Central Administrative Tribunal - Delhi
Smt. Satya Maya Singh vs Union Of India on 18 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 1031/2015
New Delhi this the 18th day of March, 2015
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Smt. Satya Maya Singh
Retd. Assistant Nursing Superintendent,
Aged 62 years
W/o Shri J.R.W. Singh
R/o House No.26, Street No.2,
Anarkali Garden, Jagatpuri,
Delhi-110051. Applicant
By Advocate: Ms. Tamali Wad.
Versus
1. Union of India
Through Secretary,
Ministry of Labour,
Shram Shakti Bhawan, New Delhi-110001.
2. Director General,
Employees State Insurance Corporation,
Panchdeep Bhawan,
Comrade Inderjeet Gupta (CIG) Marg,
New Delhi-110 002.
3. Department of Personnel & Training
Through Secretary,
Ministry of Personnel, Public Grievances and
Pension, North Block,
New Delhi. ..Respondents
ORDER(ORAL)
G. George Paracken, Member(J) The applicant is retired as Assistant Nursing Superintendent from the respondent-Employees State Insurance Corporation (ESIC for short). She is aggrieved by the impugned Annexure A-1 order dated 26.12.2014. According to the said order the benefit of grade pay of Rs.6600/- under MACP cannot be extended to the Nursing Personnel of ESIC since the recommendation of O.M. dated 11.04.2014 is limited to the petitioners in OA No.141/2012 as per clarification issued by the Respondent-Ministry of Health and Family Welfare vide their letter dated 20.06.2014.
2. It is seen that the issue of granting grade pay of Rs.6600/- to the Assistant Nursing Superintendent has been considered by this Tribunal vide order OA No.141/2012 (supra) - Delhi Nurses Union (Regd) & Anr. v. Union of India and it was allowed vide order dated 09.05.2012. The operative part of the said order reads as under:-
5. We have heard Ms. Tamali Wad, advocate for the applicant, Shri Ashish Nischal for respondents 1, 2, 4 and 6 and Shri D. S. Mahendru for respondent No.5, and perused the entire facts of the case.
6. In view of the admitted facts by the parties in the OA as well as in the counter and rejoinder, we are of the opinion that the controversy involved in the case for adjudication is very narrow. It is an admitted fact that instant OA has been instituted on behalf of the Assistant Nursing Superintendents (ANS) working in various hospitals, and we have to adjudicate that if some ANS stagnates for a period of ten years, whether she would be entitled for the financial benefit of third MACP, and what benefit would be available to such ANS. It is also admitted fact that DNS is a promotional post in the same Grade Pay in PB-3. After implementation of the 6th CPC, these two posts were merged. There were two different scales of pay of Rs.6500-10500 and Rs.7500-12000 for ANS and DNS, and after merger a unified scale of pay band came into existence for both the posts of Rs.15600-39100 with Grade Pay Rs.5400/-. The dispute is whether an ANS not promoted to the higher post for a period of ten years would be entitled to the benefit of MACP with Grade Pay of Rs.5400/- or Rs.6600/- in PB-3. It has been alleged by the applicants that in view of the introduction of the MACP, an employee is entitled for grant of third MACP upgradation in the next higher Grade Pay, and if an ANS is in the Grade Pay of Rs.5400/-, then while granting the benefit of 3rd MACP, she would be entitled for the next higher Grade Pay of Rs.6600/-. It has also been stated by the applicants that they were drawing Grade Pay of Rs.5400/- in PB-3 consequent to their pay revision w.e.f. 01.01.2006 and were entitled to the third financial upgradation on satisfaction of the criteria laid down under the Scheme in the next higher Grade Pay of Rs.6600/- in PB-3 w.e.f. 01.09.2008, and accordingly their pay was re-fixed in PB-3 Rs.15600-39100 + Grade Pay Rs.6600/- in place of Rs.15600-39100 + Grade Pay Rs.5400/- while granting the benefit of third MACPS, but this order was withdrawn by the respondents in a most arbitrary and discriminatory manner vide office memorandum dated 09.12.2011 on the advice received from the respondent No.2 and directed all hospitals to immediately review the cases where the 3rd upgradation under MACPS had been granted to ANS on completion of 30 years of regular service. It is a fact that the grant of financial upgradation under MACPS is not a promotion; rather it is a financial upgradation when promotion is not available to an ANS after completion of 30 years of service. Hence, it is not going to make any difference if for the post of DNS, the promotional post, the Grade Pay is Rs.5400/-, but the benefit is to be granted of Grade Pay in the next higher Grade Pay. The respondents in their counter reply have alleged that it is a fact that MACPS envisages merely placement in the next higher Grade Pay, but DNS is a promotional post and ANS is the feeder cadre for the promotional post of DNS and both are in PB-3 with Grade Pay Rs.5400/-. An ANS, after promotion on the post of DNS will be entitled for the Grade Pay of Rs.5400/-, whereas ANS, the feeder cadre, on grant of third MACPS upgradation will be in the Grade Pay of Rs.6600/-, and it would be against the principles. That the normal channel of promotion is to this Grade and MACPS is only a fall back option.
