Central Administrative Tribunal - Kolkata
Prabal Ch Boral vs M/O Defence on 4 December, 2023
1 OA 66/2016 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA
0.A. 350/00066/2016 © M.A. 350/346/2017 DATE OF HEARING: 06.09.2023 +2023 DATE OF JUDGMENT: "-)* Coram: Hom'ble Mr: Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Suchitto Kumar Das, Administrative Member In the matter of :
1: Shri Prabal Chandra Boral, son of Late Nemai Chand Boral, aged about 59 years, working for gain as Laboratory Technician at Ordnance Factory Hospital, under the General Manager, Metal & 'Steel Factory Ishapore, and residing at Shriram Apartment, Badamtala, Ishapore, North 24 Parganas, West Bengal ~ 743144,
2 Shri Sanjay Kumar Ghosh, son of Late Adhir Kumar Ghosh, aged about 56 years, working for gain as Laboratory Technician at Ordnance Factory Hospital, under the Sr. General Manager, Metal & Steel Factory, Ishapore, and residing at 3C 'A' Road, 24 Lane, Nona Chandanpukur, Barrackpore, Kolkata - 700122,
3. Shri Swapan Kumar Roy, son of Shri Chitta Ranjan Roy, aged . about 49 years, working for gain as Laboratory Technician at Ordnance Factory Hospital, under the Sr. General Manager, Metal & Steel Factory, Ishapore, and residing at East Maniktala Ishapore, North 24 Parganas, West Bengal 743144,
4. Shri Dhruv Kumar, son of Shi R:N. Chaurasia, aged about 40 years, working for gain as Laboratory Technician at Ordnance . Factory Hospital, under the General Manager, Gun & Shell Factory Cossipore, and residing at Qtr. No 65/4, Seven Tanks Estate, 4, Dum Dum Road, Kolkata-700002.
wren pplicants VS.
et . 2 - 0A 66/2016 O . | .
1. The Union of India service through the Secretary, Ministry of Defence, Department of Defence Production, having is office at South Block, New Delhi-110011.
2. The Director General Ordnance (C&S), Directorate of Ordnance (C&S), 10-A, S.K. Bose Road, Kolkata - 700001.
3. The Chairman cum Managing Director, Yantra India Ltd. (DPSU), C/8 General Manager, Ordnance Factory, Ambajhari, Nagpur -- 440021.
4. The Executive Director, Metal & Steel Factory (A unit of YIL) Ishapore, West Bengal - 743144, 5, The Executive Director, Gun & Shell Factory,( a Unit of AW & EI Ltd.}, Cossipore, Kolkata - 700002.
6. The Director of Health Services, Directorate of Ordnance (C&S), 10- A, S.K. Bose Road, Kolkata - 700001.
-7, The Works Manager/ Admin , Metal & Steel Factory ( A unit of YI Ltd.), Ishapore, West Bengal - 743144.
'wee ReSpondents For The Applicant(s): Mr. N. P. Biswas, Counsel For The Respondent(s): _ Ms. E, Banerjee, Counsel ORDER | Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicants have approached this Tribunal under Section 19 of the . Administrative Tribunals Act, 1985 praying for the following relief:
'i) An order / direction may be issued to cancel, withdraw, modify - and/or rescind the impugned Order No. 042/BPMS/CAT/PER/M dated - 17.10.2014, issued by the DHS, Ordnance Factory Board, Kolkata, directing that all those Laboratory Technicians who are to be given the higher / revised Pay.Scale strictly possess the required qualification as per SRO 88 dated 3rd August, 2005 and as,contained at Annexure - A/4.
ii).An order / direction may be issued to cancel, withdraw and/ or rescind the order No. 935/3/8(Prom)/Up-gradation/LT dated 17.06.2015, issued by the Works'Manager/Admin. Metal & Steel Factory, roy | . 3 a - 0A 66/2016 Ishapore, rejecting the representations of the applicants for grant of -- revised pay scale wie.f. 01.01.2006, as contained at Annexure - A/5.
iii) A direction and / or order may be issued to the respondents authorities and to each of them, their subordinates / agents to forthwith grant the revised Pay Scale of PB 2 9300-34800 with G.P Rs 4200/- to the ' applicants with effect from 01.01.2006 and make payment of all consequential benefits including arrears of pay and allowances.
iv) To permit the applicants to file this application jointly under the _ provisions of sub-rule (5) (a) of Rule 4 of the Central Administrative Tribunal (Procedure) Rules, 1987.
