Central Administrative Tribunal - Delhi
Samander Singh vs Municipal Corporation Of Delhi on 17 March, 2025
O.A. No.3269/2023 with
Item No.40 (Court - 5) O.A. No.3745/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3269/ 2023
With
O.A. No.3745/2023
Reserved on: 25.02.2025
Pronounced on: 17.03.2025
Hon'ble Mr. Manish Garg,, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
O.A. No. 3269/2023
1.Amar Nath Sharma, S/o. Late Shri Ram Kishan
Sharma, Aged about 65 years, R/o. Q2/10B, DLF
City Phase-2
Phase 2 Gurugram, Haryana, retired as Malaria
Inspector Central Zone,
Zone S.D.M.C 122002
122002.
2.Jai Dutt Sharma, S/o Late Shri Pyare Lal, Aged
about 63 years, R/o. B-118
B 118 A/5 Sai Nagar, Meetha
Nagar, Badarpur, Delhi-110044
Delhi 110044 retired as Malaria
Inspector Central Zone S.D.M.C.
S.D.M.C
3.Kundan Lal Jaweria, S/o. Late Sh. Ruraram, Aged
about 59 years,
years, R/o. Flat No.302, South End
Apartment, Pul Pahaladpur New Delhi
Delhi-110044
working as Anti Malaria Officer South Zone
S.D.M.C
S.D.M.C.
4.Vishwnath, S/o. Late Sh. Ganga Deen, Aged about
57 years, R/o. H.No.1123/24, L Block, Sani Bazar,
Sangam Vihar, New Delhi-110080
Delhi 80 working as
Malaria Inspector South Zone S.D.M.C
S.D.M.C.
5. Surender Parshad Sharma, S/o. Sh. D.R. Sharma,
Aged about 61 years, R/o. Village Nangal Barhman
P.O. Dighot District Palwal, Haryana, retired as
Malaria Inspector Central Zone S.D.M.C
S.D.M.C.
6.Yudhvir Singh Chauhan, S/o. Late Sh. Khazan
Singh Chauhan, Aged about 63 years, R/o. H.No.H7
Pancheel Vihar, Malviya Nagar, New Delhi
Delhi-110017
retired as Malaria Inspector South Zone S.D.M.C
S.D.M.C.
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O.A. No.3269/2023 with
Item No.40 (Court - 5) O.A. No.3745/2023
7.Ravinder Nath, S/o. Late Sh. Beni Prashad, Aged
about 64 years, R/o. H.No.1657/31
H.No.1657/31 Agrawal
Dharmshala Wali Gali, Laxman Vihar, Phase
Phase-II,
Gurugram, Haryana, retired as Malaria Inspector
Najafgarh Zone S.D.M.C.
S.D.M.C
8.Mahesh Chander, S/o. Late Sh. Ayodhya Prasad,
Aged about 64 years, R/o. H.No.C/237C, Mayur
Vihar, Phase-II,
Phase Delhi - 110091 retired as Malaria
Inspector Head Quarter North DMC
DMC.
9.Amar Prakash Gupta,S/o. Late Sh. Phool Chand
Gupta, Aged about 63 years, R/o. H.No.C
H.No.C-53, New
Ashok Nagar, Near MCD Primary School, Delhi
Delhi-
110096 retired as Malaria Inspector City Zone North
110096,
DMC
DMC.
10. Mahavir
Mahavir Prasad,S/o. Late Sh. Beni Prasad
Sharma, Aged about 63 years, R/o. H.No.26 Sector
Sector-
3A First Floor, Rachna, Vaishali, Ghaziabad, U.P.,
retired as Malaria Inspector Head Quarter North
DMC
DMC.
11. Shripal,S/o. Late Sh. Inder Singh Yadav, Aged
about 64 years,
years, R/o. H.No.865, Gali No.2, Near
Ambadkar Park, Jwala Nagar, Shahdara, Delhi
Delhi-
110032, retired as Malaria Inspector Head
QuarterEDMC
QuarterEDMC.
...Applicants
(By Advocate:Ms.
Advocate: Pragnya Routray))
Versus
1. Municipal Corporation of Delhi Through
Commissioner, 9th Floor, Civic Centre,
Jawhar Lal Nehru Marg, Minto Road, New
Delhi
Delhi-110002.