7. We have to adjudicate what has been provided in the MACP Scheme. Annexure-I is the copy of the MACPS introduced as per recommendations of the 6th CPC. It is also an admitted fact that as per provisions of MACPS, an employee is entitled for the next higher Grade Pay while granting third MACPS upgradation. What is the meaning of immediate next Higher Grade Pay. All the ANS will be in the Grade Pay of Rs.5400/- and the DNS, which is the promotional post, will also be in the Grade Pay of Rs.5400/-. The criteria for promotion is entirely different. While granting promotion to ANS to DNS, one would be entitled for one additional increment and then her pay is to be fixed at the next higher stage, whereas while granting benefit of MACPS, one is entitled for the next higher Grade Pay. It is immaterial that ANS, the feeder cadre, and DNS, the promotional cadre, are in the same Grade Pay of Rs.5400/-, and while granting the benefit of MACPS, ANS will draw higher Grade Pay of Rs.6600/- in comparison to DNS, the promotional post, of Rs.5400/-. Earlier while granting the benefit of MACPS, the pay of the applicants was fixed with Grade Pay Rs.6600/-. Annexure A-6 is the copy of the order dated 01.04.2011 fixing the pay of the applicants in PB-3 with Grade Pay Rs.6600/-. It has been issued by the Government of India, Office of Medical Superintendent, Safdarjung Hospital & VMMC, New Delhi, but afterwards this Grade Pay was revised and the said order was withdrawn, and Grade Pay of Rs.5400/- was granted to the applicants. It has also been stated by the applicants that their counter-parts in AIIMS are getting the Grade Pay of Rs.6600/-. Earlier they were in the scale of PB-3 Rs.15600-39100 + Grade Pay Rs.5400/-, and were granted the next higher Grade Pay of Rs.6600/- under MACPS, and it has not been stated by the respondents that this order has been reviewed. When the counter-parts of the applicants in AIIMS are getting the same higher Grade Pay of Rs.6600/-, then how the applicants can be discriminated. Annexure A-5 contains answers to certain frequently asked questions on MACPS. At serial number 6, the point of doubt, Whether the promotions in same grade would be counted for the purpose of MACPS?has been replied as follows:
The financial upgradation under the MACPS is in the immediate next higher grade pay in the hierarchy of recommended revised pay bands and grade pay as given in CCS (Revised Pay) Rules, 2008. However, if the promotional hierarchy as per recruitment rules is such that promotions are earned in the same grade pay, then the same shall be counter for the purpose of MACPS We are not concerned here with promotion, but we have to adjudicate as to what Grade Pay would be admissible while granting the benefit of third MACPS on completion of 30 years of service without promotion, and according to the said query, the immediate next higher Grade Pay is admissible to such an employee, and the intention of granting MACPS is also the same. The respondents have not disputed that the next higher Grade Pay is to be granted while granting the benefit of third MACPS upgradation, even though they have disputed the admissibility of Grade Pay of Rs.6600/- because the ANS is the feeder cadre for the promotional post of DNS, and the Grade Pay of both ANS and DNS is Rs.5400/-. When an ANS will be promoted as DNS, then she would be entitled for Grade Pay of Rs.5400/-, whereas ANS, the feeder post, will be entitled for Grade Pay of Rs.6600/- while granting the benefit of third MACPS, but it is immaterial because promotion is entirely different and the benefit of third MACPS is different and both are to be decided on different parameters.
