Central Administrative Tribunal - Delhi
Dr. Suresh Malik vs Indian Red Cross Society on 27 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2964 of 2010 This the 27th day of April, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. Suresh Malik, Medical Officer, Indian Red Cross Society, 1, Red Cross Road, New Delhi-110001. Applicant ( By Shri N. Prabhakar, Advocate ) Versus Indian Red Cross Society through its Secretary General, 1, Red Cross Road, New Delhi-110001. Respondent ( By Shri L. R. Khatana, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Dr. Suresh Malik, the applicant herein, a Medical Officer with Indian Red Cross Society, constituted under the Indian Red Cross Society Act, 1920, through present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, seeks a direction to be issued to the respondents to implement the scheme known as Dynamic Assured Career Progression Scheme (for short, DACPS).
2. The facts of the case as projected in the Application, on which the relief aforementioned is sought to rest, need a necessary mention. The applicant came to be appointed as a Medical Officer with the respondent Society on 9.12.1993 and is eversince working on the said post. It is the case of the applicant that the respondent Society through its managing body is empowered to frame rules and regulations, which, in terms of Section 5(1)(i) of the Indian Red Cross Act, 1920 may provide, inter alia, for conditions of service of the officers of the Society. It is pleaded that the managing body in exercise of the powers under Section 5 of the Act of 1920 has framed rules for management, functions, control and procedure of the Society. These rules are called the Indian Red Cross Society Rules, 1994. The rules aforesaid do not provide for any matter relating to promotion and other service conditions, and, therefore, the Society, as per its own representation, is guided by the Central Government rules. Copy of a publication inter alia to this effect, made by the respondent Society in fulfillment of its statutory obligation as a public Authority, under clause (b) of sub-section (1) of Section 4 of the Right to Information Act, 2005 has been placed on records as Annexure P-3. It is further the case of the applicant that the managing body in its meeting held on July 28, 1999 unanimously approved that the pay and allowances of the staff of the Society on National Headquarters roll may be revised as per the recommendations of the Fifth Central Pay Commission. In other words, the Society, it is the case of the applicant, through its managing body had agreed inter alia to implement the DACP Scheme, applicable to medical officers of Central Health Service qua the medical officers of the Society as well. The total strength of the cadre is just three at present. A sub committee constituted by the finance committee of the respondent Society to look into the staff related matters, it is further the case of the applicant, also observed that the Society would be guided by the Government of Indias pay scales for all of its staff and as such the pay scales in the Society could be compared with the Government of India pay scales for respective posts. The Society is stated to have extended the incentive of Assured Career Progression Scheme to the officers holding isolated posts. Ministry of Health and Family Welfare, Government of India, vide notification dated 5th April, 2002 announced the DACP Scheme for the doctors of the Central Health Services up to the scale of Rs.14300-18300. The Scheme provided for time-bound promotion of medical officers up to the level of chief medical officer (non functional selection grade) without linkage to the vacancies. The applicant made various representations to extend him the benefit of DACP Scheme and to make the said Scheme applicable, but the managing body rejected his claim vide order dated 21st April, 2008. Naturally, the prayer of the applicant is to set aside the said order as well and in consequence thereof, to extend him the benefit of DACP Scheme. The respondent Society vide circular dated 27th January, 2009, it is the case of the applicant, has implemented the decision of the Government of India on the recommendations of the Sixth Pay Commission for all its employees.
