Central Administrative Tribunal - Delhi
Amar Nath Sharma vs North Delhi Municipal Corporation on 29 March, 2023
1 OA No. 1062/2019
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1062/2019
Order reserved on: 30.01.2023
Order pronounced on: 29.03.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Amar Nath Sharma,
S/o. Late Shri Ram Kishan Sharma,
Aged about 65 years,
R/o. Q2/10B, DLF City Phase-2
Gurugram, Haryana,
retired as Malaria Inspector Central Zone
S.D.M.C. Group-C
2. Jai Dutt Sharma,
S/o Late Shri Pyare Lal,
Aged about 63 years,
R/o. B-118 AV5 Sai Nagar, Meetha Nagar
Badarpur, Delhi-110044
retired as Malaria Inspector Central Zone
S.D.M.C Group-C
3. Kundan Lal Jaweria,
S/o. Late Sh. Ruraram,
Aged about 59 years,
R/o. Flat No.302, South End Apartment,
Pul Pahaladpur New Delhi-110044
working as Anti Malaria Officer South Zone
S.D.M.C. Group-C
4. Vishwnath,
S/o. Late Sh. Ganga Deen,
Aged about 57 years,
R/o. H.No.1123/24, L Block, Sani Bazar,
Sangam Vihar,
New Delhi - 110080
working as Malaria Inspector South Zone
S.D.M.C Group-C
5. Mohinder Singh Yadav,
S/o. Late Sh. Jagmal Singh,
Aged about 64 years,
2 OA No. 1062/2019
R/o. Village Kharagwas P.O. Boria,
Kamalpur, District Rewari,
Haryana,
retired as Malaria Inspector South Zone
S.D.M.C Group-C
6. Surender Parshad Sharma,
S/o. Sh. D.R. Sharma,
Aged about 61 years,
R/o. Village Nangal Barhman P.0. Dighot
District Palwal, Haryana, Group-C
retired as Malaria Inspector Central Zone S.D. M.C
7. Yudhvir Singh Chauhan,
S/o. Late Sh. Khazan Singh Chauhan,
Aged about 63 years,
R/o. H.No.H7 Pancheel Vihar, Malviya Nagar,
New Delhi - 110017 Group- c
retired as Malaria Inspector South Zone
S.D.M.C
8. Ravinder Nath,
S/o. Late Sh. Beni Prashad,
Aged about 64 years,
R/o. H.No.1657/31 Agrawal Dharmshala
Wali Gali, Laxman Vihar, Phase-ll,
Gurugram, Haryana, Group-C
retired as Malaria Inspector Najafgarh Zone
S.D.M.C
9. Mahesh Chander,
S/o. Late Sh. Ayodhya Prasad,
Aged about 64 years,
R/o. H.No.C/237C, Mayur Vihar,
Phase-ll, Delhi - 110091 noup-c
retired as Malaria Inspector Head Quarter
North DMC
10. Amar Prakash Gupta,
S/o. Late Sh. Phool Chand Gupta,
Aged about 63 years,
R/o. H.No.C-53, New Ashok Nagar,
Near MCD Primary School,
Delhi-110096, Group-C
retired as Malaria Inspector City Zone North DMC
11. Mahavir Prasad,
S/o. Late Sh. Beni Prasad Sharma
Aged about 63 years,
3 OA No. 1062/2019
R/o. H.No.26 Sector-3A First Floor,
Rachna, Vaishali, Gnoup- e
Ghaziabad, U.P.,
retired as Malaria Inspector Head Quarter
North DMC
12. Shripal,
S/o. Late Sh. Inder Singh Yadav,
Aged about 64 years,
R/o. H.No.865, Gali No.2,
Near Ambadkar Park, Jwala Nagar,
Shahdara, Delhi-110032,
retired as Malaria Inspector Head Quarter
EDMC Group-C
....Applicants
(By Advocate: Ms. Pragnya Routray)
Versus
Municipal Corporation Delhi
Through its Commissioner,
Civic Centre,
Minto Road, New Delhi - 110002
... Respondents
(By Advocate: Mr. Yudhister Sharma)
ORDER
By Hon'ble Manish Garg, Member (J) In the present OA, the applicants are seeking following reliefs:
"1) Issuance of appropriate order direction to quash the office order dated 21.2.2018 as cited above.
