Central Administrative Tribunal - Bangalore
Jagadish G vs Labour on 1 February, 2024
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OA.No.346/2022/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00346/2022
ORDER RESERVED ON:19.12.2023
DATE OF ORDER: 01.02.2024
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
1.Jagadish .G,
O.T. Technician,
Aged about 37 years,
S/o. Gangadharaiah H.G.,
2. Meenaxi Matlawar,
CSR Technician,
Aged about 39 years,
W/o. Nagabhushana R.
3. Mamatha H.S.,
CSR Technician,
Aged about 38 years
W/o. Hemanth Kumar B.P.
4. Jagadish V.,
O.T. Technician,
Aged about 40 years,
S/o. Venkataiah G. (Late).
5. Umesh M.,
CSR Technician,
Aged about 36 years,
S/o. Manjunath L.C.
6. Godaba Ranganadh,
O.T. Technician,
Aged about 40 years,
S/o. G. Mallikeswara Rao.
7. Brejesh Kumar Verma,
O.T. Assistant,
Aged about 53 years,
S/o. K.K. Verma.
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OA.No.346/2022/CAT/Bangalore Bench
8. Vinay Kumar K.S.
O.T. Technician,
Aged about 36 years,
S/o. Suresh G.
9. Mohan Kumar M.N.,
O.T. Technician,
Aged about 38 years,
S/o. Narayana.
10. A. Rizwan,
CSSD Technician,
Aged about 38 years,
S/o. Azeez.
11. S. Selvamani,
CSSD Technician,
Aged about 32 years,
S/o. Sigamani.
12. Lokesha M.B.,
O.T. Technician,
Aged about 39 years,
S/o. Basappa.
13. Praveen B.H.,
O.T. Technician,
Aged about 36 years,
S/o. Hemappa B.
14. Yanamala Hemachandra,
CSR Technician,
Aged about 39 years,
S/o. Y. Subramanyam.
15. Linganna,
O.T. Technician,
Aged about 42 years,
S/o. Arjunappa.
16. Lokesha S.,
O.T. Technician,
Aged about 37 years,
S/o. Shivalingaiah.
17. Rekha B.,
O.T. Technician,
Aged about 34 years,
W/o. Chidananda.
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OA.No.346/2022/CAT/Bangalore Bench
18. Revaneppa Rajamani,
O.T. Technician,
Aged about 38 years,
S/o. Dundappa Rajamani.
19. Annapurna Y. Malligawad,
O.T. Technician,
Aged about 40 years,
W/o. Pakkiraya.
20. Madhu,
O.T. Technician,
Aged about 37 years,
S/o. Mallikarjun. ....Applicants
(Applicants at Sl. Nos. 1 to 13 are working in ESIC Model Hospital,
Rajajinagar, Bengaluru-560 010, S1. Nos. 14 to 16 are working in ESIC
Hospital, Peenya, Yeshwanthpur, Bengaluru-560022 & S1. Nos. 17 to 20 are
working in ESIC Medical College, Gulbarga-585106).
(By Advocate Shri N.G. Phadke along with Advocate Shri Pradyumna M.R)
Vs.
1. The Union of India,
by its Secretary,
Ministry of Labour,
Shrama Shakti Bhavan,
Rafi Marg, New Delhi-110 001.
2. Employees State Insurance Corporation,
Head Quarters Office,
'Panch Deep Bhavan', CIG Marg,
New Delhi-110 002, by its Director General.
3. Ministry of Personnel, Public Grievances & Pensions,
Dept. of Personnel & Training,
Govt. of India, North Block,
New Delhi-110 001, by its Secretary.
4. The Medical Superintendent,
ESIC, Model Hospital,
Rajajinagar,
Bengaluru-560 010.
5. The Medical Superintendent,
ESIC Hospital,
Peenya, Yeshwanthpur,
Bengaluru-560 022.
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OA.No.346/2022/CAT/Bangalore Bench
6. The Medical Superintendent,
ESIC Medical College,
Gulbarga-585106. ....Respondents
(By Shri H.R Sreedhara, Counsel for Respondents)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash the order No. F. No. C-18/11/55/OT & CSR/2018 Med-IV (Legal) issued to M.T. Gopal Krishna & Ors. dated 05.01.2022 issued by the II-Respondent ESIC (Annexure A-26), vide which the Applicants' claim for Grade Pay of Rs.2400/- and 4200/- in the capacity of OT Assistant and OT Technicians of ESIC respectively, has been rejected.
b) To quash the order No. F.No. C-18/11/55/OT & CSR/2018 Med-IV (Legal) issued to Anbarasu & Ors. dated 05.01.2022 issued by the II-
Respondent ESIC (Annexure-A27), vide which the Applicants' claim for Grade Pay of Rs.2400/- and Rs. 2800/- in the capacity of CSSD Assistant and CSSD Technicians of ESIC respectively, has been rejected.
c) To hold that fixing the G.P. of Rs. 2000 in PB-1, Rs. 5200-20200 of the Applicants while they were working as OT/CSSD/CSSR Assistants as bad;
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d) To hold that fixing the G.P. of Rs. 2400/- in PB-1, Rs. 5200-20200 of the Applicants from the day they are promoted to the Grade & Post of OT/CSSD/ CSSR Technician as bad.
e) Direct the Respondents to fix their grade pay @ Rs. 2400/- in the Pay Band of Rs. 5200-20200 (Pre-revised pay scale of Rs. 4000-6000) from the date of their joining the services with all the consequential benefits;
f) Direct the Respondents to grant the Grade Pay of Rs. 2800/- from the date of they being promoted to the higher grade & post of Technicians;
g) Grant such other relief(s) to the Applicants as this Tribunal deems fit in the facts and circumstances of the case, in the interest of justice.
2. The facts of the case as pleaded by the applicants in their pleadings, are as follows:
a) All the applicants are employees of Employees State Insurance Corporation (ESIC), working in the Hospitals/College run by the ESIC in Karnataka.
b) The OT/ CSSD/ CSSR Assistants/ Technicians- all are discharging the duties in any of the three posts, despite their designations, on the directions of their higher ups. OT Assistants/ Technicians, were also being asked shoulder the responsibilities and discharge duties of these higher posts.
c) All these Applicants' pay were initially fixed with Grade Pay of Rs.
