Central Administrative Tribunal - Delhi
New Delhi This The 19Th Day Of November vs Union Of India on 19 November, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.386 of 2012 MA No.301/2012 MA No.308/2012 New Delhi this the 19th day of November, 2013 Honble Mr. Ashok Kumar, Member (A) Honble Mr. Raj Vir Sharma, Member (J) Srichand Sharma, C-302, Albert Square, Gole Market, New Delhi-1 Naresh Kumar, WZ-5/1-A, Shyam Nagar, New Delhi-18
3. Hira Singh, 576, Guru Ram Dass Nagar, Lane No.3. Laxmi Nagar, Delhi . Applicants (By Advocate: Shri Puneet Verma) VERSUS Union of India, Through the Secretary, Ministry of Health, North Block Secretary (Health), Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi-11 The Director, CGHS, Room No.545, A Wing, Nirman Bhawan, New Delhi-11 ..Respondents (By Advocate: Shri Subhash Gosain) Ashok Kumar, Member (A) The applicants are aggrieved because the respondents are not revising the pay scale of the post of Dresser working in CGHS Dispensaries vis-`-vis the Dressers working in the dispensaries of Railways, Homeopathic Pharmacist, ECG Technicians, Dental Technicians, Dark Room Assistant and Panchkarma Technicians despite the fact that according to them Dressers in CGHS are performing the same duties and even in same manner higher duties than the abovementioned categories which the applicants state is violative of the principles of equity, justice and good conscience and amounts to infringement of the legal and fundamental rights of the applicants.
2. The Applicant No.1 was appointed to the post of Dresser on 25.05.1978, while Applicants No.2 was appointed against the same post on 06.01.1987. Both were selected through All India Examination. Applicant No.3 was appointed on 15.06.1981 as Nursing Attendant and was subsequently promoted as Dresser on 24.04.2000. Applicants No.1 and 2 were higher secondary while Applicant No.3 was matriculate.
As per the Recruitment Rules for the post of Dresser in CGHS, the educational qualifications required are Middle Pass and passing of First Aid Examination from a recognized Institute along with adequate experience of First Aid. There is also requirement of experience of two years in some hospital/dispensary and modality of selection is 100% by promotion. The pay scale for the post is as under:-
210-4-250-5-270 before IV Pay Commission
800-15-1010-EB-20-1150 IV Pay Commission
2650-70-3950-75-4400 V Pay Commission
5200-20200+Grade Pay 1800 VI Pay Commission
The multifarious duties, as stated in Para 3.3 of the OA, are reproduced as below:-
3.3. That the Dresser has to perform duties of multifarious jobs regarding recording of proper dressing, incision of abscess, giving injections to the patient, stitches removing to the patient as per directions/ prescription of the CMO/Medical Officer in CGHS dispensary, proper sterilization of dressing material and instruments etc., recording of entries in register maintained for the purpose in the dressing room, recording of distribution of the medicine etc. preparation of requisition/demand for supply of medicine and bandage, cotton, dettol etc. from store. Dresser will maintain the accounts of the medicine drawn from the store and issued to the beneficiaries. It is also stated that vide communication dated 14.2.1996 of the Office of Addl. Director (CZ), the Dressing Room of CGHS has been upgraded to Minor Operation Theatre and the dressers have been made responsible to prepare dressing room inventory, maintain all the equipments and instruments used in the Operation Theatre and to prepare the Operation Theatre for minor operations. After the VI Central Pay Commission recommendations, all non-matric would be considered as Matric by giving one week training to them and thus, the qualification of the Dresser who is not matriculate would also be treated as equivalent to matriculation.
