Central Administrative Tribunal - Delhi
Prabhu Lal Jat vs Union. Of India on 4 April, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 679/2011 With O.A. No. 4159/2011 Reserved on : 06.02.2013 Pronounced on: 04.04.2013 HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) HONBLE MR. V. AJAY KUMAR, MEMBER (J) OA 679/2011 Prabhu Lal Jat, S/o Shri Kana Ram Jat, R/o B-119, Street No.5, Dr. Ambedkar Colony, Near Temple Chhattarpur, New Delhi-110074. .. Applicant (By Advocate : Shri M.K. Bhardwaj) Versus 1. Union. of India, Through its Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi. 2. The Director, Lala Ram Sarup Institute of Tuberculosis and Respiratory Diseases, Sri Aurobindo Marg, Near Qutub Minar, New Delhi. 3. The Secretary, Ministry of Finance (Exp.), North Block, New Delhi. .. Respondents (By Advocate : Ms. Neha Bhatnagar for M/s Sikri & Co.) OA 4159/2011 Narbdeshwar Singh, S/o Shri Ram Pyare Singh, R/o B-1, L.R.S. Institute of T.B. & R.D., Sir Aurbindo Marg, New Delhi-110030. .. Applicant (By Advocate : Shri M.K. Bhardwaj) Versus Union of India & Ors. Through : 1. The Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi. 2. The Director, Lala Ram Sarup Institute of Tuberculosis and Respiratory Diseases, Sri Aurobindo Marg, Near Qutub Minar, New Delhi-110030. 3. The Secretary, Ministry of Finance, Department of Expenditure, South Block, New Delhi. .. Respondents (By Advocate : Ms. Neha Bhatnagar for M/s Sikri & Co.) ORDER (Common)
Honble Mr. V. AJAY KUMAR, MEMBER (J) Both counsels have stated that the question of law and facts are common in both the above cases. Therefore, we proceed to dispose of the said OAs by this common order. For the sake of convenience, we have taken the facts from OA No.679/2011.
2. The applicant was appointed as Physiotherapist in the then pay scale of Rs. 1400-2300 (Revised Rs.4500-7000 as per 5th CPC recommendations) in LRS Institute of Tuberculosis and Respiratory Diseases (hereinafter referred to as LRS Institute).
3. The 5th CPC in para 52.96 recommended that the Physiotherapists/OTs may be placed at the level of Rs.1640-2900 at induction, for which replacement scale of Rs.5500-9000 was allowed w.e.f. 01.01.1996.
4. When the respondents, though initially granted the scale of Rs.5500-9000 to the applicant, withdrawn the same, he filed TA No.30/2007. Noting the contention of the respondents made in the counter in that TA that the scale was granted to the applicant without approval of the Ministry of Finance, this Tribunal disposed of the said TA directing the respondents to take a final decision as to the approval of the pay scale of Rs.5500-9000 to the applicant within a period of three months vide order dated 06.11.2007. Thereafter, the respondents vide order dated 03/04.04.2008 (Annexure A-12) granted the said pay scale of Rs.5500-9000 to the applicant, prospectively w.e.f. 20.02.2008.
5. The applicant is aggrieved by the action of the respondents in not granting the said replacement pay scale of Rs.5500-9000 w.e.f. 01.01.1996 on par with the Lab Technicians, filed OA No.1793/2009. This Tribunal vide its order dated 23.11.2009 (Annexure P-10) allowed the said OA and directed the respondents to reconsider the grant of pay scale of Rs.5500-9000 to the applicant w.e.f. 01.01.1996 with arrears. In pursuance of the said orders, the respondents passed the present impugned order dated 22.01.2010 rejecting the claim of the applicant to grant the said pay scale to him retrospectively w.e.f. 01.01.1996.