2000/- and later 19 of them are drawing Grade Pay of Rs. 2400/- on 6 OA.No.346/2022/CAT/Bangalore Bench being promoted as Technicians. ESIC fixed the G.P. of O.T. Assistant at Rs. 2000/. The Lab Assistants, Jr. Radiographers & OT Assistants of ESIC are fixed with identical Grade Pay of Rs. 2000/-. The Grade Pay of the Radiographers and Lab. Technicians in ESIC were fixed at Rs. 2800/- on being promoted from the grade & post of Jr. Radiographers/Lab. Assistants. The Grade Pay of the Radiographers have been further revised to Rs. 4200/- by the ESIC on being directed by various Courts & Tribunals.
d) All the Applicants are qualified operation theatre technicians having Diploma in O.T. Technologies with enough experiences and higher qualifications qualified to be appointed to the still higher grade & posts, such as Senior O.T. Technicians/Senior Technical Assistants.
e) The ESIC has fixed the Grade Pay of some of the O.T. Assistants, Lab.
Assistants, Plaster Assistants & Jr. Radiographers at Rs. 2400/- from the date of their joining service in pursuance to various orders passed by this Tribunal and courts as detailed in the following table. Sl. No. True copies of the various orders/ records Annexures 1 Order dated 19.02.2009 in OA.No.1114/2008, A-4 MA.No.891/2008 of the Tribunal 2 Order dated 13.11.2014 in OA.No. 236/2014 with A-5 connected matters of the Principal Bench of this Tribunal 3 Order dated 18.01.2017 in OA.No. 170/01183-01207/2015 A-6 of the Principal Bench of this Tribunal 4 Order dated 19.12.2013 in OA.No. 3227/2011 of the A-7 Principal Bench of this Tribunal 5 Order dated 04.02.2019 in OA.No. 310/00427/2017 of the A-8 Chennai Bench of this Tribunal 6 Office Order No.71 of 2014 E-I (M) dated 21.04.2014 A-9 issued by the Directorate (Medical), Delhi, ESIC Scheme. 7 ESIC letter No.Z-11/ 12/ 3/ MISC/ Paramedical/ 2019/ A-10 Med. VI dated 08.07.2019 in Hindi and its near translation, marked together 8 Order dated 19.12.2019 in OA. No. 170/0980/2019 of the A-11 Bangalore Bench of this Tribunal 7 OA.No.346/2022/CAT/Bangalore Bench Sl. No. True copies of the various orders/ records Annexures 9 Order dated 21.03.2022 in WP. No.1877/2021 with A-12 connected matters of the Hon'ble High Court of Karnataka. 10 ESIC letter No.C-18/11/45/Plaster Assistant/2019 Med-6 A-13 (Legal) dated 09.05.2022 11 Regional Director, ESIC, Bengaluru's letter dated A-14 18.05.2022 12 Order No.132 of 2016 E-I(M) dated 15/16.06.2016 of the A-15 Directorate (Medical), Delhi, ESIC Scheme.
f) The Applicants had represented the respective appointing authorities to revise their Grade Pay also to Rs. 2400/- from Rs 2000/- from the date of joining service as OT Assistants, etc.
g) The Applicants have learnt from their colleagues that the ESIC grants the relief only to those employees who approach the Tribunal & not to those who are similarly placed for having not filed OAs.
h) The Applicants filed O.A. No.170/1598-1618/2018 before this Tribunal and sought the following reliefs:
i. "direct the Respondents to fix their grade pay @Rs. 2400/ in the Pay Band of Rs. 5200- 20200 (Pre-revised pay scale of Rs. 4000- 6000) from the date of their joining the services with all the consequential benefits; and, ii. direct the Respondents to grant the Grade Pay of Rs. 2800/ from the date of they being promoted to the higher grade & post of Technicians; and, iii. grant such other relief(s) to the Applicants as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, in the interest of justice."8
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i) This Tribunal was pleased to allow the said O.A. on 09.04.2019. The Respondents filed R.A. No. 42/2019 seeking recall and review of the order dated 09.04.2019. This Tribunal dismissed the R.A. vide orders dated 09.01.2020.
j) The Respondents preferred Writ Petition No. 2453/2021 (S-CAT) along with other Writ Petitions before the Hon'ble High Court of Karnataka, Bengaluru, impugning the orders dated 09.04.2019. Hon'ble High Court by a common order dated 25.09.2021 disposed the W.P. along with connected W.Ps. The relevant portions of the said order are extracted herein below:
"ORDER
(i)The respondents (applicants before the CAT) are at liberty to file detailed representation/s before the concerned authorities claiming the reliefs, for which they are entitled in accordance with law, within 15 days from the date of receipt of certified copy of this order and on such representation/s made, the petitioners shall consider the representation/s and examine the claim of all the applicants, keeping in view the order passed by the Principal Bench in O.A. No. 2995/2014 and other connected matters dated 19.04.2016 and the office Memorandum No. AB. 14017/61/2008- Estt.(RR) dated 24.03.2009 and pass appropriate orders in accordance with law within two months from the date of receipt of the representation/s from the applicants and the same will be subject to the result of the 9 OA.No.346/2022/CAT/Bangalore Bench Writ Petition No. 18/2015, pending before the Delhi High Court for adjudication.
(ii) We have not expressed anything on the merits or demerits of the case and all contentions of the parties are left open to be urged in the appropriate forum in the appropriate circumstances, in accordance with law.
