Central Administrative Tribunal - Cuttack
Dr Renju Sussan Baby vs Aiims on 25 November, 2022
1 OA 260/00506 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00506 of 2019
Reserved on : 14.11.2022 Pronounced on : 25.11.2022
CORAM:
Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
1. Dr. Renju Sussan Baby, aged about 38 years.
W/O- Robin Abraham of Qr. No-202, Type-V, AIIMS
Residential Complex, Sijua, P.O- Dumduma,
Bhubaneswar, Dist- Khurda presently working as
Reader/Associate Professor in College of Nursing,
AIIMS, Bhubaneswar.
2. Mrs. Mariamma V. George aged about 47 years,
D/O-George of Qr. No- 803, Type-V, AIIMS Residential
Complex, Sijua, P.O- Dumduma, Bhubaneswar, Dist-
Khurda, presently working as Reader/Associate
Professor in College of Nursing, AIIMS, Bhubaneswar.
3. L. Anand aged about 40 years. S/O- P.
Lakshminarsimhan presently working as Reader/
Associate Professor in the College of Nursing, All India
Institute of Medical Sciences, Bhubaneswar.
4. Dr. M.V. Smitha aged about 44 years W/O Dr.
Harikiran T. Bangera presently working as Reader/
Associate Professor in the College of Nursing, All India
Institute of Medical Sciences, Bhubaneswar.
5. Mrs. Dharitri Swain aged about 40 years W/O Dr.
K.C.Sabat of A4, Tatwamasi Enclave, Srikhetra Vihar,
Aiginia, Bhubaneswar presently working as Assistant
2 OA 260/00506 of 2019
Professor in the College of Nursing, All India Institute of
Medical Sciences, Bhubaneswar.
6. Mr. Nanda Kumar Paniyadi aged about 45 years S/O
Gopal Krishna Upadhyaya of Qr. No-102, Type-IV,
AIIMS Residential Complex, Sijua PO- Dumduma,
Bhubaneswar presently working as Assistant Professor
in the College of Nursing, All India Institute of Medical
Sciences, Bhubaneswar.
7. Mrs. Shyama Devi aged about 37 years W/O Sri
Kamaleswar Jaggi of Qr. No-801 Type-IV, AIIMS
Residential Complex, Sijua PO- Dumduma,
Bhubaneswar presently working as Lecturer in the
College of Nursing, All India Institute of Medical
Sciences, Bhubaneswar.
8. Ms. Hepsi Bai J aged about 35 years W/O- T. Thanka
Prabu of Qr. No- 203 Type-IV, AIIMS Residential
Complex, Sijua PO- Dumduma, Bhubaneswar presently
working as Lecturer/ Assistant Professor in the College
of Nursing, All India Institute of Medical Sciences,
Bhubaneswar.
9. Ms. Nadiya Krishnan aged about 35 years W/O Rejin
Ravi presently working as Lecturer/ Assistant
Professor in the College of Nursing, All India Institute of
Medical Sciences, Bhubaneswar.
10. Mrs. Geetarani Nayak aged about 47 years W/O
Vijayananda Parichha of Qr. No-D ½, Rental Colony, IRC
Village, Bhubaneswar presently working as Lecturer/
Assistant Professor in the College of Nursing, All India
Institute of Medical Sciences, Bhubaneswar.
11. Dr. Mahalingam Venkateshan aged about 35 years
S/O Venkatesan presently working as Lecturer/
3 OA 260/00506 of 2019
Assistant Professor in the College of Nursing, All India
Institute of Medical Sciences, Bhubaneswar.
......Applicants
VERSUS
1. Union of India represented through the Secretary to
Government of India in the Ministry of Health and
Family Welfare, Nirman Bhawan, New Delhi, Pin No.-
110011.
2. All India Institute of Medical Sciences, AT- Sijua PO-
Dumduma, Bhubaneswar Dist- Khurda represented
through its Director, Pin No. -751019.
3. Administrative Officer, All India Institute of Medical
Sciences, AT- Sijua PO- Dumduma, Bhuaneswar Dist-
Khurda, Pin No.- 751019.
........Respondents.
