Meghalaya High Court
Shri Ratna Bhusan Panda vs The Union Of India on 18 May, 2017
IN THE HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 289 of 2015
Shri Ratna Bhusan Panda & Ors. .... Petitioners
- VERSUS -
Union of India & Ors ... Respondents
BEFORE
HON'BLE MR JUSTICE VED PRAKASH VAISH
Present
Mr. R. Jha ... Counsel for Petitioners
Mr. N. Mozika ... Counsel for Respondents
Date of Hearing ... 16.05.2017
Date of Judgment ... 18.05.2017
BY HON'BLE MR. JUSTICE V.P. VAISH
JUDGEMENT
By way of the present petition, the petitioners assail the action of the respondents in non-implementation of the recommendation of the Fast Track Committee, which was accepted by the Government of India vide Office Memorandum dated 18th November, 2009 as also seek implementation of the Office Memoranda dated 18th November, 2009 and dated 10th June, 2015 and grant of benefits in terms of the said Office Memoranda along with the arrears of pay after implementation of the financial upgradation. The petitioners also seek directions for grant of parity of pay of scale at par with Central Government Health Services w.e.f. 1st January, 1996 along with arrears. WP(C) No. 289 of 2015 Page 1 of 13
2. Briefly recapitulating the facts leading to the filing of the present petition are that the petitioners herein are working as Assistant Sub Inspector/Pharmacist in the Border Security Force (B.S.F.). After completion of the training the petitioners were posted to different places all over India and they were serving to the utter satisfaction of the superior officers in the chain of command and nothing adverse were found against them.
3. It is stated that the nature of duties of the petitioners are dynamic, multi dimensional, patient oriented professionals committed to fulfilling the health care needs of the patients. The role of the Pharmacist in the Para Military Forces are having more responsibilities and they play a crucial role in ensuring not only the smooth running/functioning of soldiers but also renders crucial help in other operational aspects of the forces on ground.
4. The petitioners are stated to be most trusted health care professional who were consulted for proper use of prescribed medicines dispensed by the doctor and in the absence of the doctor by them.
5. The petitioners also state that they are serving under the BSF which is declared as Central Armed Police Force and the petitioners‟ are serving as combatized duty personnels (as soldier is never off duty).
6. It is also stated that in the Fifty Central Pay Commission Report accepted by the Central Government and implemented w.e.f. 1st January, 1996, there were three pay scales of Central Government Health Services in respect of Pharmacist which were applicable to the Pharmacist Cadre of the respondents. The same are as under:- WP(C) No. 289 of 2015 Page 2 of 13
(i) Pharmacist (Entry Grade) Rs. 4500-125-7000
(ii)Pharmacist- II Rs. 5000-150-8000
(iii) Pharmacist Rs. 5500-175-9000
7. It is further stated that after implementation of the Sixth Central Pay Commission, the Government of India referred the matter of certain common category posts in which the post of Pharmacist was one of the category. The Fast Tract Committee recommended that the Entry Grade of Pharmacist in Central Government should remain at Grade- Pay of Rs. 2800 in the Pay Band PB-1 and on completion of two years service in the Entry Grade, all the personnel should be granted non- functional upgradation to the next higher grade having Grade Pay of Rs. 4200/- in the Pay Band PB-2. The said recommendation of the Committee regarding the pay scale of the Pharmacists Cadre was accepted by the Government of India and the Ministry of Finance vide Office Memorandum dated 18th November, 2009 thereby approving the pay structure for common category post of Pharmacist Cadre with effect from 1st January, 2006.
8. It was also notified that the aforesaid upgradation would not be treated as promotion for the purpose of Assure Career Progression Scheme. It is stated that the petitioners raised the points of granting the benefit of the Office Memorandum in the Sainik Samellan as also the petitioner No. 1 filed representation but no action thereon was taken by the respondents. Hence, the petitioners having no other alternative remedy, approached this Court seeking reliefs as stated in paragraph 1 hereinabove.
WP(C) No. 289 of 2015 Page 3 of 13
9. It is contended on behalf of the petitioners that the petitioners bear their allegiance to the nation and most of the troops of CAPF are deployed in harsh and extreme hard locations on border duty, including maintenance of internal security and carrying out some of the most dangerous counter insurgency duties in highly sensitive and military prone areas like Jammu & Kashmir, Naxal infested areas, Hyper Malaria Endemic zone of North Eastern region and to perform their duties through the length and breadth of the country.
