Central Administrative Tribunal - Delhi
Mrs Sudha Jain vs E.S.I.C on 29 May, 2023
1
OA No.1271 of 2015
Court No.5 (item No.23)
Central Administrative Tribunal
Principal Bench
OA No.1271 /2015
Reserved on: 22. 05.2023
Pronouncement on: 29 .05. 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr.Chhabilendra Roul, Member (A)
Mrs. Sudha Jain,
W/o Mr.Sanjay Jain,
Aged about 44Years
Physiotherapist, ESIC
H. No. C-22 Vijay Nagar,
IInd Floor, Single Story Delhi-110009.
-Applicant.
(Through Advocate: Mr. Soumyajit Pani with M.
Aishwa Bajpai)
Versus
1. Employees State Insurance Corporation,
Through Director General
ESI Headquarter
Panchdeep Bhawan,
C.I.G. Road,
New Delhi-110 002
2. Director (Medical), Delhi
ESI Dispensary,
Tilak Vihar, Delhi -Respondents
(Through Advocate: Mr. A.K. Verma)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):- 2 OA No.1271 of 2015
Court No.5 (item No.23) The present OA has been filed by the applicant challenging the order dated 02.04.2013 passed by the respondents whereby the respondents rejected the claim of the applicant to grant her the pay scales of senior Physiotherapist at Rs 8,000-13,500.
2. The factual matrix of the case are as under:-
2.1. The present applicant joined as a Physiotherapist in the Respondent Organization, i.e. ESIC on 01.07.1992. The Central Government accepted the Recommendations of the 5th Pay commission to be effective from 01.01.1996. The respondents revised the pay scales of the applicant as per the recommendations of the 5th Pay commission to Rs 4,500-7,000 vide their order dated 03.03.1998. ESIC implemented the Assured Career Progression Scheme (ACP Scheme) with effect from 09.08.1999. The applicant completed 12 years service on 30.06.2004. The respondent ESIC revised the pay scale of the post of Physiotherapist to Rs 5,500-9,000 w.e.f 1996. The respondents ESIC did revise the pay scale of Senior Physiotherapist to Rs 6,500-10,500 w.e.f. 1996. When the applicant completed 12 years service on 30.6.2004, she was granted her first ACP w.e.f 1.7.2004 by upgrading her 3 OA No.1271 of 2015 Court No.5 (item No.23) pay scale to that prevailing for the Senior Physiotherapists at Rs 6500-10500/- vide their order dated 06.08.2008.
2.2 The respondent ESIC did not grant the pay scale of Rs 8,000-13,500/- as applicable to Senior Physiotherapists in other Hospitals and Organizations in under Government of India. Being aggrieved by this decision of the respondents, the applicant made various representations to the respondents to grant higher pay scale at Rs 8,000-13,500 with effect from 01.07.2004, as part of the first ACP. The Respondents rejected the claim of the applicant vide their order dated 01.07.2008. Again the applicant made a representation dated 21.7.2008 against this decision of the Respondent -ESIC.(Annexure-E).
2.3 The Respondent ESIC revised the pay scale of the Physiotherapists and Senior Physiotherapist to Rs.9,300-34,800/- with grade pay of Rs 4200 in PB-2 converting the existing pay scales Rs 5,000-175-9,000 and Rs 6,500-200-10,500/- (w.e.f. 01.01.2007). The applicant continued to agitate vide her representations dated 22.03.2010, 07.04.2010, 20.05.2010, 01.01.2011, 02.05.2011. 06.07.2011, 27.08.2011 and 4 OA No.1271 of 2015 Court No.5 (item No.23) 16.8.2012 that the conversion should have taken the base of the Physiotherapist at Rs 8,000-13,500/-
instead of Rs 6,500-10,500/-. The respondents vide their order dated 02.04.2013 (impugned order) rejected her claim. Being aggrieved, she has filed the present OA seeking the following relief:-
(a) Please to direct the respondent to give the applicant 1st ACP of pay scale of Rs. 8000-
13500/- w.e.f. 01.07.2004 as per 5th CPS and the other benefits payable as per 5th CPS with interest in the interest of justice.
(b) Please to direct to give the applicant 2nd MACP of pay grade of Rs. 6,600/- with interest w.e.f. 01.07.2012 in the interest of justice.