For the applicant : Mr. T.Rath, Counsel
For the respondents : Mr. G.R.Verma, Counsel
O R D E R
Swarup Kumar Mishra, Member(J):
The applicants, who are Group-A Teaching Faculties of the College of Nursing, All India Institute of Medical Sciences (AIIMS), Bhubaneswar, have filed this O.A. jointly to challenge the unilateral decision of the respondents in reducing the Academic Allowances. It is the case of the applicants that earlier all the Faculty and Group-A 4 OA 260/00506 of 2019 officers of AIIMS, New Delhi were getting Academic Allowance of Rs. 2500/- per month, which was enhanced to Rs. 10,000/- per month as per Memorandum dated 22.12.2010 (Annexure-A/7) and, accordingly, all the applicants were getting Academic Allowance of Rs. 10,000/- per month. Subsequently, as per letter dated 23.08.2018 issued by the Govt. of India, Ministry of Health and Family Welfare (Annexure-A/8), for extension of benefits of 7th CPC, the pay and allowances of Faculty of AIIMS, New Delhi, PGIMER, Chandigarh and JIPMER, Puducherry were revised and the same were extended to the Faculty of other new AIIMS. The Academic Allowance was revised to Rs. 22,500/- per month, which the applicants received from 01.07.2017 along with arrears. The grievance of the applicants is that, without any rhyme and reason, their Academic Allowance was reduced to Rs. 7500/- from the month of February, 2019 although the counterparts of AIIMS, Rishikesh were still getting the Academic Allowance @ Rs. 22,500/-. Hence, they have filed this O.A. with the following reliefs:
"a. The Original Application may be allowed.
b. The action taken by the AIIMS authorities, Bhubaneswar may be declared illegal and the respondents may be
5 OA 260/00506 of 2019 directed to continue paying the academic allowances @ Rs. 22,500/- as was given to them up to January, 2019. c. The respondents may be directed to refund the amount (Rs.22,500/- minus Rs.7500/-) from February 2019 till July, 2019 ( month of filing of the case).
d. The Respondents may be directed to continue to allow the applicants to draw academic allowances @ Rs.22,500/- month following month..
e. Such other Order(s)/Direction(s) may be given in giving complete relief to the applicants."
2. Respondents have filed their counter contesting the case of the applicants. Their main thrust of argument is that it is the misconception of the applicant that the enhancement of Academic Allowance, in question, to Rs. 10,000/- and Rs. 22,500/- was meant for the Faculty and Group-A officers of Nursing College and, in fact, the same was exclusively for the Faculty, who are from Medical College. The Faculty in Medical College having the designation of Assistant Processor, Associate Professor, Additional Professor and Professor having Academic Grade Pay whereas the Faculty of Nursing College are Group-A officer having designation of Professor-cum-Principal, Reader/Associate Professor, Lecturer/Associate Professor also the Faculty of Nursing College have specific Grade Pay but not the Academic Grade Pay. The Academic 6 OA 260/00506 of 2019 Allowance (Clinical Research Allowance) at the rate of Rs. 7,500/- per month has been allowed to all faculty members posted at the College of Nursing, AIIMS, New Delhi w.e.f. 13.04.2015 vide O.M. No. 14- 3/69(2011)-Estt-1 of AIIMS, New Delhi vide Annexure-R/1. It is further submitted that since there was no specific order/notification to grant the applicants enhanced Academic Allowance, there was not need to put the applicants on notice. With regard to applicants' RTI information that Faculty members of Nursing College AIIMS, Rishikesh are getting Academic Allowance to the rate of Rs. 22,500/-, it is submitted by the respondents that AIIMS, Rishikesh is a separate Autonomous Body and the applicants have also not cited any supporting evidence like Govt. of India orders, CIB decision or AIIMS, New Delhi order. Further, the revision of the Academic Allowance to Nursing Faculty is under consideration and the same will be implemented after CIB decision. Ld. Counsel for the respondents submitted that since the applicants were granted Academic Allowance of Rs. 10,000/- and, subsequently, Rs. 22,500/- inadvertently, respondents have rightly taken the steps to rectify the mistake and stop the grant of Academic Allowance. An affidavit has been filed by Respondent No.2 on 16.09.2022 inter alia stating 7 OA 260/00506 of 2019 therein that the approval of the Governing body was not required for sanctioning Academic Allowance to the Faculty member, particularly in the case of the applicants and the approval was given by the Director of the Institute, who was competent to do so, and the said authority had not taken approval before disbursing the amount of Rs. 22,500/- in favour of the applicants as he was competent to do so as per Schedule I (Serial No.
