Central Administrative Tribunal - Delhi
Smt. N. Jaymma vs Union Of India on 30 January, 2013
Central Administrative Tribunal Principal Bench OA No.4611/2011 With OA No.4612/2011 New Delhi, this the 30th day of January, 2013 Honble Mr. Jog Singh, Member (J) Honble Mrs. Rajwant Sandhu, Member (A) OA No.4611/2011 Smt. N. Jaymma, W/o Late Shri Chinna Rao, Ex.Daftary, NCDC, R/o Qr. No.322, Lancers Road, Timarpur, Delhi. applicant. (By Advocate : Shri Sachin Chauhan) Versus 1. Union of India, The Secretary, Ministry of Health & Family Welfare, Govt. of India, North Block, New Delhi. 2. The Director General , Directorate General of Health Services, Nirman Bhawan, New Delhi. 3. The Secretary, Ministry of Finance, Govt. of India, North Block, New Delhi. 4. National Institute of Communicable Diseases Through The special DG (PH) Director (NICD), Directorate General of Health Services, 22 - Sham Nath Marg, Delhi-110054. respondents. (By Advocate : Shri Hilal Haider ) OA No.4612/2011 1. Shri Prabhu Nath Prasad, S/o Shri Mandev Sah, R/o NICD, Campus, Qr. No.69, 22, Sham Nath Marg, Delhi-110054. 2. Shri Ram Dass, S/o Late Shri Hari Chan, R/o NICD, Campus, Qr. No.73, 22, Sham Nath Marg, Delhi-110054. 3. Shri Idreesh Khan, S/o Shri Chand Khan, R/o Gali Kua Wali, Bazar Chitli Kabur, Jama Masjid, Delhi-110006. 4. Shri Prem Chand, S/o Late Shri Gokal Chand, R/o Makan No.2236, Gali Shankar Bazar Sita Ram, Delhi-110006. 5. Shri Krishan Lal, S/o Late Shri Attar Singh, R/o C-3/489, Nand Nagri, Delhi-93. 6. Shri Mukesh Kumar, S/o Ram Ratan, R/o H. No.407, Gali-Ramayan, Pooth Khurd, Delhi-110039. 7. Shri Rajender Kumar, R/o Qtr. No.250, Type-II, (MS) Sector-IV, Timarpur, Delhi-110054. applicant. (By Advocate : Shri Sachin Chauhan) Versus 1. Union of India, The Secretary, Ministry of Health & Family Welfare, Govt. of India, North Block, New Delhi. 2. The Director General , Directorate General of Health Services, Nirman Bhawan, New Delhi. 3. The Secretary, Ministry of Finance, Govt. of India, North Block, New Delhi. 4. National Institute of Communicable Diseases Through The special DG (PH) Director (NICD), Directorate General of Health Services, 22 - Sham Nath Marg, Delhi-110054. respondents. (By Advocate : Shri Hilal Haider ) ORDER (ORAL) Honble Mr. Jog Singh, Member (J) :
We have heard both the OAs together with the consent of the parties. In OA No.4611/2011, the applicant is the legal heir, i.e. the widow of Late Shri Chinna Rao, who had worked with the respondents as Daftry. In the second OA No.4612/2011, there are seven applicants, who are also working as Daftry, Peon and Chowkidar with the respondent-Organization i.e. National Institute of Communicable Diseases, Sham Nath Marg, Delhi.
2. The short grievance raised by the applicants in these OAs pertains to non grant of Patient Care Allowance (hereinafter referred to as PCA), as per the order dated 02.01.1999. By the said order, PCA was allowed to various similarly situated Group C and D (non-Ministerial) employees working in MMEP, NICD, RAK College of Nursing, LRHS, RHTC- Najafgarh, Port/Airport Health Organisation. The amount of Rs.690/- per month was to be granted to various categories for Group C and D (non-Ministerial) employees w.e.f. 29.12.1998. There was a stipulation to the effect that no night duty or further risk allowance would be allowed to the beneficiaries of PCA, covered under the order dated 02.01.1999.
3. The case of the applicants is that the order dated 02.01.1999 issued by the Ministry of Health and Family Welfare, Government of India itself annexes list of various categories of Group C and D employees working in the five Institutions in question. Not only the names of five Institutions are mentioned and copies forwarded to the said Institutions by order dated 02.01.1999, but an exhaustive list of categories of Group C and D employees pertaining to each Institute has also been given in the annexure, pertaining the NICD, annexed with the said order. However, the applicants submit that, may be, due to inadvertence or negligence the names of Daftries, Peons and Chowkidars could not be included in the annexure annexed with the order dated 02.01.1999, whereas in case of rest of the Institutions, these categories of Daftry, Peon and Chowkidar are duly included for grant of PCA. Therefore, the applicants feel discriminated vis-`-vis their counterparts working in similar Organisations under similar conditions and carrying the same degree of risk.
4. The respondents have filed their reply and have, inter alia , contended that categories of Daftry, Peon and Chowkidar in the National Centre for Disease Control have not been included in the order dated 02.01.1999. They, thus, do not fulfill the eligibility conditions, as per further guidelines issued on 04.02.2004. Hence, the applicants are not entitled to PCA. In nutshell, the respondents submit that since categories of Daftry, Peon and Chowkidar are not included in the said order dated 02.01.1999, they cannot be granted the PCA. Moreover, they are not involved in the patient care in any manner. Their duties are different and they do not come in continuous and routine contact with the patients infected with communicable diseases but occasionally. It is submitted that the other Organizations are separate Departments and as such the grant of PCA to the similarly situated Daftries, Peons and Chowkidars in those Organisations, ipso facto, may not make the present applicants eligible for grant of said allowance.
