Central Administrative Tribunal - Bangalore
Shakuntala L Gowda vs Health And Family Welfare on 17 August, 2023
1 OA 487/2021/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00487/2021
ORDER RESERVED ON : 03.08.2023
DATE OF ORDER : 17.08.2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Smt. Shakuntala L. Gowda,
W/o Ramesh Nandagoan,
Aged about 38 years,
Working as Staff Nurse,
ENT Department,
Office of the All India Institute
Of Speech & Hearing,
Manasagangothri,
Mysuru
Mysuru-577006,
R/a D.No.55,
Basav Nilay,
2nd Stage, Rukmini Nagar,
Belgaum
lgaum-590002. ...Applicant
(By Advocate, Shri Ranganatha S.Jois))
Vs.
2 OA 487/2021/CAT/BANGALORE BENCH
1. The Union of India
Represented by its Secretary,
Ministry of Health & Family Welfare,
Shastri Bhavan,
New Delhi 110001.
2. The All India Institute of Speech
And Hearing,
Naimishan Campus,
Manasagangothri
Mysuru-577006,
Rep. by its Director. ...Respondents
(By
By Advocate, Shri S.Sugumaran)
O R D E R (ORAL
ORAL)
Per: Justice S.Sujatha ...........Member(J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, Act, 1985 seeking the following reliefs:
3 OA 487/2021/CAT/BANGALORE BENCH "i. CALL for relevant records relating to the impugned order/ communications bearing No.F.No.V.19013/01/2015 No.F.No.V.19013/01/2015-
NCD I/8061284 dated Nil.12.2020 vide Annexure A15 NCD-I/8061284 issued by the 1st respondent and bearing No.SH/Dir/GEN/2020 21 dated 22.12.2020 vide Annexure No.SH/Dir/GEN/2020-21 A16 issued by the 2nd respondent, PERUSE SAME AND QUASH, the non extension of benefit of the revised pay scale and grade pay to the applicant as staff nurse from the date of appointment on par with the staff nurses of the Government of India, Ministry of Health & Family Welfare as being clearly violative of Articles 14, 16(1) & 39(d) of the Constitution onstitution of India;
ii. ISSUE A consequential writ order or directions to the respondents to extend to the applicant the revised pay of staff nurse in the pay scale of 9300 9300-34800 pay band II with grade pay of Rs.4,600 with effect from the date of her appointment as revised from time to time from 6th and 7th Pay Commission and extend all the benefits including the arrears with interest at 12% p.a.;
iii. ISSUE any other consequential directions or orders as this Hon'ble Tribunal deems fit in the facts and circumstances of the case."
4 OA 487/2021/CAT/BANGALORE BENCH
2. The facts in brief as stated by the applicant are that she joined the service as Staff Nurse as per the selection committee communication dated 07.07.2009 07.07 2009 and was issued with the order of appointment dated 05.08.2009.
05.08.2009. She reported for duty on 18.08.2009 and since then she has been working as Staff Nurse in the 1st Respondent Institute. Government of India had issued orders on 18.02.2009 regarding the revision of pay scales of Nurses in the Government of India as per the 6th Pay Commission recommendation and the pay scale of Staff Nurse appointed on or after 01.01.2006 was revised to Pay Band Band-2 - Rs.9300-34,800, with the Grade Pay of Rs.4,600/-.
Rs.4,600/ The 1st Respondent Institute being one of the institutions coming coming under the Ministry of Health and Family Welfare, Welfare, the Pay Commission recommendations are mutatis-mutandis mutandis applicable. The applicant submits that several representations made by her for extension of the revised pay under the 6th Pay Commission along withh revised Grade Pay of Rs.4,600/ s.4,600/-, which was made applicable with effect from 01.01.2006, though forwarded to the Ministry as per the communication of the 1st Respondent dated 21.07.2017, no benefits were extended. Being aggrieved, the applicant had preferred OA 5 OA 487/2021/CAT/BANGALORE BENCH No.1697/2018 before this Tribunal, which came to be allowed on 21.06.2019 directing the Ministry of Finance, Department of Expenditure to complete the whole process within three months. Since the said order was not implemented, the applicant prefe preferred Contempt Petition No.21/2020 before this Tribunal, during the pendency of the contempt proceedings, the respondents issued two orders/communications namely, 22.12.2020 and Nil.12.2020, extending the revised pay scale to the Staff Nurses with effect fr from 14.12.2020. Being aggrieved, the applicant has preferred this OA.
