Central Administrative Tribunal - Delhi
Poonam Rani vs M/O Labour on 31 May, 2018
1 OA No.3567/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No.3567/2016
M.A. No.3109/2016
M.A.No.3287/2016
Reserved On:01.05.2018
Pronounced on:31.05.2018
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Ms. Nita Chowdhury, Member (A)
1. Poonam Rani W/o Dhirendra Kumar Tripathi
Aged about 44 years
R/o Q.No.302, IIIrd Tower, ESIC Hospital,
Sector-24,
Noida.
2. Amit Kumar S/o Shri Sumari Ram
Aged about 30 years
R/o WZ-1097,Basai Dara Pur,
Ramesh Nagar, New Delhi-15.
3. Amit Kumar S/o Shri Dinesh Prasad
Aged about 30 years
C/o Umesh Sharma
R.No.07, Sharma Market,
Opp. ESICH, Sector 22, Noida.
4. Mohammad Inteyaz Alam S/o Shri Sheikh Ahmud
Aged about 30 years
R/o F-34, 3rd Floor,
Street No.6/4 Zakir Nagar, Okhla,
New Delhi.
5. Mohan Mahot S/o Shri Raghuvir Mahto
Aged about 31 years
C/o Narendra Rana,
Room No.33, Sector 22, Noida, UP.
6. Jitender Sharma S/o Shri C.B. Sharma
Aged about 34 years
R/o D-460, Street No.11,
Bhajan Pura, Delhi.
7. Aalekh Arora S/o Shri Vinod Kumar Arora
Aged about 25 years
2 OA No.3567/2016
R/o H.No.704/23,
Gali No.19, Vijay Park, Maujpur,
Delhi.
8. Sanjit Prasad S/o Late Shri Sudama Prasad
Aged about 30 years
R/o R-103, Gali No.5,
East Vinod Nagar, Delhi.
9. Joginder Singh S/o Shri Budha Ram
Aged about 37 years
R/o 119A, Surya Vihar,
Opp. Sector-4, Gurgaon.
10. Surinder Kumar S/o Shri Chand Ram
Aged about 40 years
R/o RZG-1/64, Marg Mandir,
Mahavir Enclave, Palam,
New Delhi.
11. Neeraj Kumar S/o Shri Krishan
Aged about 28 years
C/o Shri Puran Singh,
H.No. 675/30,
Vikas Nagar, Sonepat.
12. Deepak Kumar S/o Shri Datar Singh
Aged about 29 years
R/o H.No.139, Village Manol Pur Kalan,
New Delhi.
13. Yogesh Kumar S/o Shri Anar Singh
Aged about 37 years
R/o H.No.WZ-170, Basai Dara Pur,
Ramesh Nagar,
New Delhi-15.
14. Surender S/o Shri Roop Chand
Aged about 41 years
R/o Q.No.147, 6th Floor, ESIC,
BDP, New Delhi.
15. Rameshwar S/o Shri Late Tej Ram Singh
Aged about 35 years
R/o Q.No.134, 4th Floor, BDP, New Delhi.
16. Sonia D/o Ghanshyam Rai
Sector 29,
3 OA No.3567/2016
R/o H.No.951, Arun Vihar Apptts.,
Sector 29,
Noida.
17. Ashwani S/o Shri Satender Kumar
Aged about 30 years
R/o C-358,
Guru Nanak Gali,
Chajjupur, Shahdara, Delhi.
18. Pankaj Kumar Bharti S/o Ram Chandra
Aged about 35 years
R/o ESIH, Noida,
Sector-24 (UP). ... Applicants
(By Advocate: Shri U. Srivastava)
Versus
1. Union of India through its Secretary,
Ministry of Labour and Employment,
Shram Shakti Bhawan, Rafi Marg,
New Delhi.
2. The ESIC through its Director General D (M),
D, ESIS Scheme,
Dispensary Complex, Tilak Vihar, New Delhi.
3. The Director ESI Hospital, Sector 24,
Noida UP.
4. The Medical Superintendent, ESIC Modal Hospital,
Sector-9 A,
Gurgaon Haryana.