2) issuance of appropriate order direction to Respondents to implement the office order dated 16.1.2018 and revise the pay scale of the applicant accordingly, and
3) direct the Respondents to remove the anomaly in the pay scale of vaccinators and AMI and MI and grant AMIs the pay scale of Rs.5000-8000/- w.e.f. their date of appointment and revise the pay scale of the Applicants accordingly with all subsequent consequential benefits.4 OA No. 1062/2019
4) to pass such other and further orders this Hon‟ble Tribunal deem fit and proper in the existing facts and circumstances of the case."
2. Brief Facts:
2.1 Applicants are Assistant Malaria Inspectors (AMI) and Malaria Inspectors (MI) in the office of Municipal Health Officer with the respondents - MCD.
2.2 There is another similar post of Vaccinators and Vaccination Inspectors in the Health Department of MCD. It is submitted that in the beginning the post of Vaccinator was carrying lesser pay scale than the post of AMI (earlier known as Surveillance Workers). The pay scale of Vaccinators was equated with the pay scale of AMI by the respondents by the Pay Commission. The pay scale available for both the post was Rs.100-180. The said parity was maintained by all subsequent Pay Commissions, namely, III Pay Commission, IV Pay Commission and V Pay Commission as well. 2.3 It is submitted that parity of the pay scale was allowed in pursuance to the judgment of the Labour Tribunal which was upheld by the Hon‟ble High Court.
2.4 With the passage of time the population of Delhi city increased and a need was felt to streamline and restructure activities of the Health Department for the purpose of smooth functioning and maintaining of Public Health. A Committee 5 OA No. 1062/2019 was appointed headed by Dr. S. Patnayak, Director NAMP and Consultant W.H.O. The said Committee after in-depth study of the issue submitted its recommendation to the MCD, in the year January 1999.
2.5 Subsequently, the respondent passed the Resolution No.631 dated 23.03.2005 for revising the grade/scale of AMI/Surveillance workers and Vaccinators/ Assistant Public Health Inspector (APHI) as both the posts carry similar educational and technical qualification and put both cadres in the same pay scale as pay parity was maintained by both the cadre by the pay commissions.
2.6 The Resolution which was placed before the Standing Committee for approval underwent a change and the Standing Committee vide Resolution No.637 dated 23rd March 2005 recommended to the corporation for transfer of post of Vaccinator and Vaccination Inspector as Assistant Public Health Inspector and Public Health Inspector carrying the pay scale of 330-560 and Rs.425-640 respectively. The Resolution No.637 dated 23.3.2005, created hostile discrimination by leaving out the petitioners namely Assistant Malaria Inspector and Malaria Inspector and excluding them from the purview of posts of Assistant Public Health Inspector and Public Health Inspector.6 OA No. 1062/2019
2.7 The Respondent also vide Resolution No.84 dated 28th April, 2005 approved the said Resolution of the Standing Committee. It is submitted that on the basis of the said Resolution No.84, vide the office order dated 31.5.2005 the Respondent revised the pay scale of its employees working under the public health and malaria departments w.e.f. 01.10.1973. The applicants were aggrieved by the said action of the respondent as the said order was passed contrary to the recommendation of the Pattnayak Committee which had recommended for reorganization and integration of both the cadres, as a result the applicants were reduced in rank as well as in pay scale in comparison to the persons holding the posts of Vaccinators and Vaccination Inspectors. 2.8 It is submitted that thus pay scales of Vaccinators who were given pay scale of Rs.425-640 revised to 5000-8000 have superseded some of the applicants who have been in service for far longer period and in seniority are higher than the said Vaccinators.