3. The Dresser in Railways is Matric and details of their pay scale under V and VI Central Pay Commissions along with the duties and responsibilities have been given in the OA. According to the VI Pay Commissions recommendations, Grade I category of Dressers in Railways get same pay scale with Grade Pay Rs.2800/-. Similar comparisons have been given with respect to Dressers working in National Institute of Ayurveda with educational qualification required asmatric and one year experience with similar pay scale and Grade Pay of Rs.1900. In case of Dressers in Central Industrial Secruity Force (CISF), the educational qualification is Matric or equivalent from recognized board along with First Aid Certificate from Red Cross Society and one year experience as Dresser with similar pay scale with Grade Pay of 2000/-. Other comparisons have also been given with respect to Homeopathic Pharmacist in CGHS, ECG Technician, Dental Technician, Panchkarma Technician in Central Council for Research in Ayurveda and Sidha and Dark Room Assistant in CGHS. The contention made is that all these Dressers/Assistants/Technicians are performing identical duties and while the applicants are carrying higher responsibilities and duties, there is a great disparity in the categorization and the pay scales of the applicants. Moreover, there is no promotional scope for the post of Dresser. The representations have been made to the Additional Director, CGHS by the applicants but no response has been received despite reminders. As per information furnished to Applicant No.1 under RTI, it has been informed that after the V Central Pay Commission, the file was moved for upgradation of pay scale of the Dressers but was not agreed to. Further information under RTI revealed that the grievances of Dressers in the CGHS have not been properly appreciated. Based on the aforenoted facts, the applicants have urged that the respondents have misdirected themselves by not considering the grievances of the applicants and have misdirected themselves by improper comparisons and by improper consideration for upgrading the pay scale of Dressers. Moreover, as per the V Pay Commission recommendations, all non-matric were treated as matric and hence the qualification of the Dressers who were not matriculate would also be treated as equivalent to matriculation. It has also been urged that in the absence of any promotional channel and the multiplicity of the several important responsibilities devolving on the Dressers in CGHS, it is a misconception on the part of the respondents that they do not require proper pay fixation vis-`-vis Dressers in Railways, CISF and other Government institutions. In the light of above, the applicants have sought by way of relief to quash the impugned orders dated 19.09.2002 (Annexure A-1) and 26.09.2002 (Annexure A-2) and the action of the respondents by not keeping the Dressers working in CGHS in the same pay scale as has been given to Dressers and employees holding other equivalent posts in other departments/Ministries and also to revise the pay scale of the Dressers in CGHS as Rs.3050-4590 from 2650-4400 ( V Central Pay Commission) and consequently revise the pay scale as 5200-20200+Grade Pay 2400 (VI Central Pay Commission).
4. The respondents, on the other hand, have pointed that the OA is barred by limitation as it has been filed without exhausting remedies available under the Administrative Tribunal Act. It has been contended that the recruitment rules provide for 100% of the posts to be filled by promotion and educational qualification is not applicable for the post of Dresser. It has also been averred that there can be no comparison for Group C and D posts since the modalities of recruitment of these posts are different as per Recruitment Rules. The Dressers can be promoted to the post of LDC from 5% seniority basis and 5% from departmental examination as provided in the Recruitment Rules for the post of LDC. The respondents have also stated in their reply that as per the recommendations of VI Central Pay Commission, all Group D employees may be upgraded to Group C in the pay band of Rs.5200-20200 +Grade Pay of Rs.1800/- with a designation as MTS, provided the employees have minimum qualification of 10th pass or ITI in the same field. They have stated that the applicants are not entitled to any relief and there is no reason or ground to grant them the relief sought under the relief clause of present OA.