3. Pursuant to notice issued by this Tribunal, the respondent Society has entered appearance and by filing its counter reply contested the cause of the applicant. By way of preliminary objection it is stated that the OA would be barred by limitation as provided under Section 21 of the Act of 1985. The applicant, it is stated, has challenged the order dated 21.4.2008 in 2010, and the present OA has been filed more than two years thereafter, and would, therefore, be barred by limitation. On merits of the controversy, it is pleaded that the applicant does not have any legitimate or legally valid grievance because the so-called DACP Scheme on which he is basing his claim, is not applicable to the employees of the respondent Society, inasmuch as, the same has not been adopted by the Society. It is pleaded that the medical officers, including the applicant, in the blood bank of the respondent Society, have exclusively separate pay scales not comparable with the pay scales of medical officers in the Central Government Health Scheme, and that the duties and responsibilities of the above two categories of medical officers are also totally different, inasmuch as the medical officers in the respondent Society are recruited only in connection with the blood bank, whereas the medical officers of CGHS discharge different multifarious duties including attending to patients, prescribing medicines/treatments etc. to the patients, which is not the case with the applicant. It is pleaded that the applicant has sought to project as if seeking guidance from any rule or instructions of the Government is synonymous with the said rule or instruction being ipso facto applicable to the respondent Society, which would be wrong. The managing body of the respondent Society, it is further pleaded, is supreme in its administrative and financial affairs and the Government rules or instructions are applicable only to such extent as are specifically made applicable by the managing body/committee. It is denied that the respondent Society is exclusively guided by the Central Government rules/instructions. It is, however, stated that the service rules and pay scales of some secretariat posts in the National Headquarters of the respondent Society, which are non-technical in nature, may some time coincide with the rules and pay scales of the employees of the Central Government, but that would not mean that all the Central Government rules/instructions would be ipso facto applicable to the employees of the Society. It is the case of the respondent Society that the pay and allowances of non-technical posts existing in its National Headquarters, which are having similar scales of pay as that of the Central Government departments, were revised as per the guidelines of the Pay Commissions, but the same cannot be construed to mean that each and every recommendation of the Central Pay Commission is ipso facto applicable to the employees of the Society. It is denied that the managing body had agreed inter alia to implement the DACP Scheme applicable to the medical officers of Central Government Health Scheme qua the medical officers of the Society. It is pleaded that the post of medical officer in blood bank of the Society is a technical post, but at the same time the duties and functions of the post are not identical to that of the medical officers in the Central Government Health Services.
4. The applicant has filed rejoinder to the written statement filed on behalf of the respondent Society controverting the preliminary objection as regards limitation, by stating that higher pay scale would be a recurring cause of action and, therefore, there would be no limitation for such a cause. There would be no need to refer to the pleadings made on merits of the controversy in the rejoinder, as nothing based thereon was argued during the course of arguments.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Relief, such as grant of higher pay scale, is indeed a recurring cause of action, and the OA cannot be dismissed being barred by limitation, even though the relief may be limited from the date when the cause may not be barred by limitation. Learned counsel representing the applicant in his endeavour to show that fixation of pay being a recurring cause of action, no limitation would be involved, has cited judicial precedents in M. R. Gupta v Union of India [AIR 1996 SC 669]; Union of India v Taresm Singh [(2008) 8 SCC 648]; and M/s Sethi Auto Service Station & another v Delhi Development Authority [AIR 2009 SC 904]. The preliminary objection raised by the respondent as regards bar of limitation is unsustainable and is, therefore, repelled.
6. On merits of the controversy, however, we are of the view that the applicant has no case. It is admitted position that there are no service rules dealing with any of the service matters, and the decisions as regards the same, including fixation of pay scales, are taken by the managing body of the Society. The main plea of the applicant is that by decisions taken by the respondent Society from time to time, it has been decided that service rules as regards pay scales as may be applicable to Central Government employees shall mutatis mutandis apply to the employees of the Society. This plea of the applicant canvassed through his counsel is not borne out from the various documents relied upon by him on that behalf. The applicant has indeed placed on records a copy of the rules called the Indian Red Cross Society Rules, 1991. The same do not contain any provision as regards pay scales admissible to employees working with the Society. The managing body is empowered to frame rules and regulations, which, in terms of Section 5(1)(i) of the Act of 1920, may provide for conditions of service of the officers of the Society. In exercise of powers conferred upon the Society under Section 5 of the said Act, rules have been framed, but admittedly, the same do not provide for matters relating to promotion and other service conditions. It is also true that the Society deals with such matters by decisions taken by it through its managing body, for which meetings are held from time to time. The applicant is stated to have obtained information under the Right to Information Act, vide which, it is the case of the applicant that a decision was taken that wherever the rules are silent, the same rules as may be applicable to Central Government employees shall be applied. The information obtained by the applicant has been placed on records as Annexure P-3, relevant para 5 on which reliance has been placed, reads as follows:
The rules, regulations, instructions, manuals and records, held by the Society or under its control or used by its employees for discharging its functions.