5. The Medical Superintendent, ESIC Hospital, Manesar,
Plot No.41,
Sector-3, IMT, Gurgaon Haryana.
6. The Medical Superintendent, ESIC Hospital,
Basai
Darapur, New Delhi. ... Respondents
(By Advocate: Shri A.K. Verma)
4 OA No.3567/2016
ORDER
By Mr. V. Ajay Kumar, Member (J) MA. No. 3109/2016 MA No.3109/2016 for joining together in a single application is allowed.
The applicants are 18 in number. Applicants No.1 to 9 and 11 to 18 are working as Operation Theatre Assistants (O.T Assistants) and applicant No.10 is an O.T. Technician. All of them are working in various Employees State Insurance Corporation (for short ESI Corporation) Hospitals and Dispensaries. They have filed the OA seeking the following reliefs:-
"(i) Directing the respondents to place the relevant records pertaining to the present OA before their Lordships for the proper adjudication in the matter in the interest of justice.
(ii) Directing the respondents to consider and finalize the case of the applicants for extension of the benefits of the orders passed by this Hon'ble Tribunal in OA No.3227/2011 (Brahm Pal and Others Vs. Union of India) decided on 19.12.2013 and OA No.2995/2014 & OA No.2996/2014 decided on 19.04.2016 for which the applicants represented the respondents through separate representations followed by personal visits also as per tune of the concerned officials but there is nothing.
(iii) Allowing the OA of the applicants with all other consequential benefits and costs.
(iv) Any other fit and proper relief may also be granted to the applicants".5 OA No.3567/2016
2. Heard Shri U. Srivastava, learned counsel for the applicants, Shri A.K. Verma, learned counsel for the respondents and perused the pleadings on record.
3. Shri U. Srivastava, learned counsel appearing for the applicants submits that in pursuance of the 5th CPC recommendations which were accepted by the Government of India and made applicable to its employees, the Government revised the pay scale of O.T. Assistants and CSSD/CSR Assistants/Plaster Assistants in the pay scale of Rs.3050-4590/Rs.3200-4900 respectively in the year 1996. As per Part-B of Central Civil Service (Revised) Pay Rules, 1997, the pay scales of other identical posts were fixed at Rs.4000-6000 but the same was not extended to the posts of O.T. Assistants/CSSD/CSR Assistants/Plaster Assistants, such as, applicants etc. As the respondents have not resolved the said anomaly, some of the Plaster Assistants whose scale was also not fixed at Rs.4000-6000 on par with other technical posts, filed OA No.3227/2011 - Brham Pal Vs. Union of India and Others and the said OA was allowed by this Tribunal by an order dated 19.12.2013. It is also submitted that OA Nos.2995/2014 and 2996/2014 tilted as Dharmbir Singh Ranga and Others Vs. Director General, ESI Corporation and Others, filed by some of the O.T. Technicians and C.S.S.D. Assistants/Technicians of the respondents-ESI Corporation was also allowed by this Tribunal on 19.04.2016.
6 OA No.3567/2016
4. The applicants, who were also working as O.T. Assistants/Technician submit that they are also identically placed like the applicants in Brham Pal and Others (supra) and Dharambir Singh Ranga (Supra), and entitled for fixation of their pay in the pay scale of Rs.4000-6000 by extending the benefit of those decisions.
5. On the other hand, Shri A.K. Verma, learned counsel appearing for the respondents, while opposing the above submissions, submits as under:-
(i) The OA is time barred and is liable to be dismissed on the ground of delay, laches and limitation;
(ii) The applicants are not entitled for fixing their pay at Rs.4000-6000 with effect from 01.01.1996, as the recommendations of the CPC for granting the said scale are subject to fulfillment of certain specific conditions, such as, possessing of Matriculation with some experience etc.;
(iii) The judgments in Brham Pal's case (supra) and Dharambir Singh Ranga's case (supra) are not applicable to the applicants;
(iv) Writ Petitions are pending before various Hon'ble High Courts against the judgments in Brham Pal's case (supra) and Dharambir Singh Ranga's case (supra) and also against various other decisions where identical reliefs were granted 7 OA No.3567/2016 and hence the decisions of this Tribunal in those cases, even if applicable also, cannot be extended at this stage;
(v) This Tribunal in Somnath Chakraborty and Others Vs. Director (Medical) Delhi, ESI Corporation and Others - OA No.1438/2015 dated 22.04.2016 rejected the identical claim of the ECG Technicians both on merits and also being barred by limitation. The said decision attained finality as no Writ Petition was filed against the said decision; and
(vi) Even if the Tribunal comes to the conclusion that the applicants are identically placed like the applicants in Brham Pal's case (supra) and Dharambir Singh Ranga's case (supra), and are entitled for extending benefit of the said decision, in view of the conflicting decision in another Co-
ordinate Bench in Somnath Chakraborty and Others (supra), this OA is required to be referred to a Larger Bench, as per the settled principles of law.
