Central Administrative Tribunal - Ernakulam
P.S.Vambathi vs Union Of India Represented By The ... on 10 March, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.1236/2013
Friday, this the 10th day of March, 2017
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
1. P.S.Vambathi,
S/o.late A.P.Syed,
Puthiya Surambi House,
Kadamath, U.T of Lakshadweep.
Presently working as Laboratory Technician,
Community Health Centre, Kadamath,
U.T of Lakshadweep.
2. T.Hameed,
S/o.late Abdul Rahiman,
Melal Illam House, Amini,
U.T of Lakshadweep.
Presently working as Laboratory Technician,
Community Health Centre, Amini,
U.T of Lakshadweep.
3. P.V.P.Badarudeen,
S/o.late Edayakkal Attakoya,
Laboratory Technician,
Community Health Centre,
Androth Island, U.T of Lakshadweep. . . . Applicants
(By Advocate Mr.M.P.Krishnan Nair)
Versus
1. Union of India represented by the Secretary to Government,
Ministry of Health and Family Welfare,
Department of Health, Nirmal Bhavan,
New Delhi - 110 001.
2. The Secretary to Government,
Ministry of Home Affairs,
North Block, New Delhi - 110 001.
3. The Administrator,
Union Territory of Lakshadweep,
Kavaratti - 682 555.
4. The Director of Medical and Health Services,
Union Territory of Lakshadweep, Kavaratti - 682 555.
5. District Employment Officer,
District Employment Exchange,
U.T of Lakshadweep, Kavaratti - 682 555. . . . Respondents
(By Advocates Mr.K.Kesavankutty [R1-2] & Mr.S.Manu [R3-5])
This application having been heard on 2nd March 2017, the Tribunal on
10th March, 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER This O.A is filed against Annexure A-11 order dated 26.8.2013 issued by the 2nd respondent by which the representation of the applicants for pay fixation as per 1996 pay scale Rs.5000-8000 and corresponding VI CPC pay band of Rs.9300-34800 was rejected. Applicants argue that the order is not a speaking order but only stated that the Ministry of Health and Family Welfare had considered the representation of the Lab Technician earlier which was rejected vide letter dated 27.7.1999. Lakshadweep Administration also rejected the claim of applicants vide order dated 11.6.2009 in compliance of the order of Tribunal in O.A.No.204/2004 filed by K.C.Sayed & ors. The Tribunal in a similar case rejected the claim of the applicants vide order dated 8.7.2011. But applicants argue that their case has not been considered in the light of Annexure A-7 representation. Applicants also draw attention to this Tribunal order dated 8.8.2012 in O.A.No.513/2012 with the following direction to the 1 st respondent :
'4. We have heard the learned counsel for the parties and perused the records.
5. The long standing demand of the applicants is forwarded by the Lakshadweep Administration to the 1st respondent vide letter dated 21.1.2011 at Annexure A6. As the scale of pay of the posts under Lakshadweep Administration is regulated with the approval of the concerned Ministry of the Government of India, the 1st respondent in the instant case has to consider and decide the question of granting the pay band and grade pay to the applicants. It is regrettable that no action has been so far taken on their representations.
6. Under these circumstances the 1 st respondent is directed to consider the representations (Annexure A7) annexed with Annexure A6 and dispose of the same by a speaking order and communicate the same to the applicants within a period of four months from the date of receipt of a copy of this order.
2. The 2nd respondent issued Annexure A-11 stating that :
'And whereas the Ministry of Health and Family Welfare had considered the representation of the Lab Technicians earlier which was rejected vide their letter No.14020/37/99-Mal. (B) dated 27.7.1999.
And whereas UT of Lakshadweep Administration had rejected the claim of applicants vide speaking order dated 11.6.2009 in compliance of the order of Hon'ble CAT in O.A.No.204/2004 filed by Shri.K.C.Sayed and others.
And whereas the Hon'ble CAT, Ernakulam Bench in a similar case (O.A.No.239/2009) rejected the claim of the applicants vide its order dated 8.7.2011.
Now, in view of the above circumstances, this detailed speaking order rejecting the representation of the petitioners, is issued.'
