Central Administrative Tribunal - Delhi
Shri Raja Ram vs The Govt. Of Nct Delhi on 7 January, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 1167/2006
New Delhi, this the day of January, 2009
HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN
HONBLE MR. JUSTICE M. RAMACHANDRAN, VICE CHAIRMAN (J)
HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A)
Shri Raja Ram
S/o Shri Bhule Ram
R/o 1/3606, Loni Road,
Ram Nagar Extension,
Shahdara,
Delhi-110032 Applicant
(By Advocate: Shri Ashwani Bhardwaj)
Versus
The Govt. of NCT Delhi,
Through its Secretary,
Department of Health & Family Welfare,
Secretariat, Players Building,
Indraprastha Estate,
New Delhi
The Additional Secretary (Health),
Health & Family Welfare Department,
Technical Recruitment Cell,
Level 9, Wing A, Delhi Secretariat,
Players Building, Indraprastha Estate,
New Delhi
3. The Medical Superintendent,
Lok Nayak Hospital, New Delhi Respondents
(By Advocate: Shri Vijay Pandita)
O R D E R
Mr. L.K. Joshi, Vice Chairman (A);
The Government of NCT of Delhi, the first Respondent herein had granted the pay scale of Rs.5000-8000/- to the Operation Theatre Technicians (for short OT Technicians) working in the institutions under the Government of NCT of Delhi but later retracted from the above stand by fixing the pay scale of the OT (Technicians) with qualifications of Matriculation/ Higher Secondary/ Senior Secondary (10+2) with Science and having ten years experience in Operation Theatre to Rs.4000-6000/-. The question arose in OA No.1167/2006, which is before us for consideration whether the OT (Technicians) possessing the above mentioned qualifications and OT (Technicians) possessing educational qualifications of B.Sc. plus Diploma/Certificate in the relevant subjects would be eligible for equal pay scale of Rs.5000-8000/- according to the recommendations of the V Central Pay Commission (for short V CPC). A Division Bench of this Tribunal, after considering various aspects of the case and order of a Co-ordinate Bench in OA No.2184/2005 decided on 17.05.2007, referred the matter to Full Bench for interpretation of the recommendations of V CPC in paragraph 52.78 read with serial number XVII (a) Part `B of the recommendations with regard to pay scale of OT (Technician).
2. The V CPC made the following recommendations in paragraph 52.78 of its report:
52.78 The Operation Theatre Technicians have the following relativity of posts with the Laboratory Technicians:
O.T. TECHNICIAN LABORATORY TECHNICIAN Pay Scales Pay Scales Post (Rs.) Post (Rs.) O.T. Tech. Officer/Supdt. 2000-3500 Lab. Tech. Officer/Supdt. 2000-3500 O.T. Tech. Supervisor 1640-2900 Lab Tech. Supervisor 1640-2900 Sr. O.T. Tech. 1400-2300 Lab. Tech. Asstt. 1400-2300 O.T. Tech. 1200-2040 Lab. Tech. 1320-2040 O.T. Asstt. 950-1500 Lab. Asstt. 975-1540 O.T. Asstt. 800-1150 Lab. Attendant 800-1150 Except the first two levels above Group D, the rest of the posts have the same pay scales in both categories. The administrative Ministry have observed that there is similarity in the training, qualification & recruitment rules among the laboratory technical staff and the O.T. Technical Staff. In view of comparable qualifications and duties, we recommend parity of O.T. Technicians and Lab. Technicians at the initial levels also. Accordingly, the following grades are proposed for O.T. staff in future.
O.T. Attendant Rs. 750-940 with 2 ACP levels of Rs.775-1025 and Rs. 800-1150 with minimum 8th Standard qualification at entry;
O.T. Assistant Rs. 950-1500 with 2 ACP levels of Rs.1200-2040 and Rs. 1400-2300 with minimum qualification of matric (with Science) plus certificate or 10+2 with Science for direct recruitment; and O.T. Technician Rs. 1600-2660 with 2 ACP levels of Rs.1640-2900 and Rs. 2000-3500 with minimum B.Sc. plus Diploma/ Certificate in the relevant subjects. The existing incumbents in each organization in operation theatres as well as sterilization services will be placed in appropriate matching pay scales.
3. The recommendation at serial number XVII (a) reads thus:
XVII OPERATION THEATRE TECHNICAL STAFF Sl. No. Posts Present Scale (Rs.) Revised Scale (Rs.) Paragraph No. of Report
(a) O.T. Technician 1200-30-1560-EB-40-2040 5000-150-8000 52.78
4. The Government of NCT of Delhi, the first Respondent, issued an order following the acceptance of the recommendations of the V CPC, in which the substituted scale of OT (Technician) was given as Rs.5000-150-8000/- (Annex. A-4). By an order dated 14.09.1999, the Ministry of Health & Family Welfare, the second Respondent herein also issued an order in which the revised scale of OT (Technician) was shown as Rs.5000-150-8000/- (Annex. A-5). The Government of NCT of Delhi also published advertisements for recruitment of OT (Technician) in the years 2000 and 2002 (Annex. A-7 colly). In the advertisement published in the year 2000, the scale of OT (Technician) has been mentioned as Rs.5000-8000/-. The qualifications mentioned in the advertisement for the aforesaid posts are reproduced below :
B.Sc. or equivalent degree from a recognized University
(ii) Two years Operation Theatre Attendant course or Matriculation/Higher Secondary/10+2 Senior Secondary in Science
(ii) 10 years experience in any recognized hospital as O.T./CSSD/Anesthesia Pipeline Technician/Anesthesia Workshop.