6. In the backdrop of the above referred rival submissions, it is necessary to first examine the decisions of this Tribunal and issue of granting of the pay scale of Rs.4000-6000 to the technical posts, as per the 5th CPC recommendations. In Somnath Chakraborty and Others (supra), the applicants were ECG Technicians of ESI Corporation and were appointed as such in the pay scale of Rs.4000-6000 in 2007 and their plea in the said OA was that in all Central Government Hospitals and Hospitals of Government of NCT 8 OA No.3567/2016 of Delhi, the ECG Technicians were given the pay scale of Rs. 5000- 8000/- as per the 5th CPC recommendations and subsequently consequent upon the implementation of the 6th CPC recommendations, their pay was revised to Rs.9300-34800/- with GP of Rs.4200/- (PB-2) but though the applicants therein were also working as ECG Technicians and discharging the same duties and responsibilities, their pay was fixed at Rs.4000-6000 only. A Coordinate Bench of this Tribunal dismissed the said OA both on the ground of limitation as well as on merits as under:-
"6. Here, we are swayed by two facts. In the first instance, this OA has been filed on 10.04.2015 while the claim relates to the arrears from 01.01.1996 in respect of 5th CPC and from 01.01.2006 in respect of 6th CPC in which years the applicants were not even born on the service as they joined the service only in the year 2007....."
Following judgments of the Hon'ble Apex Court in State of Maharashtra Vs. Digambar, 1995 (4) SCC 683, Union of India & Others Vs. M.K. Sarkar 2010 (2) SCC 59 and S.S. Rathore Vs. State of Madhya Pradesh, AIR 1990 SC 10, it was also held as under:-
"Therefore, we hold that making a claim as retrospective as the one either from 01.01.1996 or 01.01.2006 even when the applicants were not born on the cadre is certainly barred by limitation".
The Coordinate Bench with regard to merits of the case, observed as under:-
"9. However, we have also considered the claim of the applicants on merit. We are of the view that the convenient way to deal with the issue is to examine the qualifications/pay scales of the post as given in the advertisement, which are as follows:-
"ECG Technicians Essential:9 OA No.3567/2016
(a) (i) Science Graduate preferably with one year experience of handling E.C.G. Machine;
(ii) Matric or equivalent qualification from a recognized Board with one year's experience of handling E.C.G. Machine;
(b) Age note exceeding 32 years.
Pay Scale: Rs.4000-6000/-."
10. The applicants have applied with their eyes open and being fully aware that Matric was the minimum educational qualification and, therefore, at this point of time they cannot turn around and say that they are over qualified and as such they should be placed in higher pay scale........
11. We have also taken note of the fact that only six applicants in the cadre of ECG Technicians are graduates and rest are non-graduates. The applicants are seeking equity with others who have different recruitment rules and criteria of recruitment, which prayer cannot be acceded to as the equivalence could only be drawn in case of equals and in none others...."
The Bench distinguished Brham Pal's case (supra) and observed as under:-
"12. We have also taken note of the two decision of this Tribunal relied upon by the applicants. In Brham Pal's case (supra) the applicants were Plaster Assistants whereas in the instant case the applicants are ECG Technicians, therefore, no equivalence could be drawn. In Shri Narender Kumar & Others V/s. Union of India & Ors.(supra) again there are dissimilarities of facts because the applicants therein were Radiographer whereas the applicants herein are ECG Technicians. Therefore, we find that no much force is forthcoming from the afore two decisions to help the case of the applicants".