...Respondent
(By Advocate: Mr. Aman Oberoi)
---
Page 2 of 17
O.A. No.3269/2023 with
Item No.40 (Court - 5) O.A. No.3745/2023
O.A. No. 3745/2023
1.Samander
Samander Singh (Group 'C'),
'C') S/o Late Sh. Mange
Ram Aged about 67 years R/o H. No.262, Daryapur
Kalan, Delhi-110039 Retired as Assistant Malaria
Inspector.
2. Narvir Singh (Group 'C')S/o Late Sh. Jawahar
Singh Aged about 67 years R/o H. No. 484, Alipur
Singh,
Delhi
Delhi-11003636 Retired as Malaria Inspector.
3.Prem Chand (Group 'C),
'C) S/o Late Sh. Manohar Lal
Aged about 67
67 years R/o H. No. 365, Alipur Delhi
110036 Retired as Malaria Inspector.
110036
4. Jagdish Singh (Group 'C'), S/o Late Sh. Bhagwan
Singh Aged about 69 years R/o H. No.234, Alipur
Delhi
Delhi-11003636 Retired as Malaria Inspector.
5. Jitender kumar (Group 'C'), S/o Late Sh. Dhrampal
Aged about 43 years R/o H. No.55, Mohamad Pur
Delhi
Delhi-11003636 Retired as Malaria Inspector.
6.Bijender Kr. Sharma (Group 'C')
'C'), S/o Late Sh. Babu
Ram Aged about 66 years R/o C-77/7,
C 77/7, Gali No.6,
Mohan Puri Delhi-110053Retired
Delhi as Assistant
Malaria Inspector.
7. Ashok Kumar (Group 'C') S/o Sh. Parma Chand
Aged about 64 years R/o Flat No.292, DA Block,
Shish Mahal Apartment, Shalimar Bagh Delhi
Delhi-
110085 Retired as Malaria Inspector.
110085
8.Shyam Sunder (Group 'C'),
'C') S/o Late Sh. Shiv
Kumar Aged about 64 years R/o H. No.116, Double
Kumar
Story, Silampur, Phase-III,
Phase Delhi-1100
110053 Retired as
Malaria Inspector.
...Applicants
(By Advocate: Mr. Nilansh Gaur)
Versus
1. Municipal Corporation of Delhi Through
Commissioner, 9th Floor, Civic Centre,
Page 3 of 17
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Jawhar Lal Nehru Marg, Minto Road, New
Delhi
Delhi-110002.
...Respondent
(By Advocate: Ms. Anupama Bansal
Bansal)
----
Page 4 of 17
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ORDER
Hon'ble Mr. Manish Garg, Member (J):
(J):-
In O.A. No.3269/2023,Ms. No.3269/2023,Ms Pragnya Routray, learned counsel, appears for the applicants and Mr. Aman Oberoi Oberoi, learned counsel, appears for the respondents. In O.A. No.3745/2023, Mr. Nilansh Gaur, learned counsel, appears for the applicants and Ms. Anupama Bansal, learned counsel, appears for the respondents. The applicants filed two OAs and seek similar reliefs. As such, both the OAs are taken up for hearing together and a common order is being passed.
2. In the t Original Application No.3269/2023 No.3269/2023, filed under Section 19 of the Administrative Tribunals Tribunal Act, 1985, the applicant applicants have prayed for the following relief(s):
"1)
1) Issuance of appropriate order/direction to quash the office order dated 21.8.2023 as issued by the respondent as ci cited above (Annexure A-1)
2) direct the Respondent to remove the anomaly in the pay scale of vaccinators and AMI and MI and grant AMIs the pay scale of Rs.5000 Rs.5000-
8000/ w.e.f their date of appointment and revise the pay scale of the 8000/-
Applicants accordingly with all subsequent consequential benefits in terms of office order dated 16.1.2018 and quash the office order dated 21.2.2018.
3) Any other order or direction this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case.
case."
