Central Administrative Tribunal - Delhi
Mrs. Roji Michael vs All India Institute Of Medical Sciences ... on 23 February, 2012
Central Administrative Tribunal Principal Bench O.A.No.740/2011 New Delhi, this the 23rd day of February, 2012 Honble Mrs. Meera Chhibber, Member (J) Honble Shri Shailendra Pandey, Member (A) Shri Ajit Thaphiyal S/o Late Sh. Sachidanand r/o 79-B, Block-20 (DDA) Sarai Kale Khan New Delhi 110 029. Sh. Jai Pal Singh s/o Late Sh. Badam Singh r/o B-35, Rajpur Colony P.O. IGNOU, New Delhi 110 068. Sh. Mahavir Singh s/o Sh. Pratap Singh r/o 18-E, Aaya Nagar New Delhi 110 068. Sh. Satya Pal s/o Late Sh. Bhola Ram r/o D-53, Mashud Pur Vasant Kunj New Delhi 110070. Sh. Rajinder Parsad s/o Sh. Prakash Chand r/o 36/16, Tirlokpuri Delhi 110 091. Sh. Om Prakash s/o Shri Kewal r/o House No.28, Kilokari New Delhi 110 014. Sh. Brij Mohan s/o Sh. Lilu Ram R/o A-98, Gulab Bagh Uttam Nagar New Delhi 110 059. Sh. Brahm Datt s/o Late Sh. Mani Ram Sharma r/o A-123, Jawhar Park Khanpur New Delhi 110 062. Sh. Mukesh Kumar s/o Sh. R.K.Sharma r/o G-58, Ansari Nagar New Delhi 110 029. Sh. Om Prakash s/o Late Sh. Phool Singh r/o A-867, Ghadoli Dairy Colony Mayur Vihar Phase III Delhi. Sh. Devender Kumar s/o Sh. Govind Singh r/o A-272, Durga Vihar, Devali Ext. Devali Delhi 110 062. Sh. Sunil Macdonald s/o Macdonald Singh r/o A/150, Sarojini Nagar New Delhi 110 023. Sh. Naresh Pal s/o Late Sh. Phool Singh r/o L-326, Sector-12 Pratab Vihar Ghaziabad, UP. Sh. Sunil Kumar s/o Sh. Puran Lal r/o 176, Maszidmoth New Delhi 110 019. Sh. Sunil Datt s/o Sh. Narain Datt r/o G-76, Ansari Nagar New Delhi 110 029. Sh. Raja Ram s/o Radha Kishan r/o G-42, Ansari Nagar New Delhi 110 029. Sh. Sher Singh s/o Late Sh. Narian Singh r/o Tyre-II, 60, Masjid Moth New Delhi 110 029. Sh. Shahid Hussain s/o Sh. P.M.Khan r/o F-85, Hazira Colony Chhatarpur Extn. New Delhi. Sh. Prem Singh Bisht s/o Late Sh. Gopal Singh Bisht r/o 48/4075, Vasundhara Ghaziabad, UP. Sh. Satish Kumar s/o Late Sh. Laxmi Chand r/o A-115, Harkesh Nagar New Delhi 110 020. Sh. Rakesh Kumar Sharma s/o Sh. Hari Shankar Sharma r/o A-103, Jawhar Park Khanpur, New Delhi 110 062. Sh. Masihuddin s/o Sh. Basiruddin r/o M-81/A, Abdul Fazal Enclave Okhla Village Zamiya Nagar New Delhi 110 025. Sh. Surender Nath s/o Sh. Rajinder Nath r/o House No.9, Meetha Pur Village Badarpur, P.O. New Delhi 110 044. Sh. Thomas Joseph s/o Sh. T.O.Joseph r/o 237, DDA Flats Lado Sarai, Mehrauli New Delhi 110 030. Smt. Deepa Anand w/o Sh. Vikas Anand r/o A-69, Nehru Vihar Near Mukharjee Nagar New Delhi 110 054. Sh Dharamjit s/o Jai Singh Malik r/o B-10, GTB Hospital Campus Dilshad Garden Shahdra Delhi 110 095. Ms. Deepa D/o Sh. Mohan Lal r/o RZ-41, Gali No.1, East Sagar Pur New Delhi 110 046. Mrs. Roji Michael w/o Michael A r/o 123, Sharma Market Pul Prahalad Pur New Delhi. Applicants (By Advocate: Sh. Rahul Malhotra) Versus All India Institute of Medical Sciences (AIIMS) Ansari Nagar, New Delhi through its Director. Respondents (By Advocate: Sh. Mehmodd Paracha with Sh. Sahil S. Chauhan) [Order reserved on 01.02.2012] O R D E R By Shailendra Pandey, Member (A):
The applicants, 28 in number, are working as Dark Room Assistants in the All India Institute of Medical Sciences (AIIMS) and are aggrieved by the decision taken by the Standing Finance Committee of the AIIMS, vide its Minutes dated 24.08.2010 (Annexure A1), to reject the proposal for accord of higher pay scale to Dark Room Assistants at the AIIMS. They have sought the following relief(s):
Set aside the impugned decision dated 24.08.2010 refusing to grant the benefit of revised pay scale to the applicants.
