Central Administrative Tribunal - Delhi
Sh. V. Stephen vs Union Of India on 16 September, 2009
Central Administrative Tribunal Principal Bench OA No.1732/2008 New Delhi, this the 16th day of September, 2009 Honble Dr. Ramesh Chandra Panda, Member (A) Sh. V. Stephen Pharmacist-cum-Clerk Station Medicare Centre 412 Air Force Station. New Delhi. Applicant (By Advocate : Shri J. S. Mann) Versus 1. Union of India through Secretary Ministry of Defence, South Block, New Delhi 110 106. 2. The Chief of Air Staff Air HQ (VB) Rafi Marg, New Delhi 110 106. 3. Air Officer Incharge Personnel, Air HQ (VB) Rafi Marg, New Delhi 110 106. 4. The Air Officer Commanding, 412, Air Force Station, Race Course, New Delhi 11 0003. 5. Union of India through Secretary Ministry of Health & Family Welfare Nirman Bhavan, New Delhi 110 106. Respondents (By Advocate : Shri N. K. Aggarwal) : O R D E R :
Shri V. Stephen working as Pharmacist-Cum-Clerk in the Station Medicare Centre (SMC) under the control of Respondent No.4 has come before this Tribunal with the following prayers:-
(a) Call for the record of the case and declare that applicant who is Pharmacist-cum-Clerk, is entitled to get Patient Care Allowance: and/or Declare that applicant, who in Pharmacist-cum-Clerk, is entitled to get revised rate of Patient Care Allowance @Rs.160/-p.m. w.e.f.01.08.1997 and again from @Rs.160/-p.m. to @Rs.700/- w.e.f. 29.12.1998 with benefit of arrears of PCA with appropriate rate of interest; and Directions may be given to the respondents to make payment of revised rate of Patient Care Allowance @Rs.160/-p.m. w.e.f. 01.08.1997 and again from @Rs.160/-p.m. to @Rs.700/- w.e.f. 29.12.1998 with benefit of arrears of PCA with appropriate rate of interest; and/or Pass such other or further orders as may be deemed fit and proper in the facts and circumstances of the case;
Award heavy and exemplary cost because despite of clear cut policy on the subject the applicant has been harassed by the respondents for nearly ten years which involves making of voluminous correspondence with the respondents.
2. The factual matrix of the case would reveal that the Applicant who was initially appointed as a Compounder has been getting Patient Care Allowance (PCA for short) at Rs.80/- per month w.e.f. 24.10.1992. He was absorbed in the Indian Air Force and has been working as Pharmacist-cum-Clerk. It is the Applicants case that consequent to the implementation of the 5th Pay Commission, the PCA was revised from Rs.80/- per month to Rs.160/- per month w.e.f. 1.08.1997, as per Government of Indias letter dated 28.09.1998 (Annexure A-4). The same allowance was further revised to Rs.700/- per month w.e.f. 29.12.1998 vide Ministry of Health and Family Welfare letter dated 2.01.1999 (Annexure A-5). From 1999 to January, 2008 the Applicant has submitted several written representations to the Respondents, requesting them to revise his PCA to Rs.160/- per month w.e.f. 01.08.1997 and Rs.700/- per month w.e.f. 29.12.1998. However, the Respondents have denied the benefits and rejected his representations vide their letter dated 28.04.2008 (Annexure A-1). It is the Applicants claim that he has been getting Rs.80/- per month as PCA right through and the same has not been revised so far. Even in the 5th Pay Commission, the same was revised as Hospital Patient Care Allowance (HPCA)/Patient Care Allowance (PCA) vide Ministry of Defence letter of 17th November, 2008. The Applicant was intimated that he did not belong to the categories notified by the Government and as such he was not eligible either for HPCA or PCA (Annexure A-43). Being aggrieved by the said decision of the Government, the Applicant is praying for the aforesaid reliefs.
3. Shri J. S. Mann, representing the Applicant, contended that the PCA was sanctioned to him long back and he had been getting it at the old rate. The basic issue is that if he is getting the PCA at the old rate and he is entitled to get the revised PCA at higher rates, but the same has yet not been sanctioned by the Respondents. He drew my attention to the information of a print out available at page 128 to show that he had been receiving the PCA at Rs.80/- per month. He also contended that Applicant belongs to Group-C and as per the Government of India Guidelines, Group-C & D employees working in the Hospitals would be eligible to get HPCA/PCA. With regard to the delay and laches, pointed out by the learned Counsel for the Respondents, Shri Mann contended that non-receipt of HPCA/PCA at the revised rates is a continuous cause of action and hence the law of limitation would not be applicable against the Applicant for coming to the Tribunal belatedly.
4. Shri N. K. Aggarwal, learned Counsel representing the Respondents, argued that as per the Government of India (Ministry of Defence) Circular dated 17.11.2005, grant of HPCA/PCA were admissible only to the Group-C & D employees of the Armed Forces hospitals/medical establishments and the same are admissible to the selected 3 broad categories of employees. In case of the 3rd category which covers the hospitals and medical establishment in Air force, he contends that the Pharmacist-cum-Clerk is not within the 9 types of employees notified in that circular. As such, the Applicant is not eligible to get the HPCA/PCA. He also submits that the OA suffers from delay and laches and is liable to be dismissed.