26) of AIIMS Regulation' 1999 (Annexure-R/3). In substance, the case of the respondents are that as the claim of the applicants is without any basis, the applicants are not entitled to the relief claimed in the O.A. and the O.A. is liable to be dismissed. The applicants have also filed rejoinder.
3. According to the applicants Applicant No. 5 and 6 were getting Academic Allowance from their initial entry into service at the rate of Rs 10,000/- at par with other faculty members of AIIMS BBSR and later in similar fashion the rest of the Applicants was also received the said Allowance from the date of their joining at AIIMS BBRS in the year 2018. The Academic Allowance was enhance from Rs 10.000/- to Rs 22,500/- vide Govt. order dated 23.08.2018 with retrospective effect from 01.07.2017. Accordingly, all the applicants were paid Academic Allowance from their respective date of eligibility till January 2019 but 8 OA 260/00506 of 2019 the same was unilaterally reduced to Rs 7500/- from the month of Feb 2019 vide Annexure-A/11. It is submitted that by following the order under Annexure-A/8, similarly situated employees working in AIIMS Chandigarh, like the present Applicants are getting Academic Allowance at the enhanced rate of Rs 22, 500/-, where as the AIIMS Delhi has reduced it to Rs 7500/- while paying the Academic Allowance at the enhanced rate to Non-medical faculty those who have completed M.Sc and Ph.D posted in other departments. Next limb of submission of learned counsel for the Applicants is that the Respondents reduced the Academic Allowance without affording any opportunity of being heard to the Applicants. It has been submitted that such unilateral reduction of Academic Allowance of the faculty members of Nursing college by the AIIMS, New Delhi was challenged before the PB, New Delhi in OA No. 26/2021 and in pursuance of the order of the PB, New Delhi the Academic Allowance at the enhanced rate was paid to the faculty members of Nursing college by the AIIMS, New Delhi. Further it has been submitted that the stand of the Respondents that the applicants do not belongs to Medial Faculty and as such they are not entitled to the said Allowance at the enhanced rate is self contradictory and unsustainable in 9 OA 260/00506 of 2019 law, in as much as if according to the Respondents the applicants are not Teaching Faculty, then in that case, in law they should not have been extended any AA at all. Having extended the benefit in a reduced rate, the Respondents admit the claim of the Applicants that they belong to Teaching Faculty and as such nonpayment of said Allowance at the enhanced rate or unilateral reduction of such payment is bad in law.
4. According to the applicants, the stand taken by the Respondents that O.M No.F.14-3/69(99)-Estt.I dated 22.12.2010 is applicable only to Medical faculty is not correct because O.M makes it ample clear that Academic Allowance is applicable to faculty category. There is no indication in the order that said allowance is applicable only to medical faculty. This allowance is not determined by the pay of a faculty or department in which they appointed. It is paid based upon the category in which they are appointed "faculty". In this regard, learned counsel for the Applicants placed reliance on the information obtained by them under RTI Act that no separate order/memo has been issued for grant academic allowance of Rs.10,000/- only to medical faculty. In fact, Non-medical faculty who completed M.Sc. and Ph.D same as Nursing faculty posted in other departments of AIIMS continued to receive Rs 10,000 /- per month 10 OA 260/00506 of 2019 was enhanced to Rs. 22,500/- and that as per AIIMS Regulation 30, Lecturer and Principal of nursing college are treated as "member of teaching faculty". Thus, according to him, the AIIMS Act, 1956 is applicable to all New AIIMS in accordance to Section 25 (a)(ii) AllMS (Amendment, 2012). Further contention of the learned counsel for the Applicants is that proviso to Section 25 (a) (ii) AIIMS (Amendment) Act, 2012, amending section 29 of the principal Act, states that "provided that the Regulations made by the existing Institute, before the commencement of the All India Institute of Medical Science (Amendment) Act, 2012, shall continue to be the regulations made under this section until such regulations are amended or rescinded by the existing Institutes in accordance with the provisions of this section." As per the Affidavit dated 16.09.2022 filed by the Respondents so far as AIIMS BBSR is concerned they don't have any other separate Regulation and as such they follow the AIIMS Regulation, 1999 like the AIIMS Delhi. Regulation 30 AIIMS regulation, 1999 defines 'Member of teaching Faculty' in the Explanation Clause it has been provided that "Explanation: In this the expressions "member of teaching faculty" mean: Professor, Additional Professor, Associate Professor, Assistant Professor, Medical Superintendent, 11 OA 260/00506 of 2019 Principal, College of Nursing, Lecturer in Nursing, Senior Nursing Tutor and Tutor in Nursing and other employees of the institute as may be declared as to be a member of teaching faculty by the Central Government from time to time." Therefore, according to Applicants, they were rightly paid the AA at the enhanced rate which was illegally and unilaterally reduced by the AIIMS, BBSR which is not sustainable in the touch stone of judicial scrutiny.