v) And / or to pass such order or further order or orders and/or direction or directions as this Hon'ble Tribunal may deem fit and ' 'proper." ; i
2. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
/2.1 The applicant no. 1 having passed Higher Secondary Examination ye Oe. eS bavi at (Science), B.Com, and having acquired Diploma in Medical 'Laboratory . Technology (DMLT) & X-Ray Technique and thereby fulfilling the prescribed Qualifications in the existing Recruitment Rules, that is, SRO 104 dated 12.04:1979, was appointed as direct recruit to the post of Laboratory Technician under the respondents in the pay scale of Rs. 380-560/- with effect from 04.05.1983.The pay scale of Rs. 380-560/- in respect of Laboratory Technicians was revised by Fourth CPC to Rs. 1320-2040/- w.e.f, 01.01.1986. 2.2 The applicant nos. 2 and 3 having possessed the required qualifications for Direct Recruitment to the post of Laboratory Technicians as provided in the SRO 14(E) dated 4th May, 1989 ie. passed matriculation or equivalent examination with Physics and Chemistry as subject and diploma in clinical laboratory technique practice as conferred by State Medical Faculty', were appointed to this post of Laboratory Technician under the respondents in the pay scale of Rs: 1320-2040/- with effect from 16.06.1990 and 02.11.1991 respectively. Similarly the applicant no. 4 was appointed to the post of Laboratory Technician w.e-f. 13.11.2000. The pay scale of Rs. 1320-2040/- in ae 4 st 0A 66/2016 respect of Laboratory Technicians was revised to Rs. 4500-7000/- by the | respondents after implementation of the recommendations of the Fifth CPC with effect from 01.01.1996.
2.3 The respondents published revised Recruitment Rules S.R.0. 88 dated .
3rd August, 2005 in respect of Para- Medical (Non-Industrial/Non-Gazetted) posts in Ordnance and Ordnance Equipment Factories including the post of Laboratory Technician. According to the said Rules, the method of recruitment for the post of Laboratory Technician is by promotion after adjustment of. surplus and absorption 'failing which by direct recruitment. Under column 12 =) essential qualification for direct recruits would be (i) Passed B.Sc. with Biochemistry/ Microbiology/Life Science or equivalent from a recognized Institution, (ii) Candidate should possess Diploma in Medical Laboratory Technology from a recognised Institution, (iif) Must possess at least one year Cc experience in Medical Laboratory, (iv) Must have working knowledge of computers.
'24° Director General, Ordnance Factories, Vide letter dated 17.10.2014, issued an order directing that the Government of India has agreed to revise the present Pay Scale of the post of Lab Technicians working in the hospital of ~ DGOF Organisation from present Pay Scale in PB 1 5200-20200 with G.P. Rs. 2800/- to Revised Pay Scale in PB 2 9300-34800 with G.P. Rs. 4200/-. The new Pay Scale will take effect from 01.01.2006. It was further directed that the units may ensure that all those Laboratory Technicians who are to be given the higher / revised Pay Scale strictly possess the required qualification as per SRO 88 dated 3™ August, 2005.
tos 5 . OA'66/2016 2.5 'As per this order, the applicants who are Lab Technicians but do not possess the required educational qualification as per SRO 88 of 2005, were not given the benefit of the revised pay scale. Aggrieved by this decision of the respondents, the applicants have filed this OA.
3. Learned Counsel for the applicant submits that the discriminatory stipulation as contained in the order has no rational justification and is patently arbitrary and illegal on several counts. Firstly, the order declares that Government has agreed to revise the Pay Scale of the Post of Lab Technicians working in the Hospitals of DGOF Organisation. Thus, when the pay scale ofa ~,/ post has been revised there is no scope to introduce any policy of pick and choose and thereby inflict discrimination amongst the holders of the post. Secondly, it is quite unknown that there is any one unified post without hierarchical grade structure under the Government of India with two different set of Pay Scales.
Thirdly, it is the settled principle of law that there cannot be unequal scales of pay for identical work under the same employer, which is irrational classification (AIR 1984 SC 541).
) | Fourthly, the mode of recruitment to the post of Laboratory Technician is by promotion from Blood Transfusion Assistant failing which by direct recruitment. The recruitment qualification for the post of Blood Transfusion:
Assistant is (i) Passed 10+2 or equivalent examination with Science Subjects,
(ii) Diploma in Medical Laboratory Technology from a recognized Institution,
(iii) Must have working knowledge of computer. It is, therefore, unthinkable that the BTAS when promoted to the post of Laboratory Technician can be 6 : OA 66/2016 discriminated and given a lower pay scale on the ground that they do not have B.Sc. degree as their educational qualification.
Fifthly, the educational and other qualification prescribed in SRO 88 of 2005 will be applicable only when direct recruitment is resorted to having failed to recruit by promotion and that too, the said eligibility criteria will apply for new applicants. These required qualifications cannot be applied to the existing incumbents holders of post who have been duly recruited under the provisions of validly promulgated Statutory Rules and Orders (SRO), am existing at the relevant point of time and who have served in the posts for ~ / decades.
Sixthly, denial of equal pay for equal work, so much so, granting higher Pay Scale to the juniors and denying the same to the seniors is against the fundamental principle of the Constitution being violative of Articles 14, 16 and 39(d) of the constitution.
4. Per contra, Learned Counsel for the respondents submits that based on the revised provisions of S.R.0.° 88 regarding educational qualification, Government of India decided-to up-grade pay- scale of Laboratory Technician from Rs. 5200-20200/- (Basic Pay) + Rs. 2800/- (Grade Pay) in Pay Band-1 to Rs. 9300-34,800/-(Basic Pay) + Rs. 4200/- (Grade Pay) in Pay Band-2 w.ef. 01.01.2006 and the samie was notified vide OFB letter dated 17.10.2014.It is specifically mentioned in the said OFB's communication that up- gradation was strictly applicable to those Laboratory Technicians who possessed the ~ required qualification as per SRO 88 dated 03.08.2005. As the applicants did not possess the requisite educational qualification as per S.R.O. 88, they were - .
