Central Administrative Tribunal - Delhi
Somnath Chakraborty vs E.S.I.C. on 22 April, 2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1438/2015
Reserved on: 16.03.2016
Pronounced on:22.04.2016
Hon'ble Dr. B.K. Sinha, Member (A)
Hon'ble Sh. Raj Vir Sharma, Member (J)
1. Somnath Chakraborty
S/o Sh. Subir Chakraborty
R/o A-22, IGESI Hospital Campus,
Near Vivek Vihar Police Station,
Jhilmil Colony, Delhi - 110 095.
2. Basant Kumar s/o Sh. Puran Lal,
R/o F-306, Sudarshan Park,
Ramesh Nagar, H.O.,
Delhi - 110 015.
3. Kanhaiya Lal Malviya,
S/o Sh. Devi Prasad Malviya,
R/o 1/4472, Ram Nagar,
Lane No.08, Mandoli Road,
Shahdara, Delhi - 110 032.
4. Sudeep Kumar S/o Sh. Devender Kumar,
R/o Flat No.56, Taj Apartments,
Manav Chowk, Rohini, Sector 15,
Delhi - 110 089.
5. Manoj Kumar s/o Sh. Murari Lal,
R.o 61`9, Begawan Mohalla,
Darya Pur Kalan, Bawana,
Delhi - 110 039.
6. Sumi Chakraborty,
W/o Sh. Somnath Chakraborty,
R/o A-22, IGESI Hospital Campus,
Near Vivek Vihar Police Station,
Jhilmil Colony, Delhi - 110 095. ...Applicants
(By Advocate: Sh. Sanjay Rastogi)
2
Versus
1. Director (Medical) Delhi,
ESI Scheme Dispensary Complex,
Tilak Vihar, Delhi - 110 018.
2. Director General,
E.S.I. Corporation,
Panchdeep Bhawan,
Comrade Inderjeet Gupta (CIG) Marg,
New Delhi - 110 002.
3. Union of India through
Secretary,
Ministry of Health,
Nirman Bhawan,
New Delhi - 110 002. ...Respondents
(By Advocate: Sh. A.K. Verma)
ORDER
By Dr. B.K. Sinha, Member (A):
The applicants are ECG Technicians, who have filed in the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the Grade Pay of Rs.4200/- with due increments instead of Grade Pay of Rs.2400/- which they have been granted. They have, therefore, sought the following relief(s):-
"(a) Direct the respondents to grant the Grade Pay of Rs.4200/-
to the applicants as being fixed under the 5th & 6th Central Pay Commission, from 1/1/2006 or the date of employment whichever is later and accordingly issue fresh pay fixation orders and release the consequently arising arrears, forthwith since their respective dates of employment.
(b) pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicants and against the respondents in the facts and circumstances of the case." 3
2. The case of the applicants is that they were appointed as ECG Technician in the pay scale of Rs.4000-6000/- in 2007 in response to the advertisement dated 3-9 November, 2007. It is the contention of the applicants that in all Central Government hospitals and hospitals of Govt. of NCT of Delhi, the ECG Technicians were given the pay scale of Rs. 5000-8000/- as per the 5th Central Pay Commission [hereinafter referred to as the CPC] and subsequently consequent upon implementation of the recommendations of the 6th CPC revised to Rs.9300-34800/- with GP of Rs. 4200/- (PB-2). The applicants have relied upon one Memorandum submitted by the National Federation of Indian Railwaymen to the Secretary (E), Railway Board wherein they agitated the injustice meted out to the category of staff holding the qualification of Graduation in Science with diploma or three years' experience who deserve to be placed in PB-2 + GP of Rs.4200/- w.e.f. 01.01.2006. The applicants have also relied on the decisions of this Tribunal in Brham Pal & Others V/s. Union of India [OA No.3227/2011 decided on 19.12.2013] and Shri Narender Kumar & Others V/s. Union of India & Ors. [OA No.3627/2012 decided on 07.11.2012] contending that the respondents were fully aware of gross injustice meted out to ECG Technicians and anomaly in their recruitment rules. They have also written letters to different hospitals 4 requesting them to forward their recruitment rules in Para Medical Cadre in ECG department with complete hierarchy. In Narender Kumar's case (supra), this Tribunal has directed the respondents to pass a well reasoned order while in Brham Pal's case (supra), the Tribunal extended the benefits to the applicants therein who were Plaster Assistant.