With the above observations, the writ petitions are disposed off."
k) In pursuance to the order of the Hon'ble High Court at Annexure: A-23, the Applicants submitted their representations (2 Nos.) dated 01.11.2021 to the Respondents. The II-Respondent ESIC has rejected these two representations of the Applicants by two separate orders dated 05.01.2022. (Annexures: A-26 & 27).
l) The Applicants are entitled to equal treatment as far as grant of Grade Pay of Rs. 2400/- from the date of their joining service as OT/CSSD/CSSR Assistants are concerned, as has been granted to similarly placed employees of ESIC. The Respondents have no authority whatsoever to sit over the judgment and orders passed by this Tribunal particularly dated 09.04.2019 and 09.01.2020. Still contrary to these decisions, the II-Respondent has passed these impugned orders at Annexures: A-26 & A-27 and hence, the impugned orders are unsustainable in law.
m) The II-Respondent has granted G.P. of Rs. 2400/- to the OT Assistants, Lab Assistants, Plaster Assistants in pursuance to the various orders 10 OA.No.346/2022/CAT/Bangalore Bench passed by this Tribunal and as such, the Applicants are also entitled to G.P. of Rs. 2400/- from the date of their appointments in ESIC as OT/CSSD/CSSR Assistants.
n) The Respondents have resisted the claim of the employees for revision of G.P. in all the cases taking the shelter of Rules/Regulations. But the said contention has not found favor with the Tribunal and various Courts including the Hon'ble Apex Court.
o) The impugned orders have been passed by the ESIC by misreading the order dated 25.09.2021 of the Hon'ble High Court at Annexure: A-23 and ignoring the orders dated 09.04.2019 and 09.01.2020 of this Tribunal. This Tribunal has rejected the defence of the Respondents twice while issuing the order dated 09.04.2019 & 09.01.2020.
p) The ESIC justifies its stand of not granting the relief of revision of G.P. to the Assistants from Rs. 2000/- to 2400/- on the ground that the CHS Institutions have fixed G.P. of Assistants at Rs. 1900/-. Further, the ESIC contends that in CHS Institutions, the G.P. of Lab Assistant has been fixed at Rs. 2800/-. When this Tribunal granted G.P. of Rs. 2800/- to the Lab Assistants of ESIC, vide Annexure: A-4, even the said order has been challenged by ESIC before the Hon'ble High Court of Delhi by filing W.P. The Applicants herein have not claimed the G.P. of Rs. 2800/- as has been paid to the Lab Assistants, but they have claimed only the G.P. of Rs. 2400/-, while they were appointed as OT Assistants. 11
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q) The ESIC has gone wrong comparing the size of the Medical Institutions of CHS & ESIC, while relying on its RRs. There are several Medical Institutions of CHS, which are smaller than the ESIC Medical Institutions. What is important to be considered is whether the OT Assistants of CHS or of ESIC, have to discharge the identical duties & shoulder the same responsibilities while attending the patients and that too in the same hours of work prescribed. OT Assistants of ESIC can't treat differently its masters, i.e. labour, who contribute to the corpus fund of ESIC from their hard earned money, as compared to the patients of CHS Institutions or in the Medical Institutions under the Govt. of India.
r) The ESIC has granted G.P. of Rs. 4200 (Revised Pay Scale of VI-CPC) to the Radiographers from 01.01.1996 by its O.M. dated 08.10.2021. It has been not extended to the OT Technicians, despite VI-CPC's recommendation because these Technicians are yet to knock the doors of the Hon'ble Tribunals/Courts.
s) DOPT O.M. dated 24.03.2009 referred by the ESIC in para 4.8 of the impugned order is squarely applicable to the Applicants, as all of them have been promoted as Technician. As per the decision of the Hon'ble Delhi High Court (D.B) reported in 1986 LAB I.C. 1671 in the case of TRL Narayanan & Ors. -V- Union of India & Ors. to the effect that once Pay Scales of feeder post is increased, Pay Scales of higher post should also be increased, which is binding even on ESIC and as such 12 OA.No.346/2022/CAT/Bangalore Bench the Applicants are entitled to G.P. of Rs. 2800/- from the date of their promotion as Technicians.
t) It is not permissible to ESIC to contend that cadre of OT/CSSD Technician is entirely different than Radiographers cadre in view of the recommendation of VI CPC at para (3.8.12), which is as follows:
Designation Pay Band Grade Pay
O.T. Technician/ Radiographer PB-2 Rs.4200/-
3. The respondents have filed their written statement wherein they have averred as follows:
a) The Applicants have sought directions to respondents to fix the grade pay of applicants at Rs. 2400/- in the pay band of Rs.5200-20200 from the date of joining of service and also sought for a direction to the respondents to grant grade pay of Rs.2800/- from the date of their promotion to higher grade and post of Technicians.
b) The applicants have filed combined O.A. mixing up grievances of demand for grant of Grade Pay of Rs. 2400/- to the post of OT/CSSD/ CSR Assistants and also for the post of OT/CSSD/ CSR Technicians for Grade Pay of Rs. 2800/- which amounts to misjoinder of issues and thus is liable to be rejected.
c) The applicants have challenged the orders dated 05.01.2022 passed by the Respondents which have been issued after considering the representations of the Applicants received in pursuance to the order 13 OA.No.346/2022/CAT/Bangalore Bench dated 25.09.2021 of the Hon'ble High Court of Karnataka in WP No 1872/2021 (S-CAT) and connected matters. The orders passed will be subject to the result of Writ Petition No. 18/2015, pending before the Delhi High Court for adjudication. Hence, the present OA dealing with the same matter, which has already been decided by Hon'ble High Court of Karnataka, vide the aforementioned order, is liable to be dismissed on this ground alone.
d) The Applicants in O.A were Appointed as OT Assistants/CSR Assistants from the dates mentioned at Para no.4(i) in the O.A. with Pay Band-1, 5200-20200 with Grade Pay of Rs. 2000 as per ESIC Recruitment Regulations Notification dated 21.05.2011.
