kust Ashram, Leprosy Complex, Tahirpur, Shahdara, Delhi-95. 2. Daya Ram s/o Shri Mool Chand, R/o C-207, Nank Chand Basti Kotla Mubarakpur New Delhi-03. .... Applicants (By Advocate Shri Yogesh Sharma ) Vs. 1. Govt. of NCT of Delhi through The Chief Secretary, New Sectt. I.P. Estate, New Delhi. 2. The Secretary Department of Finance Govt. of NCT f Delhi New Sectt., I.P.Estate New Delhi. 3. The Director Directorate of Social Welfare, Govt. of NCT of Delhi, GLNS Complex, Delhi Gate, Delhi. 4. The Additional Director Directorate of Social Welfare Govt. of NCT of Delhi GLNS Complex Delhi Gate, Delhi. . Respondents (By Advocate: Ms. Rashmi Chopra) O R D E R By V. Ajay Kumar, Member (J):
The applicants, two in number, are working as Nursing Orderly in Medical unit of Home for Leprosy and Tuberculosis affected Beggars (in short HLTB) under the control of Directorate of Social Welfare, Government of NCT of Delhi. The applicants are claiming grant of Patient Care Allowance (hereinafter referred to as `PCA) as HLTB is a very highly sensitive Home in which about 650 inmates having shelters and all the inmates are suffering from Leprosy and taking treatment of their wounds, Tuberculosis, AIDS and other sensitive diseases. According to the applicants, their job involves direct interaction with these inmates while taking care of their health. Vide its order dated 13.7.1999 (Annexure A4), the Government of NCT of Delhi decided to grant PCA to its Ministerial staff (Group C & D) working in various Hospitals/ Dispensaries/Polyclinics w.e.f. 1.8.1997 in terms of the recommendations of the 5th CPC in this regard. The said allowance was enhanced further vide order dated 22.1.2010 (Annexure A5). Earlier, the applicants made representations praying for grant of PCA to them. Thereafter, they filed OA No.4288/2011 before this Tribunal, which was disposed of on 01.12.2011 and directed the respondents to decide the applicants representations and also treat the said OA as a supplementary representation and thereafter to pass a reasoned and speaking order. In compliance of these directions, the respondents passed the impugned order dated 28.02.2012, whereby they rejected the claim of the applicants for grant of PCA.
2. At the very outset, the learned counsel for the applicant submits that the claim of the applicants was rejected vide impugned order dated 28.02.2012 only by taking a vague plea that employees of Homes of Social Welfare Department does not involve continuous routine contact with patients affected with communicable diseases or are handling infected materials, instruments and equipments which can spread infection as their primary duty. It is reiterated that HLTB is a very highly sensitive Home in which approx. 650 inmates having shelters and all the inmates are suffering from Leprosy and taking treatment of their wounds, Tuberculosis, AIDS and other sensitive diseases and, according to the applicants, their job involves direct interaction with these inmates while taking care of their health, therefore, there is no justification in rejecting the claim of the applicants.
3. Further, the learned counsel for the applicants submits that once the Govt. of NCT of Delhi vide Circular dated 13.07.1999 decided to grant the Patient Care Allowance to all the Ministerial Staff (Group `C & `D) working in various Hospital/Dispensaries/Poly Clinics, not granting the same to the applicants who are working in more unhygienic environment is not only illegal but also arbitrary.
4. Further, it is also submitted that once the case of the applicants has been recommended and forwarded by the competent authority to the higher authorities, the higher authorities are duty bound atleast to consider the grievances of the employees and not considering the request of the applicants, by rejecting the same on the ground that the Finance Department rejected the same is totally illegal and arbitrary.
5. The learned counsel for the applicants also stated that, as per the knowledge of the applicant, all the similarly situated Nursing Orderly in Govt. of NCT of Delhi working in Hospitals/Dispensaries/Poly Clinics are getting the PCA and therefore, not granting the same to the applicants is a clear case of discrimination, which is violative of Articles 14 and 16 of the Constitution of India. Hence, the present OA has been filed seeking to quash the impugned order and for a further direction to the respondents to grant the Patient Care Allowance to the applicants w.e.f. 01.08.1997 or from the date of their appointment, whichever is later with all the consequential benefits including arrears with interest.