10. It is further contended that combatised pharmacists at all times are required to perform their primary duties of a pharmacists in addition to the ground duties allotted to them by the concerned authority in charge but that do not change the essential fact that a combatised pharmacist is barred from availing the perks and benefits that comes along with their designation/posts and the same is being enjoyed by the counterparts employed in different departments having the same qualification and doing less duties than the petitioners.
11. Learned counsel for the petitioners contended that combatisation process to this technical post has manifold increased the duties and rigors of the said post and denying the petitioners of the benefits is grossly illegal, arbitrary and untenable in law compared vis- à-vis to the pay scale and other benefits drawn by individuals in BSF, CRPF amongst other government institutions thereby creating an environment of disparity and has created frustration amongst the petitioners.
12. Learned counsel for the petitioners also contended that Office Memorandum dated 18th November, 2009 had already been WP(C) No. 289 of 2015 Page 4 of 13 implemented by the other departments and similarly situated persons are getting the benefits of the said financial upgradation but the petitioners are being denied the benefits by the department for which they are legally entitled to.
13. It is further argued on behalf of the petitioners that respondents are not extending the relief of financial upgradation to the petitioners inspite of clear directions issued by the Ministry of Personnel vide Office Memorandum dated 10th June, 2015. It is also stated that Ministry of Health and Family Welfare Department vide office memorandum dated 13th July, 2010 directed the departments for implementation of the office memorandum dated 18th November, 2009.
14. Learned counsel for the petitioners contended that non implementation of the pay scales by the respondents is highly arbitrary, discriminatory and violative of the established principles of equal pay for equal work much less violative of Article 21 of the Constitution of India.
15. The petition is opposed by the respondents and affidavit in opposition has been filed. It is, inter alia, pleaded by the respondents that an Office Memorandum dated 18th November, 2009 was issued by the Ministry of Finance regarding revised pay structure of the common category posts of Pharmacist cadre. While approving the report of the Sixth Central Pay Commission, the Government referred the matter related to the demand made in regard to pay scale of certain common category posts to a Fast Track Committee. The pay scales of the common category posts of Pharmacist was one of the items referred to the Committee.
WP(C) No. 289 of 2015 Page 5 of 13
16. It is further stated that the Fast Track Committee recommended that the Entry Grade of Pharmacist in Central Government should remain at Grade Pay of Rs. 2800/-, however, on completion of two years service in the entry grade, all the incumbents should be granted non-functional upgradation to the next high grade having grade pay of Rs. 4200/-. The report of the Committee was accepted by the Government and the pay structure as recommended by the Committed was approved for the common category of posts of Pharmacist cadre w.e.f. 1st January, 2006.
17. The respondents further stated that the Ministry of Finance also directed that consequent upon the implementation of the pay structure promotion form Pharmacist (Entry Grade) to the next higher grade of pay of Rs. 4200/- will be delinked from vacancies and will become non-functional and time bound in the case of Organizations like Ordinary Factory Board where all the pharmacist posts are presently in the grade pay of Rs. 2800/- in the bay band PB-1, the implementation of the pay structure of Rs. 4200/- the implementation of the pay structure will result in the introduction of a new non-functional grade having grade pay of Rs. 4200/- in the pay band PB-2. As such the Office Memorandum was sent to all field formations from FHQ BSF (Medical DTE) New Delhi vide letter dated 1st February, 2010 for implementation of the said order.
18. It is further stated that FHQ (Medical DTE) New Delhi vide their Signal No. A/174, dated 2nd December, 2010 has informed all BSF Establishments that the issue regarding extending the benefit of Department of Expenditure, Ministry of Finance Office Memorandum WP(C) No. 289 of 2015 Page 6 of 13 dated 18th November, 2009 to BSF Pharmacist and further granting financial upgradation under MACPS as implemented by the Directorate of Health Service examined by Department of Personnel and Training and has opined that Pharmacist in BSF are combatised and therefore the pay scale as applicable to the common category pharmacist is not applicable to them. The respondents further contended that Department of Expenditure has advised to extend the pay scale to the Pharmacists cadre of BSF as per the recommendation of Sixth Central Pay Commission as contained in paragraph 7.19.35. DoPT has also clarified that the Pharmacist of BSF would only be entitled for 1st, 2nd and 3rd financial upgradation under the MACPs in the grade pay of Rs. 4200/-, Rs. 4600/- and Rs. 4800/- respectively w.e.f. 1st September, 2008 or on completion of 10, 20 and 30 years of continuous service respectively.