3. In the the Original Application No.3745/2023, filed under Section 19 of the Administrative Tribunals Tribunal Act, 1985, the applicant applicants have prayed for the following relief(s):
Page 5 of 17O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 "a)
a) Call for the records of the case and quash and set aside the Impugned order dated 17.08.2023, rejecting the representations of the applicants at ANNEXURE A-1 A
b) Quash and set aside the impugned order dated 21.2.2018 at ANNEXURE A-1A 1A and direct the respondent to restore office order dated 16.1.2018 and implement the same, in the manner described therein with all consequential benefits to the applicants; and
c) Direct the respondent to remove the anomaly in the pay scale of vaccinators and AMI and MI and grant AMIs/MIs the pay scale of Rs.5000 Rs.5000-
8000 w.e.f. their date of appointment and revise the pay scale of the applicants and re-calculate re and re-fix fix the pensionary benefits accordingly with all subsequent consequential benefits as per methodology in office order dated 16.1.2018; and
d) Any other relief which this Hon'ble Tribunal may de deem fit and appropriate, in the circumstances of the case.
case."
4. Highlighting the facts of the case in O.A. No.3269/2023, Ms. Highlighting Pragnya Routray, learned counsel for the applicant applicants submitted that the applicants had been working as AMIs (Assistant Malaria Inspectors and MIs (Malaria Inspectors. The office order dated 16.01.2018 came to be passed pursuant to the direction issued in TA No. 266/2019 wherein the respondents were directed to revise the pay scale of th the AMIs of the Malaria M Department. However, tthe respondents vide order dated 21.02.2018 withdrew its earlier order dated 16.01.2018, which reads as under:
"Office Order issued vide MHO/NORTH DMC/PH//2018/330 dated 16.01.2018 (Copy attached) regarding giving the pay scale to Assistant Malaria Inspectors Inspectors w.e.f. 01.01.1973 equal to re-designated Vaccinator and PHI in the matter of court case of Shri Ram Kumar Sharma & Ors V/s North DMC vide MA No.1722/2017 in TA No.266/2009 is hereby withdrawn.
This issues with the approval of Commissioner North DMC dated 16/02/2018."Page 6 of 17
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5. The applicants through their Union made representation representations dated 08.06.2018 and 08.03.2019 seeking implementation of the office order dated 16.01.2018 and withdrawal of the office order dated 21.0 21.02.2018.
However, the respondents failed to submit any reply. Being aggrieved, against the withdrawal of the said order, an OA came to be filed before this Tribunal being O.A. No.1062/2019, which was disposed of vide order dated 29.03.2023. In the said order, this Tribunal had made the following observations:
"13. The present case of the applicants pertains to AMI who are seeking parity with Vaccinators designated as PHI. Since the respondents have already taken a view vide Order dated 18.05.2011, as already highlighted above, wherein, it was held held that AMI cannot be equated with Vaccinators, who were discharging the duty as Inoculator and Immunizer, were given the pay scale of Rs.330-560 Rs.330 560 on the analogy of Inoculators and LHVs on the basis of 'equal pay for equal work' in compliance of the Orders oof the Presiding Officer, Industrial Tribunal-1 Tribunal 1 in Award passed on 23.09.1988 and were designated as PHIs. It is also not clear from the record, as stated by the respondents, that the order dated 16.01.2018 was passed on the basis of misrepresentation of facts facts keeping the Senior Officers in dark. However, no such material has been placed on record. It is also highlighted that the impugned Office Order dated 21.02.2018 though has been passed immediately after passing of the order dated 16.01.2018, however, th the benefits which have been granted pursuant to order dated 16.01.2018 cannot be taken away by a cryptic order dated 21.02.2018 without giving the opportunity of hearing to the applicants herein.
14. We, therefore, deem it appropriate that a holistic view be taken by the Competent Authority, without influenced by the Order dated 21.02.2018 on the representations dated 08.06.2018 and 08.03.2019, seeking implementation of the initial Order dated 16.01.2018 taking the ratio and analogy as laid down by the Hon'ble Hon'ble High Court in Order dated 31.10.2014 in WP(C) No.2259/2012 wherein it is held that the act of the respondent in bifurcating the posts of Vaccinators into two posts as APHI and PHI and assigning two different pay scales Rs.4000 Rs.4000-6000/- and Rs.5000-8000/-
against one post without amending the RRs is illegal and, therefore, the respondent was directed to designate those Assistant Public Health Inspector as Public Health Inspectors in the pay scale of Rs.5000 Rs.5000-8000 with benefits as given to other Vaccinators aas per the Office Order dated 31.05.2005.