2.9 It is further submitted that though the public health and malaria and epidemiology divisions of MCD function under the health department of MCD through which public health services are provided and earlier inter departmental transfers were allowed and the Pattnayak Committee recommended integration of malaria and public health departments by 7 OA No. 1062/2019 integrating posts of MI and health inspectors as PHI who should head a circle and then existing health inspectors should be given one time option of joining/changing their cadre. But the department wrongly converted many vaccinators to PHI and APHI without making any change to the RR of the vaccinators and thus created two posts of APHI and PHI against one post of Vaccinators. Therefore, through the union the applicants submitted a representation on 28.11.2005 drawing the attention of the department to the above wrongful act to which the department did not respond. 2.10 Aggrieved by the said action of the Respondents in not granting them pay scale as given to the Vaccinators vide Office Order dated 31.05.2005, the petitioners preferred W.P (C) No 9593-617/2006, which was listed as TA No.266/2009 before this Tribunal and the same was allowed with a direction to the Respondent to consider the grievances of petitioner for bringing them at par with the re-designated vaccination cadre in the matter of pay scale keeping in the light of the recommendation of Pattnayak Committee. In the said order this Tribunal had made observation that "the Patnayak Committee has recommended re-designation of Malaria Inspectors. Inspectors (Epid), Vaccination Inspectors and Health Inspectors and this recommendation has not been put before the House for its approval and neither been considered by the Commissioner, MCD, there is lack of application of mind and non-consideration. The consideration apt in law is a consideration where all the relevant factors are considered in true perspective. If a parity has been maintained between two cadres right from 2nd 8 OA No. 1062/2019 Central Pay Commission and the same parity for revision on re-designation has been recommended by an expert committee then picking up one cadre for revision and re-
designation, leaving out others, not only give heartburn but also arbitrariness lies writ large on the face of the decision." 2.11 As the Respondent failed to pass any order in terms of the direction of this Tribunal as passed in TA No.266/2009, those applicants moved CP No.517/2009 in which the respondents filed reply stating that the said case is under process and the Preamble in this respect had been placed in the house for amalgamation of the posts and prepared a proposal dated 25.11.2009 in this regard and the said contempt proceedings were dropped on the ground that the direction issued in the TA No. 266/2009 for issuance of a speaking order had been complied with.
2.12 It is submitted in getting to know about the said action of the Respondent some staffs of the health department challenged the said proposal dated 25.11.2009 by filing OA No.180/2010. The said proposal of the department to integrate both the cadre was stayed by this Hon'ble Court vide the Order dated 01.10.2020. In the meantime, the Pattnayak Committee submitted its recommendation for approval of proposal dated 25.11.2009 and the same was accepted by the Respondent vide the Resolution dated 16.03.2010. On coming to know of this, those health department employees, who were applicants in OA 9 OA No. 1062/2019 No.180/2010 initiated Contempt Proceedings CP No.238/2010. Both the said OA and CP were disposed of with a direction to the Respondent to comply with the direction passed in TA No 266/2009 and take steps and adopt any methodology to bring the Malaria Cadre at par only in the scales without even referral to the Pattnayak Committee to avoid any frustration with APHI and PHI cadre as the ultimate goal which is to be achieved in the interest of justice is compliance of TA No 266/2009 in substantial and also removal of any difficulty which shall adversely affect the rights of the APHI and PHIs.
2.13 In fact, vide the Order dated 1.10.2010, this Tribunal had made it very clear that respondent should implement the Order dated 14.05.2009 as passed in TA 266/2009. The Respondents passed an Office Order on 18.07.2011, whereby the Malaria Cadre was merged with the Public Health Cadre.
2.14 Some of the employees of the Health Department challenged the said Office Order dated 18.07.2011 by fling OA No 3044/2011 which was disposed off on 19 1.2012 with a direction to the Respondent not to merge the Anti Malaria and Public Health cadre.