8. In this connection, the learned counsel for the applicants cited a judgment of the Honble High Court of Delhi in WP(C) No.3420/2010 in the matter of R. S. Sengor & others v Union of India & others, decided on 04.04.2011. The Honble High Court has held as follows:
11. Whatever may be the dispute which may be raised with reference to the language of paragraph 2 of the MACPS the illustration as per para 4 of annexure I to the OM, contents whereof have been extracted hereinabove, make it clear that it is the next higher Grade Pay which has to be given and not the grade Pay in the next hierarchical post and thus we agree with the Respondents that Inspectors have to be given the Grade Pay after 10 years of Rs.4800/- and not Rs.5400/- which is the Grade Pay of the next Pay Band and relatable to the next hierarchical post. To put it pithily, the MACPS Scheme requires the hierarchy of the Grade Pays to be adhered to and not the Grade Pay in the hierarchy of posts. Hence, in view of the judgment of the Honble High Court, it is evident that the next higher Grade Pay has to be given and not the Grade Pay in the next hierarchical post. It is immaterial that the next hierarchical post is DNS and on that post the Grade Pay is Rs.5400/-, but while granting the third financial upgradation under MACPS, the benefit is to be granted as per the provisions thereof, and it is the next higher Grade Pay which is admissible to an employee, and the next higher Grade Pay is Rs.6600/-. Since ANS is in the Grade Pay of Rs.5400/-, while granting the benefit of third MACPS, ANS will be given the Grade Pay of Rs.6600/- which is the next Grade Pay.
9. Hence, in view of the judgment of the Honble High Court of Delhi, in view of the wordings of the MACPS, as well as in view of the MACPS allowed to ANS of AIIMS, the applicants are entitled to the Grade Pay of Rs.6600/- and not Rs.5400/-. The order passed by the respondents dated 20.12.2011 is not in accordance with the MACPS and it is against the very spirit of the MACPS, and if the contention of the respondents is to be accepted, then no financial upgradation will be given to the ANS even after grant of third MACPS, which is not the intention of introduction of the MACP Scheme, and the applicants are entitled to the Grade Pay of Rs.6600/- and no recovery will be made from the applicants of the difference paid to them. The OA deserves to be allowed.
10. The OA is allowed. Orders dated 09.12.2011 and 20.12.2011 issued by the respondent Nos. 1 and 5 respectively, as well as order dated 30.12.2011 issued by the respondent No.6 are quashed and set aside. The respondents are directed to grant the benefit of MACPS to the applicants in the Grade Pay of Rs.6600/- in Pay Band 3 in the scale of Rs.15600-39100. No recovery shall be made from the applicants, and the applicants shall be entitled to the Grade Pay of Rs.6600/- in continuity of the earlier order dated 01.04.2011. The respondents shall comply with the order passed by this Tribunal within a period of one month from the date when copy of this order is communicated to them. There shall be no order as to costs.
3. The aforesaid order was challenged before the Honble High Court of Delhi in WP(C) No.5146/2012 - Union of India v. Delhi Nurses Union (Regd.) & Anr. and the said Writ Petition was dismissed vide judgment dated 24.08.2012. The operative part of the said judgment is also reproduced as under:-
3. Paragraph 2 of the MACPS is relevant for our purposes. It reads as under:-
2. The MACPS envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. Thus, the grade pay at the time of financial upgradation under the MACPS can, in certain cases where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organization will be given only at the time of regular promotion.
4. The learned counsel for the petitioner submitted that even paragraph 4 of the MACPS would be relevant. The said paragraph reads as under:-
Benefit of pay fixation available at the time of regular promotion shall also be allowed at the time of financial upgradation under the Scheme. Therefore, the pay shall be raised by 3% of the total pay in the pay band and the grade pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same grade pay as granted under MACPS. However, at the time of actual promotion if it happens to be in a post carrying higher grade pay than what is available under MACPS, no pay fixation would be available and only difference of grade pay would be made available. To illustrate, in case a Government Servant joins as a direct recruit in the grade pay of `1900 in PB-1 and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher grade pay of 2000 and his pay will be fixed by granting him one increment plus the difference of grade pay (i.e.100). After availing financial upgradation under MACPS, if the Government servant gets his regular promotion in the hierarchy of his cadre, which is to the grade of `2400, on regular promotion, he will only be granted the difference of grade pay between `2000 and `2400. No additional increment will be granted at this stage.
5. However, we feel that the said paragraph 4 would apply only in cases of regular promotion. The case before us is not of regular promotion but of grant of third financial upgradation under the MACPS. Therefore, paragraph 4, in our view will be of no consequence.