6. The respondents rejected the request of the applicant by stating that in case of Lab Technicians in LRS Institute, the educational qualifications are on par with the post of Lab Technicians in other Hospitals, whereas in the case of Physiotherapists in LRS Institute, the education qualification was softer than other institutions, and hence, only from the date of amendment of recruitment rules bringing the educational qualifications of Physiotherapist in LRS Institute on par with other Institutions, like PGIMER, Chandigarh etc., i.e. w.e.f. 20.02.2008, i.e. prospectively only the scale of Rs.5500-9000 made applicable to the applicant. It is further submitted that the educational qualifications required for the post of Physiotherapist in the Respondent LRS Institute are Degree/Diploma in Physiotherapy, whereas the educational qualifications required for the post of Physiotherapist in PGIMER are Degree in Physiotherapy with one year experience or Diploma in Physiotherapy with three years experience, and in AIIMS are Inter (Science) plus Degree in Physiotherapy/Occupational Therapy. The respondents denied the benefit of granting the pay scale of Rs.5500-9000 w.e.f. 01.01.1996 to the applicant on the ground that the educational qualifications are not equivalent to that of Physiotherapist in other Institutions.
7. Heard Shri M.K. Bhardwaj, learned counsel for the applicant and Ms. Neha Bhatnagar for M/s Sikri & Co., learned counsel for the respondents, and perused the pleadings on record carefully.
8. The learned counsel for the applicant Shri M.K. Bhardwaj submits that Physiotherapists working in the Willingdon and Safdarjung Hospitals were granted the pay scale of Rs.5500-9000 w.e.f. 01.01.1996. The educational qualification required for the post of Physiotherapist in the said Hospitals is also on par with that of the educational qualifications in LRS Institute only, i.e. a Diploma in Physiotherapy. The respondents vide Annexure A-16 dated 19.06.2009 compared the educational qualifications for the post of Lab Technicians with the corresponding post in Safdarjung and RML Hospitals and having found that the educational qualifications required for the post of Lab Technicians in LRS Institute and Safdarjung Hospital are one and the same, granted the scale recommended by 5th CPC to the said post w.e.f. 01.01.1996. Whereas in case of Physiotherapist, the post to which the applicant is concerned, the respondents compared the educational qualifications with the PGIMER, Chandigarh and AIIMS, and wrongly denied the benefit to the applicant.
9. The learned counsel further submits that there is no requirement to amend the recruitment rules of Physiotherapist for implementation of the 5th CPC Part-B scale for Physiotherapist. The respondents illegally denied the benefit to the applicant on the ground that he is entitled only from the date of amendment of recruitment rules. To an RTI query raised by the applicant vide Annexure A-17, Dr. R.M.L. Hospital vide their letter dated 09.04.2010 categorically stated that there is no such requirement.
10. The learned counsel further submits that the 2nd respondent LRS Institute follows the Government instructions, and hence, had to have compare the case of the applicant with that of the Physiotherapist working in the Willingdon and Sardarjung Hospitals, which are also under the control of the Government, but whereas the respondents wrongly compared the educational qualifications of the applicant with that of Physiotherapists working in PGIMER, Chandigarh and AIIMS.
11. Per contra, the learned counsel for the respondents submits that the pay scale of Rs.5500-9000 was made applicable to the post of Physiotherapist in the respondent Institute prospectively on the basis that the recruitment rules of the Institute are amended to make essential qualification for the post of Physiotherapist comparable with other similarly constituted institutions, i.e. Diploma in Physiotherapy with three years of experience or Degree in Physiotherapy with one year of experience as compared to the earlier qualification which was comparatively less from the other institutions which provide a Degree/Diploma in Physiotherapy only and no experience was prescribed for the same. The reference made by the Ministry of Finance on the basis of educational qualification was as per the law laid down by the Honble Supreme Court, which was followed by the 2nd respondent, and therefore, does not call for any interference by this Tribunal.
12. It is further submitted that the decision regarding implementation of the pay scales taken in other organizations, such as Safdarjung Hospital etc. are not binding on the 2nd respondent, as the same is an autonomous body and the comparison made with the educational qualifications of Physiotherapists working with the PGIMER and AIIMS is valid as it was done in the order dated 22.01.2010 itself, which was passed in compliance with the directions of the Tribunal in OA 1793/2009.