10 OA No. 1062/20192.15 The applicants in OA No.266/2009 submitted representation seeking implementation of the Order dated 14.05.2009 passed in OA No 266/2009 to grant pay scale to AMI and MI at par with the re-designated vaccination cadre the pay scale of AMI was equal to Vaccinator (330-560) and the pay scale of MI was equal to Vaccination Inspector (425-
640). The scale of next promotion post i.e. Sr. Malaria Inspector and Chief Vaccination Inspector was also same i.e. 550-750. Therefore, the Applicants requested to implement the aforesaid Order and at least to maintain pay parity the applicants were assured for early action. MCD gave no response. Those applicants preferred MA No.3463/2015 seeking execution of the direction as issued in the TA No.266/2009. MA No.3463/2015 was dismissed on 8.3.2017 on the ground that since the CP filed alleging non- implementation of the Order dated 14.05.2009 in TA No.266/2009 was dropped by recording full compliance of the direction passed in TA No. 266/2009, the MA seeking execution of the Order is not maintainable. 2.16 Those applicants again filed MA No.1722/2017 in TA No.266/2015 seeking recall of order dated 8.3.2017 in which the Respondent filed reply stating that the direction as passed in TA No.266/2009 had been implemented vide the Office Order dated 16.01.2018.
11 OA No. 1062/20192.17 The respondents issued Office Order dated 16.01.2018 implementing the direction issued in TA No.266/2009 and revised the pay scale of the AMIs. The respondents issued Office Order on 21.02.2018, which is impugned in the present OA, whereby the earlier Order dated 16.01.2018 has been withdrawn without citing any reason. The impugned Office Order dated 21.02.2018 is reproduced below:
"OFFICE ORDER Office Order issued vide MHO/NORTH DMC/PH/2018/330 dated 16/01/2018 (Copy attached) regarding giving the pay scale to Assistant Malaria Inspectors w.e.f. 01/01/1973 equal to redesignated Vaccinator and PHI in the matter of court case of Shri Ram Kumar Sharma & Ors. v/s North DMC vide MA No.1722/2017 in TA No.266/2009 is hereby withdrawn.
This issues with the approval of Commissioner North DMC dated 16/02/2018."
2.18 The said Order has been issued without giving any opportunity of hearing, on this ground alone the said order is liable to be set aside. It is the contention of the counsel for applicant that initially the Order dated 16.02.2018 was passed which is reproduced below:
"OFFICE ORDER In compliance to the order of Hon‟ble CAT in TA No.266/2009, the pay scale of AMI‟s of the Malaria Department appointed upto 30.101998 are hereby given the pay scale with effect from 01.01.1973 equal to re-designated Vaccinator i.e. PHI with the terms & conditions as mentioned below:12 OA No. 1062/2019
S.No. CPCs Pay Scale 1. III CPC 425/640 2. IV CPC 1400-2600 3. V CPC 5000-8000 4. VI CPC 9300-34400+GP 4200
1. The revised pay scales will be implemented w.e.f. 01.01.1973 i.e. the date of implementation of 3rd pay commission.
2. Notional benefit will be given from w.e.f. 01.01.973 to 31.12.1995 and financial benefits will be given w.e.f. 01.01.1996 i.e. date of implementation of 5th Pay Commission.
3. Arrear will be deposited in the G.P.F. of respective employees till date of this order.
4. The retired employees will be given Pension benefits or implementation of the revised pay scale.
This issues with the prior approval of competent authority." 2.19 Now without following due procedure of law, the stand taken by the respondents in office order dated 16.01.2018 cannot be rescinded or withdrawn.
3. Learned counsel for applicant has also filed written submissions, inter alia, contending that the Office Order dated 16.01.2018 was passed pursuant to direction issued in TA No.266/2009. It is also highlighted that on 21.3.2018 this Tribunal had partly allowed MA 1722/2018 and restored MA 3463/2015. Subsequently vide Order dated 11.10.2018 MA 3463/2015 was dismissed on the ground that the liberty granted to MCD in OA 3044/2011 with regard to integration of both the cadres cannot be enforced in an execution petition.