6. The learned counsel for the respondents also drew our attention to paragraph 20 of the MACPS which reads as under:-
20. Financial upgradation under the MACPS shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employees on the ground that the junior employee in the grade has got higher pay/grade pay under the MACPS.
7. From the above extracts, particularly of paragraph 2 and 20 of the MACPS, it is evident that the MACPS envisages the placement in the immediate next higher grade pay in the hierarchy of the recommended revised Pay Bands and grade pays as given in Section 1, Part-A of the first schedule of the CCS (Revised Pay) Rules, 2008. It is also clear that the financial upgradation under the MACPS is purely personal to the employee and does not have any relevance to his seniority position. As such, there is also a possibility of a junior employee, who having got the benefit of financial upgradation, getting a higher pay/grade pay than a senior employee.
8. We may also point out that in paragraph 19 of the MACPS it has been categorically stated that the financial upgradation under the scheme amounts to mere placement on a personal basis in the immediate higher grade pay/grant of financial benefits only and does not amount to actual/functional promotion of the employee concerned. In other words, the question of promotion to the next hierarchical post is totally de-linked from the question of grant of financial upgradation.
9. From the above mentioned First Schedule (Part-A) in Section I of the CCS (Revised Pay) Rules, 2008 it is apparent that the respondents fall within serial No.17 which falls in Pay Band-3 corresponding to the pay scale of `15600-39100 which has the corresponding grade pay of `5400/-. The relevant portion of the table is given below:-
THE FIRST SCHEDULE (See Rules 3 & 4) PART-A Section I Revised Pay Bands and Grade Pays for posts carrying present scales in Group A, B, C & D except posts for which different revised scales are notified separately Present Pay Revised Pay Structure S. No. Post/Grade Present Scale Name of Pay Band/Scale Corresponding Pay Bands/Scales Corresponding Grade Pay (1) (2) (3) (4) (5) (6) ..
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New Scale 8000-275- 13500 (Group A Entry) PB-3 15600-39100 5400 18 S-16 9000 PB-3 15600-39100 5400 19 S-17 9000-275-9550 PB-3 15600-39100 5400 20 S-18 10325-325-10975 PB-3 15600-39100 6600 21 S-19 10000-325-15200 PB-3 15600-39100 6600 ..
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10. It may also be pointed out that the next hierarchical post of Deputy Nursing superintendent also falls within serial No.17 in Pay Band-3 having the same grade pay of 5400/-. However, the next higher post of Nursing Superintendent falls within serial No.21 which is in the same Pay Band but carries the corresponding grade pay of 6600/-.
11. The only point of controversy here is whether the respondents are to be given the grade pay of ` 5400/- or` 6600/-. As pointed out above, the respondents state that under the MACPS it is only the next higher grade pay that has to be reckoned and not the grade pay of the next hierarchical post. On the other hand, the learned counsel for the petitioner contends that it would be the grade pay of the next hierarchical post which would be allowable to the respondents and not the next higher grade pay.
12. The learned counsel for the petitioner further drew our attention to answers given to Frequently Asked Questions on the MACPS issue by the DoPT. He sought to draw our attention to question at serial No.6 which reads as under:-
FREQUENTLY ASKED QUESTIONS (FAQs) ON MODIFIED ASSURED CAREER PROGRESSION SCHEME Point of doubt Clarification Point of doubt Clarification .
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Whether the promotions in same grade would be counted for the purpose of MACPS?
The financial up-gradation under the MACPS is in the immediate next higher grade pay in the hierarchy of recommended revised pay bands and grade pay as given in CCS (Revised Pay) Rules, 2008. However if the promotional hierarchy as per recruitment rules is such that promotions are earned in the same grade pay, then the same shall be counted for the purpose of MACPS.
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13. However, this again deals with the question of promotion with which we are not concerned. We are only concerned with financial upgradation under the MACPS.
14. It may be worthwhile to note that question No.1 under the same FAQs reads as under:-
Point of doubt Clarification
1.
What is Modified Assured Career Progression Scheme (MACPS)?
The MACPS Scheme for Central Civilian Government Employees is in supersession of earlier ACP Scheme. Under the MACP Scheme three financial up-gradations are allowed on completion of 10,20,30 years of regular service, counted from the direct entry grade. The MACPS envisages merely placement in the immediate next higher grade pay as given in Section I, Part-A of the first schedule of the CCS (Revised Pay) Rules 2008, in case no promotion has been earned by the employee during this period. .
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15. This apparently reiterates what has been stated in paragraph 2 of the MACPS and refers to the same table which we have already elaborated upon.