e) The demand of higher scale of Rs. 4000-6000 to paramedical employees emanated from case OA. No. 1464/2003 in which the above scale was granted to Lab Assistants of Safdarjung Hospital under Central Health Services. Agreeing to the parity with CHS cadre, Hon'ble CAT Principal Bench New Delhi in OA. No. 1114/2008 filed by Shri Anil Kumar Kalra, Lab Assistant of ESIC, granted above pay scale to petitioners on provisional basis. Writ Petition has already been filed against the ibid decision in Hon'ble High Court of Delhi. Other cadres placed in pay scale with Grade Pay of Rs. 2000/- also got the same benefit on provisional basis by means of different CAT judgments on the basis of traditional parity. It is pertinent to note that in all such cases, including that in O.A. No. 2995/2014 (Dharambir Singh Ranga & others), 2996/2014 (Munish Kumar & Others) and 3227/2011 14 OA.No.346/2022/CAT/Bangalore Bench (Braham Pal & others) higher pay scale of Rs. 5200-20200 with grade pay of Rs. 2400/ has been granted only to the petitioners. This provisional payment is subject to the outcome of Writ petition filed in the Hon'ble Delhi High Court.
f) Section 17(2) (a) of the ESI Act provides that "the method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation, shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay". Section 17(2)(a) also authorizes ESIC to depart from service conditions applicable in Central Civil Services by providing that " ..
where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government."
g) DoPT has laid down guidelines for framing standard RRs duly giving liberty to organizations to frame RRs as per organizational requirement and choose relevant pay scales from the standard pay scales defined for Central Govt. employees. Cadre Structure and related RRs applicable in various organizations depends on their functional size, therefore, institutions of Central Government and that of ESIC are to be seen independently and cannot be compared. Many of ESIC medical institutions are much smaller in comparison to that of Central 15 OA.No.346/2022/CAT/Bangalore Bench Government Hospitals. Therefore, provisions related to the subject matter applicable in CHS are suo-moto not applicable in ESIC, but are to be adopted with the approval of Corporation & Central Government, when the same meets the organizational requirement.
h) ESIC has framed Recruitment Regulations (RRs) for each & every cadre in accordance with the organizational requirement and selected relevant pay scales from the standard pay scales notified by Govt. of India. The RRs in question, applicable in ESIC are different from those in CHS institutions on some aspect in accordance with the organization requirement. Recruitment Regulations for the post of CSSD prescribes for grade pay of Rs. 2000/- where a candidate with 12th in science stream and 1 years' experience in the field, is eligible for appointment. As per latest RRs in CHS, CSS Assistants are placed in pay scale of Rs. 5200-20200+GP Rs. 1900/- and a person having 12th pass with Science and Certificate or diploma of at least nine months course or training or two years working experience in Central Sterilization Department is eligible for appointment. Despite being similar eligibility criteria as compared to CHS, ESIC is granting higher grade pay of Rs. 2000/- to its CSSD Assistant (Grade Pay Rs. 1900/- as per R.R. of CHS).
i) As per Govt. of India Gazette notification dated 14.03.2016 issuing Recruitment Rules for the post of CSSD Assistant in medical institution under MoH&FW provides for pay scale in PB-I +GP Rs 1900/-. Draft RRs of the OT Assistants notified vide MoH & FW letter No. A- 12018/09/2018-CGHS-1 dated 18.05.2018 would also substantiate the 16 OA.No.346/2022/CAT/Bangalore Bench above statement in which the post of OT Assistant has been placed in Pay Level- 2 corresponding to grade pay of Rs. 1900/- as per 6th CPC. A comparison of the above-mentioned latest Recruitment Regulations of Lab Assistants and OT/ CSS Assistants applicable in CHS would explain that even as per latest order in CHS, the above mentioned cadres cannot be treated at par and do not draw parity. Specific professional qualification (i.e. 12th (with Science) +Diploma in Medical Laboratory Technologists with l-year experience) in the field is necessary for Lab Cadre whereas 12th standard in any stream with required experience or Operation Theatre Attendant training would make a candidate eligible to apply for the post of OT Assistant (as per proposed RR of CHS). All the paramedical cadres carrying similar nomenclature/designation structure does not necessarily mean that such cadres are to be treated at par or equally on the aspect of pay scales.
j) ESIC had earlier failed to bring out this fact in the past that the demand of higher pay scale by CSSD Assistant may not be sustainable on the basic ground of traditional parity of ESIC employees with equivalent cadres in CHS as the demanded higher scale has even not be granted to the such cadre in CHS as explained with evidence in the preceding paragraph. In other words, the demand of traditional parity in the cadres of Lab Assistant and OT / CSSD Assistant appears to be unreasonable.
k) The petitioners have solely relied upon the stated recommendation of 6th CPC for placement of Technicians/Radiographers in Grade Pay of 4200/-. Importantly, the same has not been accepted by Govt. of India 17 OA.No.346/2022/CAT/Bangalore Bench in respect of cadre of the applicants, thus, not implemented in ESI Corporation as well.
l) DoPT Office Memorandum dated 24.03.2009 merely provide guidelines prescribing the minimum qualifying service for promotion from Grade Pay of Rs. 2400/- to 2800/- on completion of 05 years. It does not mandate placement of an employee in higher scale immediately on completion of the said prescribed period. The promotion is always subject to vacancy in promotional cadre. No merger of scales of CSSD Assistants and CSSD Technicians has taken place in ESIC as being claimed by the applicants because Grade Pay of 2400/- granted to very few CSSD Assistants is provisional only on the basis of Court orders went in favour of petitioners due to submission of incorrect defence.
m) Inviting reference to the Order dated 16.01.2020 passed by the Hon'ble Delhi High Court in WP No. 10645/2016 does not support the cause of the applicants as the same relates to the cadre of Radiographers. The cadre of OT / CSSD Technician is entirely different than Radiographer's cadre carrying incomparable job profile and responsibilities.
n) The benefit of higher grade pay of Rs. 2400/- has been granted provisionally to the limited number of persons working as CSSD Assistants and were petitioners in the related case and that too is subject to outcome of the writ petition filed before the Hon'ble Delhi High Court. This provisional pay granted to few employees due to 18 OA.No.346/2022/CAT/Bangalore Bench inappropriate defence by the ESIC in related cases cannot form the basis for grant of higher grade pay to all the incumbents in the CSSD Cadre.
o) ESIC is required to grant pay scale to its employees as prescribed in relevant Recruitment Regulations. Presently, there is no proposal under consideration to upgrade the pay scale of CSSD Assistant and CSSD Technician and grant them grade pay of Rs. 2400/- and Rs. 2800/- respectively; therefore, question of its implementation either with retrospective or prospective effect does not arise. Recruitment. Regulations for the post of CSSD Assistant and CSSD Technician prescribes for the grade pay of Rs. 2000/- & Rs. 2400/- respectively for the posts.