13 OA No. 1062/2019
4. In the said Order, it was wrongly recorded that the direction issued in TA 266/2009 was set aside vide Order dated 19.1.2012. It is relevant to mention herein that those applicants were seeking execution of direction issued in TA 266/2009 with regard to the revision of their pay scales only. There was no question of integration nor were they seeking enforcement of liberty granted to MCD. Secondly, in the Order dated 19.01.2012 in OA 3044/2011, this Tribunal had in fact observed that MCD was required to comply with the direction issued in TA 266/2009. The Order passed on 18.07.2011 in digression of the direction issued in TA 266/2009 shall not be acted upon. Therefore, in execution proceedings initiated by the applicants seeking execution of direction issued in TA 266/2009 cannot be set aside as wrongly observed vide the Order dated 11.10.2018.
5. She has also drawn a reference in her written submission that the applicants through their Union made representation on 08.06.2018. Then on 08.03.2019 seeking implementation of the Office Order dated 16.01.2018, wherein they have specifically cited that the vaccinators re-designated as APHIS appointed in the year 1998 were also given the same pay scale as PHIs vide Office Order dated 24.02.2015. It is submitted that vide Order dated 31.10.2014 WP(C) no. 2259/2012, the Hon'ble High Court of Delhi had held that the 14 OA No. 1062/2019 act of the respondent in bifurcating the posts of Vaccinators into two posts as APHI and PHI and assigning two different pay scales Rs.4000-6000/- and Rs.5000-8000/- against one post without amending the RRs is illegal, therefore, the respondent was directed to designate those APHIs as PHIs in the pay scale of Rs.5000-8000 with benefits as given to other vaccinators as per the office order dated 31.05.2005.
6. It is submitted that though the AMIs and Vaccinators belongs to two different cadres, they have same pay scale and qualification since 2nd Central Pay Commission. In 2001, Office Order issued to bifurcate vaccinators into two categories i.e. PHI and APHI without any notified RRs and PHls were given higher pay scale. In 2005, pay scale of vaccinators and AMIs/MIS were revised, in which AMIS were given pay scale equal to APHIs who were much junior to AMI (AMIS were appointed in 1976-79 and APHIs were appointed in 1998). It is pertinent to mention here that PHIs were mostly appointed in 1982 as vaccinators hence junior to AMIs.
7. One Ram Kumar Sharma and others challenged this anomaly before this Tribunal vide TA No.266/2009. This Tribunal directed the respondents to give pay scale to AMl at par of re-designated vaccinator. Now Vaccinator, re- designated as APHIs appointed in 1990-98 have also been given same pay scale equal to PHIs vide Office Order No. 15 OA No. 1062/2019 AMHO/PH/N/2015/003 dated 24.02.2015, which was issued pursuant to the direction issued by the Hon'ble High Court of Delhi in WP (Civil) no. 2259/2012.
8. Per contra, three separate counters have been filed by three Municipal Corporations, as at the time of filing of the OA three Municipal Corporations were impleaded as respondents. However, at the time of final hearing, all the Municipal Corporations have been merged together. Therefore, we are taking into consideration all the counter affidavits filed by each Municipal Corporation. 8.1 South Delhi Municipal Corporation (DMC) in their counter affidavit contended that the posts of Vaccinator and AMI were always equated. The Vaccinators were carrying lesser pay scale than the AMI in the initial stage. The pay scale of AMI (earlier Surveillance Worker) was of Rs.110-135 whereas the scale of Vaccinator was Rs.85-110. The scale of pay of Vaccinator was equated with the pay scale of AMI at the time of Second Pay Commission and put into the scale of Rs.110-180 for both the posts. The party was maintained in all the subsequent Pay Commissions. The parity of the pay scale was also allowed on the basis of the judgment of Labour Tribunal which was further upheld by the Hon‟ble High Court of Delhi.