As per IRCS Act, Rules and Standing Orders, Indian Red Cross Society is having its own rules framed by the Managing Body and the decision taken by the Managing Body from time to time. Wherever the rules are silent, guidance is taken from the Central Government rules. The applicant has also placed reliance upon the decision taken by the respondent Society dated 30.7.1099, which reads as follows:
The Managing Body in its meeting held on July 28, 1999 accepted with approval the minutes of the Finance Committee meeting held on November 7, 1997. The Managing Body also approved that the pay and allowances of the staff of IRCS on National Headquarters rolls may be revised as per the recommendations of the Vth Central Pay Commission.
In view of this decision of the Managing Body, Salary Section in the IRCS may draw and disburse the August 1999 salary as per the revised scales of pay and allowances payable thereon.
Approval is solicited please. Reliance has also been placed on recommendations made by the sub committee constituted by the finance committee of the respondent Society to consider the staff related matters, meeting of which was held on 12.6.2001. Relevant part of the recommendation relied upon would read, thus:
The committee further observed that IRCS is guided by the GOI pay scales for all its staff and as such the pay scale in IRCS could only be compared with GOI pay scale for the respective posts AIIMS being a separate institution, the same cannot be considered for the purpose of anomaly/disparity. The disparity observed in the case of Lab technician needs to be considered for rectification. The committee recommends that the scale of Lab technician be revised to the equivalent scale of 4500-125-7000 from the present pay scale of 4000-100-5000 effectively from the date of decision.
7. Before we may comment upon the documents on which reliance has been placed, as adverted to above, we may only mention that 5th Central Pay Commission had recommended DACP Scheme for officers of the Central Health Service which was adopted by the Government of India, Ministry of Health & Family Welfare (Department of Health) vide order dated 5.4.2002, and it is indeed true that insofar as, the medical officers employed with the Central Government are concerned, they have been extended the benefit of DACP Scheme.
8. Para 5 of the information that has been received by the applicant under RTI Act would not support the cause of the applicant at all. Indeed, the rules as regards applicable pay scales and extension of schemes that may enhance the pay scales of the employees are not mentioned in the rules framed by the respondent Society. The same are thus silent. However, it is not that wherever such rules are not in existence, the one that are applicable as regards the Central Government employees would mutatis mutandis apply to the employees of the respondent Society. It is only that guidance is to be taken from the Central Government rules. The applicant has been extended the pay scale recommended by the 5th Central Pay Commission, as that was thought proper by the respondent Society, but it has not been thought proper and expedient by the Society to extend the benefit of DACP Scheme, as in that regard the matter came before the managing body, and such claim of the applicant was specifically rejected vide order dated 21.4.2008. Insofar as, order dated 30.7.1999 is concerned, the managing body of the Society has approved that the pay and allowances of the staff of the Society on National Headquarters rolls may be revised as per the recommendations of the 5th Central Pay Commission. If the recommendations of the Pay Commission have been accepted by the respondent Society, it would not automatically mean that all recommendations of the Commission, like DACP Scheme, shall also be automatically extended to the employees of the respondent Society. The recommendation of the sub committee is also as regards pay scales and not with regard to various schemes that may be applicable to Central Government employees. It appears to us that the respondent Society has not extended the benefit of DACP Scheme to the applicant for the primary reason that the duties carried out by the applicant are entirely different than the one carried out by the medical officers of Central Government. It has been pleaded that the applicant is engaged in the duties only as may be attached to the blood bank. It is explained to us during the course of arguments that the only job of the applicant is to collect, test, deposit and release the blood samples. The medical officers in general duties are engaged in patient care, which