16. The learned counsel for the petitioner then referred to the OM dated 09.12.2011 issued by the Ministry of Health and Family Welfare (Nursing Section), as advised by Ministry of Finance, on the subject of grant of pay scale/grade pay to Assistant Nursing Superintendent under MACPS. The said office memorandum reads as under:-
No.A.11015/701/2011-N Govt. of India MINISTRY OF HEALTH AND FAMILY WELFARE (NURSING SECTION) NIRMAN BHAWAN, NEW DELHI DATED 9TH December, 2011 OFFICE MEMORANDUM SUB: Grant of Pay Scale/Grade Pay to Assistant Nursing Superintendent under MACP-reg.
Reference have been received seeking clarification regarding the pay scale/grade pay to be granted to Assistant Nursing Superintendent on completion of 30 years of service as per instructions under MACP scheme, consequent upon acceptance of recommendations of Sixth Central Pay Commission by the Govt. both Assistant Nursing Superintendent and its promotional grade Deputy Nursing Superintendent have been granted PB-3 Pay Scale of Rs.15600-39100 with grade pay of Rs.5400.
2. The matter regarding fixation of pay on account of grant of MACP to Assistant Nursing Superintendent on completion of 30 years of service was taken up with Department of Personnel & Training and on their advice with Ministry of Finance (Department of Expenditure). The issue has been examined by Ministry of Finance and they have advised as under:-
Ministry of Health & FW is informed that in the instant case, MACP would have to be given only in PB-3 with GP Rs.5400 as the normal channel of promotion is to this grade and MACP is only a fall back option.
3. It is further pointed out that Ministry of Health and FW vide its letter No.Z-28015/02/2009-N dated 31st March 2009 had clarified that under the provisions of CCS (RP) Rules 2008, on promotion from one grade to another having the same grade pay, the Govt. servant will be granted one additional increment on account of promotion.
4. In the light of the aforesaid advice given by Ministry of Finance (Dept. of Expenditure) and the clarification issued by Ministry of Health & FW in para 3 above, MACP granted by Dr. RML Hospital, New Delhi etc. to Assistant Nursing Superintendent on completion of 30 years of service may be reviewed immediately further necessary action taken accordingly. In case any clarifications are required, the same may be brought to the notice of Ministry of Health & FW in a consolidated manner duly approved from the Medical Superintendent of the Hospital within a period of two months positively failing which it will be assumed that no further clarification are needed in the matter.
Sd/-
(S.N. Sharma) Under Secretary to Govt. of India.
17. On going through the said office memorandum it is apparent that the so-called clarification, on which the learned counsel for the petitioner is relying, has been issued by the Ministry of Finance and not by the DoPT which has issued the MACPS. In our view, the so-called clarification does not improve the position of the petitioner.
18. Most importantly, this very issue had come up for consideration before this Court in the case of R.S. Sengor and Ors v. Union of India and Ors., in W.P.(C) 3420/2010 decided on 04.04.2011. In that case the petitioners were in Pay Band-1 and had a corresponding grade pay of Rs.1900/-. The next hierarchical post was also in Pay Band-1 but had a grade pay of Rs.2400/-. The petitioners herein claimed that since the next hierarchical post had a pay band of Rs. 2400/-, they should, on financial upgradation, under the MACPS, be granted the grade pay of Rs.2400/-. However, what the respondents in that case had done was to grant the petitioner therein the grade pay of Rs.2000/- which was the next higher grade pay though, not the grade pay corresponding to the next hierarchical post. The Division Bench dismissed the petition of the writ petitioner therein and held as under:-
10. The question would be whether the hierarchy contemplated by the MACPS is in the immediately next higher Grade Pay or is it the Grade Pay of the next above Pay Band.
11. Whatever may be the dispute which may be raised with reference to the language of paragraph 2 of the MACPS the illustration as per para 4 of Annexure I to the OM, contents whereof have been extracted hereinabove, make it clear that it is the next higher Grade Pay which has to be given and not the Grade Pay in the next hierarchical post and thus we agree with the Respondents that Inspectors have to be given the Grade Pay after 10 years in sum of Rs.4,800/- and not Rs.5400/- which is the Grade Pay of the next Pay Band and relatable to the next hierarchical post. To put it pithily, the MACPS Scheme requires the hierarchy of the Grade Pays to be adhered to and not the Grade Pay in the hierarchy of posts.