3. Learned counsel for the respondents submitted that the applicants were recruited as ECG Technician in the scale of Rs.4000-6000/- (now Rs.5200-20200/-) with GP of Rs. 2400/- (PB-1) as per the recruitment rules (page 25 of the counter). The minimum qualification for the post of ECG Technician as per the recruitment rules is matriculation. In the instant case only the applicants are B.Sc while the remaining incumbents are non-B.Sc. Clause XXII (B) granting pay scale of Rs. 5000-8000/- from 1.1.1996 (5th CPC) to Technicians with either degree in Science or diploma in Engineering is per se inapplicable to the applicants. The respondents further submitted that there being the material difference in contents/educational qualifications for the post of ECG Technicians in the recruitment rules of different hospitals, the higher pay scale is not entitled to the applicants. The intelligible differentia between posts of ESIC vis-a-vis Cantonment Board Office/K.S.C./Ram Manohar Lohia Hospital defies applicability of doctrine of 'equal pay 5 for equal work'. In this regard, the respondents have relied upon the decision in AIR 2006 (SC) 2296, AIR 2004 (SC) 2020, 2005 (10) SCC 339 and 2011 (2) SCC 452. The respondents further submitted that the recruitments have been made as per the recruitment rules and as such cannot be held anomalous. The applicants had the option not to join the service which they have done being fully aware of the pay scales. The respondents alleged that the instant OA also suffers with non-joinder of necessary parties as there are 32 ECG Technicians in the cadre but only 6 of those who happens to be B.Sc have been impleaded. The respondents in addition also raised the issue of limitation as the applicants have claimed arrears w.e.f. 01.01.1996 and 01.01.2006 while the instant OA has been filed in the year 2015.
4. The applicants have filed a rejoinder and their written notes of arguments. Similarly, the respondents have also filed their notes of written arguments and we have placed reliance on the same as their final view in the matter.
5. We have carefully gone through the pleadings of rival parties as also documents and written arguments so submitted on their behalf and have patiently heard the oral arguments advanced by their respective counsel. 6
6. Here, we are swayed by two facts. In the first instance, this OA has been filed on 10.04.2015 while the claim relates to the arrears from 01.01.1996 in respect of 5th CPC and from 01.01.2006 in respect of 6th CPC in which years the applicants were not even born on the service as they joined the service only in the year 2007. In this regard, it deserves mention that the Administrative Tribunals Act, 1985 contains a special provision regarding limitation under Section 21 of the Act ibid, which reads thus:-
'21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub- section (1), where -
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a 7 period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period'. Therefore, the Tribunal is to be guided by Section 21 of the A.T. Act which imposes a period of limitation of one year and not by any general Acts.
7. In State of Maharashtra V/s. Digambar [1995 (4) SCC 683], the case related to payment of compensation for the land of petitioner for construction or roads in 1971-72 while the writ petition was filed in 1991. The Hon'ble Supreme in the said case held as under:-
"24. Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blameworthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of the High Court, the allegation adverted to above, appear to be the common allegation in other 191 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of S.L.Ps. in this Court that are yet to be registered. we have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ 8 petitions, said to be the subject of S.L.Ps otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us."
Likewise, in Union of India & Others Vs. M.K. Sarkar [2010 (2) SCC 59], the Hon'ble Supreme Court held as under:-
"15. When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
16. A Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect."
8. In S.S. Rathore versus State of Madhya Pradesh [AIR 1990 SC 10], the Hon'ble Supreme Court held as under:-
"22. It is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or 9 representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation."
Therefore, we hold that making a claim as retrospective as the one either from 01.01.1996 or 01.01.2006 even when the applicants were not born on the cadre is certainly barred by limitation.
9. However, we have also considered the claim of the applicants on merit. We are of the view that the convenient way to deal with the issue is to examine the qualifications/pay scales of the post as given in the advertisement, which are as follows:-
"ECG Technicians Essential:
(a) (i) Science Graduate preferably with one year experience of handling E.C.G. Machine;
(ii) Matric or equivalent qualification from a recognized Board with one year's experience of handling E.C.G. Machine;
(b) Age note exceeding 32 yeras.
Pay Scale: Rs.4000-6000/-."