15. Be that as it may, in the present OA, since an Office Order dated 21.02.2018 has been passed whereby earlier order dated 16.01.2018 has been withdrawn without any reason, the only reason given is that certain officials ficials of the respondents have misrepresented in issuance of Office Order Page 7 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 dated 16.01.2018. Hence, the same has been withdrawn by the Impugned Office Order dated 21.02.2018. However, the fact remains that without disclosing the circumstances and giving dedetails of misrepresentation, the said Office Ordercould not have been passed behind the back without giving an opportunity of hearing. It is also seen from the records that pursuant to the Impugned Order dated 21.02.2018, the Union had made representations on 08.06.2018 as well as 08.03.2019 seeking implementation of the Order dated 16.01.2018, but the same has also not been dealt with without giving an opportunity of hearing to the Union.
16. In view of the discussion made hereinabove, the Competent Authority, amongst the respondents, is directed to pass a reasoned and speaking order and dispose of the representations dated 08.06.2018 and 08.03.2019 in a time bound manner, keeping in view the rule position.
17. Needless to say that the Competent Autho Authority shall follow principles of natural justice before passing a reasoned and speaking order within a period of two months from the date of receipt of certified copy of this order.
18. Accordingly, OA stands disposed of in aforesaid terms. There shall be no o order as to costs."
6. The applicants herein impugn the Office Order dated 21.08.2023 passed by the respondents pursuant to the directions issued by this Tribunal in the aforesaid O.A. The relevant extract of the impugned order dated 21.08.2023 so passed is reproduced herein below:
"In this matter, erroneously an Ofice Order to revise the pay scale of AMIs of the Malaria Department at par with PHI w.e.f. 01.10.1973 was issued vide Office Office Order No. PA to MHO/North DMC/PH/2018/330 dated 16.01.2018 and the competent authority after re re-considered the fact of the case withdrawn the Office Order dated 16.01.2018 vide MHO/North DMC/PH/2018/243 dated 21.02.2018 and the same was submitted to Hon' CAT in the form of affidavit.
Hon'ble After considering the above facts and circumstances, the claim of applicants for grant of pay scale of Rs. 5000 5000-8000 to AssistantMalaria Inspectors at par with Vaccinators (designated as Public Health Inspectors) is not tenable tenable as the Vaccinators who were discharging the duties of Inoculators and Immunizer, were given the Pay Scale of Rs. 330 330-560 (Pre-
revised) w.e.f. 23.05.1981 on the analogy of Inoculators and LHVs on the basis of equal work equal pay incompliance of the oorders of the Presiding Officer Industrial Tribunal-1 Tribunal 1 in Award passed in L.D. No. 253/83 on dated 23.09.1988 and were designated as PHI's.
Hence, the representation dated 08.06.2018 & 08.03.2019 have no merit and accordingly the same is disposed of.
These issues issues with the approval of the Competent Authority."Page 8 of 17
O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023
7. It has been contended on behalf of the applicants that even though it has been observed in the impugned order that there is a parity in respect of Pay Scale to Malaria and Vaccination Staff as both the cadres are are in similar grades/pay scales.
8. She further states that again a mechanical order has been passed without giving a tenable reason as to why firstly office order dated 16.01.2018 came to be passed pursuant to the direction issued in TA No. 266/2019 6/2019 wherein the respondents were directed to revise th the pay scale of the AMIs of the Malaria Malaria Department. However, the respondents vide order dated 21.02.2018 withdrew its earlier order dated 16.01.2018. There is no basis of the same and no material has been placed on record to justify the stand of the respondents.
9. It is the contention of the learned counsel for the applicants that the post of Vaccinator cannot be bifurcated artificially without amending the RRs. Learned counsel for the applicants further submits that the decision sought to be made in respect of the present applicants cannot be made in light of the observation in the ID dispute which has been dealt with in the matter of Sh. Narendra and Ors. (supra) as they belong to one cadre.
10. Learned counsel for the applicants applicant urged that the said order dated 21.08.2023 .08.2023 has been passed dehors the directions contained in the order passed in O.A. No.1062/2019 dated 29.03.2023 in the earlier round of litigation. She emphasized paragraphs 13, 14 and 15 of the Page 9 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 order dated 29.03.2023 in O.A. No. 1062/2019, which have been given go-bys bys in the impugned order. He further submits that vide order dated 04.02.2025, this Tribunal directed the respondents to place on record the award passed in ID No. 253-83 253 83 dated 23.09.1998 as referred to in the impugned order in question with an advance copy to the other side.