(c) Pass any other further order or orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
4.1 The main contention taken by the applicant in her OA and emphatically asserted by her counsel during the course of arguments is that the pay scale of the next upgraded scale (that of the Senior Physiotherapists) in similarly placed hospitals and institutions under Government of India has been 5 OA No.1271 of 2015 Court No.5 (item No.23) upgraded to Rs 8,000-13,500/- instead what was prevailing in ESIC at Rs 6,500-10,500/ when she was due for her first upgradation as per the prevalent ACP Scheme. In other words, she is seeking pay parity with Senior Physiotherapists in other organizations under Ministry of Health and Family Welfare. 4.2. The counsel for the applicant invoked the principle of equal pay for equal work to buttress the argument that the applicant deserves the higher pay scales as given to Senior Physiotherapists in similarly placed organizations under Ministry of Health and Family Welfare. He cited judgment of the Apex Court in U. P. State Sugar Corporation Ltd. & Another. vs Sant Ram Singh ( Civil Appeal No. 6588 of 2003, (with C.A. No.8237-8238 of 2003 and 2656 of 2006) wherein the Doctrine of Equal Pay for Equal Work was applied invoking Articles 14 and 16 of the Constitution of India.
5.1. The counsel for the respondents countered the contention of the counsel for the applicant relying on the counter affidavit filed by the respondents. He averred that the adaptation pay scales of Rs 5,500- 9,000 for physiotherapists and Rs 6,500-10,500/- for 6 OA No.1271 of 2015 Court No.5 (item No.23) Senior Therapists w.e.f. 01.01.2007 was correctly adopted by the ESIC. Accordingly, the first upgradation to the present applicant was granted in the pay scale of Rs 5,000-9,000/- with effect of 01.07.2004 at the prevailing scale vide order dated 01.07.2008 and then in pay scale of Rs 6,500-10,500/- with effect from 01.01.2007 vide order dated 11.9.2008. These are upgraded scales for Senior Physiotherapists prevailing in ESIC and hence, the first upgradation was given correctly.
5.2 The counsel for the respondents further averred that the claim of the applicant for base scale of Physiotherapist at Rs 4,500-7,000/- was converted to Rs 5,500-9,000/- based on the conversion formula and recommendation of the 5th Pay Commission. The next upgradation in the prevailing scale was Rs. 6,500- 10,500/- for Senior Physiotherapists, which was upgraded to Rs 9,300- 34,000 as per 6th pay commission report. The unrevised upgraded scale of Senior Physiotherapists was given to the present applicant at Rs 6,500-10,500/- w.e.f. from 01.01.2007 after 6th Pay Commission Recommendations. Hence, the respondents have correctly given the first upgradation.
7OA No.1271 of 2015 Court No.5 (item No.23) 5.3. The counsel for the respondents further averred that the question of higher grade to Physiotherapists and Senior Physiotherapists in other hospitals and organizations under the Ministry of Health and Family Welfare to grant the pay scale of Rs 8,000-13,500/- instead of Rs 6,500-10,500 is against the principle of equality in scope of work and educational qualification for the same designated post. He drew attention of this Tribunal to the tabular presentation furnished by the respondents in the counter affidavit to highlight the difference in the two designated posts of Physiotherapists in ESIC and other Health Institutions under the Ministry Of Health And Family Welfare. The tabular presentation is reproduced below:
Sr. Non ESI Hospital ESI Hospitals
Physiotherapist
Source of Promotion failing Promotion failing
appointment which by which direct
deputation. recruitment.
Includes both
teaching feeder
cadre post with
5 years regular
5/8 years
service in the
experience
respectively. feeder grade
Essential Degree in Diploma in
qualification Physiotherapy Physiotherapy
from a recognized from a
university or recognized
equivalent with institute. About
one year
3 year
experience or
8
OA No.1271 of 2015
Court No.5 (item No.23)
diploma from a experience in
recognized Physiotherapy in
university or a hospital
institute or /institute of
equivalent with repute (page 47
three year
of the reply
experience (page
71 to 73 of the OA)
The essential qualification for physiotherapists in ESIC was Diploma whereas in other institutions it was Degree in Physiotherapists. Hence, the post of Physiotherapist in ESCI and other Health Institutions is not the same. Hence, there can be equality for two distinctly two different posts though the nomenclature is the same.
6. I have gone through the records of the case thoroughly and heard the arguments carefully. Here there are two basic issues:
a). Whether the applicant was really given the first financial upgradation under ACP Scheme at Rs Rs.6,500-10,500/- with effect from 1.1.2004 to 1.1.2007 when both the posts of Physiotherapists and Senior Physiotherapists were placed at the same scale in PB-2 grade of Rs.9,300- 34,000/- as per 6th Pay Commission Recommendations ?.9
OA No.1271 of 2015
Court No.5 (item No.23)
b). Whether the pay scale of the Physiotherapists in ESIC should have been at Rs 8,000-13,500/- as given w.e.f from 01.07.2004 at par with Physiotherapists in other hospitals and organizations under the Ministry Of Health & Family Welfare?.