5. We have heard both the learned counsel for the parties and have perused the pleadings and documents annexed thereto. We have looked into the order of Ministry of Health and Family Welfare dated 02.01.1999 and we note that the underline philosophy in granting PCA appears to be a motivation to Group C and D employees for handling various patients infected with communicable diseases. Since various categories of Group C and D employees mentioned in the annexure with the said order work in the same environment, they are granted the benefit of PCA, as they carry an equal degree of risk of being infected in the hospital while performing their duties. We have also seen the order dated 04.02.2004 issued by the Ministry of Health and Family Welfare. In that order, the Government has introduced a concept of casual and/or continuous contact. We, after analyzing the said two orders, note that there cannot be any distinction in the matter of grant of PCA only on the basis of casual or continuous contact of the employees therein. This is so because a single contact of a Daftry, Peon or Chowkidar or for that reason, of any other category, with an infected person carrying germs of any dangerous communicable disease may be fatal and sufficient. Therefore, the employees cannot be classified on the only basis that they come in contact on casual basis or they remain in continuous contact with the patient infected with communicable diseases.
6. In fact, we note that this Tribunal in its order dated 29.02.2008 in OA No.2027/2007 and OA No.2031/2007 (Bombay Bench) has taken a similar view that such a classification is not permissible in law. In that case Cooks and Masalchis, who earlier got Patient Care Allowance/Hospital Patient Care Allowance, were discontinued after the order/classification dated 04.02.2004 was issued by the Ministry of Health and Family Welfare. This was quashed by the Tribunal and the relevant paras 12, 13 and 14 of the judgment are hereby reproduced for the sake of convenience :-
12. The PCA was earlier granted to the applicants by the respondents only because they duly satisfied the criterion of coming in contact with the infected patients. It is also pertinently noted that the respondents have not brought any material before this Tribunal to show that either the duties and responsibilities of the applicants have undergone a change or that the extent of contact (exposure) of the applicants with the infected patients has in any manner reduced or ceased. The earlier decision of the Ministry of Defence to grant HPCA/PCA to the applicants, therefore, holds good and the same cannot be reversed to the disadvantage of applicants, particularly in the absence of any change in the circumstances. The contact/exposure of the applicants to the infected patients or their utensils, clothes or instruments, etc. is important. Admittedly, the applicants have all along remained in such a contact with patients by serving them food in their rooms, by removing the utensils and above all, cleaning the same in the kitchen everyday. Thus, a single contact of the applicants with patients suffering from communicable disease may be sometimes enough. The degree of risk which the applicants carry by coming in contact with the infected patients is the same in the case of other categories like Washerman (Dhobi), Ambulance Driver, etc. Therefore, I am of the considered opinion that the Respondents cannot discriminate the applicants in the matter of grant and continuance of HPCA/PCA only on the ground of casual or continuous contact.
13. The action of the respondents in unilaterally withdrawing the benefit of HPCA/PCA from the applicants is, thus, not only discriminatory and violative of Articles 14 and 16 of the Constitution but also against the principles of natural justice and the doctrine of legitimate expectation. Furthermore, the duty hours, holidays, leave, compensatory off and other benefits vis-a-vis duties were/are identical. Hence, they cannot be discriminated in the matter of HPCA/PCA alone by excluding their names from the list of eligibility for P.C.A. as a distinct sub-class of non-industrial employees working in the Hospital without having any rational nexus with the object to be achieved nor it is based upon any intelligent differentia as laid down by the Hon'ble Supreme Court in the case of D.S. Nakara & Others Vs. Union of India AIR 1983 (SC) 130.
14. It is very pertinent to note that the decision making process must be transparent, fair and open. In the present case, no just and fair procedure is laid down and it is left to the sweet will of the administrator to pick up certain categories leaving others aside, who are similarly situated. The Hon'ble Supreme Court in the case of L.I.C. Of India Vs. Consumer Education & Research Centre [AIR 1995 SC 1811] has held that the doctrine of classification is a subsidiary rule to give effect to the doctrine of equality; overemphasis on this doctrine or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious contents of equality.
14. In view of the above discussion of facts and law, the impugned orders are hereby quashed and the two O.As. are allowed. No order as to costs.
7. Lastly, no material is placed on record by the respondents to show that the Daftries, Peons and Chowkidars working in the National Institute of Communicable Diseases do not come in contact with patients infected with communicable diseases. Therefore, we do not find any logic to distinguish between the similarly situated persons working under almost similar conditions in other Institutions and involved in similar activities under the same respondents. The said discrimination would undoubtedly be violative of Article 14 of the Constitution of India. In this connection, it is also pertinent to note that the pleadings do reveal that NICD itself has been asked by the Ministry of Health and Family Welfare to clarify about nature of duties being performed by the applicants or the categories to which they belong. It is evident from the records that the NICD has invariably recommended the case of the applicants for grant of PCA. This is, therefore, more than clear that the applicants also carry the same risk of getting communicable diseases as the Daftries, Peons and Chowkidars in the other similar Organisations.
8. In view of the aforesaid discussion of law and fact, the two OAs stand allowed and the respondents are directed to consider and grant the PCA to the applicants strictly in accordance with the provisions of order dated 02.01.1999 and work out the arrears etc. within a period of three months from the date of passing of this order and do the needful.
9. Accordingly, the two OAs stand allowed. No costs.
( Mrs. Rajwant Sandhu ) ( Jog Singh )
Member (A) Member (J)
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