However, the same has not been placed placed on record.
11. Upon instructions, instructions learned counsel for the respondents states the record of the award passed in ID No.253/83 dated 23.09.1998 is not available despite best efforts. However, she submits that the said ID No. 253/83 is not in dispute which which has already been quoted in Sh.
Narendra and Ors vs MCD in W.P. (C) 2259/2012 2259/2012. The relevant para of the same is reproduced herein below:
"17. It is quite apparent that the parity sought by the workmen claimants in the first reference leading to the first award in ID No. 253/83 is no different from what was sought by the claimant workmen in the second reference, ID 107/1996. The extract of the se second award would show that the same defence, sought to be set up by the MCD in the second reference was rejected by the Industrial Tribunal in the second award. There is no material, or even averment by or on behalf of MCD to show how the petitioners are any any different from those who had sought the reference in ID 107/1996. The latter, i.e claimants in the second reference leading to the second award, were post first award employees (recruited after 28.3.1992, the date when the first award was implemented). Their position and that of the Petitioners is identical; the latter, i.e the petitioners were appointed/recruited in 1998-1999.
1998 1999. Thus, the Petitioners, in the opinion of the Court, have been clearly able to establish their identity as those Vaccinators who were part of the same class of such employees, in favour of whom the second award was made."
12. Opposing the grant of relief, relief the learned counsel for the respondents in O.A. No.3745/2023,, Ms. Anupama Bansal, relies upon the averments contained in the counter counter affidavit affidavit. She submits that the respondent had rightly dismissed dismissed the representation of the aapplicants Page 10 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 vide office order dated 17.08.2023.
17. .2023. The rreasons have been stated by the answering respondents respondents in the said Office Order ddated 17.08.2023 and there is no anomaly in the said office order. It is further submitted that the AMIs and Vaccinators Vaccinators belong to two different cadres, having same pay scale and qualification. The post of V Vaccinators was bifurcated into two categories with revision of pay scale in compliance to the recommendations commendations made by Pattnayak Pat nayak Committee.
13. Mr. Aman Oberoi, learned counsel for the respondents in O.A. No.3745/2023 also submits that AMIs and vaccinators belong to two different cadres. Therefore, there is no question of parity between both the cadres.
14. Heard learned counsel for the respective parties and perused the pleadings available on record.
15. ANALYSIS 15.1 In Kalabharati Advertising vs Hemant Vimalnath Narichania & Ors decided on 6 September, 2010, AIR 2010 SUPREME COURT 3745: 2010 (9) SCC 437, the Hon'ble Apex Court observed as under
under:
"25. The State is under obligation to act fairly without ill will or malice malice- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed attributed to the State, it can never be a case of personal ill-will will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in llaw intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, Page 11 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 which intent is manifested by its injurious acts. (Vide Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla Shukla, AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, Pitti AIR 2003 SC 1941; Chairman and M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC 567; and West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976).
15.2 The Office order dated 16.01.2018
16. 1.2018 came to be passed in terms of following directions passed by the the Tribunal in TA No.266/2009:
"8. Resultantly, this TA is allowed to the extent that respondent, i.e., Commissioner, MCD shall now consider the grievance of applicants for bringing them at par with re-designated re designated Vaccination cadre in the matter of pay scale by a speaking order to be passed, keeping in light Patnayak Committee, within a period of 3 months from the date of receipt of a copy of this order.
order. It goes without saying that if a decision is taken in favour of the applicants the same may be placed before the House for being giving effect to. No costs."
15.3 In O.A. O No.3044/2011 vide order dated 19.01.2012, the following order came to be passed:-
pass "13.
13. Accordingly it is directed directed/held as under:
under:-
i). The direction given by Chairman, MRPH in MRPH meeting dated 18.07.2011 to send the file to higher authorities to implement the resolution no. 920 dated 16.03.2010 shall not he acted upon.