Further contention of the learned counsel for the Applicants is that entitlement of AA to Teaching staffs of Nursing college also came up before the CAT, Guwahati Bench in OA No 174/2017 and the affirmative decision of the Guwahati Bench was also upheld by the Hon'ble High Court of High Court of Meghalaya and that, no SLP has been filed against the said order and on the other hand non implementation of the order CP No 21/2018 has been filed. Hence, it has been contended that since the present case, both on facts and issues are same and similar to that of the matter before the CAT, PB, New Delhi and Guwahati Bench, this OA is liable to be allowed.
6. On the other hand, besides reiterating the stand taken in the counter, the Respondents' counsel has submitted that the claim of the 12 OA 260/00506 of 2019 applicant is based on no evidence because there is no specific order entitling the applicants Academic Allowance at the enhanced rate. It has been submitted that proposal was mooted for taking a decision but the decision is still awaited. In the aforesaid circumstances, learned counsel for the respondents submitted that this OA is premature and is liable to be dismissed.
7. After giving in-depth consideration to the arguments advanced by the respective parties, perused the records and the decisions relied on by the learned counsel for the applicants. Before going to the point of issues involved in the matter, it is profitable to note the law which is well settled, suffice it to place reliance in the case of Union of India Vs. Munshi Ram, 2022 SCC OnLine SC 1493 decided on 31.10.2022 wherein it was held by the Hon'ble Apex Court that employees working under the same employer but in different zones/divisions are required to be treated similarly and equally and are entitled to similar benefits as extending benefit by applying different criteria/parameters with respect to similarly situated employees amounts to discrimination which is in violation of Articles 14 and 16 of the Constitution of India. All the Applicants, in the instant case are working as faculty member in Nursing 13 OA 260/00506 of 2019 College at AIIMS, Bhubaneswar is not in dispute. According to the Respondents since in the order there is no mention that the enhanced Academic Allowance is also payable to the faculty member of Nursing College at AIIMS, Bhubaneswar, Academic Allowance earlier allowed to the Applicants were reduced. On perusal of the decisions in OA No. 26/2021 & OA No. 174/2017, it is evident that the issue involved in the present case was the subject matter of challenge before the CAT, PB, New Delhi and Guwahati Bench of the Tribunal wherein, both the Benches reached the decision in favour of payment of AA at the enhanced rate in favour of faculty member of Nursing College of AIIMS. According to the Applicants, in compliance of the order of the CAT, PB, New Delhi, the faculty member of Nursing College, AIIMS New Delhi have been allowed the AA at the enhanced rate and the order of the CAT, Guwahati Bench of the Tribunal although upheld by the Hon'ble High Court has not been implement for which CP has been filed but the department has not filed any SLP against the said order. This Bench did not find any such material or points to take a different view than the view taken by the coordinate Benches of the Tribunal, in the aforesaid OAs. The relevant portion of the 14 OA 260/00506 of 2019 order passed by the CAT, PB, New Delhi in OA No. 26/2021 is quoted below:
"10. From the above, it is obvious that Associate Professors and other faculty members of AIIMS are already receiving Academic Allowance of Rs.22500/- whereas in the case of the applicants payment of only 75% of Rs.22500/- has been recommended by the SFC subject to the approval of Department of Expenditure. The letter of Ministry of Health & Family Welfare dated 23.08.2018 revised the Academic 13 OA-26/2021 Allowance of the faculty of three Institutes of AIIMS Delhi, PGIMER Chandigarh and JIPMER, Puduchery to Rs.22500/-. Para-2 of the same is quoted below:-
"It has also been decided to revise the following allowances of the faculty of the three Institutes as per the details given below:
(i) Academic Allowance : Rs.22,500/-pm.