19. The Division Bench had clearly indicated that the MACPS requires the hierarchy of the grade pays to be adhered to and not the grade pay in the hierarchy of posts. This is exactly what the Tribunal has followed in its impugned order. If this is to be given effect to, we see no reason why this Court should not hold that the respondents are entitled to the next higher grade pay i.e., Rs.6600/-. The Tribunal has only directed that the respondents be given the next higher grade pay of Rs.6600/- based on the decision of this Court in R.S. Sengor (supra). We see no reason to take a different view. Consequently, the writ petition is dismissed. There shall be no order as to costs. The petitioners are given time of one month from today to implement the directions contained in the Tribunals order, as affirmed by us.
4. The SLP No.4399/2013 filed against the aforesaid order of High Court was also dismissed by the Apex Court vide order dated 04.03.2013.
5. Thereafter, the Ministry of Health and Family Welfare issued Office Memo No.Z-29011/1/2012-N dated 11.04.2013 wherein it has been decided to grant the benefit of 3rd MACP to the Assistant Nursing Superintendent on completion of 30 years of service in the grade pay of Rs.6600 in PB-3 in the scale of Rs.15600-39100. The said Memorandum reads as under:-
F.No.Z-29011/1/2012-N Ministry of Health & Family Welfare (Nursing Section) Nirman Bhavan,New Delhi-11 Dated the 11th April, 2013 OFFICE MEMO Subject: Grant of Pay-Scale/Grade Pay to Assistant Nursing Superintendent under MACP-reg.
Consequent upon acceptance of recommendations of Sixth Central Pay Commission by the Govt. both Assistant Nursing Superintendent and its promotional grade Deputy Nursing Superintendent have been granted P3-3 pay scale of Rs.15600-39100 with grade pay of Rs.5400/-
2. The matter regarding fixation of pay on account of grant of MACP to Assistant Nursing Superintendent on completion of 30 years of service was taken up with Department of Personnel & Training and MR) Finance (Department of Expenditure) and based on their advice instructions were issued by this Ministry vide OM No.A-11015/01/2011-N dated 09.12.2011 informing that MACP would have to be given only in PB-3 with GP Rs.5400 (copy enclosed). The concerned Hospitals were asked to review the cases of grant of MACP and take further necessary action accordingly.
3. Consequent upon this Delhi Nurses Union filed an O.A. No.141/2012 MA No.109/2012 in this connection in the Honble CAT and the Honble CAT vide its interim orders 16.01.2012 stayed the recovery. The matter was further agitated and the Honble CAT vide order dated 09.05.2012 directed as under.
the orders dated 09.12.2011 & 2012.2011 issued by the Respondent Nos.1 &5 respectively, as well as orders dated 30.12.2011 issued by respondent No. 6 are quashed and set aside. The Respondents are directed to grant the benefit of MACPS to the applicants in the grade pay of Rs.6600/- in PB-3 the scale of Rs.15600-39100. No recovery shall be made from the applicants, and the applicants shall be entitled to the Grade Pay of Rs.6600/- in continuity of the earlier order dated 01.04.2011.
4. The above said order of CAT was challenged in the Honble High Court of Delhi through a writ petition which was dismissed vide Judgment dated 24.08.2012 with the order to implement the CATs Order dated 09.5.2012. The order of the Honble High Court was again challenged before the Honble Supreme Court through SLP but the same was dismissed by the Supreme Court vide their judgment dated 04.3.2013.
5. Meanwhile, a contempt petition No.762/2012 has been filed in the Honble High Court of Delhi regarding non implementation of the judgment of the Honble CAT dated 09.05.2012. The Honble High Court vide order dated 15.03.2013 has directed to file the reply/compliance affidavit within 4 weeks.
6. The matter has been examined in the Ministry and in compliance of the Honble CAT, New Delhis judgment dated 09.5.2012 passed in OA.No.141/2012 and in supersession of this Ministrys OM No.A11.015/01/2011-N dated 09.12.2011 it has been decided to grant the benefit of 3rd MACPs to the Assistant Nursing superintendent on completion of 30 years of service in the grade pay of Rs.6600/- in PB-3 in the scale of pay of Rs.15600-39100. No recovery shall be made from the applicants.
7. This issues with the approval of Secretary (HMV).
SD/-
(S.N.Sharma) Under Secretary Govt. of India
1) Medical Superintendent, College of Nursing LHMC.
2) Smt. S.K. Hospital, New Delhi-110001.