3. Applicants have filed the present O.A challenging Annexure A-11 order issued by the 2nd respondent with the prayer :
' To declare that applicants are entitled to get pay in the scale of Rs.5000-8000 pre-revised and Rs.9300-34800 with Grade Pay of Rs.4200/- with retrospective effect from 1.1.1996 and consequential service benefits and monetary benefits with compound interest.'
4. The applicants are at present working as Laboratory Technicians in the Community Health Centres at Kadamath, Amini and Androth respectively. Applicants were appointed in the year 1990 in the pay scale of Rs.1320-2040. They were having the qualification of Pre-Degree with Science and Certificate Course in Medical Laboratory Technology. The minimum qualification prescribed for the post of Laboratory Technician is Plus Two with Diploma or Certificate of Laboratory Technology. When the 5th Central Pay Commission scales were implemented the Laboratory Technicians in Lakshadweep were given the scale of Rs.4000-6000 and the scale was enhanced to Rs.4500-7000. It is argued that Laboratory Technicians have to act and operate various instruments and equipments in the clinical laboratory for conducting Pathological, Bio Chemical, Bacteriological, Blood Banking and other routine tests of blood, Urine, sputum, cholestrol, bilirubin, uric acid etc. to determine their chemical composition and the extent of variation from normal healthy specimens.
5. In the Lakshadweep Administration there are some posts of Laboratory Assistants (non teaching staff) working in the Education Department. They are having SSLC (10 th Std.) or Plus Two without any technical qualification. Their duties are limited to arrange the lab equipments and chemicals and assist the concerned teachers for demonstration of experiments in the class room/laboratory. But they are getting the pay scale of Rs.9300-34800 with Grade Pay of Rs.4200/- in PB-2. Applicants argue that all the Central Pay Commissions have elaborately discussed and established the need for enhancement of pay considering the qualification and skill especially VI CPC at para 3.8.14. In the meanwhile the Laboratory Assistants working in the Education Department in the Lakshadweep Administration which are lower in grade, education qualification and lesser responsibility with similar promotional avenue are allowed higher pay scale than the Laboratory Technicians working in the Hospitals, CHCs and PHCs with higher grade, educational qualification and higher responsibilities. Accordingly, the Laboratory Technicians were required to be in the scale of Rs.1400-2600. The equivalent scale recommended is Rs.5000-8000. It is also recommended that 50% of the total posts for the grade of Rs.5000-8000 can be directly recruited with degree qualifications. While these recommendations were implemented in some of the Department, it has not been implemented for the Laboratory Technicians who are continuing in a lower scale of pay.
6. Applicants argue that having joined in the year 1990 they are still in the same grade even after 21 years. Their counterparts who joined the Central Government Service elsewhere, such as the National Malaria Eradication Programme, National Institute of Communicable Diseases, Safdar Jang Hospital, New Delhi, and such other institutions under the 3 rd respondent were given higher scales periodically and those who were recruited after the applicants are now given the scale of Rs.5000-8000. But the applicants and other similarly placed Lab Technicians in the Lakshadweep service are given the scale of only Rs.4500-7000. Applicants argue that Shri.V.P.Mohammed Mustafa, Instructor (Mechanic Diesel), Shri.K.P.Kunhikoya, Instructor (Carpenter), Shri.D.A.Sadiqu Ali, Instructor (Workshop Cal. & Sc. (Engg. Drg.) and Shri.C.M.Pokunhikoya, Instructor (Stenography) filed O.A.No.252/2012 before this Tribunal for a declaration that the applicants are entitled to have their pay fixed in the scale of Rs.5500-9000 in the light of Annexure A-7. This Tribunal as per Annexure A-15 order dated 25.6.2013 in O.A.No.252/2012 directed the respondents to take decision within four months. The 2 nd respondent issued Annexure A- 16 and allowed the applicants who were Vocational Instructors in Central Government ITI, at Kavaratti the enhanced benefits. We note that the teaching jobs performed by applicants in O.A.No.252/2012 and applicants in this O.A are not comparable.