19. It is further stated that the Medical Directorate FHQ BSF New Delhi directed all establishments under BSF that instruction issued vide Office Memorandum dated 18th November, 2009 be not implemented in BSF. It is further stated that in view of this direction, the instructions issued for the implementation of revised pay structure of the common category posts of Pharmacists cadre vide Office Memorandum dated 18th November, 2009 was not implemented in the BSF.
20. I have given my anxious thought to the rival submissions made by learned counsel for both the parties. I have also gone through the material placed on record.
WP(C) No. 289 of 2015 Page 7 of 13
21. It is settled legal position that the law pertaining to placement of posts in pay scales is with the domain of the executive to determine as to in what scale of pay a post has to be placed and since it is a matter of expert opinion, courts intervention has to be minimal and that it is not open for the courts to play the role of an expert. However, where it is apparently manifest that two posts are identical, it would be a denial of Article 14 of the Constitution to those who are placed in the lower pay scale. In that event, it would be within the domain of a writ court to issue appropriate directions.
22. There is no dispute to the fact that an Office Memorandum dated 18th November, 2009 was issued by the Ministry of Finance regarding revised pay structure of the common category posts of Pharmacists cadre. However, while approving the report of the Sixth Central Pay Commission, the Government referred the matter related to the demand made in regard to pay scale of certain common category posts to a Fast Track Committee wherein pay scales of the common category posts of Pharmacists was one of the item which was referred to the Committee.
23. The Fast Track Committee recommended that the entry grade of Pharmacist in Central Government should remain at Grade Pay of Rs. 2800/-, however, on completion of two years service in the entry grade, all the incumbents should be granted non-functional upgradation to the next higher grade having a grade pay of Rs. 4200/-. The report of the Committee was accepted by the Government and the following pay structure was approved for the common category of posts of Pharmacist cadre w.e.f. 1st January, 2006:-
WP(C) No. 289 of 2015 Page 8 of 13
Pay structure
approved on the
Designation Pre-revised recommendation of Remarks
Pay Scale Fast Track
Committee
Entry grade for
Pharmacist Cadre
Essential minimum
educational
Pharmacist 4500-7000 Grade Pay of 2800 qualifications of 10+2
(Entry Grade) in PB-1 plus 2 years Diploma in
Pharmacy and
Registration with State
Pharmacy Council.
Pharmacist Gr. II and I
will be merged and
Pharmacist II 5000-8000 Grade pay of 4200 designated as Pharmacist
in PB-2 (Non-Functional Grade).
Pharmacist-I 5500-9000 This grade to be granted
to Pharmacist (Entry
Grade) on non-functional
basis after 2 years of
service in the grade pay
of Rs. 2800.
24. It is also not in dispute that the Pharmacists in the BSF are combatised. This fact is also not denied by the petitioners. The duties of the pharmacists in BSF has been prescribed as per the Medical Directorate manual Volume-IX, the extract of which is Annexure-I to the affidavit in opposition. The petitioners perform duties as prescribed in the BSF Manual.
25. The respondents have taken a specific stand in the counter affidavit that the method of recruitment in respect of combatised pharmacist, training schedule, living conditions, duties and other facilities are entirely different with the other combatised personnel performing general duty. Denying the stand taken by the petitioners that they perform their primary duties of a pharmacist in addition to the ground duties, the respondents categorically stated that no other duty WP(C) No. 289 of 2015 Page 9 of 13 is being performed by the petitioners like other combatised general duty personnel.