3) Medical Superintendent, College of Nursing DR.R..LM. Hospital, New Delhi 110001.
4) Medical Superintendent, College of Nursing, Safdarjung Hospital, New Delhi -110029.
5) Director, CLTRI, Chengal Pattu-603001 (T.N).
6) Director, CIF, Kanke, Ranchi-834006.
7) Director, AIIH &PH, 110,Chattisgarh Avenue,Kolkata-700073.
8) Medical Superintendent, Sh.Vinoba Bhave Civil Hospital, Dadra and Nagar Haveli, UT, Silvassa-396320.
9) Director, CGHS, New Delhi.
10) Deputy Secretary/Director of all administrative divisions dealing with Hospitals.
11) NIC, MOHFW with the request to upload on the website of the Ministry with appropriate linkage.
Copy also to:
1. Department of Personnel and Training, North Block, New Delhi.
2. MLO Finance (Department of Expenditure, North Block, New Delhi.
6. However, the Ministry of Health and Family Welfare, vide their letter impugned Circular dated 20.06.2014 referring to their aforesaid OM dated 11.04.2013 stated that they have decided that the benefit of grade pay of Rs.6600/- under MACP cannot be extended to the Nursing Personnel of ESIC since the recommendation of the said OM is limited to the petitioners in OA No.141/2012 (supra) as per the clarification issued by Ministry of Health and Family Welfare vide letter No.Z-29011/1/2012-N dated 20.06.2014. The said letter of the M/o Health and Family Welfare reads as under:-
F.No.Z-29011/1/2012-N Ministry of Health & Family Welfare (Nursing Section) Nirman Bhavan,New Delhi-11 Dated the 20 June, 2014 Subject: Grant of Pay-Scale/Grade Pay to Assistant Nursing Superintendent under MACP-reg.
The undersigned is to refer to ths Ministrys OM No.Z-29011/1/2012-N dated 11th April, 2013 (copy enclosed for ready reference) on the above mentioned subject and to say that this Ministry has been receiving various references seeking to extend the benefits as contained in this Ministrys O.M. dated 11.04.2013 to other Asstt. Nursing Supdts working in different Institutions/Hospitals.
The matter has been examined in the Ministry and it is stated that O.M. dated 11.04.2013 has been issued in compliance of Honble CAT order dated 09.5.2012 in OA 141/2012 MA No 109/2012 directing to grant the benefits of MACP to the applicants. Further, Department of Personnel and Training has also directed that implementation of the above CAT orders will be limited to the petitioners only without any precedent value.
Sd/-
(B.S.Murthy) Director (Nursing)I 011-23062744 To,
1). Medical Superintendent, College of Nursing LHMC & Smt S.K. Hospital, New Delhi-110001.
2) Medical Superintendent, College of Nursing Dr.RM.L. Hospital, New Delhi.
3) Medical Superintendent, College of Nursing, Safdarjung Hospital, New Delhi -110029.
4) Director, CLTRI, Chengal Pattu-603001 (T.N) 5) Director, CIF, Kanke, Ranchi-834006. 6) Director, AIIH &PH, 110,Chattisgarh Avenue,Kolkata-700073. 7) Medical Superintendent, Sh.Vinoba Bhave Civil Hospital, Dadra and Nagar Haveli, UT, Silvassa-396320. 8) Director, CGHS, New Delhi. 9) Deputy Secretary/Director of all administrative divisions dealing with Hospitals.
10) NIC, M(HFW with the request to upload on the website of the Ministry with appropriate linkage.
Copy also to:
1. Department of Personnel and Training, Esstt.(D)., North Block, New Delhi with reference to their 1.0 No.58201/13/CR dt.02.08.2013.
7. In our considered view, the aforesaid decision taken by the respondents-M/o Health and Family Welfare is contrary to the judgment of the Apex Court in the case of K.T. Veerappa and Others v. State of Karnataka and Others(2006) 9 SCC 406, wherein it has been held that it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time. The relevant part of the said judgment reads as under:-
16. The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent University to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor and the Registrar of the University of Mysore. The benefits having been given to 23 employees of the University in compliance with the decision dated 21-6-1989 recorded by the learned Single Judge in WPs Nos. 21487-506 of 1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time.