7. Applicants also cite the case of Shri.A.Bader and 7 others in O.A.No.317/2011 who are working as Machineman Grade III in Lakshadweep Government Press (L.G.P) wherein the Tribunal directed the Lakshadweep Administration to forward the representation to the 2 nd respondent. As per Government Order issued by Home Ministry D.O.No.15039/59/97-Plg. Dated 24.7.1997 Laboratory Assistant is not teaching staff. The Vth Commission recommended that Laboratory Technician requires Graduation to get pay scale of Rs.5000-8000 which is contested by the applicants as unsustainable. With medical lab technology becoming more and more advanced to deal with new and more complicated diseases, the applicants argument for higher scales without better qualifications to deal with newer invasions by drug resistant bacteria and virus appears to be unsustainable.
8. Respondents argue that the upgradation of the pay scale of Lab Technician was taken up with Ministry of Health & Family Welfare, Government of India who had considered the representations of the Lab Technicians and rejected their claim by the letter dated 27.9.1999. Further in an identical case, O.A.No.329/2009 this Tribunal had rejected the claim of identically situated applicants by order dated 8.7.2011. In O.A.No.513/2011 this Tribunal directed the respondents to consider their representation for enhancement of wages. In compliance of the Tribunal's directions, the Ministry of Home Affairs considered the representation and rejected their claim for equalisation with Laboratory Technician in Directorate of National Malaria Eradication Program (NMEP) clearly citing the disparity in the entry qualification, nature and responsibilities of employment, vertical and horizontal hierarchy of posts and the recommendations of the Pay Commissions.
9. The pay scale of different posts in all Departments of the Administration is distinct and suited to the job definition, educational qualification and its similarity with like placed posts. The pay scale of the post of Lab Technicians under the Department of Education is different and is not comparable to the pay scale of Lab Technicians under Medical Department. The Lab Technicians under Education Department with whom applicants seek parity are placed in the teaching category and their pay scale is different from the pay scale of employees in other Departments. The Education Department has its own pay scales for the posts attached to it.
Shri.S.M.Musthafa Kamal Pasha is an employee of the Education Department and hence Pasha's Annexure A-2 pay fixation order in PB-2 cannot suo moto be applied to the posts borne under the Department of Health Services of Lakshadweep in PB-1 as the pay scales of Education Department and Health Services are in different Pay Band II and I respectively with GP Rs.4200 and Rs.2800. The pay scale of the post of Lab Technicians under Health Services, Lakshadweep was fixed at Rs.4500-7000 (pre-revised) in view of recommendations of the Central Pay Commission. The Lab Technicians working under the Health Department approached the Tribunal by O.A.No.204/2004 for getting their pay scales upgraded from Rs.4500-7000 to Rs.5000-8000 (pre-revised). The Tribunal directed the respondents to pass a speaking order in the matter. Aggrieved by the order passed by the respondents, they again approached the Tribunal by filing O.A.No.839/2009. The Tribunal after careful consideration of the case dismissed the O.A as there was no merit in the arguments of the applicants. The Tribunal in its order held as follows :
'8. b�&.....The Government of India had rejected the representations of the applicants stating that the entry qualification of Laboratory Technician in Lakshadweep is much lower than the entry qualification for filling up the post of Laboratory Technician elsewhere. Therefore, they are not entitled to the benefit of clarification dated 18.7.2001 as there is no post of Technical Assistant in the hierarchy for the applicants for promotion and also because of the lower entry qualifications of the applicants. As such, there is no merit in the contention of the applicants. The O.A is liable to be dismissed.'
10. Hence applicants have been before the Tribunal earlier also and could not get a relief in their favour. It is submitted that Annexure A-6 was forwarded on 21.1.2011 long before the above Annexure R-3 (a) order was passed by this Tribunal. Regarding the contention of the applicants that their counterparts working in various institutions at Delhi like NMEP etc. are getting higher pay scale, it is clarified by respondents that those posts are having higher entry educational qualifications than the Lab Technicians in Lakshadweep and hence a comparison cannot be drawn. The Lakshadweep Administration argue that they would upgrade the scale if the Government of India ignoring the lower qualification of Lab Technicians of Lakshadweep accord approval. Hence it appears that the Island Administration despite being aware of the lower qualification of its employees, is under pressure to accede. Such an attitude to pass on responsibility to the Tribunal to rest their case, despite the lack of higher qualification, is not to be encouraged. This is not a case where the Tribunal had not considered the prayer of the applicants. The applicants had filed a second O.A.No.513/2011 before this Tribunal seeking the same relief and this Tribunal observed as follows :
'5. The long standing demand of the applicants is forwarded by the Lakshadweep Administration to the 1st respondent vide letter dated 21.1.2011 at Annexure A-6. As the scale of pay of the posts under Lakshadweep Administration is regulated with the approval of the concerned Ministry of the Government of India, the 1st respondent in the instant case has to consider and decide the question of granting the pay band and grade pay to the applicants. It is regrettable that no action has been so far taken on the representations.