13. It is clear from the above quoted facts that essential educational qualification as on 01.01.1996 for the post of Physiotherapist in the 2nd respondent LRS Institute is Degree/Diploma in Physiotherapy, and whereas the essential educational qualification required for the post of Physiotherapist in PGIMER are Degree in Physiotherapy with one year experience or Diploma in Physiotherapy with three years experience, and in AIIMS are Inter (Science) plus Degree in Physiotherapy/Occupational Therapy. Only after the recruitment rules are amended w.e.f. 20.02.2008, the essential qualification for the post of Physiotherapist in the 2nd respondent LRS Institute are brought on par with the PGIMER. It is also a fact that the essential qualification for the post of Physiotherapist in Willingdon and Safdarjung Hospitals is also Diploma in Physiotherapy only, like the Physiotherapists in the 2nd respondent Hospital as on 01.01.1996. If the respondents compare the essential educational qualification of Physiotherapist in the 2nd respondent LRS Institute with the Physiotherapist in Willingdon/Sardarjung Hospital, the applicant is also entitled for granting the benefit of pay scale of Rs.5500-9000 w.e.f. 01.01.1996, as the said pay scale was granted to the Physiotherapist in Willingdon/Safdarjung Hospital, w.e.f. the said date. But the respondents comparing the essential educational qualification of a Physiotherapist of 2nd respondent LRS Institute with that of PGIMER and AIIMS denied the said benefit to the applicant.
14. It is to be seen that the duties and responsibilities of a Physiotherapist in all these hospitals whether directly under the control of the Government or an autonomous body are one and the same. The difference in the essential qualification is only of an experience of a particular period. Admittedly, the applicant is working as a Physiotherapist way back from 1994, and though there was no requirement under the relevant recruitment rules till 20.02.2008 that a person should possess one year experience if he is a Degree Holder, or three years experience, if he is a Diploma Holder, but as on 01.01.1996, the applicant acquired more than one years experience in the said post. Further when similarly situated Physiotherapists in Safdarjung and Willingdon Hospitals were granted the benefit of the scale of Rs.5500-9000, who were also recruited with the similar essential qualifications as that of the applicant, denying the said benefit to the applicant is unjustified. When it is not the case of the respondent that the 5th CPC recommended the replacement scale of Rs.5500-9000 only to those Physiotherapists, who are having any particular essential qualification, denying the benefit to the applicant on the ground that he is not possessing the essential qualifications, such as that of PGIMER, Chandigarh and AIIMS, is untenable and unreasonable.
15. Admittedly, the 2nd respondent, in respect of Lab Technicians, compared with the Lab Technicians in Willingdon and Safdarjung Hospitals and granted the benefits under 5th CPC to them, but in case of Physiotherapists, compared with the Physiotherapists in PGIMER and AIIMS, by stating that they are empowered to do so, and denied the replaced scale to the applicant. The administrative power has to be exercised reasonably, rationally and indiscriminately. The respondents failed to show any valid reason for their action in not comparing the essential educational qualifications of Physiotherapists with that of Safdarjung and Willingdon Hospitals on par with Lab Technicians. When the 2nd respondent has already compared the Lab Technicians to that of Safdarjung and Willingdon Hospitals and granted the benefit, and not comparing the Physiotherapists with that of the same Hospitals, amounts to clear discrimination and does not stand to reason. It is also not in dispute that the applicant would be entitled for granting of pay scale of Rs.5500-9000 w.e.f. 01.01.1996, if the Physiotherapists of the 2nd respondent are compared with that of Safdarjung and Willingdon Hospitals, as was done in the case of Lab Technicians.
16. In the circumstances and for the aforesaid reasons, the OA 679/2011 is allowed. The impugned order dated 22.01.2010 is quashed, and the respondents are directed to consider the applicant once again for granting the pay scale of Rs.5500-9000 w.e.f. 01.01.1996 with all consequential benefits, as observed above, and to pass appropriate orders within a period of 60 days from the date of receipt of a certified copy of this order. No order as to costs.
OA 4159/2011Consequent to the aforesaid directions in OA No.679/2011, OA No.4159/2011, where the applicant is a Medical Social Worker, is also allowed and the impugned order dated 28.06.2011 is quashed, and accordingly the aforesaid directions mutatis mutandis would apply in OA No.4159/2011.
Registry is directed to place a copy of this order in OA 4159/2011 also.
(V. AJAY KUMAR) (MRS. MANJULIKA GAUTAM) MEMBER (J) MEMBER (A) /Jyoti/