Central Administrative Tribunal - Delhi
Narendra S/O Shri Khazan Singh vs The Commissioner on 23 November, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1179/2011 This, the 23rd day of November 2011 Honble Dr. Veena Chhotray, Member (A) Honble Shri A.K. Bhardwaj, Member (J) 1. Narendra s/o Shri Khazan Singh Aged 39 years r/o SK-16 Sastri Nagar, Ghaziabad, UP 2. Ashok Kumar s/o Shri Bhim Singh Aged 40 years r/o 99, Kamruddin Nagar, Nangloi, Delhi 3. Mohan Singh s/o Shri Jaipal Singh Aged 36 years r/o 226, Vaishali Pitampura Delhi-43 4. Rajinder Kumar s/o Shri Prithi Singh Age 41 years r/o H.No.4, 2-B Nangloi Extension Delhi 5. Sompal s/o Shri Bharatu Singh Age 45 years r/o D-57, S/4, Dilshad Colony, Delhi-95 6. Sanjay Kumar Sharma s/o Shri Shankar Lal Sharma Age 39 years, R/o J-907-71, Jahangiripuri Delhi-33 7. Raghu Raj Kishore s/o Shri K KIshore Saxena Age 47 years r/o Flat No.98, Nimri Colony MCD, Phase II, Delhi-52 8. Raman Kumar s/o Shri Sadhuram age 36 years r/o WZ-315, Shakuyrpur Village, Delhi 9. Sanjay s/o Shri Sube Singh r/o B-44 New Roshan Pura, Najafgarh, Delhi 10. Fateh Chand s/o Shri Muktiram, age 41 years r/o H/361, Mangol Puri, Delhi-83 11. Mahesh Kumar Yadav s/o Shri Hari Kishan Aged 39 years, r/o Road No.1, House No.15 Punjabi Bagh Extension New Delhi-26 12. Sanjeev Kumar s/o Shri Om Prakash Verma Age 36 years, r/o 585 Khera Khurd Delhi-82 ..Applicants (By Advocate: Ms. Pragnya Routray) Versus The Commissioner Municipal Corporation of Delhi Civic Centre Jawaharlal Nehru Road, Near Minto Road Delhi-1 ..Respondent (By Advocate: Shri R K Jain) O R D E R
Shri A.K. Bhardwaj:
As is noted in the award of Presiding Officer, Industrial Tribunal No.I, Delhi passed in D.No.253 of 1983 on 23.5.1981, Municipal Corporation of Delhi (MCD) had employed Vaccinators in the pay scale of Rs.260-430 for vaccination work for eradication of smallpox. The main duty of Vaccinator was only to do so the job of smallpox vaccination and also to record the births and deaths at the specified centres. Smallpox was completely eradicated from India in the year 1977 and thereafter the expanded programme on immunization was introduced in December 1978. In this programme, every Vaccinator was re-designated as Immunizer and was required to perform the duties of a smallpox vaccination, cholera, typhoid, diphtheria, tetanus and pertusis inoculations besides the job of births and deaths registration. MCD had appointed Inoculators in the pay scale of Rs.330-560. Their job was inoculations of cholera alone, but under the expanded programme, Inoculators were also required to perform the same duties as were required to be performed by the immunizers. In the expanded programme, the Inoculators as well as Immunizers were performing the same nature of duties. Vaccinators and Inoculators were getting the pay scale of Rs.260-430.
2. Claiming equal pay for equal work, Delhi Municipal Karamachari Ekta Union served a demand notice dated 31.12.1979 to MCD asking it to grant the Immunizers the pay scale of Rs.330-560 w.e.f. 1.12.1978, i.e., the pay scale allowed to Inoculators. Finally, the industrial dispute between the Management of MCD, Delhi and its Workmen (Vaccinators/Immunizers) working in the Health Department, MCD was referred to the Presiding Officer, Industrial Tribunal No.I, Delhi by the Secretary (Labour), Delhi Administration, Delhi vide notification No.F.24(23)/81-Lab. dated 23.5.1981. The Industrial Tribunal was required to decide the reference, which reads as under:-
Whether the immunizers should be granted the pay scale of Rs.330-560 w.e.f. 1.12.7 by the management of M.C.D. and if so, what directions are necessary in this respect.
3. The said Tribunal examined the issue in detail and finally concluded that the Vaccinators after being trained to take up the inoculation work and after eradication of smallpox, Inoculators and Vaccinators were doing the same work. Arriving at such conclusion, Industrial Tribunal directed MCD to place the Vaccinators / Inoculators in the pay scale of Rs.330-560 w.e.f. 23.5.1981. Operative portion of award dated 23.9.1988 reads as under:-
48. Vaccinators/Immunizers, therefore, deserved to be granted the pay scale of Rs.330-560 pre-revised, as was admissible to Innoculators. The demand is for granting this grade w.e.f. 1/12/78. However, on the analogy of the judgment of the Honble Supreme Court in Delhi Municipal Karamchari Ekta Union Vs. Shri P.L. Singla and others 1988 Supreme Court cases Labour & Services, 468, I think, it proper that the pay scale be made applicable upon them w.e.f. the date of reference, i.e. 23/5/81, since they are regular employees of the Corporation, after being placed in the scale of Rs.330-560 w.e.f. 23/5/81 they will be entitled to usual increments and revisions of pay scales which may have been allowed from time to time in respect of Innoculators in the grade of Rs.330-560. The award is made accordingly.
4. Vide notification No.F.24(743)/96-ab/18638-43 dated 26.2.1996, Secretary (Labour), Govt. of NCT of Delhi again forwarded the dispute arising between the parties The Management of M/s Municipal Corporation of Delhi and Its Workmen as represented by Delhi Municipal Karamchari Ekta Union with the terms of reference, which has been reproduced hereinabove.
5. The Industrial Tribunal answered the said reference in positive and viewed that the workmen whose names appear in Annexure A-2 reference notification were entitled to the pay scale of Rs.1200-2040. Said workmen had been working with MCD as Vaccinators. In the aforementioned dispute, the Vaccinators (workmen) had relied upon office order dated 25.3.1992 issued by MCD (Health Department), Epidemiology Division, Delhi in terms of which Corporation had approved grant of provisional pay scale of Rs.330-10-380-EB-12-500 (pre-revised) to 150 Vaccinators working in MCD.
6. As can be gathered from the impugned order, the pay scale of Rs.330-560 allowed to Vaccinators, who were discharging the identical duties to those of Inoculators, was subsequently revised to Rs.1200-2040 and further revised to Rs.4000-6000 pursuant to recommendations of 5th Central Pay Commission (CPC). Applicants in the present OA are working as Vaccinators in MCD and have claimed the pay scale of Rs.5000-8000, i.e., at par with Vaccinator/PHI and also their re-designation as Public Health Inspector (PHI).
7. In paragraph 4.10 of the OA, it is stated by applicants that they were appointed as Vaccinators in MCD during the year 1999-1998 in the pay scale of Rs.1200-2040 revised to Rs.3050-4590 pursuant to recommendations of 5th CPC. Said paragraph reads as under:-
4.10 During the pendency of the abovementioned reference all the Petitioners herein were appointed as Vaccinators in the Municipal Corporation of Delhi in the year 1998/1999 in the pay scale of Rs.1200-2040 revised as Rs.3050-4590 as per 5th Pay Commission. This was a hostile discrimination practiced by MCD since the Beneficiaries of the first award, all those Vaccinators were granted a pay scale of Rs.330-560 (now Rs.5000-8000) whereas the Applicants who are also working as Vaccinators were appointed in the pay scale of Rs.1200-2040 revised as Rs.3050-4590) as per 5th Pay Commission. There was no difference in duties and responsibilities as well as the nature of work between the two categories of Vaccinators (i) who were the Beneficiaries of award of 1988 as well as the Vaccinators (the Applicants herein) who were appointed during the reference of the second award.
8. In paragraph 4.13 of the OA, applicants have submitted that their appointment in the pay scale of Rs.950-1500 (Rs.3050-4590) in the year 1998-99 was arbitrary. Paragraph 4.13 of the OA reads as under:-
4.13 That an award was passed in I.D. No.107/96 on 29.01.2001 granting the Vaccinators a pay scale of Rs.330-560 (now Rs.4000-6000) but the Petitioners were arbitrarily appointed in the pay scale of Rs.950-15000 (now Rs.3050-4590) in the year 1998-99. In fact in the said award the Ld Adjudicator observed that I am, therefore, of the considered view that the workmen concerned in his case cannot be denied the pay scale of Rs.1200-2040 simply for the reason that they were recruited in the lower pay scale or that the mater is subjudiced in the Honble High Court, because the beneficiaries of the Award under challenge are getting the higher pay scale of Rs.1200-2040. This issue, is accordingly, decided in favour of the workmen concerned. A copy of the award dated 29.01.2001 is annexed herewith and marked as ANNEXURE-A-7.
9. As is stated in the OA, certain Vaccinators, who were granted pay parity with Inoculators, were getting the pay scale of Rs.4000-6000, thus, they were re-designated as PHI in terms of circular dated 7.12.2011. While the Vaccinators, including the applicants, who were earlier re-designated as Assistant Inspector (EPID), were again re-designated as Assistant Public Health Inspector (APHI) in the pay scale of Rs.4000-6000. Claiming parity with such Vaccinators, who were given pay parity with Inoculators, applicants filed WP (C) No.4419/2002 before Honble High Court.
10. As stated in paragraph 4.21 of the OA, in terms of order dated 14.5.2009 passed by Division Bench of this Tribunal, TA-375/2009 ( WP (C) No.4419/2002) (transferred to this Tribunal) was disposed of with direction to MCD to consider and decide the claim of applicants for pay scale of Rs.5000-8000. In compliance of said order passed by this Tribunal, respondents issued speaking order dated 5.10.2009. Challenging the said order, applicants again filed OA No.3632/2009 before this Tribunal. The said OA was disposed of in terms of order dated 15.9.2010 (Annexure A-19). In paragraph 8 of the said order, it is viewed that once admittedly as on 1.1.1998 applicants were in the pay scale of Rs.4000-6000, they could be re-designated as PHI.
11. In sum and substance, in the said order, it was held that once on a particular date, i.e., 1.1.1998 the Vaccinators, who had undergone inoculation training and also those who had not undergone such training, were treated at par, thus they could not be treated differently for further benefits. Paragraphs 7 & 8 of the said order read as under:-
7. Once a conscious decision after Dr. Pattanayak Committees report has been taken to segregate and re-designate APHI and PHI on the basis of pay scale in vogue at the time of decision, any additional ground cannot be taken to supplement their decision. We have not found anything on record that Vaccinators, who were existing right from 1998 and were given training for immunization, have been promoted as Vaccinator Inspector and were enjoying the pay scale on the basis of their promotion. Mere re-designation and higher pay scale would not be the criterion, which goes against the statutory rules, which admittedly are yet to be amended.
8. In the above view of the matter, once the pay scale of Rs.4000-6000 is the sole criterion of re-designating PHI, applicants, who were admittedly in the pay scale from 1.1.1998 when the decision was taken to re-designate on 7.12.2001, they cannot be re-designated as APHI and accorded the same pay scale of Rs.4000-6000. The basis of grant of higher pay scale of Rs.5000-8000, being the erstwhile pay scale of Rs.4000-6000, cannot deny the benefits to the applicants.
12. Recording aforementioned findings, this Tribunal had disposed of OA-3632/2009 directing the respondents to consider the claim of applicants for grant of higher pay scale. In compliance of aforementioned order, respondents have passed impugned order.
13. Ms. Pragnya Routray, learned counsel appearing for applicants submits that so far no recruitment rules for the post of APHI are notified and all the Vaccinators, including applicants and those who are re-designated as PHI, were appointed in terms of recruitment regulations for the post of Vaccinators only. She further submits that the pay scale mentioned in recruitment regulation for the post of Vaccinator is Rs.260-430.
14. Making a reference to circular dated 24.3.2008, learned counsel for applicants submits that the job performed by PHI/APHI is same. Relying upon Schedules of Establishment 2007-2008 issued by MCD (Annexure A-12), learned counsel for applicants submits that pay scale of Vaccinator/Vaccinator Inspector mentioned in the said Schedules is same, i.e., Rs.4000-6000.
15. Per contra, learned counsel appearing for respondents submits that such Vaccinators, who were given training to perform the job of Inoculators and who were considered performing the same job as were being performed by Inoculators, were granted higher pay scale. To substantiate his argument, learned counsel appearing for respondents has read out award dated 23.9.1988 placed on record as Annexure A-3.
16. We have heard learned counsel appearing for the parties and perused the record.
17. Learned counsel appearing for applicants has made an attempt to justify the claim of applicants for their re-designation as PHI and pleaded that in the absence of any recruitment rules for said post, the recruitment rules available for the post of Vaccinator need to be followed and in terms of said recruitment rules all the Vaccinators need to be treated equally. Said submission made by learned counsel appearing for applicants seems to be demolishing her own claim for re-designation of applicants as PHI. If the argument advanced by learned for applicants, i.e., the post of PHI does not exist is accepted, then her own claim for re-designation as PHI becomes baseless in view of her own submission.
18. Submission made by learned counsel appearing for applicants that in view of Schedules of Establishment 2007-2008 issued by MCD the Vaccinator/Vaccinator Inspector need to be given the same pay scale would again not support the claim of the applicants, as in the said Schedules, the pay scale of 150 Vaccinators, who were given inoculation training and the pay scale of Vaccinator Inspectors, are indicated. Furthermore, in addition to the pay, Vaccinator Inspectors were granted FTA. In any case, reference to Schedules of Establishment is not relevant to the proposition arises for determination in the present case.
19. The issue arises for our determination is when the Vaccinators, who had been given inoculation training, are re-designated as PHI, whether applicants, who were so appointed in the year 1998-99, are also entitled to be so re-designated. As far as the awards of Industrial Tribunal (supra) are concerned, same would not be relevant to the issue for the reason that in terms of said awards, Vaccinators given training as inoculators were declared entitled to the pay scale of Rs.330-560 (revised to Rs.1200-2040 and further revised to Rs.4000-6000. The re-designation of said Vaccinators as PHI in next higher pay scale, i.e., Rs.420-640 (revised to Rs.1400-2600 and further revised to Rs.5000-8000 is independent of awards.
20. On recommendations of Dr. Pattanayak Committee to review the structure and functions of the public health services of the MCD, Commissioner, MCD vide order dated 6.12.2001 has accorded his approval for one PHI for each municipal ward. In terms of said office order, Health Inspector, Inspectors (Epid) Vaccinator Inspectors and Assistant Inspectors (Epid) Vaccinators working in the pay scale of Rs.4000-6000 were required to work as PHIs. Said order reads as under:-
On the recommendations of the Dr. Pattanayak Committee, constituted to review the structure and functions of the public health services of the Municipal Corporation of Delhi (MCD), Commissioner, MCD vide his order dated 06.12.2001 has accorded his approval for one Public Health Inspector (PHI) for each Municipal Ward.
They will perform the duties of Public Health and Epidemiology Divisions, except activities related to vector borne diseases. In addition, one PHI will perform the duties of Food Hygience Inspector (FHI) in each Zoone.
Health Inspector, Inspectors (Epid) Vaccinators Inspectors and Assistant Inspectors (Epid) Vaccinators working in the pay scale of Rs.4000-6000/- shall work as Public Health Inspectors.
21. Thus, if as on 7.12.2001 applicants were working in the pay scale of Rs.4000-6000, in terms of aforementioned order, they are entitled to work as PHI and In case as on said date they were working in the pay scale of Rs.3050-4590, they would not be entitled to benefit of said order.
22. From the averments made in paragraphs 4.10, 4.13 and 4.19 of the OA, it appears as on 7.12.2001 or before that date, applicants were working in the pay scale of Rs.3050-4590 and only from 30.10.2008 they were granted pay scale of Rs.4000-6000. Even in Annexure A-2 also, the pay scale of applicants as on 30.10.1998 is mentioned as Rs.3050-4500. In the recruitment rules for the post of Vaccinators, the pay scale of the post is mentioned as Rs.260-430 revised to Rs.950-1500 and further revised to Rs.3050-4590. In the year 1998, applicants had accepted their appointment in terms of said recruitment rules. It is also not the case of applicants that they had ever undergone training to perform the job of Inoculators or they were ever granted the pay scale at par with Inoculators. It is also not their case that prior to 2001they ever claimed pay parity with other Vaccinators. It is also not case of the applicants that any of their junior, i.e., Vaccinators, who were appointed after their appointment, is granted higher pay scale of Rs.5000-8000 or re-designated as PHI. On the basis of circumstances prevalent at a given point of time, i.e., functional requirement or otherwise, the incumbents of a post in position may get certain benefits, but the subsequent appointee of such post, who accepted a job in terms of recruitment rules and offer of appointment given to them, cannot claim such benefit.
23. Moreover, it is always open to management/governing body to do the restructuring and if the beneficiary of such restructuring is senior, the junior incumbents of the post may have no ground to complain. In other words, besides the training undergone by them even if senior Vaccinators could otherwise be re-designated as PHI, junior Vaccinators re-designated as APHI with promotional avenues to the post of PHI could not have made any complaint.
24. As has been held by Honble Supreme Court in the case of P.U. Joshi & others v. Accountant General, Ahmedabad & others, (2003) 2 SCC 632, question relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy which is within the exclusive discretion and jurisdiction of the State. Paragraph 10 of the said judgment reads as under:-
10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
25. In any case, although from the averments made in the OA and details given in Annexure A-2 enclosed therewith, it is clear that as on 7.12.2001 applicants were working in the pay scale of Rs.3050-4590 but in paragraph 8 of the order dated 15.9.2010 passed by this Tribunal, it is noted that as on 1.1.1998 and also as on 7.12.2011, when order of re-designation was issued, applicants were working in the pay scale of Rs.4000-6000. Order dated 30.10.1998 (Annexure A-2) reads as under:-
In compliance of orders dated 11.09.1998 of Honble High Court of Delhi passed in CWP No.2727/97 & 139/98 the following petitioners, whose selection were made by the DPC held on 6,7 & 8 Feb. 1997 and recommendation of said DPC were approved by the Competent Authority on 11.02.1997, are hereby appointed to the post of Vaccinators in the pay-scale 950-1500 (revised as per Vth CPC) with immediate to effect:-
S.No. Name of Candidate
1. Sh. Raghu Raj Kishore s/o Late Kaushal Kishore
2. Sh. Rajinder Kumar S/o Shri Prithi Singh
3. Sh. Sanjay S/o Sh. Sube Singh
4. Sh. Sanjay Kumar Sharma, S/o Sh. Shanker Lal
5. Sh. Raman Kumar S/o Sh. Sadhu Ram
6. Sh. Mahesh Kumar S/o Sh. Hari Krishan
7. Sh. Mohan Singh S/o Sh. Jai Pal
8. Sh. Tarseem Kumar S/o Sh. Ram Kishan (S.C.)
9. Sh. Sh. Bhoopender Kumar S/o Sh. Surinder Kumar (S.C.)
10. Sh. Fateh Chand S/o Sh. Mukti Ram (S.C.)
11. Sh. Narendra S/o Sh. Khazan Singh (O.B.C)
12. Sh. Satish Kumar S/o Sh. Raj Pal Singh (O.B.C.) The appointment of aforesaid are subject to following terms & conditions as per rules:-
The appointment is on purely temporary basis but likely to be continued.
It is subject to satisfactory report of the police verification of his/her character and antecedents.
The appointment can be terminated by either party on one month notice or one months salary in lieu thereof.
He/She will have to produce two copies each of his/her degree/diploma/registration certificate and testimonials alongwith their originals for verification by the Incharge of the hospital concerned, i.e. the institution where posted.
He/She will have to communicate his/her permanent and present postal address to the undersigned and the Incharge of the hospital concerned and notify all subsequent changes therein under proper acknowledgement. All the communicated addressed to the candidates at the above address given by his/her shall be deemed to have been delivered to him/her own risk and responsibility or proper delivery of letters sent at the said address.
He/She will have to furnish a declaration as under:-
I am unmarried/window or I am married and have only one spouse living. The marriage has been contracted with a person having no living spouse. In the event of his/her being unauthorisedly absent from duty and the official communication sent to him/her on the last known address on official record having been received back, undelivered, he/she will be treated as absenting from duty and it would not be possible to give due opportunity to him/her under Section 95 of the DMC Act, 57 read with Rule 9(ii) of DMC Service (Control & Appeal) Regulation, 59 as deemed fit. He/She shall not leave India without getting the requisite leave sanctioned by the competent authority or tendering resignation from the municipal service and clear all the municipal does before leaving the country. He/She shall be on probation for a period of two years.
He/She can be transferred to any municipal institutions within the territorial limits of Delhi. The appointment is further subject to Rules and Regulations as applicable MCD employees with amendments as made from time to time. It is subject to the medical fitness.
He/She will have to produce a character certificate from a District Magistrate/Magistrate 1st Class or by any two member of Parliament or any two Class I Gazetted officers known to him/her for the last three years. If any declaration made or information furnished by him/her proved to be false or any material information is found to have been willfully suppressed, he she will be liable to be removed from service and for such other action as the appointing authority may deem fit. His/Her appointment is subject to satisfactory report of verification of his/her character & antecedents & he/she shall have to submit character verification from duly filled in duplicate alongwith two copies of his/her photograph duly attested by a Gazetted Officer at the time of collecting their authority letter for medical examination. The appointment is to be made against a reserved vacancy and its continuance is subject to the dereservation of the post of case suitable SC or ST candidates are not available. They are directed to report to EIPD for further duty This issue under the orders of Addl. Commissioner (Health) dated 30.10.1998. In view of aforementioned, it would be appropriate to require the respondents to specifically examine the issue and indicate the pay scale of applicants as on 7.12.2001.
26. In the circumstances, we deem it appropriate to direct the respondents to verify the pay scale of applicants as on 7.12.2001. In case it is found that applicants were appointed in the pay scale of Rs.3050-4590 and as on 7.12.2001 they were working in the same pay scale, they would not be entitled to be re-designated as PHI in the pay scale of Rs.5000-8000. It is further directed that in case it is found that as on 7.12.2001 applicants were working as vaccinators in the pay scale of Rs.4000-6000 they would be entitled to the benefit of aforementioned order dated 7.12.2001. However, grant of pay scale of Rs.4000-6000 to applicants on their re-designation as APHI would not entitle them to further higher pay scale of Rs.5000-8000.
27. OA disposed of in the aforementioned terms. No costs.
( A.K. Bhardwaj ) ( Dr. Veena Chhotray ) Member (J) Member (A) /sunil/