6. Under these circumstances the 1st respondent (MHA) is directed to consider the representations (Annexure A-7) annexed with Annexure A-6 and dispose of the same by a speaking order and communicate the same to the applicants within a period of four months from the date of receipt of a copy of this order.'
11. The Ministry of Home Affairs in compliance passed Annexure A-11 order on 26.8.2013. It is submitted that Annexure A-11 is a well reasoned order citing clear reasons for not accepting the demands of the applicants.
The said order stated the following :
' b�&.....And whereas, it was observed that the entry qualification for the filling up of the post of Laboratory Technicians in Directorate of National Malaria Eradication Programme (NMEP) is B.Sc. (Biology)/Bio- Chemistry/Microbiology whereas the qualification for the post of Laboratory Technicians in UT of Lakshadweep is pass in pre-degree with Physics and Chemistry and Diploma Course in Medical Laboratory Technology or Certificate Course from a recognized institution. As such the Recruitment Rules in respect of Laboratory Technicians in UT of Lakshadweep are not comparable with those of in the Directorate of NMEP, New Delhi.
And whereas the Laboratory Technicians under the UT of Lakshadweep have been performing duties like screening of Malaria and Filaria in the field level etc. on the other hand the Laboratory Technicians in NMEP are required to coordinate and supervise the control measures on Malaria and Filaria. They are also involved with training, research and entomological studies in the field and laboratory.
And whereas, the Laboratory Technicians in the Directorate of NMEP are in the Third Tier of hierarchy and basic qualifications as well as experience are higher than those obtaining in the UT of Lakshadweep. The qualifications/experience etc. of the Laboratory Technicians in Lakshadweep are comparable with those of the post of Insect Collector in the Directorate of NMEP which is the lowest position in the Directorate of NMEP and they are placed in the pay scale of Rs.3050-4500 (pre-revised).
And whereas, in 1996, the Pay Commission recommended the scale of pay of Rs.4500-7000 by merging the post of Laboratory Technicians and Senior Laboratory Technicians into one category. After merger of pay scales of Laboratory Technicians and Senior Laboratory Technicians, there is no well defined hierarchical post in the Health Department under UT of Lakshadweep Administration for promotion for Laboratory Technicians. The post of Technical Assistant is a post under Aids Control Society, which is not a permanent post for providing promotion to the Laboratory Technicians. The applicants has already been allowed higher grade of ACP to which they are actually entitled.....' The 2nd respondent had passed a well reasoned order while rejecting the claim of the applicants. It is not therefore necessary for applicants to make repeated representations and for respondent to give repeated replies on the same contention.
12. The Apex Court in Steel Authority of India Limited and Others Vs. Dibyendu Bhattacharya (2011) 11 SCC 122 held that the person claiming parity, must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on the person claiming such right. The relevant portion of the judgment reads as under :
'19. In State of Haryana & Anr. v. Tilak Raj & Ors., AIR 2003 SC 2658, this Court held as under :-
'11. b�&.....To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with other group vis-a-vis an alleged discrimination........
12. 'Equal pay for equal work' is a concept which requires for its applicability complete and wholesome identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.'
20. In Harbans Lal & Ors. v. State of Himachal Pradesh & Ors., (1989) 4 SCC 459, this Court considered a similar issue and observed that while determining the issue of parity in pay, large number of considerations and various dimensions of the job are required to be taken up by the courts. The accuracy required by the job and the dexterity it entails may differ from job to job. It cannot be evaluated by the mere averments in the self-serving affidavits or counter affidavits of the parties. It must be left to be evaluated and determined by expert body.