Direct the respondents to implement the benefit of the 5th & 6th Pay Commission.
Order payment of cost of litigation Any other order which this Tribunal deems fit.
The applicants had earlier filed OA No.1038/2009 claiming higher pay scale (and certain other reliefs) on the basis of the 5th Central Pay Commission Report from the date of acceptance of the recommendations by the Government. The said OA had been disposed of by this Tribunal vide its order dated 24.08.2009 with a direction to the respondents to treat the said OA as their representation and pass appropriate orders in accordance with law. In consequence thereof, the Standing Finance Committee (SFC) of the AIIMS met on 24.08.2010 and considered the representation of the applicants belonging to the Cadre of Dark Room Assistants of AIIMS, but rejected the same.
3. The said decision of the SFC has been challenged in the present OA on the following grounds:
that the respondents have rejected the representation of the applicants arbitrarily and without any basis or reason in spite of the decision taken by the respondents earlier, to the effect that the applicants are entitled to receive the benefits of the revised pay scales in the light of the fact that Dark Room Assistants in other Government organizations had received the benefit of the revised pay scale. In this connection, a reference has been invited to the earlier decision of the Standing Finance Committee meeting held on 30.12.2002 on the 5th Central Pay Commissions recommendations, which had also been ratified by its governing body and thereafter permission had been sought from the relevant Ministries to implement the revised pay scale.
that although the exact nature of the work may vary from organization to organization, e.g., depending upon the needs of an organization (film development may be that of photo film, x-ray film etc.) but essentially the basic nature of the work of a Dark Room Assistant remains the same, i.e., developing film. Thus, the decision not to grant the benefit of the revised pay scale to Dark Room Assistants in the respondents organization is illegal and arbitrary, and also violative of equality guaranteed under Article 14 of the Constitution of India and the principles of `equal pay for equal work.
that the respondents have failed to take into consideration the fact that the qualifications required for working as Dark Room Assistants in AIIMS are higher than the qualifications required for similar work in other Government organizations who are at present enjoying the present pay scales, and that this fact of AIIMS having prescribed higher qualifications is evident from the internal note of the respondents at page 103 of the paper book.
that the impugned order/decision militates against the right of the applicants to have promotional avenues.
The learned counsel for the applicants has relied on the Judgement of the Honble Apex Court in Yogeshwar Prasad & Ors. v. National Institute, Edu. Planning & Admn. & Ors., JT 2010 (12) SC 278 in support of the reliefs sought in this OA.
4. The respondents have opposed the OA and have stated that the proposal for upgradation of pay scales and pay structure of Dark Room Assistants was placed before the Standing Finance Committee in its meeting held on 30.12.2002 and the Standing Finance Committee approved the proposal subject to the concurrence of the Ministry of Finance (Department of Expenditure). The Minutes of the Standing Finance Committee had been ratified by the Governing Body in its meeting held on 06.11.2003.