5. During the hearing, two issue that came up for my consideration are (i) whether the Applicant was eligible to get HPCA/PCA and (ii) if not how the HPCA at the old rates was being paid to him. These issues were posted to Respondents on 24.8.2009. The Respondents have submitted additional affidavit which indicates that the nodal medical authority for the armed forces had noted vide their letter dated 26.05.2004 that the PCA to Pharmacist-cum-Clerk was contrary to the eligibility criteria laid down in the Ministry of Health and Family Welfare OM dated 4.2.2004. They have clearly submitted in the affidavit that the Pharmacist-cum-Clerk category is not entitled to the grant of HPCA/PCA. With regard to the second question that if the Applicant was not eligible to get the HPCA/PCA, how the Applicant was getting the same at the old rate of Rs.80 per month, the reply furnished in the Affidavit did not clarify the question properly. Hence, I directed the counsel to get the instructions of the competent Officer in the issue. Therefore, during the arguments, when the learned Counsel for the Respondents was confronted with the question on 14.9.2009, Shri Aggarwal under instructions from Air Commodore Shri A. S. Bhonsle, Air Officer Commanding, 412 Air Force Station, Race Course, New Delhi submitted that the Applicant was receiving the PCA at the old rate of Rs.80/- per month which had been continuing as a mistake and such payment was wrong.
6. Having heard the rival contentions and perused the pleadings, it is noticed that the Government of India has been issuing guidelines from time to time indicating the eligibility, admissibility and the rates of HPCA/PCA for employees working in the Hospitals. The Ministry of Defence has been following the guidelines issued from time to time by the Ministry of Health and Family Welfare. As per the extant instructions/guidelines applicable for the Group-C & D employees of the Air Force, it is noticed from the circular of the Ministry of Defence that 9 categories of employees are eligible to get the HPCA/PCA. The Ministry of Defence letter dated 17.11.2005 on the grant of HPCA/PCA to Group-C & D non ministerial employees of the armed forces and hospitals and medical establishments in Para No.2 (i) and (ii) indicates the following :-
(i) Eligibility for Hospital Patient Care Allowance:
The Hospital Patient Care Allowance is admissible to the Group C and D (Non-Ministerial) employees excluding nursing personnel working in Armed Forces Hospitals (those with 30 beds or more) and in Super Speciality Hospitals (those with 10 beds or more), subject to the condition that no Night Weightage Allowance and Risk Allowance, if sanctioned by the Central Government, will be admissible to these employees.
Eligibility for Patient Care Allowance:
The Patient Care Allowance is admissible to the Group C and D (Non-Ministerial) employees excluding nursing personnel working in the health care delivery institutions/establishments (other than hospitals) having less then 30 beds, subject to the condition that no Night Weightage Allowance and Risk Allowance, if sanctioned by the Central Government, will be admissible to these employees.
7. The Appendix to the Government of India letter dated 17.11.2005 indicates the following 9 categories of Group-C & D employees eligible to get HPCA/PCA.
Hospitals/Medical Establishment in Air Force S. No. Categories
1. Lady Attendent
2. Safaiwala/Safaiwali
3. Washerman
4. Barber
5. Cook
6. Mess Waiter
7. Water Carrier
8. Washer Up
9. Laskar/Laskar Tindal
8. The basic principle behind the grant of HPCA is that the persons coming within the Group-C & D non ministerial employees whose regular duty involves continuous routine contact with the patients affected with the communicable diseases or are handling infected materials, instruments and equipments which can spread infection as their primary duty working in health care delivery institutions other than Hospitals would be considered for grant of HPCA/PCA. The Pharmacist-cum-Clerks does not fulfill the condition by which the controlling department would be in a position to continue them to get the HPCA/PCA. The Applicant being Pharmacist-cum-Clerk does not qualify as per the eligibility criteria for HPCA/PCA, and the employees belonging to his category do not figure in the list of 9 categories.
9. One of the claims of the Applicant was that since he has been getting the PCA at the old rate, the same needs to be revised from time to time and, therefore, the circulars issued subsequently would not apply and the new circulars indicating categories different from Pharmacist-cum-Clerk would apply to the new categories whereas old category of employees who have been getting the HPCA/PCA would need to be continued as eligible and, therefore, the revised HPCA/PCA rates should be granted to him. In this context, I have examined the extant rule position and find that the HPCA/PCA scheme for such employees have undergone restructuring at regular intervals and, therefore, the new schemes superceded the old scheme and, as such, the conditions to be fulfilled by the employees to be eligible for claim of the HPCA/PCA have also undergone changes and according to the revised/restructured HPCA/PCA Scheme, the Applicant is not eligible to get the HPCA/PCA. Once the basic eligibility does not exist for the Applicant, the question of revision of HPCA/PCA allowance to the revised rates would not, therefore, arise.
10. Having considered the facts and circumstances of the case, it is fully and wholly clear that the Applicant is not eligible to get the HPCA/PCA and as such he is also not entitled to get any revised rates of HPCA/PCA. The Original Application being devoid of merits is dismissed. No costs.
(Dr. Ramesh Chandra Panda) Member (A) /pj/