(ii) Learning Resource Allowance : Rs.1,50,000 per annum"
No distinction has been made or any justification provided for grant of reduced Academic Allowance to the Teaching Faculty of College of Nursing. This is an allowance that has been approved by the Ministry of Health & Family Welfare, Government of India and revised from time to time. It has never been mentioned that the Academic Allowance is to be provided only to the Teaching Faculty of AIIMS other than the College of Nursing. This has been discussed and taken note of in the minutes of SFC meeting held on 22.10.2014. Few members of the Committee opposed the grant of same Academic Allowance to the Teaching Faculty of College of Nursing whereas the few others recommended the same. Finally, the SFC approved the proposal for grant of Academic Allowance (Clinical Research Allowance) fixing at Rs.7500/- for Teaching Faculty of College of Nursing instead of Rs.10000/-. It was also observed that faculties of College of Nursing be 14 OA-26/2021 advised to carry out Clinical Research work as is being done by other Faculty Members. Obviously, the intention was that the Clinical Research work should also be undertaken by the Faculty Members of College of Nursing at par with other faculty. This subject matter is to be decided by the respondents and cannot be linked to allowance reduction. This obviously appears 15 OA 260/00506 of 2019 to be an arbitrary decision taken by SFC. It is also a fact that another allowance called „Learning Resource Allowance‟ is being paid to the teaching faculty of College of Nursing at the same rate as to other teaching faculties.
11. Having dealt with the definition of Teaching Faculty which puts teaching faculty of College of Nursing at par with rest of the Teaching Faculties, it can be concluded that the members of the Teaching Faculty of College of Nursing are at par with rest of the Teaching Faculties and therefore entitled to similar allowances. The respondents have also accepted that in certain disciplines/specializations such as Bio-stats, Bio-physics, Pharmacology, Laboratory Medicine etc. even non-clinical persons are being granted the Academic Allowance at par with medical faculty. It is also noted that the Guwahati Bench of this Tribunal dated 01.06.2018 in OA No. 043/00174/2017 has already decided that Academic Allowance to the Teaching 15 OA-26/2021 Faculty of College of Nursing should be paid at par with Medical Teaching Faculties of the Institute. At the same time, other Institutes like PGIMER Chandigarh and JIPMER, Puduchery are already paying the Academic Allowance to the teaching faculties of Nursing College. The respondents have thus not been able to establish their case for reduced grant of Academic Allowance to the applicants. The respondents have granted the Academic Allowance at a lower rate earlier and also against the new revised rates of Academic Allowance. This is a decision, which has financial implications and cannot be dealt with casually by the competent authority or the SFC. Prescribing and increasing the clinical research work for the College of Nursing is a subject matter that has to be decided separately and implemented if necessary by the Institute Authorities and cannot be a justification for reducing the Academic Allowance. SFC is a Body within AIIMS and their decision to reduce the Academic Allowance is obviously not based on any ground or justification and is arbitrary and discriminatory.
12. In view of the above mentioned, the O.A. is allowed. The impugned order dated 11/13.04.2018 is set aside. Respondent is directed to pay the Academic Allowance to the Teaching Faculty of College of Nursing at par with Teaching Faculty of 16 OA-26/2021 16 OA 260/00506 of 2019 AIIMS in other departments without limiting the same to 75% of the allowance prescribed by Ministry of Health & Family Welfare within a period of three months from the date of receipt of a copy of this order. It is, however, made clear that Academic Allowance at par with other faculty members of AIIMS to the Teaching Faculty of College of Nursing shall be granted only from the date the same is decided and shall be with prospective effect. No arrears etc. of the enhanced amount shall be payable. No costs."
8. In the result, the OA is allowed by directing the respondents to consider the grant of Academic Allowance to the applicants at the enhanced rate in the light of the order of CAT, Guwahati Bench in OA No 174/2017 upheld by the Hon'ble High Court of Meghalaya and in OA No. 26/2021 disposed of on 08.07.2022 (Dr. Shashi Mawar & Ors. Vs. AIIMS, New Delhi, by the CAT, PB, New Delhi, which, according to the applicants, has already been implemented by AIIMS New Delhi, within a period of 90 days from the date of receipt of a copy of this order. No costs.
(SWARUP KUMAR MISHRA) JUDICIAL MEMBER RK/PS