10. The applicants have applied with their eyes open and being fully aware that Matric was the minimum educational qualification and, therefore, at this point of time they cannot turn around and say that they are over qualified and as such they should be placed in higher pay scale. In this regard, we 10 rely upon the decision in M.P. Rural Agriculture Extension Officers Association V/s. State of M.P. and Another [AIR 2004 (SC) 2020], the Hon'ble Supreme Court held as under:-
"(B) The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate Rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy-decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy-decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of Article 14 of the Constitution of India. A dying scale was provided by the State for the non-graduates. Fresh recruitments were to be made only from amongst the persons who held the requisite educational qualification. With a view to avoid any discrimination between the new recruits and the serving employees who possessed the same qualification, the State cannot be said to have acted illegally in granting a higher scale of pay also for the existing degree holders."
11. We have also taken note of the fact that only six applicants in the cadre of ECG Technicians are graduates and rest are non-graduates. The applicants are seeking equity with others who have different recruitment rules and criteria of recruitment, which prayer cannot be acceded to as the equivalence could only be drawn in case of equals and in none others as has been held by the Hon'ble Supreme in Union Territory Administration, Chandigarh & Others V/s. Manju Mathur and Another [2011 (2) SCC 452], which reads thus:-
"11. Considering this report of the Equivalence Committee, the respondents are not entitled to the same pay scale as that of Dietician (Gazetted) and Dietician (Non- Gazetted) in the Directorate of 11 Research and Medical Education, Punjab, as held by the High Court in the impugned judgment and order.
12. This Court has held in a recent case State of Madhya Pradesh & Others v. Ramesh Chandra Bajpai [(2009) 13 SCC 635] that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the Court has to consider several factors and only if there was wholesale identity between the holders of the two posts, equality clause can be invoked, not otherwise.
13. This Court has also held in State of Haryana & Others v. Charanjit Singh [(2006) 9 SCC 321] that normally the applicability of principle of equal pay for equal work must be left to be evaluated and determined by an expert body and these are not matters where a writ court can lightly interfere. This Court has further held in this decision that it is only when the High Court is convinced on the basis of material placed before it that there was equal work and of equal quality and that all other relevant factors were fulfilled, it may direct payment of equal pay from the date of filing of the respective writ petition.
14. In the present case, the appellants had seriously disputed the equivalence between the posts held by the respondents and those held by the Dietician (Gazetted) and Dietician (Non-Gazetted) under the Government of Punjab and the High Court instead of referring this dispute regarding parity of posts under the Union Territory Administration, Chandigarh, with the posts under the Government of Punjab to an expert body has erroneously equated the posts under the Union Territory Administration, Chandigarh, with the posts under the Government of Punjab on the basis of the pleadings of the respondents and issued the direction to grant pay scales to the respondents equal to pay scales of Dietician (Gazetted) and Dietician (Non-Gazetted) under the Directorate of Research and Medical Education, Government of Punjab.
15. We, therefore, set aside the impugned judgment and order of the High Court and sustain the order of the Central Administrative Tribunal, Chandigarh Bench, and allow this appeal with no order as to costs."12
12. We have also taken note of the two decision of this Tribunal relied upon by the applicants. In Brham Pal's case (supra) the applicants were Plaster Assistants whereas in the instant case the applicants are ECG Technicians, therefore, no equivalence could be drawn. In Shri Narender Kumar & Others V/s. Union of India & Ors.(supra) again there are dissimilarities of facts because the applicants therein were Radiographer whereas the applicants herein are ECG Technicians. Therefore, we find that no much force is forthcoming from the afore two decisions to help the case of the applicants.
13. In view of the above, we have seen that the instant OA is barred by limitation; the applicants were not born in the cadre in respect of the dates from which the relief is being claimed i.e. 01.01.1996 and/or 01.01.2006; there is no equivalence between the examples cited by the applicants as the different hospitals have their own recruitment rules, educational qualifications, pay scales and mode of recruitment. Moreover, the 7th CPC has already submitted its report and we are not aware of what this Commission has recommended. Once the 7th CPC report is available, it would not be fair on part of the Tribunal to give any finding or direction regarding re-fixation of pay in a different scale. It has been held by the Hon'ble Supreme Court in a catena of 13 decisions that fixation of pay is the work of expert body like the Pay Commission and not by the Tribunals. Therefore, the OA being devoid of merit is dismissed without any order as to costs.
(Raj Vir Sharma) (Dr. B.K. Sinha) Member (J) Member (A) /AhujA/