(ii) The recommendation of review Pattanayak Committée constituted in digression of order dated: 14.05.2009 passed in TA no. 266/2009 shall not not-
be acted upon. Consequently the proposal dated 25.11.2009 initiated by MCD to integrate Anti Malaria operations staff with Health staff, the resolution noi6 passed by MRPH on 02.03.2010 accepted by the House the Corporation, vide resolution nos, 920 dated 16.03.2010 in misunderstanding of order passed by this Tribunal in TA 266/2009 shall also be not acted upon.
(iii)
ii) It would, however, be open to MCD to take decision independent of resolution no: 920 dated 16.03.2010 to integrate the anti malaria operations with health staff. While doing so, MCD would keep in view the fact that in 2001 it had not accepted the recom recommendation of Pattanayak Committee to integrate malaria cadre with Vaccination & health inspector cadre and vide specific order dated 6.12.2005, Commissioner, MCD had turned down the request of General Secretary, MCD Health Employee's Union for integration of Malaria, Epidemiology and Public Health cadre.
(iv). In any case if the MCD finally integrates the Anti Malaria operations staff with health staff, it would ensure that the incumbents various posts of APHI/PHI/CPH) & AMI/MI/SMI are kept in their separa separate seniority lists and allowed to progress in their career with the same opportunity as are available' to them as on date recruitment may be made by MCD in Page 12 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 integrated cadre if they decide to merge malaria staff with health staff.
v). If at all it decide to do so while undertaking exercise of integration of malaria staff with physical health staff, MCD would keep in view the legal position discussed hereinabove.
With the aforementioned directions/declarations, QA stands disposed of. No costs."
costs.
15.4 We observe ob that while passing the impugned order dated 21.08.2023, 8.2023, it has been observed as under ::-
"After consideration of above facts and circumstances, it is observed that parity in respect of Pay Scale to malaria and Vaccination Staff has already been maintained maintained by the department as both the cadres are in similar grades/pay scales and as such hierarchical set up of both the cadres with pay scales are as under:
Vaccination Cadre Of PH Wing Malaria Cadre of Anti Malaria Wing Vaccinator (Now Assit. Public Health Asstt. Malaria Inspector: Rs. 4000 4000-6000 Inspector) 4000-6000 4000 (Pre-revised) (Pre--revised) Vaccination Inspector (Public Health Malaria Inspector: Rs.5000 Rs.5000-8000 (Pre-
Inspector & Vaccinator(Now PHI): Rs. revised) 5000 5000-8000 (Pre-revised) Chief Vaccination Inspector (Chief Senior Malaria Inspector: Rs. 5500 5500-9000 Public Health inspector): Rs. 5500-9000 5500 (Pre--revised) (Pre (Pre-revised).
Thus, the parity is being maintained in both the cadres. The equivalent posts in the both cadres are in the same sca scale as mentioned in the table hereinbefore.
In this matter, erroneously an Ofice Order to revise the pay scale of AMIs of the Malaria Department at par with PHI w.e.f. 01.10.1973 was issued vide Office Order No. PA to MHO/North DMC/PH/2018/330 dated 16.01.2018 and the competent authority after re 16.01.2018 re-considered the fact of the case withdrawn the Office Order dated 16.01.2018 vide MHO/North DMC/PH/2018/243 dated 21.02.2018 and the same was submitted to Hon'ble CAT in the form of affidavit.
After considering the above bove facts and circumstances, the claim of applicants for grant of pay scale of Rs. 5000 5000-8000 to AssistantMalaria Inspectors at par with Vaccinators (designated as Public Health Inspectors) is not tenable as the Vaccinators who were discharging the duties of Inoculators and Immunizer, were given the Pay Scale of Rs. 330 330-560 (Pre-
revised) w.e.f. 23.05.1981 on the analogy of Inoculators and LHVs on the basis of equal work equal pay incompliance of the orders of the Presiding Officer Industrial Tribunal-1 Tribunal in Award ward passed in L.D. No. 253/83 on dated 23.09.1988 and were designated as PHI's.
Hence, the representation dated 08.06.2018 & 08.03.2019 have no merit and accordingly the same is disposed of.
These issues with the approval of the Competent Authority."
15.5 Despite the aforesaid observations, no plausible explanation is Page 13 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 coming forth as to why unilaterally, the Office order dated 16.
16.01.2018 came to be withdrawn. In the impugned order dated 21.