Accordingly, for upgradation of pay scale and restructuring the cadre of Dark Room Assistants, as per the directions given by the Standing Finance Committee, the proposals were forwarded to the Ministry of Health and Family Welfare to obtain the concurrence of the Ministry of Finance. Later on, the Ministry had given functional justification for restructuring of the cadre vide AIIMS letter No.12-19/98-Estt.I dated 09.12.2006. Before a formal communication was received from the Ministry, the applicants had filed the OA No.1038/2009, which was disposed of on 24.08.2009 with certain directions. Accordingly, in compliance of the directions of this Tribunal, a proposal was placed before the Standing Finance Committee in its meeting held on 24.08.2010 but was rejected by the Standing Finance Committee on the ground that the duties of Dark Room Assistants in AIIMS were entirely different from those being performed by Dark Room Assistants in ICMR, DDA and Government of Indias Press.
It is also submitted that the pay scale for the post of Dark Room Assistant in ICMR, DDA, Govt. of India Press is Rs.4000-6000, whereas in AIIMS the cadre of Dark Room Assistant exists at three levels including the pay scale of Rs.4000-6000 of Dark Room Assistant (Middle Level), and that such differentiation does not exist in any other organization. Therefore, comparison with other organizations is not order.
With regard to cadre restructuring the SFC also observed inter alia that henceforth the cadre would be a `dying cadre. The respondents, therefore, pray that the OA be dismissed.
5. We have considered the rival contentions of both the parties and have been through the pleadings on record.
6. It is settled law that the grant of pay scales lies exclusively in the domain of the administrative dispensation. By the very nature of things, the exercise pertaining to revision of pay scales is a complex matter and is undertaken on the basis of recommendations of an expert body, such as a Pay Commission or any such duly qualified group, and must be discharged by the executive authorities. Further, the decision with regard to the accord of pay scales on the principle of equal pay for equal work is better determined by the concerned executive Body, which is a broad based body and an expert body and is in a better position to decide whether there is wholesale identity between two or three different groups or cadres. The Government is also fully competent to work out the financial implications and overall impact of accord of pay scales/revised pay structures to various groups/cadres of officials. Thus, the jurisdiction of Tribunals/Courts in such matters is extremely limited and confined to exceptional cases where denial of a particular pay scale/structure is prima facie perverse.
6.1. The Honble Apex Court has in a number of cases emphasized the above view, and in this connection, we may usefully refer to the Judgements of the Honble Apex Court in Union of India and Anr. V. P.V. Hariharan and Another, (1997) 3 SCC 568; Union of India and Others v. Makhan Chandra Roy, AIR 1997 SC 239, State of Haryana & Anr. v. Civil Secretariat Personal Staff Assn., (2002) 6 SCC 72; Union of India v. Arun Jyoti Kundu, (2007) 7 SCC 472; S.C.Chandra & Anr. v. State of Jharkhand and Others, (2007) 8 SCC 279 and State of West Bengal v. Subhas Kumar Chatterjee & Ors., (2010) 11 SCC 694.
In Subhas Kumar Chatterjee & Ors. (supra), the Honble Apex Court observed as under:
13. This Court time and again cautioned that the court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. Even the recommendations of the Pay Commissions are subject to acceptance or rejection, the Courts cannot compel the State to accept the recommendations of the Pay Commissions though it is an expert body. The State in its wisdom and in furtherance of its valid policy may or may not accept the recommendations of the Pay Commission. [See: Union of India V. Arun Jyoti Kundu (2007) 7 SCC 472 and State of Haryana & Anr. V. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72]. It is no doubt, the constitutional courts clothed with power of judicial review have jurisdiction and the aggrieved employees have remedy only if they are unjustly treated by arbitrary State action or inaction while fixing the pay scale for a given post. 6.2. It is also necessary to bear in mind the principle of equal pay and equal work cannot be applied in each and every case and fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and the same can have a cascading effect. It is, therefore, essential that a decision in this regard be left to an executive body of people who have all the facts and the overall implications before them.
Simply because the basic nature of work is same, it cannot be said that the principle should be followed in each and every case [See: Government of West Bengal Vs. Tarun K. Roy and Others (2004) 1 SCC 15].
7. Having noted the above stated legal position and the limited jurisdiction of the Tribunal/Court in such matters, we now proceed to deal with the case in the present OA.