p) The Recruitment Regulations framed by AlIMS, New Delhi (being an autonomous body) for different categories of employees including the one of the applicants are not binding on ESIC as the same carry different pay scales as per their own different eligibility criteria for appointment of candidates.
q) Applicants, at the time of applying for the post of OT Assistants/CSR Assistants were very well aware that the Recruitment Regulations, in force, stipulated the applicability of Pay scales/Pay Band and Grade Pay bands to them to the Pay Band Rs.5200-20,200 with Grade pay of Rs.2000, as made applicable to them. At this stage the Applicants agitation for Grade Pay of Rs. 2400/- is not tenable and, therefore, their demand is resisted by the Respondents.
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r) The post of OT Assistants/CSR Assistants carries element of promotion quota to the extent of 50% providing thereby officials from Nursing Orderly with qualification non-matriculate also to be eligible for promotion and, therefore, higher grade pay to these cadres are not justified, since the post does not require knowledge of expertise in the form of education qualifications. There is also stipulation of lesser period of experience from the feeder cadre for matriculate compared to non-matriculate candidate and these facts also shows that the post of OT Assistants and CSR Assistants depends purely on experience with minimum education qualification viz., matriculate / non matriculate and not on expert education qualification.
s) Recruitment Regulations for the post of OT Technicians and CSR Technicians provides Grade Pay of Rs. 2400/- and since they were aware of the pay structure at the time of appointment to the post of OT Assistants and CSR Assistants and that on their promotion to the post of OT Technicians and CSR/CSSD Technicians their Grade Pay would be Rs.2400/-, their agitation at this stage demanding Grade Pay of Rs. 2800/- on promotion is not tenable and is resisted by the Respondents. The Applicants at the time of applying for the post of OT Assistants/CSR Assistants clearly knew about the pay scales that are being offered to them.
t) It is relevant to mention herein the provision of Section 17 (2) (a) (b) which reads as under:
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OA.No.346/2022/CAT/Bangalore Bench "2) (a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay.
Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government. [Provided further that this sub- section shall not apply to appointment of consultants and specialists in various fields appointed on contract basis.]
(b) In determining the corresponding scales of pay of the members of the staff under clause (a), the Corporation shall have regard to the educational qualifications, method of recruitment, duties and responsibilities of such officers and employees under the Central Government and in case of any doubt, the Corporation shall refer the matter to the Central Government whose decision thereon shall be final"
u) As per Section 17 (2) (a) (b) the method of recruitment, salary and allowances, discipline and other conditions of service of the staff of ESI Corporation, shall be as per the Regulations made by the Corporation.
ESI Corporation has its own Recruitment Regulations and Regulation for governing the condition of service of its staff. 21
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v) The employees of ESIC are governed by the ESI Corporation (Staff and Conditions of Service) Regulations 1959. As per Regulation 24 of ESI Corporation (staff and conditions of service) Regulations 1959, the Pay in respect of OT Technicians is governed as per Pay indicated in Recruitment Regulations for the aforesaid post. Regulation 24 of ESIC (Staff and Conditions of Service) regulations 1959 reads as under:
"In respect of all other matters relating to the conditions of service of employees for which no provision or insufficient provision has been made in these regulations, the rules applicable from time to time to the corresponding category of Central Government servants shall apply subject to such modifications and variations or exceptions if any, as the Director General may with the approval of the Standing Committee by order from time to time specify".
w) It is clear from the above that the ESI Corporation, is a statutory body established under ESI Act and the staff of the Corporation is managed and administered by ESIC Recruitment Rules and ESIC (staff and conditions of service) Regulations 1959 framed by the ESI Corporation by virtue of the Section 17 of the ESI Act. The method of recruitment, pay, allowance and other conditions of service are exclusively governed by the ESIC Recruitment Rules and ESIC (staff and conditions of service) Regulations 1959. Hence, Acts/ Regulations that govern the service condition/s, pay and allowances of the Hospitals run by Central Govt./Central Health Services Institutions are not applicable to the ESI staff.
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x) The DOPT OM dated 24.03.2009 has been issued to the Central Govt.
Departments to amend the Service Rules/Recruitment Rules in accordance with the recommendations of 6th CPC recommendations i.e., due to the merger of pay scales and posts in the different Central Govt. Departments by the recommendations of the 6th CPC. The said DOPT OM is not applicable to the ESI Corporation as it is constituted under ESI Act and administered by its own ESIC Recruitment Rules and ESIC (Staff and Conditions of Service) Regulations 1959. Even otherwise, it is clear from said DOPT OM dated 24.03.2009 that the enhancement in the Grade Pay from Rs. 2000/- to Rs. 2400/- shall be after promotion with minimum qualifying service of 05 years and in the instant case, the applicants have been promoted and were granted Grade Pay of Rs. 2400/- on promotion to the post of OT/ CSR Technicians, whereas the applicants are claiming the higher Grade Pay of Rs. 2400/- from the date of appointment itself. Further again to grant next higher Grade Pay of Rs. 2800/- the O.M stipulates for next promotion with 05 years minimum qualifying service in the post carrying Grade Pay of Rs. 2400/- and grant of higher Grade Pay on promotion even after completion of 05 years minimum qualifying service is subject to availability of vacancies in the promotional post. y) The Grade Pay of some of the Lab Assistants, Plaster Assistants and Junior Radiographers were enhanced from Rs.2000/- to Rs.2400/- only in compliance with the directions of various orders passed by this Tribunal and other courts. The relief granted in particular cadres or to 23 OA.No.346/2022/CAT/Bangalore Bench those particular applicants has no bearing on the applicants on this OA and moreover the cases are still sub-judice and have not attained completion as the provisional payment is subject to outcome of Writ Petition filed in the Hon'ble Delhi High Court.