3. Learned Counsel Shri Ranganath S. Jois representing the applicant submitted that the applicant having appointed as Staff Nurse on 05.08.2009 and reported on 18.08.2009, is a direct recruitee to the said post. The applicant is performing the same duties and responsibilities as Staff Nurse in the 1st Respondent Institution on par with the Government Hospital of Ministry of Health and Family Welfare services and the autonomous institutions of the Ministry like AIIMS, JIPMER, Pondicherry, CGIMER, Chandigarh etc. The 1st Respondent is one of the Centra Central Government autonomous body covered by Finance Ministry order 6 OA 487/2021/CAT/BANGALORE BENCH in the matter of pay scales. However, the benefit of pay scale of Staff Nurse as revised from 01.01.2006 has been denied to the applicant from the date of her application till date. The mer mere fact that the Recruitment Rules which was forwarded to the department were approved later cannot be a reason to deny the pay scale to the applicant. Pay scale is relatable to the post and not depending on the date of approval of C&R Rules. When the Go Government has already taken a policy decision to extend the pay scale benefits on account of 6th Pay Commission with effect from 01.01.2006 to all the similarly situated Institutions/Corporations, granting prospective benefit to the applicant is discriminatory.
discriminatory. Learned Counsel has placed reliance on the order of C.A.T., Chandigarh Bench in OA No.473/2020 and connected matters dated 09.04.2021 09.04.2021.
4. Learned Counsel Shri S.Sugumaran representing the respondents submitted that Respondent No.2, All India Insti Institute of Speech and Hearing (AIISH), Mysuru is an autonomous body registered under the Societies Registration Act, 1860 and comes under the administrative control of Ministry of Health and Family Welfare, Government of India. AIISH has its own Byelaws and 7 OA 487/2021/CAT/BANGALORE BENCH Rules and Regulations framed by the Executive Council of the Institute. As of now, AIISH has only a OPD set up and the Staff Nurses work in the Department of ENT/Department of Clinical Services with normal working hours from Monday to Friday. AIISH does not have a hospital set up or in in-patient ward and Staff Nurses do not work in three shifts as in the case of other Government hospitals. The emoluments structure is not identical to those of Central Government hospitals. As such, pay scale attached to the post right from the inception of AIISH is less than the regular hospitals of Central Government. The project of expansion and upgradation of AIISH is fructified now in the coming up of a full-fledged full fledged Operation Theatre and ENT Department with about 25 bedded facilities including ICU, OT and post-operative operative wards. As such process of amendment of Recruitment Rules to the post of Staff Nurse was a suo moto action by the institution. Keeping the additional nature of duties and responsibilities, the pay scales scales of the Staff Nurse was enhanced with effect from 14.12.2020. No discrimination is made with Staff Nurses working work in the Respondent No.2 Institution vis vis-à-vis the regular Staff Nurses working in Government Hospitals. The 8 OA 487/2021/CAT/BANGALORE BENCH revision of pay scale of the the Staff Nurses has been rightly given effect to, from the date of issue of revised Recruitment Rules i.e., 14.12.2020. The same cannot be given effect retrospectively. As such, the applicant is not entitled to the benefit of revised pay scale and Grade Grad Pay from the date of her appointment. Learned Counsel has placed reliance on the judgment of the Hon'ble Apex Court in State of Maharashtra & another vs. Bhagwan & others reported in (2022) 4 SCC 193.
5. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
6. Revised Recruitment Rules for the post of Staff Nurse issued by the Government of India, Ministry of Health and Family Welfare, Department of Health and Family Welfare dated December, cember, 2020 makes it clear that Staff Nurse in AIISH are classified as Group 'C' Technical posts in the scale of pay of Rs.5200-20200 + GP Rs.2800/- , revised to Group 'B' Technical post in the pay scale of Rs.9300-34,800/ 34,800/- + GP Rs.4600/- (Level 7 CPC).. In terms of OM dated 22.12.2020 (Annexure A16), the date of implementation of revised pay scale to Staff Nurse is with effect 9 OA 487/2021/CAT/BANGALORE BENCH from 14.12.2020. The claim of the applicant that this revised pay scale ought to have been made applicable from the date of 6th CPC coming into force and the applicant being selected and reported to duty on 18.08.2009, she is entitled to this revised pay scale from her date of appointment, has to be examined in the background of Recruitment Rules prevailing at the time of the ap appointment of the applicant. It is not in dispute that the Staff Nurses in AIISH was classified as Group 'C' Technical post with pay scale of Rs.5200 Rs.5200- 20200 + GP Rs.2800, at the time of her appointment as Staff Nurse. The he applicant cannot claim that she wass oblivious of this situation. Knowing very well the applicant participated in the selection process and after being being selected, accepted the post, with the prevailing pay scale at the relevant point of time. Indeed her request/claim has been considered by the respondents, consequently Recruitment Rules have been revised in December, 2020 giving effect from 14.12.2020. The reasons explained in the reply statement reiterated in the arguments of the learned Counsel for the respondents would indicate that the the AIISH project has now been expanded to include 25 beds facilities including ICU, OT and post operative wards. Prior to that AIISH had only a OPD set up with 10 OA 487/2021/CAT/BANGALORE BENCH Department of ENT and Department of Clinical Services involving the work from Monday to Friday during the normal working hours. The pay scale has nexus with duties and responsibilities of the post in the changed scenario of AIISH. Pay scales of Staff Nurse has been enhanced with effect from 14.12.2020. As such, reasonable classification is based based on intelligible differentia, must pass muster of Article 14.
7. It is apt to refer to the judgment of Hon'ble Apex Court in the T.M.Sampath and Ors. vs. Secretary, Ministry of Water Resources and Ors. - (2015) 5 SCC 333 wherein, the Hon'ble Apex Court has observed thus:
"16. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the OM i.e. 11-5-1987, the relevant date of parity, the principle of parity parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. v. Union of India India [(2005) 4 SCC 649], it was held by this Court that 11 OA 487/2021/CAT/BANGALORE BENCH the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression "State" and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on par with their counterparts in the Central Government under sub sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable.
17. Even if it is presumed that NWDA is "State" under Article 12 of the Constitution, the appellants have failed to prove that they are on par with their counterparts, with whom they claim parity. As held by this Court in UT, Chandigarh v. Krishan Bhandari [(1996) 11 SCC 348], the claim to equality equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functionin functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be "Central Government employees" as stated in the OM for its applicability." Considering the aforesaid judgment, the Hon'ble Apex Court in the State of Maharashtra & another vs. Bhagwan & others supra, held thus:
12 OA 487/2021/CAT/BANGALORE BENCH "26.
26. As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees. Merely becau because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such au autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government Government and the Autonomous Board/Body cannot be put on par.27
27.......................
28. As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly.
Granting of certain benefits may result in a cascading effect having adverse financial consequences.
13 OA 487/2021/CAT/BANGALORE BENCH
29. In the he present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Co Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity."
8. The aforesaid judgment is squarely applicable to the facts of the present case. Given the circumstances, we find no discrimination meted out to the applicant in refusing the pay scale of the Staff Nurse of AIISH. The same being a policy decision, it certainly has a cascading effect having financial impli implications, we 14 OA 487/2021/CAT/BANGALORE BENCH refrain to interfere with the same. Moreover, the reasons are assigned by the respondents for refusing the pay scale of Staff Nurse in AIISH with effect from 01.01.2 01.01.2006, as discussed in the preceding Paragraphs No.6 and 7. The judgment relied on by the learned earned Counsel for the applicant is distinguishable and not applicable to the facts of the present case.
9. For the reasons aforesaid, OA is devoid of merit and accordingly stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
15 OA 487/2021/CAT/BANGALORE BENCH