16 OA No. 1062/20198.2 North DMC in their counter affidavit contended that the issue of integration of Malaria cadre with Public Health cadre was again raised in the meetings of MRPH dated 18.07.2011. In the meeting, the members questioned non-implementation of Resolution No. 920 (item No. 78) dated 16.03.2010 passed by Corporation. As a result, Chairman MRPH directed MHO to send the file to higher authorities and ensure implementation of the same by 31.07.2011. The relevant excerpts of minutes of aforementioned meeting read as under:-
"Shri Subhash Jain also talked about the merger of Health Inspector & Malaria Inspector as well as Assistant Malaria Inspector and stated that when the same has already been passed in the house, why not it has been implemented so far, it be explained.
At this, Municipal Health Officer apprised that a report in this regard will be placed before the Commissioner very soon. Dr. Sanjeev Nayyar remarked that when all higher Dr. remarked that when all higher implemented till the next meeting. Shri Krishan Murari Jatav asserted that the implementation of the same be ensured by 31st July. The Chairman ordered to the Municipal Health Officer to send the file to the higher authorities as early as tomorrow and be respecting the sentiments of all members, the same be implemented by 31st July."
Moreover, vide Order dated 18.05.2011, the respondents have considered the case of the applicants for grant of pay scale at par with re-designated vaccination cadre and passed detail order and rejected the proposal which is reproduced as under:
"The claim of the applicants for grant of pay scale of Rs.5000- 8000 to Assistant Malaria Inspectors at par with Vaccinators 17 OA No. 1062/2019 (designated as Public Health Inspectors) is not tenable as the Vaccinators who were discharging the duties of Inoculator and Immunizer, were given the pay scale of Rs.330-560 (pre- revised) w.e.f. 23.05.1981 on the analogy of Inoculators and LHVs on the basis of equal work equal pay in compliance of the orders of the Presiding Officer Industrial Tribunal-I in Award passed in ID No 253/83 on dated 23.09.1988 and were designated as PHI's".
Vide office order dated 16.01.2018, it was decided to grant the higher pay scale to the AMIs.
It has been contended that as certain officials of the respondents had misrepresented the facts of the above case before the Higher Officers, which resulted in issuance of the above Office Order dated 16.01.2018, and hence the same has been withdrawn vide Office Order dated 21.02.2018. It is submitted that the Order dated 16.01.2018 was result of misrepresentation of facts and the same was illegal and there is no infirmity or illegality in withdrawal of the order. They have also raised a preliminary objection that the present OA has been filed by the applicants against the Order dated 21.02.2018 and the OA has been filed on 27.03.2019 i.e. after one year of passing of the Impugned Order. Hence the OA is barred by limitation. Moreover, the applicants have not filed any MA for condonation of delay. Hence the OA is liable to be rejected on this ground alone.
8.3 East DMC in their counter affidavit contended that the answering respondent was not a party in TA No.266/2009. Further the Office Order dated 16.01.2018 has been passed 18 OA No. 1062/2019 by North DMC and not by East DMC. It is further submitted that as per notified RRs, the post of PHI/APHI was the Vaccinators. In 2001, said post bifurcate into two categories i.e. PHI and APHI and were given higher pay scale. In 2005, pay scale of Vaccinators and AMIs were revised, in which AMIs were given pay scale equal to APHIs who were much junior to AMIs (AMIs were appointed in 1976-79 and APHIs were emerged in 1998.
9. It is not disputed that as on date all three DMCs have been merged into one entity, i.e. Municipal Corporation of Delhi.