z) The Respondents have challenged the Order dated: 09.04.2019 of the Tribunal before the Hon'ble High Court of Karnataka, Bangalore Bench vide WP No. 2453 of 2021 and marked as Annexure R-1. The Hon'ble High Court of Karnataka in its Order dated: 25.09.2021 has given the liberty to the Respondents in the aforementioned WP (applicants before the CAT) to file detailed representation/s claiming the reliefs from ESIC, for which they are entitled in accordance with law, within 15 days from the date of receipt of certified copy of the Order and directed the Petitioners (ESIC) to consider the representation/s and examine the claim, keeping in view the order passed by the Principal Bench in O.A. No. 2995/ 2014 and other connected matters dated: 19.04.2016 and the Office Memorandum No. AB.14017/61/2008-Estt (RR) dated:
24.03.2009 and to pass appropriate orders in accordance with Law within two month from the date of receipt of the representation/s from the Respondents and the same will be subject to the result of the Writ Petition No. 18/2015, pending before the Delhi High Court for adjudication. The Hon'ble High Court of Karnataka in its Order has also stated that Hon'ble Court have not expressed anything on the merits or demerits of the case and all contentions of the parties are left open to be 24 OA.No.346/2022/CAT/Bangalore Bench urged in the appropriate forum in the appropriate circumstances, in accordance with law.
aa) The order passed by the Respondents as at Annexure A-26 and Annexure A-27 is well-reasoned, just and lawful order The Applicants are not entitled for Grade Pay of Rs. 2400/- from the date of their joining the services, in view of the facts mentioned in the aforementioned paras and documents. The Applicants are not entitled to Grade Pay of Rs. 2800/- from the date of their promotion to the higher post of Technicians in view of the facts mentioned in the aforementioned paras and documents as such the relief sought leads to mis-joinder of issues and hence, is liable to be dismissed.
4. The applicants have filed a rejoinder to the reply filed by the respondents and have pleaded as follows:
a) This Tribunal has directed the ESIC to grant the pay scale of Rs. 4000-
100-6000 to the Paramedical Staff - Technicians including Plaster Assistants requiring matriculation with some experience as minimum qualification for direct recruitment w.e.f. 01.01.1996 by its order dated 19.02.2013 (vide by Annexure: A-7). Corresponding revised pay w.e.f. 01.01.2006 is PB-1, 5200-20200, G.P. of Rs. 2400/-.
b) The ESIC has given aforementioned pay scale/pay to all those Paramedical Staff such as Lab Assistants, Plaster Assistants, O.T. Assistants, CSR/CSSD Assistants, who have approached this Tribunal (vide orders at Annexures: A-4 to A-8, A-11 & A-29 and Annexures: 25
OA.No.346/2022/CAT/Bangalore Bench A-9, A10, A-13 to A-15 & A-28), but discriminated against the Applicants in this case, though this Tribunal had granted the said relief to these Applicants in their O.A. No. 170/1598- 1618/2018 by an order dated 09.04.2019 in para 2 at Annexure: A-19.
c) The Applicants have claimed consequential relief of G.P. of Rs. 2800/-
, since the Applicants except the 7th Applicant have been promoted to the grade & post of Technicians and are functioning as such. That apart, the G.P. of Rs. 2800/- has been granted by the ESIC to the Plaster Assistants from the date of their promotion to the grade & post of Plaster Technicians vide Annexure: A-28. Both the O.T. Technicians & Plaster Technicians have been placed in the same grade with identical pay vide Annexure: A-3, by ESIC.
d) The Respondents have sat over the judgements of this Tribunal at Annexures: A-19 and A-22, by passing inappropriate, arbitrary & illegal orders at Annexures: A-26 & A-27. The prayer of the Respondents to quash the orders of this Tribunal at Annexures: A-19 & A-22 have not been granted by the Hon'ble High Court. The Applicants have filed the present O.A. by impugning the arbitrary orders at Annexures: A-26 & A-27.
e) The pay of the employees have got direct nexus to the duties which they are discharging and has nothing to do with the functional size or structure of the Institution. The ESIC is required to pay equal pay for equal work and can't make discrimination in view of Arts. 14 & 16 of the Constitution of India.
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f) The ESIC can't contend before this Tribunal that parity in the cadres of Lab. Assistant and O.T./CSSD Assistant as unreasonable in view of the various binding decisions of this Tribunal. The ESIC has complied the directions of this Tribunal in respect of Lab. Assistants/ OT/CSSD Assistants subject to the result of the pending W.Ps. in the Hon'ble High Court of Delhi.
g) The DOPT O.M. dated 24.03.2009 is not only applicable to ESIC, but is also binding on it. In the case on hand, all the applicants except one, have been promoted against the existing vacancies after having satisfied fully and more than the prescribed qualifications including experience. Rightly their claims for G.P. of Rs. 2800/- from the date of their promotion is sustainable and they are entitled for it. Specific approval of the Central Government not to follow DOPT O.M. dated 24.03.2009 has not been obtained by the ESIC and no proposal has been submitted seeking approval of the Central Government not to adhere to the said O.M.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicants are seeking grant of pay scale PB-I with Grade Pay of Rs.2400/-, in their favour while working on the post of OT Assistants and CSR/CSSD Assistants in ESIC, as well as grant of PB-I with Grade Pay of Rs.2800/- while working on the post of OT Technicians and CSR/CSSD Technicians in ESIC, instead of the Grade Pay of 2000/- and 27 OA.No.346/2022/CAT/Bangalore Bench 2400/- being currently drawn by them as OT/CSR/CSSD Assistants and OT/CSR/CSSD Technicians respectively.