The Court further held as under :
'11. b�&.....The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced....' (emphasis added)
21. In Mewa Ram Kanojia v. All India Institute of Medical Sciences and Ors., (1989) 2 SCC 235, this Court dealt with an issue of pay parity between Speech Therapists and Audiologists and held that merely because Speech Therapists perform similar duties and functions in other institutions, are paid higher pay-scales is no good ground to accept the petitioner's claim for equal pay. There may be difference in educational qualifications, quality and volume of work required to be performed by the hearing therapists in other institutions. The person claiming parity must sufficiently produce material before the Court to adjudicate upon such a complicated issue of factual determination. More so, if the employer is not the same, the principle of equal pay for equal work would not be applicable.
22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules etc. The doctrine of `equal pay for equal work' as enshrined under Article 39 (d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum.
The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on person claiming such right. (Vide U.P. State Sugar Corporation Ltd. & Anr. v. Sant Raj Singh & Ors., AIR 2006 SC 2296; Union of India & Anr. v. Mahajabeen Akhtar, AIR 2008 SC 435; Union of India & Ors. v. Dineshan K.K., AIR 2008 SC 1026; Union of India & Ors. v. Hiranmoy Sen & Ors., (2008) 1 SCC 630; Official Liquidator v. Dayanand and Ors., (2008) 10 SCC 1; Uttar Pradesh State Electricity Board & Anr. v. Aziz Ahmad, (2009) 2 SCC 606; and State of Madhya Pradesh & Ors. v. Ramesh Chandra Bajpai, (2009) 13 SCC 635).
23. This Court while deciding a similar issue in State of West Bengal & Anr. v. West Bengal Minimum Wages Inspectors Association & Ors., (2010) 5 SCC 225, held as under :
'18. b�&...The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts.
19. The principle `equal pay for equal work' is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.
20. The burden to prove disparity is on the employees claiming parity.' (emphasis added) (See also State of Kerala v. B. Renjith Kumar & Ors., (2008) 12 SCC
219) XXXXXXXXX
27. In S.C. Chandra & Ors. v. State of Jharkhand & Ors, (2007) 8 SCC 279, this Court held :
'35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups........' XXXXXXXXX
30. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.'
13. The entry qualification for filling up the post of Laboratory Technician in the Directorate of National Malaria Eradication Programme is B.Sc. (Biology)/Bio-Chemistry/Microbiology whereas the qualification for the post of Laboratory Technician in the UT of Lakshadweep is pre-degree pass with Physics and Chemistry and Diploma Course in Medical Laboratory Technology or Certificate Course from a recognized institution. As such, the Recruitment Rules in respect of Laboratory Technician of the UT of Lakshadweep Administration is not comparable with that of the Directorate of NMEP, New Delhi.
The Laboratory Technician in the Directorate of NMEP are in the Third Tier of hierarchy of posts. The qualifications/experience etc. of the Laboratory Technicians in Lakshadweep are comparable with the lower post of Insect Collector in the Directorate of NMEP which, 2nd respondent argues, is the lowest position in NMEP. The above referred comparison is on the basis of notified Recruitment Rules for the two posts.
14. The respondent also brings to our notice that educational qualification of the Lab Assistant in the Department of Education of the Lakshadweep Administration was Pre-Degree (Group 1 st or 2nd) as per the Recruitment Rules notified vide F.No.8/44/72-Dev.II dated 11.11.1972 which was later on amended vide notification dated 4.2.2011. As per the amended Recruitment Rules the educational qualification required for the post is B.Sc. Degree with Physics/Chemistry/Zoology/Botany or its equivalent as one of the main subjects or its equivalent. The nature of duty of the Lab Assistant is to prepare the Laboratories in the schools for conducting the laboratory classes for the students and to assist the subject teacher to conduct the practical classes whereas Lab Technicians under the Health Department of the UT of Lakshadweep have been performing duties like screening of malaria and filaria in the field level etc. There is an element of teaching assistance in the Lab Assistant post in schools.
15. As argued and noted by the Bench, the educational qualifications, duties and responsibilities of both the posts are entirely different from each other and therefore pay parity between them cannot be drawn. Both the posts are not comparable in the nature of duties performed, and scales of pay of educational institutions are different from the pay scales of para- medical/laboratory personnel in Health Department. The applicants have been before the Tribunal on two occasions earlier and adduces no new arguments in support of their case. The contentions raised in the O.A are devoid of merit and accordingly the O.A is dismissed. No costs.
(Dated this the 10th day of March 2017)
(P.GOPINATH) (N.K.BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp