Central Administrative Tribunal - Ernakulam
Santhosh Kumar. R vs Union Of India on 1 June, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00300/2015
Thursday, this the 1st day of June, 2017.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
1. Santhosh Kumar. R,
Technical Assistant - A,
Department of Bio-Chemistry,
Sree Chitra Tirunal Institute for Medical Sciences &
Technology, Medical College (P.O),
Thiruvananthapuram - 695 011.
2. Pradeep M.J,
Technical Assistant - A,
Department of Neurology,
Sree Chitra Tirunal Institute for Medical Sciences &
Technology, Medical College (P.O),
Thiruvananthapuram - 695 011.
3. Forum of Medical Technologists (FORMTECH),
Sree Chitra Tirunal Institute for Medical Sciences &
Technology, Medical College (P.O),
Thiruvananthapuram - 695 011 represented by its
Secretary, Pradeep M.J. - Applicants
[By Advocate Mr. C.A. Majeed]
Versus
1. Union of India, represented by Secretary,
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi - 110 001.
2. Ministry of Personnel, Public Grievances and Pensions,
North Block, New Delhi represented by Secretary to
Ministry of Personnel, Public Grievances and Pensions,
Government of India, New Delhi - 110 001.
3. Ministry of Science and Technology,
Department of Science and Technology,
Shaheed Jeet Singh Marg, New Delhi,
Represented by Secretary to Ministry of Science &
Technology, New Delhi - 110 001.
4. Sree Chitra Tirunal Institute for Medical Sciences &
Technology, Medical College (P.O),
Thiruvananthapuram - 695 011 represented by its Director.
5. The Director,
Sree Chitra Tirunal Institute for Medical Sciences &
Technology, Medical College (P.O),
Thiruvananthapuram - 695 011.
6. The Director General (Health Services).
Ministry of Health and Family Welfare,
Room No 444 A, Nirman Bhavan,
Maulana Azad Road, New Delhi - 110 001. - Respondents
R-6 impleaded vide order dated 01.03.2017.
[By Advocates : Mr. N. Anilkumar, Senior PCGC (R) for R-1 to 3
Mr. T.R. Ravi for R-4 and 5]
The application having been heard on 06.04.2017, the Tribunal
st
on 1 June 2017 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member 1st and 2nd applicants are Technical Assistants in the 4th respondent Institution and 3rd applicant is an Association of the Technical Assistants, who were provided with Hospital Patient Care Allowance. HPCA is a risk allowance since the nature of their duty renders them vulnerable and susceptible to debilitating and life threatening communicable diseases. Eligibility is drawn from the fact that these are categories of persons who are at a high risk of contacting hospital related infections acquired directly from patients or through other bio hazards and they also pose additional risk of transmitting the infections to their family members also. Even though the 6th Pay Commission recommended an insurance coverage and the compensation of loss suffered by Group C employees including the applicants by the discontinuance of HPCA/PCA, through the introduction of a Performance Related Incentive Scheme, the decision taken by the Government was not in conformity with the recommendations made by the 6th Pay Commission. The Government while taking the decision upon the recommendations have not addressed the aspect of introduction of a Performance Related Incentive Scheme if HPCA/PCA is discontinued with respect to existing Group C employees classified as Group B (Non-Ministerial). The assurance regarding the introduction of Insurance Scheme with effect from 01.04.2009 and Performance Related Incentive Scheme are also not implemented till date. The discontinuance of HPCA/PCA by the 4th respondent has put the applicants to loss.
2. The Association in the O.A comprises of Clinically Trained Technical category of employees with designations Technical Assistants, Junior Technical Officers, Scientific Assistants, Scientific Officers from departments of Anesthesiology, Biochemistry, Cardiology, Microbiology, Histopathology, Cellular and Molecular Cardiology, Neurology, Physiotherapy, Pathiology, Perfusion, Trasfusion Medicine Toxicology, Tissue Culture, Thrombosis Research Unit, Transmission Electron Microscopy Laboratory, Experimental Pathology, Laboratory for Animal Sciences, Radiology, In-vitro model testing Lab in the hospital and Bio-Medical Technology Wing of Sree Chitra Tirunal Institute for Medical Sciences and Technology.
3. The applicants nature of work and the environment of work involve constant, full time, continuous and routine contact and exposure with patients affected with communicable diseases, handling of infected materials, instruments and equipments which could spread infections from human tissues or organs, through blood and other body fluids, pathological fluids and discharges, biochemical and microbiological samples, and infections from animals and animal tissues and organs as part of hospital, diagnostic, therapeutic interventions or samples generated during health care, research, testing, biomedical work or other related procedures. The nature of work also involves routine handling exposure and contact with other hazardous samples like toxic, corrosive, inflammable, reactive or injurious substances or chemicals, carcinogens, ionizing radiations like x-rays, gamma rays and beta rays. Routine contact with patients due to the nature of work of the above said categories may lead to accidental or inadvertent transmission of communicable disease to these employees. The peculiarity of the 4th respondent Institute is that, no by-standers are allowed along with the in- patients in the Hospital and the respective staff act as by-standers having close and constant contact with the patients.
4. The Government of India, by O.M dated 25.01.1988 granted Hospital Patient Care Allowance (HPCA/PCA) to Group C and D (non Ministerial) employees, who are in regular constant contact with patients or fluid from patients as their routine nature of work. The said benefit granted by the 1st respondent was extended to the Group C and D employees of the 4th respondent Institute by orders dated 08.03.1991 and 18.04.1991 issued by the 4th respondent. The 1st respondent vide O.M. dated 04.02.2004 issued Guidelines for the implementation of Hospital Patient Care Allowance/Patient Care Allowance (HPCA/PCA). The guidelines stated the categories of employees considered for HPCA/PCA which says, 'Only persons (Group C & D, Non-Ministerial employees) whose regular duties involve continuous and routine contact with patients infected with communicable diseases or those who have to routinely handle, as their primary duty, infected materials, instuments and equipments which can spread infection as their primary duty may be considered for grant of Hospital Patient Care Allowance. It is further clarified that HPCA shall not be allowed to any of those categories of employees whose contact with patients or exposure to infected materials is of an occasional nature.' It is further clarified that, 'The Hospital Patient Care Allowance/Patient Care Allowance is payable to Group C & D (Non-Ministerial) employees working in the hospitals/dispensaries etc., This allowance is not admissible to Group C & D (Non- Ministerial) employees working in the Headquarters Office dealing with such Healthcare Units/Dispensaries/Hospitals as long as they work there. The HPCA or PCA will be admissible to such employees only in the event of their transfer from Headquarters to the Healthcare Units/Dispensaries/Hospitals and subject to the condition specified in
(iii) and (iv) above.' The 1st respondent vide Annexure A-4 O.M clarified that only the category of persons who are in continuous and routine contact with patients infected with communicable diseases or those who have to routinely handle, as their primary duty, infected materials, instruments and equipments which can spread infection as their primary duty may be considered for grant of Hospital Patient Care Allowance.
5. Subsequent to the issuance of Annexure A-4, the 1st respondent issued another O.M dated 05.05.2005 stating that Group C & D (Non-Ministerial) employees in their promotion to Group B posts will cease to be entitled for this allowance. The applicants are Group C employees in continuous and routine contact with patients infected with communicable diseases and who have to routinely handle, infected materials, instruments and equipments which can spread infection and come under the eligible category, and hence, HPCA/PCA were granted to them as per Annexures A-4 and A-5.
6. The applicants submit that subsequent to the issuance of Annexures A-4 and A-5 the 6th Pay Commission recommended the extension of insurance cover to all categories of persons who are in receipt of HPCA/PCA. Further, it was recommended that the loss incurred by the employees on discontinuance of HPCA/PCA would be compensated. As compensation for discontinuance of HPCA/PCA, in the case of Gruop D employees it was decided to upgrade them to Group C and in the case of Group C employees it was decided to introduce a Performance Related Incentive Scheme. Applicants contend that even though the VIth Pay Commission recommended an insurance coverage as the compensation of loss suffered by Group C employees including the applicants by the discontinuance of HPCA/PCA through the introduction of a Performance Related Incentive Scheme, the decision taken by the Government was not in conformity with the recommendations made by the VIth Pay Commission. The VIth Pay Commission in Annexure A-6 has clearly recommended tht the loss suffered by Group C employees are to be compensated by the introduction of a Performance Related Incentive Scheme a part from the insurance coverage. But the Government while taking a decision upon the recommendations did not address the introduction of a Performance Related Incentive Scheme if HPCA/PCA is discontinued with respect to existing Group C employees.
7. These categories of employees argue that they do not indulge in any kind of discrimination in the discharge of their duties to such infected patients and provide them with safe care, including protecting them from the risk of infection. Few of the most serious communicable diseases that can be transmitted to this category with respect to their nature of work are Hepatitis B (HBV), Hepatitis C (HCV), Human Immunodeficiency Virus (HIV), Syphilis, Influenza, Cholera, Urinary Tract Infections, Multi Drug Resistant Staphylococcus infections, Malaria, Polio, Tuberculosis, etc. Such constant and continuous exposure while discharging their official duties renders them vulnerable and susceptible for acquiring debilitating and life threatening communicable diseases. Further since these categories are at a high risk of contacting hospital related infections acquired directly from patients or through other bio hazards, they also pose an additional risk of transmitting the infections to their family members also.
8. On the basis of recommendation of the IV th Central Pay Commission, the Ministry of Health and Family Welfare had constituted a committee which recommended to introduce HPCA/PCA for providing additional support to take care of preventive and nutritional needs of this category as they are exposed to a high infectious environment. Even when these categories of Technical Assistants, Junior Technical Officers, Scientific Assistants and Scientific Officers are awarded Vacancy Oriented Promotion (VOP) or Flexible Complimentary Promotion (FCP), the nature of work or the work environment of these categories does not change. Due to the change in the grouping of these categories of employees from Group C to B by VI th CPC applicants are denied the grant of HPCA/PCA which was granted to these categories until the implementation of 6th Central Pay Commission. This was an anomaly which occurred in the implementation of 6th Central Pay Commission which was not addressed by the Anomaly Committee. Even though, the applicants raised the issue of discontinuance of HPCA/PCA to Group B (Non-Ministerial) before the Anomaly Committee of VI th Pay Commission, the same was not redressed by the Anomaly Committee. The subject matter was placed before the Departmental Council of Ministry of Health and Family Welfare and they have recommended to continue HPCA/PCA to Group B (Non-Ministerial) as there is no change in duties and responsibilities, though they were classified as Group 'B'. The Health Ministry being the nodal Ministry was better placed to understand the nuances of the risk in the job situation. The re-classification of grouping did not change duties and responsibilities performed, entitling applicants to the allowance.
9. The applicants and the similarly situated employees form a category of the 4th respondent institution who are in constant contact with body fluids of patients and performing patient care, and are eligible for receipt of Hospital Patient Care Allowance as earlier. Reliefs claimed are to declare that the applicants are entitled to receive HPCA/PCA as availed earlier and restore the HPCA/PCA from the date of discontinuance and thereby grant the arrears of HPCA/PCA to the applicants.
10. Applicants are challenging the order of the respondents that HPCA/PCA will not be granted to employees who joined after 01.09.2008 with grade pay of more than 2800 irrespective of their nature and environment of work. The cadre of nursing staff whose nature of duty and environment of duty is similar to the category of Technical Staff are entitled to grant of Nursing Care Allowance even at supervisory levels including Nursing Superintendent (re-designated as Nursing Officer) who are placed higher than eligible persons to who HPCA/PCA was granted.
11. The paramount factor to decide grant of HPCA/PCA is the nature of work and the environment of work. Those who are exposed to an infections environment loaded with virulent and drug resistant bacterias and other micro organisms would be a befitting and eligible category for receiving the grant of HPCA/PCA. This is not a case that the virus or bacteria would choose to affect Group C employees and not Group B employees. Infection is in the environment of work and not restricted to a class of employees. Duties involving continuous and routine contact with patients infected with communicable diseases or those who have to routinely handle, as their primary duty, infected materials, instruments and equipments which can spread infection as their primary duty are to be considered for grant of Hospital Patient Care Allowance. Earlier the Hospital Patient Care Allowance/Patient Care Allowance was payable to Group C and D (Non-Ministerial) employees working in the hospitals/dispensaries. To now say that by recategorizing Group C as Group B will remove the risk of infections and entitlement to HPCA, appears to be an illogical argument. Infected materials, instruments and equipments do not choose whom they will infect. Their risk lies with all those who are exposed, irrespective of their class of classification which has been upgraded by VI th CPC. VIth CPC has upgraded the employees and pay scales across the Government of India but not removed the applicants' risk of infection by a magic wand, which existed in the past and still exists in the hospital environment.
12. Ministry of Health and Family Welfare laid down the following guidelines for implementing Hospital Patient Care Allowance/Patient Care Allowance :
i) Eligibility for Hospital Patient Care Allowance is admissible to all Group C & D (Non-Ministerial) employees excluding nursing personnel @ R. 700/- per month and R. 695/- per month respectively working in General Hospitals (those with 30 beds or more) and in Super Speciality Hospitals (those with 10 beds or more), subject to the condition that no Night Weightage Allowance and Risk Allowance, if sanctioned by the Central Government, will be admissible to these employees.
ii) Eligibility for Patient Care Allowance is admissible to the Group C & D (Non-Ministerial) employees excluding nursing personnel @ Rs. 690/- per month working in the health care delivery institutions/establishments (other than hospitals) having less than 30 beds, subject to the condition that no Night Weightage Allowance and Risk Allowance, if sanctioned by the Central Government, will be admissible to these employees. (Copies of this Ministry's Orders No. Z.28015/26/98-MH(H) dated 28.09.1998 and Z. 28015/41/98-H (i), dated 02.01.1999 are enclosed).
iii) The condition which an organisation must satisfy before its employees can be considered for grant of Hospital Patient Care Allowance.
Only persons (Group C & D, Non-Ministerial employees) whose regular duties involve continuous and routine contact with patients infected with communicable diseases or those who have to routinely handle as their primary duty, infected materials, instruments and equipments which can spread infection as their primary duty may be considered for grant of Hospital Patient Care Allowance. It is further clarified that HPCA shall not be allowed to any of those categories or employees whose contract with patients or exposure to infected materials is of an occasional nature.
iv) The conditions which an organisation must satisfy before its employees can be considered for grant of Patient Care Allowance.
The persons (Group C & D, Non-Ministerial) employees whose regular duties involve continuous routine contact with patients affected with communicable diseases or are handling infected materials, instruments and equipments which can spread infection as their primary duty working in health care delivery institutions other than Hospital (30 beds for General Hospital; 10 beds for Super Speciality Hospital) may be considered for grant of Patient Care Allowance PCA shall not allowed to any Group 'C' & 'D' (Non-Ministerial) employees whose contact with patients or exposure to infected materials is of occasional nature. xxxxxxxxxxxxxxxxxx
13. The Department of Personnel & Training had also issued a clarification that the Group 'C' employees who have been granted the pay scale of Group 'B' post under the ACP Scheme would continue to be entitled to the payment of Hospital Patient Care Allowance/Patient Care Allowance. Hence it appears illogical that when VI CPC upgrades Group C category of employees to Group B, the very same allowance allowed under ACP is withdrawn thereby delinking pay from the exposure to infection. How risk of infection was delinked, when VI CPC upgraded pay scales, is also not adequately explained by the respondents.
14. Respondents however do state that the nature and scope of work for the categories of staff Technical Assistants, Junior Technical Officer, Scientific Assistants and Scientific Officer involve continuous and routine contact with patients of Cardiology and Neurology, which does not come under communicable/contagious diseases. The Technical staff have to deal with patient related services and normally are assigned duties of MRI, CT Scan, X-Ray Lab, Microbiology, Cardiology, Neurology, Pathology, etc.,
15. Respondent also argues that the allegations regarding the possibilities of spreading infection from human tissues or organs are without basis. If this were so to be accepted then no arguments are offered as to how under the orders of the Government of India, Group C and D employees were getting hospital patient care allowance. Further, on the implementation of the 6th Pay Commission, there are no Group D employees, and Group C employees alone are getting Patient Care Allowance. As per the 6th Pay Commission, the Technicians are brought under Group B category in the Pay Band II of Rs. 9300-34100 with Grade Pay of Rs. 4200 and they are no longer made eligible for Patient Care Allowance though they drew the allowance under V CPC and the respondents have no argument that the nature of duties of Group C employees upgraded to Group B have undergone a change, though the payment of allowance has undergone a change by its withdrawal. The Technicians are posted in Pay Band II (Rs. 9300-3488 with grade pay of Rs. 4200) and will be promoted upto the Pay Band III (15600-39100 with grade pay Rs. 6600) under the Flexible Complementary Promotion/Vacancy oriented promotion. There is no pecuniary loss argue the respondents. Applicants would argue that this is not a question of pecuniary loss but compensation for the risk undertaken in performing the job. The issue is compensation to employees for the risk of exposure to infection from the patients and their disease related tests, which position does not change with VI CPC pay scales. The risk existed pre VI CPC and would continue to exist post VI CPC. The VI CPC upgraded the pay scale for all Central Government employees including the applicants. The VI CPC never intended that post 2006, the risk of exposure to infection was not to be addressed or needs to be overlooked. VI CPC had actually proposed the alternative of insurance coverage, a scheme not implemented.