7. In Brham Pal's case (supra), another Coordinate Bench in which one of us (Hon'ble Mr. V. Ajay Kumar) is a Member, the applicants were Plaster Assistants in different ESI Corporations/Hospitals and who were given the scale of Rs.3200- 4900 by the 5th CPC claimed the scale of pay of Rs.4000-6000 on par with other technical posts. The said OA was allowed by rejecting the submissions of the respondents therein with regard to the limitation and also on merits and the relevant paragraphs read as under:-
10 OA No.3567/2016
"5. We have heard both the sides and perused the documents placed on record. With regard to limitation, the law is well established that the matter of granting pay scale is a continuing cause of action and we have no hesitation in rejecting this plea of the respondents. As per the averment of the applicants they started representing to the respondents immediately after grant of the pay scale of Rs.3200-4900, which has not been denied by the respondents. Representations were submitted by the applicants in the year 1999, 2000, 2003, 2007 and 2010 but the matter was not decided by the respondents till the applicants filed OA no.3138/2010. As such, the principle of estoppel cannot be applied in this case. The applicants had parity with Laboratory Assistants/Nurse D grade/Auxiliary Nurse and midwife till 4th Pay Commission and they were given identical pay scale of Rs.975-1540 by the 4th CPC. The 5th Pay Commission maintained that parity and recommended a common scale of Rs.3200-4900. The problem arose when subsequently vide Government notification dated 30.09.1997, the scale was upgraded to Rs.4000-6000 and the same was not implemented for the PAs. There is no averment as to why the respondents decided to discard the parity with Nurse 'D' grade and Auxiliary Nurse and midwife from that point in time onwards. The Resolution dated 30.09.1997 through which the recommendations of the 5th CPC were given effect to, states as follows:-
"XXII OTHER TECHNICIANS
(a) Posts requiring Matriculation with 4000-100-6000 52.111 some experience as minimum qualification for direct recruitment".
6. Respondents have taken the plea that since there is a component of promotion in the grade of PA from the feeder grades of Nursing orderly/stretcher bearer/ dresser/aya where no minimum qualification has been prescribed, the aforesaid recommendation of the 5th CPC as notified in the resolution dated 30.09.1997 cannot be applied. This is highly specious argument for various reasons. The scale attached to a post is a function of job content, degree of hardship, risk etc. involved in discharging the duties. The academic qualification and experience is fixed keeping the competence level required from the persons who will be occupying the posts. If the employer has taken a view that the same competence level can be achieved by a recruit by having matriculation and one years experience in the case of direct recruitment, or 5 years experience for matriculates and 7 years experience for non-matriculates in case of promotion, there does not appear to any further scope for discrimination in the matter of remuneration. As the employer in this case has already taken care to enhance the experience level to 5 years and 7 years respectively for promotion of matriculate and non- matriculate nursing orderly etc. it does not stand to logic that the entire cadre of PA should be given a lower pay scale for this reason alone. The hollowness of the logic put forward by the respondents gets further exposed if we consider the fact that the cadre where there is no promotion and the appointment is only by direct recruitment, a candidate with matriculation and one year experience will be eligible for higher grade of Rs.4000-6000 but a mixed cadre of direct recruit and promotees (with 5 to 7 years experience) as a whole will be downgraded to a lower pay scale. This is obviously a discrimination.