26. The Office Memorandum dated 18th November, 2009 after approval was sent to all field formations by FHQ BSF (Medical DTE) New Delhi for implementation. The applicability of the benefits of the said Office Memorandum to the Pharmacist in BSF was examined by the Ministry of Home Affairs in consultation with the Ministry of Finance (Department of Expenditure) and Department of Personnel and Training. They advised BSF to extend pay scale as per paragraph 7.19.35 of the Sixth Pay Commission to the Pharmacist cadre of BSF as the revised pay as applicable to the common category of Pharmacist is not applicable to the BSF Pharmacists because of their combatisation. The said paragraph 7.19.35 is reproduced as under:-
"7.19.35 Keeping all the above factors in view, the Commission recommends the following pay structure for non-gazetted executive cadres in various Central Para Military Forces:-
( in Rs. ) Designation Present Pay Recommend Corresponding Pay Band Scale ed Pay Scale & Grade Pay Pay Band Grade Pay Constable 3050-4590 3200-4900 PB-1 2000 Head Constable 3200-4900 4000-6000 PB-1 2400 Assistant 4000-6000 4500-7000 PB-1 2800 Sub Inspector Sub Inspector 5500-9000 6500-10500 PB-2 4200 Inspector 6500-10500 7450-11500 PB-2 4600 Subedar Major 6500-10500+ 7500-12000 PB-2 4800 Rs. 200 p.m. Simultaneously the appointment pay of Rs. 200 p.m. attached to the post of Subedar Major shall stand withdrawn."WP(C) No. 289 of 2015 Page 10 of 13
27. Thus, the Office Memorandum dated 18th November, 2009 was examined by the Department of Personnel and Training who opined that the Pharmacists in BSF being combatised, the pay scale applicable to common category of pharmacist is not applicable to them. The Department of Expenditure also advised to extend the pay scale to the pharmacist cadre of BSF as per the recommendation of the Sixty Central Pay Commission as contained in paragraph 7.19.35, quoted above. The Department of Personnel and Training further clarified that the Pharmacists of BSF are entitled for 1st, 2nd and 3rd financial upgradation under the MACPs in the grade pay of Rs. 4200/-, Rs. 4600/- and Rs. 4800/- respectively w.e.f. 1st September, 2008 or on completion of 10, 20 and 30 years of continuous service. Based on this, the Medical Directorate FHQ BSF New Delhi directed all establishments under BSF not to implement the Office Memorandum dated 18th November, 2009 in Border Security Force (BSF). This decision being executive decision, to my mind, need not be interfered with in exercise of powers under Article 226 of the Constitution of India.
28. Insofar as the contention of the petitioners regarding equal pay for equal work is concerned, it is settled law that the principle of "equal pay for equal work" is not always easy to apply as there are inherent difficulties in comparing and evaluating the work of different persons in different organizations or even in the same organization. This is a concept which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot be translated into a mathematical formula.
WP(C) No. 289 of 2015 Page 11 of 13
29. The Hon‟ble Supreme Court in the case of „STATE OF HARYANA AND OTHERS vs CHARANJIT SINGH AND OTHERS‟ reported as (2006) 9 SCC 321, a bench of three Hon‟ble judges, while affirming the view taken in the cases of „STATE OF HARYANA AND OTHERS vs JASMER SINGH AND OTHERS‟ reported as (1996) 11 SCC 77, „ORRISA UNIVERSITY OF AGRICULTURE & TECHNOLOGY AND ANOTHER vs MANOJ K. MOHANTY‟ reported as (2003) 5 SCC 188, „STATE OF HARYANA AND ANOTHER vs TILAK RAJ AND OTHERS‟ reported as (2003) 6 SCC 123 and „GOVERNMENT OF WEST BENGAL vs TARUN K. ROY AND OTHERS‟ reported as (2004) 1 SCC 347‟ has reiterated that the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal pay must be for equal work of equal value and that the principle of "equal pay for equal work" has no mechanical application in every case, it has been held that Article 14 of the Constitution of India permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. Enumerating a number of factors which may not warrant application of the principle of "equal pay for equal work", it has been held that since the said principle requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Normally the applicability of this WP(C) No. 289 of 2015 Page 12 of 13 principle must be left to be evaluated and determined by an expert body and the court should not interfere till it is satisfied with necessary materials on the basis whereof the claim is made is available on record with necessary proof and that there is equal work and equal quality and all other relevant factors are fulfilled.
30. In another case of 'STATE BANK OF INDIA AND ANOTHER vs M.R. GANESH BABU AND OTHERS' reported as (2002) 4 SCC 556, it was held that equivalence of post has not to be judged merely with reference to mere volume of work. The touchstone on which equivalence has to be determined would be to consider the source of recruitment, educational and other qualifications required, as also the qualitative and quantitative nature of jobs.
31. In the light of the aforesaid discussion, the present petition is without any merit, same deserves to be dismissed and the same is hereby dismissed.
32. No order as to costs.
JUDGE Dated, the 18th May, 2017 V. Lyndem WP(C) No. 289 of 2015 Page 13 of 13