21.08.2023, the only explanation assigned is that "They " hey have no locus standi as they did not perform the duties of Inoculators and Immunizer of the ground on which Vaccinators gut higher pay scale & they are at par with the other Vaccinators/APHIS who are in the pay scale of Rs. 4000 4000-6000 (in 5th CPC) and designated as Alts who did not get higher pay scale.
15.6 The reasoning runs contrary to the stand of the respondents that parity is being maintained in both cadres. The equivalent posts in both the cadres are in the same scale as mentioned in the table in the impugned order itself.
15.7 The respondents have taken a somersault in rescinding the order dated 21.2.2018 without assigning any reasons. More importantly, the respondents have also totally ignored the observations made in Narendra & Ors. (supra), which are re-produced produced as under ::-
"23.
23. Besides P.U. Joshi (supra) which, as seen earlier, does not help MCD's 's case on its own, CAT also relied upon the fact that the petitioner/applicants were not provided inoculation training. This was W.P.(C) 2259/2012 Page 15 also the basis of the O Office Order, dated 5.10.2009, in which it was stated:
"The present Vaccinators cannot claim parity with Inoculators/Vaccinators as they never performed the duties of the Inoculators. Since Public Health Inspector is promotional post of Assistant Public Health alth Inspector and as per RRs being framed Assistant Public Health Inspector will be considered for promotion to the post of Public Health Inspector after fulfilling qualifying service in the post of Assistant Public Health Inspector, APHI cannot be placed in the grade of Rs. 5000 - 8000."
24. Therefore, this case must turn upon the fact as to whether that is a relevant difference, justifying the difference in pay pay-scales. Here this Court notes four important sets of facts in this regard. The first is that the bifurcation between the posts of PHI and APHI, with different paypay- scales, was not undertaken pursuant to any amendment in the Recruitment Rules. The Recruitment Rules, therefore, continue to have only one category of Page 14 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 "Vaccinators", with identical qualifications qualifications and paypay-scale. These qualifications are limited to sanitary/health inspector diploma from a recognized institution or equivalent, and draw no distinction on the basis of prior training in inoculation. The second is the MCD Circular dated 18.10.2007, which lists out the duties of the PHI and the APHI. Both sets of 18.10.2007, employees are required to investigate the occurrence of any illness/outbreak/unusual event, distribute chlorine tablets and ORS packets, set up chlorine and ORS depots, and take health eeducation measures; both sets of employees are required to perform "immunizations as and when required", "supervision of cremation grounds, burial grounds etc.", prosecutions under the W.P.(C) 2259/2012 Page 16 DMC Act against unlicensed trades", "surveillance of communicable and non non-communicable diseases under Integrated Disease Surveillance Project" etc. Furthermore, one of the responsibilities of the APHI is to "assist PHIs in any job/duty assigned to him". These facts reveals that, for the most part, the APHIs and the PHIs are performing identical functions, for which identical qualifications are needed. The differences - e.g, the responsibility of the APHIs to attend fairs and festivals for preventive health measures - are cosmetic, and are not relevant to the distinction between the two categories, i.e. the fact that the category of vaccinators working in the PHI category had received extra inoculation training.
25. The third is the "List of Business" document, circulated by the MCD, for the meeting of the Medical Health and Public Relief Committee, held on 22nd May 2008, and obtained through RTI. Here, during the discussion of the re-designation re designation of "vaccinators, LHV/inoculators" to "APHI/PHI respectively", it is stated that:
"after the eradication of smallpox in the year 1977 the vaccination staff is not doing any vaccination work and was assigned the duty of prevention and control of Cholera, gastro gastro-entritis, registration of births and death and other duty of public health importance. For last thirty years, the most of vaccination staff is not doing vaccination work. Therefore there is need to change the designation of these posts."
26. It is clear from the above statement - and is also further borne out in the document - that "Vaccinators" is treated as a single class, with no mention of the bifurcation between PHI and APHI on the basis of the extra inoculation training received by the vaccinators who W.P.(C) 2259/2012 Page 17 were beneficiaries beneficiaries of the 1988 award. In fact, the document simply goes on to state that:
"Commissioner, MCD vide order dated 07.12.2001 accorded approval for designating vaccinators/assistant inspector (Epid) in the pay scale of 3050-4590 4590 as Assistant Public Health In Inspectors.