7. They have contended that Grade Pay of Rs.2400/- to OT Assistants and CSD/CSSR Assistants had been granted by the Principal Bench of this Tribunal, to the applicants in OA.No.2995/2014 vide its order dated 19.4.2016. While passing this order, the PB of this Tribunal had held as follows:
"8. Since the applicants who are working as O.T.Assistants/CSSD/CSR Assistants are identically placed like the Plaster Assistants and Laboratory Assistants of the respondent- ESIC, and for parity of reasons, we reject the contentions of the respondents and accordingly, allow the OA. The respondents are directed to implement the scale notified vide Resolution dated 30.09.1997, i.e., by granting the pay scale of Rs.4000-6000 to the applicants. However, they are entitled for arrears with effect from the date of filing of the OA, without any interest thereon. This exercise shall be completed within two months from the date of receipt of a copy of this order. This order is subject to the result of the Writ Petition filed by the respondents against the orders of this Tribunal dated 13.01.2004 in OA No.1464/2003-Ashok Kumar & Others v. Union of India and also the Writ Petition No.18/2015, filed against the orders dated 19.12.2013 in OA No.3227/2011 (Brham Pal & Others v. Union of India). No costs."
8. This order of the Tribunal in OA.No.2995/2014 had relied on another order passed by the Principal Bench of this Tribunal in OA.No.3227/2011 dated 19.12.2013, (Brham Pal & Others v. Union of India) which had granted the same pay scale to Plaster Assistants, giving them parity with Laboratory Assistants.
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9. The Laboratory Assistants had earlier sought the pay scale of Rs. 4000-6000 through OA No.1464/2003 titled Ashok Kumar v. Union of India filed before the PB of this Tribunal and this Tribunal by its order dated 13.01.2004, had granted the same to them. Though, the respondents filed a Writ Petition against the said orders, as no stay was granted, the orders were implemented in respect of Laboratory Assistants. The Writ petition filed against the orders passed in OA No.1464/2003 is still pending.
10. The orders of this Tribunal in OA.No.2995/2014 dated 19.4.2016, granting parity to OT Assistants and CSSD/CSR Assistants with Plaster Assistants and Laboratory Assistants was challenged by the respondents before the High Court of Delhi in WP.No.18/2015. It is noted that this matter along with all other connected matters relating to parity of Grade Pay between Laboratory Assistants, Plaster Assistants, OT/CSR/CSSD Assistants is still pending consideration in various Writ Petitions filed by the respondents before the Hon'ble High Court of Delhi and the matter has not yet reached finality.
11. However, provisionally the applicants in that OA have been granted the Grade Pay subject to the outcome of the Writ Petition filed by the respondents against the orders of this Tribunal dated 13.01.2004 in OA No.1464/2003-Ashok Kumar & Others v. Union of India and also the Writ Petition No.18/2015, filed against the orders dated 19.12.2013 in OA No.3227/2011 (Brham Pal & Others v. Union of India). 29
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12. The applicant in the present OA had earlier filed OA. No. 1598-1618/2018, wherein this Tribunal had relied upon the orders passed by the Principal bench in OA. No.2995/2014, and allowed the OA subject to the result of the Writ Petition pending before the High Court of Delhi. The respondents filed a Writ Petition No.1872/2021 before the High Court of Karnataka challenging the orders of this Tribunal in OA.No.1598-1618/2018 dated 09.4.2019. The Hon'ble High Court of Karnataka vide its order dated 25th September 2021, directed the respondents to examine the claim of the applicants in view of the orders passed by the Principal Bench in OA. No. 2995/2014 and other connected matters dated 19.04.2016 and pass appropriate orders in accordance with law. While passing this order, the High Court refrained from expressing anything on the merits or demerits of the case and all the contentions of the parties were left open to be urged in the appropriate forum in the appropriate circumstances, in accordance with law.
13. It is therefore observed that as far as the issue of grant of higher Grade Pay Rs. 2400/- to the post of OT Assistants and CSSD/CSR Assistants are concerned, while the Principal Bench had, vide its judgment dated 19.4.2016 in OA.No.2995/2014, declared parity between the post of OT Assistants and CSSD/CSR Assistants with the post of Plaster Assistants and Laboratory Assistants, the matter has not yet reached finality and is still pending consideration before the Hon'ble High Court of Delhi.
14. The respondents (ESIC) in OA. No. 2995/2014 has also provisionally implemented the orders of this Tribunal and granted the Grade Pay Rs.2400/- to the applicants in that case from the date of filing of the OA. No. 2995/2014 30 OA.No.346/2022/CAT/Bangalore Bench i.e from 22.8.2014 without any interest, subject to the outcome of various Writ Petitions filed by the respondents against the orders of CAT, Principal Bench granting parity in Grade Pay.
15. The Hon'ble High Court of Karnataka vide its order dated 21.03.2022 in WP. No.1877/2021 & other connected cases has also directed to grant Grade Pay of Rs.2400/-, to the concerned respondents (Plaster Assistants), subject to they filing an undertaking before the second petitioner that the provisional payment shall be subject to outcome of WP. No.18/2015 before the Delhi High Court and any further proceedings thereon.
16. As can be seen from the history of various litigations pending before the Hon'ble High Courts and Central Administrative Tribunals, the primary issue which is yet to be finally decided is whether the applicants can claim parity of pay scales and Grade pay between OT Assistants, CSSD/CSR Assistants, Laboratory Assistants and Plaster Assistants.
17. There are a plethora of judgments by the Hon'ble Apex Court, which have consistently held that equation of post and equation of salary is a complex matter, which is best left to experts unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and the interference of the Court was absolutely necessary to undo the injustice.
18. In State of U.P. and Others Vs. J.P. Chaurasia and Others 1989(1) SCC 121 the Apex Court observed as under: -
31
OA.No.346/2022/CAT/Bangalore Bench "18. The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration."
19. In Secretary, Finance Department and Others Vs. West Bengal Registration Service Association and Others the claim of Sub-
Registrars of West Bengal Registration Service 1993 Suppl. (1) SCC 153 claiming parity in pay scale with Munsiffs on the basis that Sub- Registrars were conferred gazetted status, was examined by the Apex Court. It was elaborately observed in para 12 as under: -
"12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job 32 OA.No.346/2022/CAT/Bangalore Bench evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time- consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department
(ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broad banding of posts by placing different posts having comparable job charts in a common scale.
Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal.
While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the 33 OA.No.346/2022/CAT/Bangalore Bench hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice."