' ' : ; 7 . OA.66/2016 > not granted the benefit of up- gradation of pay scale as mentioned ! hereinabove.
Learned Counsel for* the respondents further submits that representations submitted by the applicants were forwarded to the Ministry of Defence and then to the Ministry of Finance, however there has been no _ change in the original view.
Learned Counsel for the respondent further submit that the same issue has already been settled by the Co-ordinate Bench at Hyderabad vide its order D> dated 26.04.2021 in OA 021/00396/2015 (B. Ramchandar Goud & Anr. vs. Y UOI&ors.).
5. Heard the parties. Perused materials on record. 5.1 "From the judgement of the co-ordinate Bench of CAT at Hyderabad in | OA no.396/2015 delivered on 26.04.2021 available on record, we find that the issue of upgradation of pay scale of Lab Technicians in the OFB recruited ~ under earlier rules but who did not possess the education qualification as per the new rules has already been extensively deliberated upon by the Tribunal. The applicants herein 'are identically placed with those in OA 396/2005 filed in. Hyderabad CAT. Their grievances are also the same as those of the applicants in OA no. 396/2015. After a detailed deliberation the Co-ordinate Bench at Hyderabad observed:
PreeePeTIe reise rist reed The basic concept of higher qualification imparting better knowledge and "attracting higher pay, as enjoined in the RR, is a fact of lore which cannot be ignored. Thus in view of the latest judgment of Hon'ble Apex Court in 2019 cited supra, its own verdicts relied upon by the applicants delivered between 2009 to 2013 and that of the Hon'ble Principal Bench in OA 2660 of 2012 may not be of any assistance to the applicants. In fact, the differentiation has been done on an toe ; 8. OA 66/2016 intelligible basis, namely educational qualifications, experience in a lab, computer knowledge etc. The same amount of physical work may be 'differentiated by quality of work with some.work more sensitive, some requiring more fact and some less - it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object sought for, a certain amount of value judgment of the administrative authorities/ expert bodies, who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Tribunal unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact. 'In the instant case the pay scale variation has been brought about dué to the .- recommendations of the expert body like the CPC. The applicants have. not demonstrated that the differentiation in question was irrational or malafide by way of rejoinder. In the light of the averments made in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. Hence the principle of equal pay for equal work would not apply to the case of the applicants.
Moreover, in the concept of equal pay for equal work, the stress is upon similarity of skill, effort and responsibility when performed under similar conditions. Further, the quality of work may vary from post to post and from institution to institution. We cannot ignore or overlook this reality. It is not a matter of assumption but one of proof. The applicants have failed to establish that their duties, responsibilities and functions are similar to those with whom they compared themselves. They have also failed to establish that the -- distinction between their scale of pay and with those compared is either irrational and that it has no basis, or that it is vitiated by mala fides, either in law or in fact. [t must be remembered that since the plea of equal pay for equal work has to be examined: with reference to Article 14 of Constitution, the burden is upon the applicants to establish their right to equal pay, or the plea of discrimination, as the case may be. This burden the applicants have failed to discharge.
V. Applicants claim that the condition of educational qualification should not he applied to them is not maintainable since the respondents have to follow the rules ie, RR -2005. Ministry of Defence-has issued instructions vide letter dated 15.10.2014, as a matter of policy to enhance the grade pay to Rs.4200 provided conditions specified in RR-2005 are adhered to. In matters of policy there is very little scope for the. Tribunal to interfere as observed by Hon 'ble Uttarakhand High Court in Prakash Chandra vs State of Uttarakhand And _ Others on 10th October, 2019 tn Writ Petition (S/B) No. 467 of 2019 and in , 1 fe 9 | OA 66/2016 regard to rules, Hon'ble Supreme Court has emphasized that rules are to be abided by, in the following judgments:4
The Hon'ble Supreme Court in T.Kannan and ors vs S.K. Nayyar (1991) 1 SCC 544 held that "Action m respect of matters covered by rules should be regulated by rules". Again in Seighal's case (1992) (1) supp 1 SCC 304 the Hon'ble Supreme Court: has stated that "Wanton or deliberate deviation in implementation of rules should be curbed and snubbed." In another judgment reported in (2007) 7 SCJ 353 the Hon'ble Apex court held "the court cannot de hors rules".
Respondents have followed the rules and the law set by the Hon'ble Supreme Court as at-above.
VI. 'Other contentions made by both the parties have been gone into and since they lack legal force, they have not been dealt with. VH. In view of the aforesaid circumstances, we do not find any merit in the OA and hence, the same is dismissed with no order as to costs,"
6. We are bound by the decision of the coordinate Bench at Hyderabad in this case. We, therefore, dismiss the OA, along with the MA, on merits. No costs.
(Jayesh V. Bhairavia) Judicial Member