7.1. In the present case, the applicants, who are Dark Room Assistants in the AIIMS, are seeking parity of benefits accorded by the 5th CPC/revision of pay scales with those extended to DRAs in other organizations such as ICMR, DDA and Government of India Press on the ground that they are performing similar work and on the ground that the qualifications prescribed for them are higher than those prescribed for persons doing similar work in these organizations.
7.2. The governing body of the AIIMS is the authority competent to approve grant of pay scales ect. to employees of the AIIMS subject to necessary approvals from the Ministries concerned. The case of the applicant was put up to the Standing Finance Committee of the AIIMS and was considered by the SFC on 24.08.2010 but was not accepted. In this connection, while not agreeing to the proposal, the SFC had noted as under:
The Committee noted that the Dark Room Assistants were asking for a higher pay scale citing the scales of pay given to Dark Room Assistants in ICMR, DDA & GOI Press. The Committee further noted that while the Dark Room Assistants at AIIMS were handling work pertaining to X-Rays, Dark Room Assistants in ICMR/DDA & GOI Press were involved with printing of photographs etc. Hence, their duties were entirely different from the duties being performed by Dark Room Assistants at AIIMS. If any comparison has to be drawn, it has to be with Dark Room Assistants in Central Government Hospitals who were also placed in the scale of Rs.3050-4590 (pre-revised). Hence, there was no merit in the demand of Dark Room Assistants for being placed in the pay scale of Rs.4000-6000/-. The proposal was, therefore, not agreed to.
As regards cadre restructuring, the Committee noted that out of the total 29 posts of Dark Room Assistants, 7 had been proposed for conversion into Technician Radiology Grade II (Item No.FC/23). This would thus have only 22 posts. Hence the proposal would need to be re-cast.
The Committee also interacted with HOD Radiology about the utility of Dark Room Assistants in their present assignments after the induction of digital X Ray devices. It was agreed that based on their qualifications, existing Dark Room Assistants could be considered for deployment elsewhere. The Committee also decided that henceforth the cadre of Dark Room Assistants would be a dying cadre and any vacancy would be converted into the part of Technician Radiology Grade II. It is evident from the above that the SFC which is fully conversant with the work being done by the Dark Room Assistants (DRAs) in the AIIMS was clearly of the view that their duties were entirely different from the duties being performed by DRAs in ICMR, DDA and Government of India Press and, therefore, no parity on this ground was admissible. If at all the comparison was to be drawn, it should be drawn with the DRAs in Central Government Hospitals who are also placed in the scale of Rs.3050-4590 (Pre-revised).
We find that the above decision taken by the Standing Finance Committee is duly supported by reasons and cannot be said to be an irrational or arbitrary decision, and no interference on this count is warranted.
7.3. It is also noticed, as pointed out by the respondents, that the pay scale of the post of Dark Room Assistants in ICMR, DDA, Govt. of India Press is Rs.4000-6000, whereas in the AIIMS the cadre of Dark Room Assistants exists at three levels including the pay scale of Rs.4000-6000 of Dark Room Assistant (Middle Level) Dark Room Assistant Gr-I Rs.4500-7000 Dark Room Assistant Gr-II Rs.4000-6000 Dark Room Assistant Gr-III Rs.3050-4590 Thus, in the case of the DRAs of the AIIMS, provision already exists for promotion to higher levels and this would also distinguish the case of DRAs in AIIMS from the case of the DRAs in ICMR, DDA and Government of India Press.
7.4. Finally, a perusal of the Minutes of the Meeting of the Standing Finance Committee held on 24.08.2010 also reveals that the existing cadre of Dark Room Assistants Gr-I, Gr-II and Gr-III is being phased out as a `dying cadre and any vacancy will be converted into the Technician Radiology Grade-II, and that existing DRAs can be considered for deployment elsewhere.
7.5. The case law relied upon by the applicants counsel in Yogeshwar Prasad (supra) would not be of help to the applicants as the facts and circumstances in that case were different and also in the present case the comparison between DRAs in the organizations has not been found to be in order.
7.6. For all the above reasons, we find no merit in the OA, which stands dismissed with no order as to costs.
(Shailendra Pandey) (Meera Chhibber) Member (A) Member (J) /nsnrsp/