6. Per contra, the respondents in their reply have denied in Para 4.3 and 4.4 that the applicants are involved in continuous routine contact with patients affected with communicable diseases or are handling infected materials, instruments and equipments which can spread infection as their primary duty. Further they have stated that the Circular dated 13.07.1999 is applicable to Ministerial Staff (Group `C and `D) working in various Hospitals/Dispensaries/ Polyclincs only. Further, it is stated that as per the directions of this Tribunal, the competent authority, after consideration of factual position on merit, passed the impugned order dated 28.02.2012, therefore, mere recommendation does not confer any right in favour of the applicants as the grant of relief to be causing financial stress on the exchequer, involving public money should be made in accordance with law.
7. Heard Shri Yogesh Sharma, learned counsel for the applicants and Ms. Rashmi Chopra, learned counsel for the respondents and have been through the pleadings on record, including the departmental record.
8. A coordinate Bench of this Tribunal in OA No.4611/2011 with OA No.4612/2011, filed by Daftaries, Peons and Chowkidars working in National Institute of Communicable Diseases, Government of India wherein also the respondents taken a plea that the applicants duties are different and that they do not come in continuous and routine contact with the patients infected with communicable diseases but occasionally, the Tribunal allowed the said OA basing on a decision dated 29.02.2008 in OA No.2027/2007 and OA No.2031/2007 of the Bombay Bench of this Tribunal.
9. When the Union of India challenged the said order of this Tribunal, the Honble High Court of Delhi [in WP (C) No.4973/2013, decided on 21.10.2013] upheld the order of this Tribunal, and dismissed the said Writ Petition, based on their earlier decision in WP (C) No.5268/2012. The Honble High Court while allowing the WP, referred the policy Circular dated 04.02.2004 wherein it was mentioned that unless the work performed by the concerned Group `C & `D (Non-ministerial) employee carry an equal degree of risk of being infected in a Hospital they are not entitled to the Patient Care Allowance, and observed that the Tribunal while allowing the aforesaid OA No.4611/2011 and 4612/2011, not recorded the duties performed by the applicants therein, and accordingly discussed the duties of the applicants therein in detail and held that the Patient Care Allowance is equally payable if the Group `C and `D non-ministerial employees perform regular duties involving continuous routine contact with patients affected with communicable diseases or are handling infected materials, instruments and equipments which can spread infection, in terms of condition No.(iv) of the policy Circular dated 4.02.2004. However, the Honble High Court specifically observed that since the entitlement of PCA is only dependant on the duties performed by the concerned employee, the Judgement would not be a precedent and each case has to be decided on its own facts.
10. The applicants who are working as Nursing Orderly in the medical unit of Home for Leprosy and Tuberculosis Effected Beggars (HLTB), though specifically mentioned the duties being performed by them, and their involvement in continuous routine contact with patients affected with communicable diseases, and with the infected materials, instruments and equipments which spread infection, the respondents without specifically mentioning the duties and the involvement of the applicants, simply denied the contention of the applicant as not true. On the other hand, the respondents 3 and 4 under whom the applicants are working and who required to take the decision considering the aforesaid facts but rejected the claim of the applicants basing on the decision of the 2nd Respondent (Finance Department). The 3rd Respondent failed to state that, when as per the Annexures A2 and A3 letters of the Superintendent of the HLTB himself, the applicants work involve continuous routine contact with patients affected with communicable diseases, how the Finance Department of the Government of NCT of Delhi can differ with the same. It clearly manifest that the 3rd Respondent before passing the impugned order has not applied his mind and on the other hand he passed the order mechanically, as per the decision of the Finance Department. It is the primary duty of the 3rd Respondent to determine whether the applicants are performing such duties which enable them to be entitled for Patient Care Allowances or not.
11. In these circumstances and for the aforesaid reasons, the OA is allowed and the Order dated 28.02.2012 (Annexure A1) is quashed and the respondents are directed to re-consider the whole issue of granting Patient Care Allowance to the applicants afresh, in terms of the Judgement of the Honble High Court of Delhi in WP (C) No.4973/2013, dated 21.10.2013 by examining the duties of the applicants with reference to the policy Circular dated 04.02.2004, and to pass appropriate speaking and reasoned orders, within two months from the date of receipt of a copy of this order. No order as to costs.
(V. Ajay Kumar) Member (J) /nsnrvak/