5. Both the parties were heard through the learned counsel for the applicants and the learned counsel for the respondents. The learned counsel for the applicants stated that in the absence of denial of specific averments made in the OA as such in Paras 3.3, 3.4 to 3.9 and 3.13. the facts in the OA should be treated as admitted. On the issue of limitation, the learned counsel argued that since the OA has been filed within one month of reply received under RTI, hence it was not barred by limitation. He also argued that no reply to the rejoinder filed by the applicants has been filed by the respondents. Reliance was placed on the judgments of the Honble Delhi High Court in W.P. ( C) 2071/2007 UOI & Anr. Vs. Sanjay Kumar & Ors.; W.P. (C ) No.2094/2007 UOI & Anr. Vs. Mahender Singh Rana; W.P. (C ) No.2095/2007 UOI & Anr. Vs. Lalit Kumar Pawar & Ors.and W.P. (C) No.3410/2010 Director General Doordarshan Vs. Neeraj Bhanot, and specifically to paras 12, 13 and 15. Another judgment cited by the learned counsel for the applicants is also of the Honble Delhi High Court in W.P (C ) No.1006/2008 UOI through Secretary, Ministry of Defence Vs. Indian Navy Civilian Design Officers Association through Swapan Deb & Anr., wherein in para 23 and 24, the Honble High Court has laid down the guiding principles on the basis of which equality has to be determined. On the other hand, the learned counsel for the respondents reiterated the issue of limitation and also that Annexure A-1 provided full reasons why the pay scale of Dresser in CGHS need not to upgraded as per demand.
6. We have perused the pleadings and documents on record and have also given consideration to the argument made by both the learned counsel.
7. The basic ground for seeking upgradation of pay scale of Dresser in CGHS as compared to the Dressers working in other similar organizations may be that there is similarity in the educational qualification as well as the duties and responsibilities of dressers in other Organizations. As far as the educational qualifications are concerned, according to the Recruitment Rules for the post of Dresser in CGHS, the required educational qualifications are Middle pass and passing of First Aid Examination with two years prior experience. On the other hand, in Railways, the educational qualification required for the Dresser is Matriculation. For Dresser in National Institute of Ayurveda, the required educational qualification is Matric and one years experience with similar pay scale plus Grade pay of 1900/- and in CISF, there is requirement of educational qualification of Matric or equivalent from the recognized board along with First Aid Certificate from Red Cross Society and one year experience as Dresser in similar pay scale plus Grade pay of 2000/-. In the case of Homeopathic Pharmacist in CGHS, the prescribed qualification is matriculation and three years experience under registered Homeopathic practitioner. Similarly, for ECG Technicians and Dental Technician, the educational qualification is matriculation with some experience in the line. While for those working as Panchkarma Technician in Central Council for Research in Ayurveda and Sidha, the required educational qualification is Middle pass or equivalent with five years experience, for Dark Room Assistants in CGHS, the required educational qualification is Matriculation along with one years experience.
8. A comparison of required educational qualifications as well as experience is noted above. We find that in all the above 3 organizations, the required educational qualification is matriculation (except Panchkarma Technicians), while in other cases of Dressers, the educational qualification prescribed for the post is Middle Pass. While in the case of Panchkarma Technicians, the educational requirement for the post is the same i.e. being Middle Pass, however, the required experience is five years which in the case of Dressers in CGHS, is only 2 years. There is thus a difference in the educational qualifications including the requirement of prior experience among the posts cited by the applicants in the OA.
9. The pay sale of Dressers in the CGHS in the V Central Pay Commission was Rs.2650-4400/-. In the case of Railways, during the same Pay Commission, it was Rs.3050-4590/- for Grade III (for Grade I and Grade II it is even higher). In the case of Dressers in National Institute of Ayurveda, it was Rs.3050-4590/-; whereas in the case of CISF, this information has not been provided at the stage of the V Central Pay Commission. The Dressers in Homeopathy Pharmacy in CGHS were stated to be carrying a pay scale of Rs.4500-7000/-. Similarly, the ECG Technicians and Dental Technicians were also carrying a pay scale of Rs.4000-6000/-. The information in respect of V Central Pay Commission regarding other organizations pay scale is not available. What is apparent from the above is that even under the V Pay Commission,Dressers in the CGHS enjoyed a lower scale of pay.