17. Shri Sobha Nambisan, Principal Secretary to Government, Education Department (Higher Education), Government of Karnataka, in his latest affidavit dated 6-3-2006 filed in these proceedings has stated that after 1-1-1977, the Government of Karnataka has revised the pay scales of employees of the State Government in 1982, 1987, 1994 and 1999. From 1-1-1977 to 2006, the dearness allowance, house rent allowance and other allowances have also been revised. The revision of pay scales, dearness allowance, house rent allowance and other allowances extended to the State Government employees were also extended to the University employees from time to time. Moreover, a large number of Mysore University employees were promoted in terms of the time-bound promotion schemes of 10 years, 15 years and 20 years in terms of the government orders issued from time to time. The additional financial implications of Rs 60 lakhs will have to be borne by the State Government. He has categorically stated that the revision of pay scales extended to the employees of the State Government time and again will also be extended to all the University employees.
18. In our view, the impugned judgment of the High Court in WAs Nos. 7007-55 of 1999 dated 8-3-2000 is not legally sustainable. It is, accordingly, quashed and set aside.
19. Consequently, the appeals are allowed and the order of the learned Single Judge dated 29-10-1998 in Writ Petitions Nos. 11755 of 1994, CWs Nos. 3400-23 of 1993, 37901-04 of 1992, 35996 of 1992, 3426-43 of 1993 and 27004 of 1992 is restored and maintained. The respondents-the State of Karnataka and the University of Mysore, both are directed to extend the pay scales of 1977 and subsequent revisions to the appellants and pay the difference of monetary benefits to them within four months from the date of this order. In the facts and circumstances of the case, the parties are left to their own costs.
8. Again the Apex Court in the case of Purnendu Mukhopadhay v. V.K. Kapoor - (2008) 14 SCC 403, has held as under:-
14. According to the appellants, their case falls under category I of the Full Bench judgment. This fact has also been accepted by the respondents in their status report. Thus if the appellants were to be appointed and or promoted as Chargeman Grade-II before 1st January, 1973 they became seniors to the other employees. As we have noticed hereinbefore that S.K. Ganguli and others had been given the benefit of the order passed by the Tribunal. We do not appreciate the stand of the respondents in this behalf inasmuch as whereas one set of order involving employees who were similarly situated to those of the appellants, benefits have been given but the same are being denied to them. Such an action on the part of the respondents in our opinion is wholly unjustifiable. The judgment of a court, as is well known, should not be read as a statute. It has to be read in its entirety. So read, the appellants had become entitled to the grant of benefits contemplated thereby. There is no reason why the same shall be denied to them. [See Ramesh Chand Daga v. Rameshwari Bai (2005) 4 SCC 772, Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 and P.S. Sathappan v. Andhra Bank Ltd. (2004) 11 SCC 672] Our attention has also been drawn to the fact that apart from S.K. Ganguly and others some other persons who were similarly situated, namely - Prem Kumar Saha; S.K. Majumdar and Alopi Lal, have also been granted the same benefits.
15. In a case of this nature, in particular having regard to the fact that the respondents have granted similar benefits to others, we fail to understand as to how the decision of this Court in J.S. Parihar (supra) and Mittanlal (supra) could be applicable. The State cannot treat employees similarly situated differently. It cannot implement the orders in relation to one and refuse to do so in relation to others. It is also not a case like J.S. Parihar (supra) where while implementing the orders, a particular stand has been taken by the employer giving rise to a subsequent cause of action. It is also not a case where the order of this Court is capable to two interpretations. [See State of Bihar v. Rani Sonabati Kumari AIR 1961 SC 221, State of Kerala v. Unni (2007) (2) SCC 365 and Sneh Enterprises v. Commissioner of Customs 2006 (7) SCC 714].
16. For the reasons aforementioned the impugned judgment cannot be sustained. The appeal is allowed. We, however, before taking any punitive action against the contemnors at this stage, would like to issue a direction upon them to fully implement the orders of this Court as modified by this Court on the same terms as was done in the case of employees similarly situated. In facts and circumstances of the case the appellants shall also be entitled to costs which we quantify at Rs.25,000/-.
9. In view of the above settled position, we are of the considered view, that there is no need to issue notice to the respondents. Therefore, we dispose of this OA at the admission stage itself and quash the aforesaid impugned circular dated 26.12.2014. The respondents shall examine the case of the applicant and if her case is covered by the aforesaid judgments, she shall also be given the 3rd MACP benefits in PB-3 scale of Rs.15600-39100 with grade pay of Rs.6600/- w.e.f. 01.09.2008 accordingly within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/vb/