Vide order dated 07.12.2001 Health Inspectors/Vaccination inspectors/Inspectors (Epid) and Vaccinators/Assistant Inspectors (Epid) working in the pay scale of Rs. 4000 - 6000 were designated Public Health Inspectors."
These facts reveal that the bifurcation appears to have been made solely on the basis of differential pay pay-scale, and nothing more.
27. In its order in T.A. No. 266/2009, directing the Respondent to consider the claims of the vaccinators, the CAT had earlier pointed at how a Page 15 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 revision and re-designation re designation of the cadre had "arbitrariness writ large on the face of the decision." Similarly, in its order in O.A. No. 3632/2009, the Tribunal observed:
"Once the pay scale of Rs. 4000 - 6000 is that sole criterion of re- designating PHI applicants, pplicants, who were admittedly in the paypay-scale from 1.1.1998 when the decision was taken to re re-designate on 7.12.2001, they cannot be re-designated designated as APHI and accorded the same pay scale of Rs. 4000 - 6000. The basis of grant of higher pay scale of Rs. 5000 - 8000, being the erstwhile pay scale of Rs. 4000 - 6000, cannot deny the benefits to the applicants.
Moreover, though the respondents maintain that PHI and APHI are performing the different duties, PHI applicants, who were admittedly in the pay-scalee from 1.1.1998 when the decision was taken to re-designate designate on 7.12.2001, they cannot be re re-designated as APHI and accorded the same pay scale of Rs. 4000 - 6000. The basis of grant of higher pay scale of Rs. 5000 - 8000, being the erstwhile pay scale W.P.(C) (C) 2259/2012 Page 18 of Rs. 4000 - 6000, cannot deny the benefits to the applicants.
Moreover, though the respondents maintain that PHI and APHI are performing the different duties, yet we find that the qualifications for both posts in the recruitment ru rules being identical, the additional factor of training for immunization is a device methodology of the respondents to save all vaccinators earlier with the nomenclature of inoculators being ousted from the Department." As such, they were given re re-designation to the post of Vaccinator otherwise we do not find any real difference in Vaccinators and Inoculators, as both the words by their literal sense refer to as a basic ingredient of Vaccinator."
28. On examination of the record, this court is in agreement with the CAT's above observation. Under the recruitment rules, which have not been amended, there is a common post of "vaccinator", with common qualifications. The functions of the PHI and the APHI are similar (if not wholly identical) with a few cosmetic differences having nothing to do with the stated reason for a differential pay pay-scale, i.e., prior inoculation training. Furthermore, the documents of the MCD reveal that the bifurcation was made purely on the basis of paypay- scale (which, in turn, was determined by whether or not a particular employee had been employed determined before the Industrial Tribunal's award), and not on any objective differentiation in qualifications or duties. In light of the judgments of the Supreme Court discussed above, we hold that the R Respondent's classification of vaccinators into "PHIs" and "APHIs", with different pay pay- scales, is illegal and arbitrary.
29. This court is also unpersuaded by the MCD's argument that the Pattnayak Committee's recommendations could have been the basis of th the distinction in pay scales. Concededly, the petitioners and those W.P.(C) 2259/2012 Page 19 who were initiators of the second reference (ID 107/1996) belonged to the same class (i.e post first award recruits). The MCD could not have under the circumstance circumstances made a hyper classification between those who sought the reference and those who did not not- such classification is forbidden in view of the express terms of Section 18 (3)
(d) of the Industrial Disputes Act.
Act. Besides, the report of the Committee could at best be recommendatory and a justification for a future change in Page 16 of 17 O.A. No.3269/2023 with Item No.40 (Court - 5) O.A. No.3745/2023 the recruitment rules. However, the stand of the MCD was that the rules "are being amended" - as late as in 2011 in their counter affidavit bbefore CAT.
CAT."
16. CONCLUSION 16.1 In view of the above analysis, we quash and set aside the impugned orders order dated 21.02.2018 2.2018 and 21.
21.08.2023. The respondents are directed to restore the Order dated 16.
16.01.2018, which came to be implemented pursuant to the order(s) passed by this Tribunal in TA No.266/2009. The consequential relief(s) shall follow within a period of three months from the date of receipt of a certified copy of this order.
16.2 Accordingly, the O.A. is disposed of. All pending applications, if any, shall also stand disposed of. Costs made easy.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sb/
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