7. We take the second issue first. We do agree with the contention of the learned counsel for the respondents that the post of Physiotherapist in ESIC and in other Organizations under Ministry Of Health And Family Welfare carry distinctly different characteristics in the terms of essential qualification as per the extant service Rules. Hence, though the nomenclature of the post of Physiotherapist is the same, they are significantly different in scope in respect of essential qualifications. Hence, the principle of equality under Articles 14 and 16 of Constitution of India is not attracted in the instant case. It is worthwhile to quote relevant portion of Part-B of the Central Civil Services (Revised Pay) Rules, 1997 under the caption "Revised Pay Scales For Certain Common Categories of Staff", as under:-
"In certain other cases where there are conditions prescribed by the Pay Commissions as pre- requisite for grant of these scale to certain posts such as cadre restructuring, redistribution of 10 OA No.1271 of 2015 Court No.5 (item No.23) posts etc. It will be necessary for the Ministries /Department commenced to not only accept these preconditions but also to implement them before the scales applied to those posts. It would, therefore, be seen that it is implicit in the recommendations of the Pay Commissions that such scales necessarily have in take prospective effect and the concerned posts will be governed by the normal replacement scales until then."
7.1. In the said Rules, the pay scales of Physiotherapists and senior physiotherapists were shown at Rs 5,500-175-9,000 and Rs 8,000-275- 13,500. But this has not been adopted by the ESIC, which is an Autonomous Organization under Ministry of Health & family Welfare. Such anomalies' are addressed by the concerned Ministry and by referring to the Anomalies Committee after acceptance of Pay Commission Reports. As we have stated earlier, the entry level educational qualifications for Physiotherapists in ESIC and other Hospitals and Organizations under the Ministry of Health & Family Welfare are distinctly different, the applicant and similarly placed Physiotherapists cannot legitimately claim higher pay scale of senior physiotherapists at Rs 8,000-125-13,500 as on 1.1.1996 instead of Rs 6,500- 10,500.
11OA No.1271 of 2015 Court No.5 (item No.23) Hence, the second relief as mentioned above is not granted to the applicant in the present Original Application.
7.2. Coming to the first issue, it is clear that the first upgradation granted to the applicant was granted vide letter dated 01.07.2008 The applicant was granted the pay scale of Rs 5000-9000 with effect from 01.07.2004. The question arises whether the upgraded scale of Senior Physiotherapists as on 01.07.2004 was Rs 5,000-9,000 or not. The respondent ESIC revised the pay scale of the post of Physiotherapist to Rs 5,500- 9,000 w.e.f 1996 vide their memo no. A-21(12) /2/92- DM(HQ) dated 02.04.2004 on the basis of the 5th Pay commission recommendations. Hence, the upgradation given to the present applicant vide their order dated 01.07.2007 is no upgradation. It was the converted base scale for Physiotherapists at the entry level as per 5th Pay Commission Recommendations. To that extent, the claim of the applicant that the respondents have failed to give her first financial upgradation with effect from 01.07.2004 to 01.01.2007 is valid. Hence, she is entitled this relief partially till 01.07.2007. 12 OA No.1271 of 2015 Court No.5 (item No.23) 7.3. Now, the question arises whether the applicant is entitled to the benefit of the effect of merged scales of Physiotherapist and Senior Physiotherapists under the first upgradation at a higher scale since 01.01.2007. It is our considered view that the scenario and characteristics of the posts of Physiotherapist and Senior Physiotherapists have undergone change. The applicant has to enjoy the first financial upgardation at the higher scale applied to Senior Therapists at Rs.6500- 10500/-, duly converted as per the 5th Pay Commission Recommendations till 01.01.2007. Thereafter, she enjoyed the benefit of the upgraded merged scale of Physiotherapists and Senior Physiotherapists at Rs. 9,300-34,000/- with grade pay of Rs.4,200 under PB-2. She is entitled for second upgradation thereafter under the rules if she did not get any promotion for next stipulated period in this upgraded scale.
8. In view of the above, the OA succeeds partially. The respondents are directed to rectify the first upgradation given to the applicant w.e.f. from 01.07.2004 till 01.01.2007 at the scale Rs 6,500- 10,500/- as was applicable to Senior Physiotherapists under the 5th Pay Commission Recommendations. The 13 OA No.1271 of 2015 Court No.5 (item No.23) applicant is entitled to get arrears for such re-fixation from 01.07.2004 to 01.01.2007. However, the applicant is not entitled any interest on delayed re- fixation as per this upgradation as she did not approach the right forum in time. A repeated representation to ESIC was not the only option available to the applicant.
9. This exercise shall be completed within 8 weeks from the date of receipt of the certified copy of this order. There shall be no order as to costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/mk /