16. If a particular job entailed a certain risk, the said risk exists even if pay scale is upgraded. The averment by the respondents that in the last 30 years no case of Diphtheria, Cholera, measles, polio etc. has been reported is countered by applicants by the argument that this shows that the work in containing the risk at the grass root level by the employees and doctors concerned has been well done. It does not eradicate the risk. Diseases such as Diphtheria, Cholera, measles, polio, etc., mentioned by respondents are almost uncommon and not life threatening and belongs to risk group II by the WHO classification. Applicants argue that respondents failed to mention new life threatening diseases like HIV, HCV, MRSA, etc. which belongs to Risk Group III & IV of WHO Classification. Human evolution will bring with it the risk of new diseases and there is no case that applicants work in a sanitized environment, free of risk.
17. Applicants have submitted a quantitative assessment obtained from certain labs of respondent in which the applicants perform duties, to shed light on the nature and hazard involved in their work, for the period 2014-2015:
I. Department of transfusion medicine: For the period mentioned above, a total of not less than 8000 blood donors and 3500 inpatient blood and serum samples were collected or received in the laboratory for blood grouping and cross matching. Of the 8000 samples collected or received in the laboratory, more than 150 samples reported positive 'after testing' for life threatening, communicable or infections diseases like HIV, Hepatitis B, Syphilis and gonorrhea by VDRL positivity, Hepatits C and Malaria. There have been incidents when the samples of these patients admitted for treatment in the hospital have been received without proper labels indicating their bio hazardous nature. The nature of work in this department involves routine and continuous exposure with healthy or diseased persons, collection, separation, processing, storage and issue of blood and blood products.
II. Central Clinical Laboratory (CCL): An approximate quantity of eight lakh (8,00,000) samples has been received, tested and reported for hematology, biochemistry, coagulation, blood gas and electrolytes and other micellaneous tests. 'More than 100 samples confirmed positive for various infectious diseases like HIV, Hepatitis B, Tuberculosis, Cryptococcosis, Hepatitis C etc.' The nature of work in this department involves routine and continuous exposure and handling of blood, human blood components, potentially infectious human body fluids like cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in certain procedures and any body fluid that is visibly contaminated with blood.
III. Cardiac Surgery OT: Out of 1250 cases assisted by the Technical Staff including the applicants, for various surgical procedures, 15 cases were positive for Hepatitis B and 2 cases were positive for Hepatitis C. The nature of work in this department involves routine and continuous preparation and maintenance of operating theatres and equipment, assistance to surgical and anesthetic teams during operations and assistance in preparing operating rooms for surgery.
IV. Neurology OT : Out of 1000 cases reported for various surgical procedures, 10 patients were positive for hepatitis B. V. Microbiology Laboratory: An approximate quantity of 20000 samples has been received, tested and reported in 2015 for viral serology screening of HIV, Hepatitis B, Hepatitis C, Tuberculosis and other infections disease causing pathogens for testing by the Technical Assistants including the applicants.
Hence there is no doubt that applicants in their work are exposed to risk, thereby justifying payment of HPCA/PCA. Annexure A-4 guidelines issued by the Ministry of Health & Family Welfare laid down the following guidelines for implementing HPCA/PCA :
'iii. Only persons (Group C & D, Non-Ministerial employees) whose regular duties involve continuous and routine contact with patients infected with communicable diseases or those who have to routinely handle, as their primary duty, infected materials, instruments and equipments which can spread infection as their primary duty may be considered for grant of Hospital Patient Care Allowance.........'.
Applicants are, as per above quantitative assessment, covered by the above definition.
18. It is to be noted that when Group C employees under ACP Scheme drew Group B pay scale, HPCA/PCA was allowed, thereby delinking disbursement of allowance to Group C or B category working in a risk environment, from the pay scale. How the risk of infection was delinked on upgradation of pay scale by VI CPC, which fixed pay scales commensurate with increase in cost of living, is not adequately explained. That the 4th respondent has been extending the said benefit even to ministerial employees, who are not eligible for the said benefit, and denying the same to those exposed to risk, would not be acceptable.
19. In the light of the above discussions the O.A is allowed. We direct the the respondent to restore the HPCA/PCA from the date of its discontinuance and grant all consequential arrears within a period of three months from the date of receipt of a copy of this order. No costs.
(Dated, this the 1st June, 2017.)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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