20. In State of Haryana and Others Vs. Charanjit Singh and Others 2006 (9) SCC 321, a three-judge Bench in a referred matter considered whether the doctrine of "equal pay for equal work", was an abstract doctrine. It had observed as follows: -
"19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh [(1996) 11 SCC 77 : 1997 SCC (L&S) 210 : AIR 1997 SC 1788 : (1997) 2 LLJ 667] , Tilak Raj [(2003) 6 SCC 123 : 2003 SCC (L&S) 828], 34 OA.No.346/2022/CAT/Bangalore Bench Orissa University of Agriculture & Technology [(2003) 5 SCC 188 :2003 SCC (L&S) 645 : (2003) 2 LLJ 968] and Tarun K. Roy [(2004) 1 SCC 347 : 2004 SCC (L&S) 225] lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 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. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity 35 OA.No.346/2022/CAT/Bangalore Bench 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. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere.
Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors."
21. In its judgment dated 05.03.2020 passed by the Supreme Court of India in SLP (C) No. 8271/2014 titled Union of India vs. M.V. Mohanan Nair, the Honorable Apex Court has inter- alia observed as follows:-
29. ....Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made.
When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations 36 OA.No.346/2022/CAT/Bangalore Bench of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer. (emphasis added)
22. In its judgment dated 22.02.2023 passed by the Supreme Court of India in Civil Appeal No. 8329 of 2011 titled Union Of India vs Indian Navy Civilian Design Officers, the Honourable Apex Court has inter- alia observed as follows
9. Before adverting to the rival contentions raised by the learned counsels for the parties, it deserves to be noted that the power of judicial review of the High Courts in the matter of classification of posts and determination of pay scale is no more res integra. It has been consistently held by this Court in plethora of decisions that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and the interference of the Court was absolutely necessary to undo the injustice.
23. As can be seen from the above cogent observations, the Apex court has consistently held that the equation of posts or equation of pay must be determined by expert bodies like Pay Commissions. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The court should not try to tinker with such equivalence unless it is shown that it was made with extraneous considerations.
24. In the present case, this Tribunal vide its order passed in OA.No.2995/2014 dated 19.04.2016, had observed that OT Assistants and, CSSD/CSR 37 OA.No.346/2022/CAT/Bangalore Bench Assistants are identically placed with Plaster Assistants and Laboratory Assistants in the ESIC and had therefore directed to implement the scales notified vide resolution dated 30.9.1997 and had allowed for grant of identical Grade Pay and Pay Scale. However, this order was subject to the result of the Writ Petition filed by the respondents against the orders of the Tribunal dated 13.1.2004 in OA.No.1464/2003- Ashok Kumar & others v. Union of India and WP.No.18/2015 filed against the orders dated 19.12.2013 in OA.No.3227/2011 -Brham Pal & others v. Union of India.
25. The matter regarding equivalence of pay scales and Grade Pay between Plaster Assistants, Lab Assistants, OT Assistants, CSSD/CSR Assistants has, therefore, not yet reached finality and these matters are still pending in WP. No. 18/2015 and other connected Writ Petitions before the Delhi High Court.
26. Since the matters regarding pay parity are still pending consideration and have not reached finality, it cannot be concluded at this stage, that the applicants are entitled to the Grade Pay of Rs.2400/- for the post of OT/CSR/CSSD Assistants on par with Plaster Assistants.
27. Since this matter has not reached finality, the consequential prayer for grant of higher Grade Pay of Rs. 2800/- to the applicants for the next higher post of OT/CSR/CSSD Technicians is pre-mature and cannot be accepted at this stage. In any case, the guidelines issued by the DOPT vide their OM dated 24.3.2009 have only specified the minimum number of years of service in the Grade Pay of Rs. 2400/- before which a person can be considered for promotion to the higher Grade Pay of Rs.2800/-. The applicants are currently drawing a substantive Grade Pay of Rs.2000/- only. The contention of the 38 OA.No.346/2022/CAT/Bangalore Bench applicants that they are entitled to the Grade Pay of Rs.2800/- in the post of OT Technicians, cannot, therefore, be accepted at this stage, since the issue of grant of Grade Pay of Rs.2400/- to the post of OT Assistants has not yet reached finality and the matter is currently under consideration in WP. No.18/2015 before the Delhi High Court.
28. It is however, observed that the applicants before the Hon'ble High Court of Delhi in WP.No.18/2015 have been granted relief of a higher Grade Pay of Rs. 2400/- on provisional basis, subject to them giving an undertaking before the respondents that the provisional payment shall be subject to the outcome of the WP. No.18/2015 before the Delhi High Court and any further proceedings thereon, with effect from the date of filing of the OA.
29. A similar relief has been granted by the High Court of Karnataka in WP No:
1877/2021 vide orders dated 21.3.2022 for grant of Grade Pay of Rs. 2,400/- to the respondents (Plaster assistants) in that case subject to they filing an undertaking before the second petitioner (ESIC) that the provisional amount shall be subject to the outcome of WP 18/2015 before the Delhi High Court.
30. Keeping the above in view, on grounds of parity, the applicants in the present OA No: 346/2022, shall also be granted the provisional Grade Pay of Rs.2400/, subject to they filing an undertaking before the respondent (ESIC), that the provisional payment, if any, shall be subject to the outcome of WP 18/2015 and other connected Writ Petitions before the Delhi High Court, and any further proceedings thereon.
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31. The provisional benefits of Grade Pay of Rs. 2400/- for OT Assistants and CSSD/CSR Assistants has been granted by the PB of this Tribunal in OA 2995/2014 dated 19.4.2016, with arrears of pay, if any, from the date of filing of that OA i.e. 22.8.2014, without any interest thereon. On grounds of parity, the applicants in the present OA shall also be eligible for grant of these arrears on provisional basis from the same date i.e. 22.8.2014, without any interest thereon subject to the outcome of WP 18/2015 and other connected Writ Petitions before the Delhi High Court. The applicants shall also give an undertaking to allow recovery of the provisional higher grade pay and pay arrears, if any, paid to them by the respondents, in case the Delhi High Court rules against grant of any higher grade pay to the applicants in WP 18/2015 and other connected cases.
32. The present OA is accordingly disposed of with the above directions.
33. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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