7. This Tribunal in the case of Laboratory Assistants has already taken a view in favour of admissibility of scale of Rs.4000-6000 and the respondents have implemented it provisionally subject to the outcome of the pending Writ Petitions in the Hon'ble High Court of Delhi. However, we are not linking up the order in this OA with the order of this Tribunal in respect of Laboratory Assistants". 11 OA No.3567/2016
8. Firstly, we deal with the submission made by the learned counsel for the respondents about the conflicting views expressed by different Coordinate Benches on an identical issue and the need to refer the matter to a Larger Bench. There is no quarrel with the settled principle of law, as enunciated by the Hon'ble Apex Court in Sub-Inspector Rooplal Vs Lt. Governor (2000) 1 SCC 644, that when a Bench consisting of equal strength does not agree with the view already expressed by another Coordinate Bench, it has to refer the OA in hand to a Larger Bench. But such a situation arises only when a Coordinate Bench of equal strength is not agreeing with the decision of another Coordinate Bench. In Somnath Chakraborty and Others (supra), the applicants were ECG Technicians covered by specific staff recruitment rules and claimed the pay scale of Rs.5000-8000/- on par with certain equivalent technical posts of the Government of India. The Coordinate Bench, while dismissing the OA itself considered Brham Pal's case (supra), as observed above, and categorically distinguished that Brham Pal's case (supra) was filed by Plaster Assistants and hence no equivalence could be drawn with Somnath Chakraborty and Others (supra). So once in Somnath Chakraborty and Others (supra), the Coordinate Bench which decided the said case, itself holding that it has no relevance with Brham Pal's case (supra), the respondents cannot contend that a Coordinate Bench has taken a contrary view to Brham Pal's case (supra). Therefore, in view of the specific 12 OA No.3567/2016 observation in Somnath Chakraborty and Others (supra), the question of differing with the view expressed in Somnath Chakraborty and Others (supra) and to refer the instant OA to a Larger Bench does not arise.
9. Similarly, the decision in Shri Puneet and Others Vs. Union of India and Others in OA No. 853/2015 is not applicable to the facts of the present case as the same was dismissed on 01.12.2016 without any sufficient discussion, either on merits or on limitation, whereas in Dharambir Singh Ranga's case (supra), the applicants were also O.T. Technicians like the applicants in the instant OA and their identical claim was allowed by a Coordinate Bench of this Tribunal after considering identical submissions, except the submissions made with respect to Somnath Chakraborty and Others (supra) following various other decisions of different Coordinate Benches in respect of Laboratory Assistants and Plaster Assistants also of the respondents-ESI Corporation Hospitals. It is also the admitted case of the respondents that the Writ Petitions filed in respect of all these OAs are pending before Hon'ble High Courts and that no stay was granted in any of those cases and accordingly they have complied with the said orders in those OAs, in respect of applicants therein, though subject to the result of the Writ Petitions. The applicants are seeking extension of the decisions in Brham Pal's case (supra) and Dharambir Singh Ranga's case 13 OA No.3567/2016 (supra), wherein the decisions of other Coordinate Benches were considered and followed.
10. Since in our view the applicants are identically placed like the applicants in Dharambir Singh Ranga's case (supra) and since we are agreeing with the reasoning given therein, including on the identical submissions on limitation and merits, the OA deserves to be allowed.
11. In the circumstances and for the aforesaid parity of reasons, we allow the OA. The respondents are directed to implement the scale notified vide Resolution dated 30.09.1997, i.e., by granting the pay scale of Rs.4000-6000 to the applicants. However, they are entitled for arrears with effect from the date of filing of the OA, i.e., on 17.10.2016 and without any interest thereon. This exercise shall be completed within two months from the date of receipt of a copy of this order. This order is subject to the result of the Writ Petition filed by the respondents against the orders of this Tribunal dated 13.01.2004 in OA No.1464/2003 - Ashok Kumar & Others Vs. Union of India and also the Writ Petition No.18/2015, filed against the orders dated 19.12.2013 in OA No.3227/2011 (Brham Pal & Others v. Union of India) and Writ Petitions No.8261/2016 and 8264/2016 filed against the orders dated 19.04.2016 in OA No.2995/2014 (Dharambir Singh Ranga and Others Vs. Director General, ESI Corporation and Others) and OA No.2996/2014 (Munish Kumar and Others Vs. Director 14 OA No.3567/2016 General, ESI Corporation and Others) and also after the applicants submit individual undertaking that they will refund the excess payment, if any, in the event of allowing the said Writ Petitions and will not claim any equities.
12. MA No. 3287/2016 filed by the applicants seeking interim relief stands disposed of. No costs.
(NITA CHOWDHURY) (V. AJAY KUMAR) Member (A) Member (J) RKS