are different and far more arduous. If the respondent Society based upon the set of duties carried out by the applicant and the medical officers of Central Health Services has not extended the benefit of DACP Scheme to the applicant, no exception can be had to the same. We may refer to the decision of the Honble Supreme Court in Suryanarayan Sahu & others v Council of Scientific & Industrial Research [(1998) 2 SCC 162]. The facts of the case aforesaid reveal that the applicant/appellant Sahu was working as Senior Draftsman in the Regional Laboratory, Bhubaneswar, a unit of CSIR. He filed an OA in the Tribunal seeking pay scale broadly on the pattern of 3rd Central Pay Commission report. He asked for a particular scale, and which, when was not granted by the Tribunal, he filed an appeal before the Supreme Court challenging its order. CSIR is a Society registered under the Societies Registration Act. Rules and regulations and bye-laws govern the functioning of CSIR. Its affairs are to be administered, directed and controlled, subject to rules and regulations and bye-laws and orders of the Society, by the Governing Body. Under bye-law 12, conditions of service of officers and staff of CSIR are governed by the CCS (CCA) Rules and CCS (Conduct) Rules for the time being in force. Under bye-law 14, the scales of pay applicable to all the employees of the Society shall not be in excess of those prescribed by the Government of India for similar personnel, save in the case of specialists. Under bye-law 15, in regard to all matters concerning service conditions of employees of the Society, the Fundamental and Supplementary Rules framed and such other rules and orders issued by the Government of India from time to time shall apply to the extent applicable to the employees of the Society. The applicant who was a matriculate and possessed diploma of draughtsman was initially appointed as a tracer in the Regional Research Laboratory, Bhubaneswar in the pay scale of Rs.110-200. He was promoted to the post of junior draughtsman in the scale of Rs.115-240, and further to the post of senior draughtsman in the pay scale of Rs.380-640. Recommendations of the 3rd Central Pay Commission were accepted by the Central government w.e.f. 1.1.1973. One of the recommendations of the Pay Commission related to the scale of pay of draughtsman and senior draughtsman. Whereas, draughtsmen were to be in the pay scale of Rs.330-560, senior draughtsmen were divided into two groups with two scales of pay of Rs.330-560 and Rs.425-700. Fifty per cent of the senior draughtsmen who were high up in the seniority were given the scale of Rs.425-700 and the remaining 50% were placed in the lower scale of pay. This division of senior draughtsmen was challenged before the Supreme Court, and a plea was raised that draughtsmen, both junior and senior, discharged identical duties and performed similar work and that, that being so, there was little or no justification in putting 50% of them in a hi gher scale of pay and 50% others in a lower scale. This plea was accepted. A direction was issued to the Government to fix the pay scale of junior draughtsmen also at Rs.425-700. Thereafter, the Government by way of notification dated11.9.1985 decided that the draughtsmen who were in the pay scale of Rs.205-280 prior to 1.1.1973 and were placed in the scale of Rs.330-560 based on the recommendations of the 3rd Pay Commission, might be given the scale of Rs.425-700 notionally from 1.1.1973. Even though, the rules made by the respondent Society were such as mentioned above, it was still held that the recommendation of the Pay Commission could not be made applicable to CSIR suo moto and it would be up to the governing body of CSIR to adopt the recommendations of such Pay Commission. CSIR by resolution had been adopting the recommendations of the Pay Commission for formulating the pay scales of different categories of its employees but the recommendations, it was stated, were not adopted in toto and that the CSIR adopted a broad pattern of Government of India scales as recommended by the 3rd Pay Commission. It was held that the draughtsmen of CSIR could not claim equality with those of CPWD. It was further held that CSIR was not bound to follow all the recommendations of the Pay Commission, which, as per its bye-laws, stated that conditions of services of its officers and staff shall be governed by CCS (CCA) Rules and CCS (Conduct) Rules for the time being in force. Surely, all recommendations of the Pay Commission shall not be binding upon the respondent Society as well.
9. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/