10. Learned counsel for respondents has drawn our attention to Order dated 21.03.2018 passed in MA No.1722/2017 in TA No.266/2019, wherein it is recorded as under:
"The instant MA has been filed seeking to recall the order dated 08.03.2017 in MA No.3463/2015. The MA No.3463/2015 filed by the applicants in TA No.266/2009 for execution of the orders dated 14.05.2009 in TA No.266/2009 was dismissed on 08.03.2017 by recording that the CP No.519/2009 in TA No.266/2009 was dismissed by recording compliance of the orders in TA. Now, it is brought to our notice that though the CP No.519/2009 was closed on 18.03.2017 by recording compliance, but as on the said date, the Resolution No.920 dated 16.03.2010 passed in compliance of the orders in TA was in existence, though stayed in OA No.3044/2011 filed by another set of employees and since the said OA No.3044/2011 was disposed of with certain directions and thereafter the respondents initially on 16.01.2018 granted the reliefs to the applicants in compliance of the orders in TA No. 266/2009 and later withdrawn the same by passing another order dated 21.02.2018, it is necessary to examine the issues once again about the compliance of the orders of this Tribunal in TA No.266/2009.19 OA No. 1062/2019
2. In the circumstances and for the aforesaid reasons, the instant MA No.1722/2017 is partly allowed to the extent of restoring the MA No.3463/2015, retaining the remaining order relating to imposition of cost etc."
11. Further, learned counsel for respondents have also drawn attention to Order dated 11.10.2018 in MA No.3463/2015, the extract of the said Order dated 11.10.2018 are reproduced herein below:
"4. Thereafter, the applicant in OA No.180/2010 filed OA No. 3044/2011 and the same was disposed of by this Tribunal by order dated 19.01.2018 as under:
13. Accordingly it is directed directed/held as under:-
(i) The direction given by Chairman, MRPH in MRPH meeting dated 18.07.2011 to send the file to higher authorities to implement the Resolution no. 920 dated 16.03.2010 shall not be acted upon.
(ii) The recommendation of review Pattanayak Committee constituted in digression of order dated 14.05.2009 passed in TA no. 266/2009 shall not be acted upon. Consequently the proposal dated 25.11.2009 initiated by MCD to integrate Anti Malaria operations staff with Health staff, the Resolution no.6 passed by MRPH on 02.03.2010 accepted by the House of the Corporation vide Resolution no. 920 dated 16.03.2010 in misunderstanding of order passed by this Tribunal in TA 266/2009 shall also be not acted upon.
(iii) It would, however, be open to MCD to take decision independent of Resolution no. 920 dated 16.03.2010 to integrate the anti malaria operations with health staff. While doing so, MCD would keep in view the fact that in 2001 it had not accepted the recommendation of Pattanayak Committee to integrate malaria cadre with Vaccination & health inspector cadre and vide specific order dated 6.12.2005, Commissioner, MCD had turned down the request of General Secretary, MCD Health Employees Union for integration of Malaria, Epidemiology and Public Health cadre.
(iv). In any case if the MCD finally integrates the Anti Malaria operations staff with health staff, it would ensure that the incumbents of various posts of APHI/PHI/CPHI & AMI/MI/SMI are kept in their separate seniority lists and allowed to progress in their career with the same opportunity as are available to them as on date. Future 20 OA No. 1062/2019 recruitment may be made by MCD in integrated cadre if they decide to merge malaria staff with health staff.
(v). If at all it decide to do so while undertaking exercise of integration of malaria staff with physical health staff, MCD would keep in view the legal position discussed hereinabove.
With the aforementioned directions/declarations, OA stands disposed of. No costs.
5. The applicants in OA No. 266/2009 filed the instant MA No. 3463/2015 seeking execution of order dated 14.05.2009 in TA No. 266/2009.
6. This Tribunal while disposing of OA No. 3044/2011 whereunder some of the applicants in TA No. 266/2009 were also parties, categorically observed that the directions issued in TA No. 266/2009 shall not be acted upon, however, it would be open to MCD to take a decision independent of Resolution dated 16.03.2010. As a result, the direction issued in TA No. 266/2009 was reversed by this Tribunal in OA No. 3044/2011. The liberty granted to MCD in OA No. 3044/2011 cannot be enforced by this Tribunal, in an execution petition.
7. Accordingly, we do not find any merit in the MA and accordingly the same is dismissed. If the applicant has any subsequent grievance, he may avail his remedies in accordance with law."
12. Heard the learned counsel for the parties at length and perused the pleadings on record. It is seen that the applicants have nowhere disclosed in their OA with regard to an Office Order dated 18.05.2011 and status to clarify the same, wherein the respondents after considering the case of the applicants for grant of pay scale at par with re-designated vaccination cadre and passed detailed Order and rejected the proposal which is reproduced as under:
"The claim of the applicants for grant of pay scale of Rs.5000- 8000 to Assistant Malaria Inspectors at par with Vaccinators (designated as Public Health Inspectors) is not tenable as the Vaccinators who were discharging the duties of Inoculator and Immunizer, were given the pay scale of Rs.330-560 (pre- 21 OA No. 1062/2019 revised) w.e.f. 23.05.1981 on the analogy of Inoculators and LHVs on the basis of equal work equal pay in compliance of the orders of the Presiding Officer Industrial Tribunal-I in Award passed in ID No 253/83 on dated 23.09.1988 and were designated as PHI's".
13. The present case of the applicants pertains to AMI who are seeking parity with Vaccinators designated as PHI. Since the respondents have already taken a view vide Order dated 18.05.2011, as already highlighted above, wherein, it was held that AMI cannot be equated with Vaccinators, who were discharging the duty as Inoculator and Immunizer, were given the pay scale of Rs.330-560 on the analogy of Inoculators and LHVs on the basis of „equal pay for equal work‟ in compliance of the Orders of the Presiding Officer, Industrial Tribunal-I in Award passed on 23.09.1988 and were designated as PHIs. It is also not clear from the record, as stated by the respondents, that the order dated 16.01.2018 was passed on the basis of misrepresentation of facts keeping the Senior Officers in dark. However, no such material has been placed on record. It is also highlighted that the impugned Office Order dated 21.02.2018 though has been passed immediately after passing of the order dated 16.01.2018, however, the benefits which have been granted pursuant to order dated 16.01.2018 cannot be taken away by a cryptic order dated 21.02.2018 without giving the opportunity of hearing to the applicants herein.
22 OA No. 1062/2019
14. We, therefore, deem it appropriate that a holistic view be taken by the Competent Authority, without influenced by the Order dated 21.02.2018 on the representations dated 08.06.2018 and 08.03.2019, seeking implementation of the initial Order dated 16.01.2018 taking the ratio and analogy as laid down by the Hon‟ble High Court in Order dated 31.10.2014 in WP(C) No.2259/2012 wherein it is held that the act of the respondent in bifurcating the posts of Vaccinators into two posts as APHI and PHI and assigning two different pay scales Rs.4000-6000/- and Rs.5000-8000/- against one post without amending the RRs is illegal and, therefore, the respondent was directed to designate those Assistant Public Health Inspector as Public Health Inspectors in the pay scale of Rs.5000-8000 with benefits as given to other Vaccinators as per the Office Order dated 31.05.2005.
15. Be that as it may, in the present OA, since an Office Order dated 21.02.2018 has been passed whereby earlier order dated 16.01.2018 has been withdrawn without any reason, the only reason given is that certain officials of the respondents have misrepresented in issuance of Office Order dated 16.01.2018. Hence, the same has been withdrawn by the Impugned Office Order dated 21.02.2018. However, the fact remains that without disclosing the circumstances and giving details of misrepresentation, the said Office Order 23 OA No. 1062/2019 could not have been passed behind the back without giving an opportunity of hearing. It is also seen from the records that pursuant to the Impugned Order dated 21.02.2018, the Union had made representations on 08.06.2018 as well as 08.03.2019 seeking implementation of the Order dated 16.01.2018, but the same has also not been dealt with without giving an opportunity of hearing to the Union.
16. In view of the discussion made hereinabove, the Competent Authority, amongst the respondents, is directed to pass a reasoned and speaking order and dispose of the representations dated 08.06.2018 and 08.03.2019 in a time bound manner, keeping in view the rule position.
17. Needless to say that the Competent Authority shall follow principles of natural justice before passing a reasoned and speaking order within a period of two months from the date of receipt of certified copy of this order.
18. Accordingly, OA stands disposed of in aforesaid terms.
There shall be no order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) „SD‟