10. We shall now examine the nature of duties of Dressers in CGHS with other posts cited by the applicants in the OA. The comparison of Dressers/Employees in Homeopathic Pharmcy, Panchkarma Technicians, Dental Technician and National Institute of Ayurveda may not be apt because they belong to a different School of Medicine and hence the job requirement would not be identical. In the case of CGHS, for Dressers even after the enlargement of duties on commencement of CGHS (Dressers) Recruitment Rules, 1992, the duties relate to giving injections to patients, removing stitches etc. to keep the instruments sterilized, maintain the records regarding dressing room and supply of medicines etc. In the case of Railways, the first difference is that the Dressers/ OT Assistants work in the Operation theaters and also since they are working in the hospitals, their responsibilities and nature of work would be higher. As far as the dressers in Safdarjung Hospital and RML Hospital are concerned, we find from Annexure A-1 and Annexure A-14 (Colly) that duties and responsibilities of Dressers working in those hospitals are slightly different. The details regarding specific nature of duties of Dressers in CISF have not been given and that for Dressers in National Institute of Ayurveda , Homeopathic Pharmacist, Panchkarma Technician, Dental Technicians, Dark Rooms and other organizations have not been provided and are only stated to be identical. Any observation, therefore, regarding similarity of the work of applicants vis-`-vis these categories is not possible. However, it is noted above that there is a difference in the duties of CGHS Dressers with those in the Railways working as Dressers/OT Assistants as also those working in Safdarjung and RML Hospitals.
11. It is also observed that according to the Recruitment Rules, and as contended on behalf of the respondents, no additional qualification is required for the post of Dresser because these posts are to be filled up 100% by promotion. Another aspect is that as stated by the respondents in the counter reply, it is not correct to state that Dressers in CGHS have no promotional avenue. On the contrary, they can be promoted to the post of LDC, both on seniority basis and as per the departmental promotion examination upto the specified percentage,as per the Recruitment Rules of LDC. We also find merit in the contention of the respondents that now with the redesignation of Group D post after upgradation under VI Central Pay Commission as MTS, the scale of pay is the same as that of Dressers in the CGHS with Grade Pay of Rs.1800/- provided they have the minimum qualification of 10th Pass or ITI in the same field.
12. We have perused the judgment in W.P. (C) No.2071/2007 along with three other Writ Petitions (Supra), wherein, in paras 12 and 13 it has been held:-
12. In a somewhat different factual setting, in the decision reported as 1987 (1) SCC 592 M.P.Singh Vs. UOI & Ors., it was held that where employees enter the cadre from two different sources, it they do the same work and are similarly placed, there can be no discrimination in payment of wages.
13. Of course, employees in the same cadre can certainly be placed in different pay scales but that would be if it is shown that one set of employees has higher technical or education qualifications or performs more onerous duties vis-`-vis the other or the like. But, where there is complete parity it would be highly discriminatory to treat employees differently merely on account of the two coming from two different sources. We observe that para 13 of aforenoted judgment does provide for employees of same cadre to be placed in different pay scales but this would be if one set of employees has higher technical or educational qualifications and the duties are more onerous. In UOI Vs. Indian Navy Civilian Design Officers Association (Supra), the guiding principles that have been laid down are enumerated in paras 23 and 24 of the judgment which are reproduced as under:-
23. It is apparent that on what principles equality has to be determined cannot be put in a watertight compartment. But some of the facts to be noted are:
Source and mode of recruitment/appointment.
Educational and other qualifications required.
Nature of work.
Value of work.
Responsibilities involved.
Reliability.
Prior experience and expertise.
Confidentiality and functional needs.
It can thus safely be said that the aforesaid 8 guiding principles need to be kept in mind and any other which may be relevant o the facts and circumstances of each case has also to be taken note of.
13. We find that among these guiding principles, the applicants in this OA have cited examples to claim equal pay with the employees working in other departments/organizations where the mode of recruitment is different. The educational qualifications are also at variance. The nature of work is also not exactly the same and prior experience and expertise are also not identical. We have also observed that under the V Central Pay Commission, the post of applicants was carrying lower pay scale than that of the post cited by the applicants in the OA.
14. In view of above, we find that the applicants are not justified in seeking the relief claimed by them in this OA and the grounds stated by them do not justify upgradation of their pay scale either at the V Central Pay Commission or at the VI Central Pay Commission. Finding no merit, we are not inclined to allow the OA and accordingly dismiss the same. There shall be no order as to costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /usha/