In the advertisement of 2002 also, the same qualifications as well as pay scales had been mentioned.
5. In the meantime, Technical Staff Operation Theatre Association, Delhi through its President Shri Lalit Bali filed OAs No. 521 and 522 of 2002. OA No.521/2002 dealt with the case of Technical Assistants and the other OA No.522/2002 dealt with the case of Technical Supervisors. The OT (Technician) is the feeder post for Technical Assistant, which in turn is the feeder post for Technical Supervisor. In the recommendations of the V CPC, the post of Technical Assistant was placed in the scale of Rs.4500-7000/- and the higher post of Technical Supervisor was placed in the scale of Rs.5500-9000/-. Since the scale fixed for OT (Technician) was Rs.5000-8000/-, which it was conceded was a lower post than Technical Assistant and Technical Supervisor, there was an obvious anomaly in fixing the pay scale of Technical Assistants as Rs.4500-7000/-. The prayer made in the OAs was to issue directions to the respondents to place the post of Technical Assistant in the scale of Rs.5500-9000/- and the post of Technical Supervisor in the scale of Rs.6500-10500/-. The Tribunal in its order dated 7.11.2002 made observations to the effect that since the post of OT (Technician) carried the scale of Rs.5000-8000/-, the respondents should consider revising the pay scales of the higher posts of Technical Assistant and Technical Supervisor to Rs.5500-9000/- and Rs.6500-10500/- respectively. Following this, the second respondent, instead of revising the pay scales of Technical Assistant and Technical Supervisor upward, rolled back the scale of OT (Technician) from Rs.5000-8000/- to Rs.4000-6000/-. This came to be challenged in OA No.401/2004 on the ground that the roll back in the pay scale had been ordered without issuing any show cause notice. The Tribunal in its order dated 13.01.2005 in OA No.401/2004 directed the respondents to issue a show cause notice to the applicants in that case and then decide the matter. The second respondent issued show cause notice and after considering the representations made in reply to the notice, passed an order dated 20.09.2005 holding that the post of OT (Technician) would be rolled back to Rs.4000-6000/- retrospectively with effect from 1.01.1996 and the recoveries of overpayment would be waived. Another OA No.2184/2005 was filed by the OT (Technicians) assailing the above mentioned order dated 20.09.2005 by which the pay scale of Rs.5000-8000/- granted to them was rolled back to Rs.4000-6000/- retrospectively with effect from 1.01.1996. The Tribunal in its order dated 17.05.2007 dismissed the OA and rejected the plea of the OT (Technicians) for allowing the higher revised pay scale of Rs.5000-8000/- to them.
6. Shri Raja Ram, the Applicant herein had joined Lok Nayak Hospital, New Delhi, which is run by the Government of NCT of Delhi as Nursing Orderly on 25.03.1963. He was promoted to the post of OT Assistant on 20.04.1987 and further promoted to the post of OT (Technician) on 7.03.1996. The Applicant retired on superannuation from service on 31.12.2004. The Applicant was in the pay scale of Rs.5000-8000/- but because of rolling back of the pay scale to Rs.4000-6000/-, his retirement benefits were revised. The Applicant approached this Tribunal with the prayer to calculate his retirement benefits on the basis of the pay scale of Rs.5000-8000/-, in which scale he was working at the time of his retirement. The matter first came up before a Single Bench. The MA No.1684/2007 was filed on behalf of the Applicant for referring the matter to a Larger Bench in view of two conflicting decisions in OA No.521/2005 decided on 7.11.2002 and OA No.2184/2005 decided on 17.05.2007. The matter was referred to the Division Bench, which referred it to a Larger Bench.
7. The Full Bench, which heard the case made the following observations, after discussing the orders in OAs No.521 and 522/2002 and OA No.2184/2005 :
2. In the circumstances as mentioned above, it appears that the two judgments said to be containing conflicting views came to be recorded on entirely different set of facts. It cannot, therefore, be said that the decisions of the Tribunal referred to above are such where conflicting views have been expressed. Whereas, it may be true that there may be some observations in the two decisions which may appear to be conflicting, but, as mentioned above, the two orders came to be passed on entirely different set of facts.
3. We find the matter needs to be listed for hearing before the Division Bench only. If the Division Bench may be of the view that the decision recorded by the Tribunal in OA No.2184/2005 is not correct, it may yet be open for it to make a reference to Larger Bench, but, in our considered view, reference to Larger Bench could not be made by simply observing that there is conflict of opinion in OA Nos.521 & 522/2002 and OA No.2184/2005.
8. The Division Bench, which was hearing this case, did not agree with the learned Co-ordinate Bench which considered a similar matter in OA No.2184/2005 and again referred the matter to the Full Bench, making the following reference :
the matter regarding interpretation of the recommendation of V CPC in paragraph 52.78 read with serial number XVII (a) of Part `B of the recommendations with regard to pay scale of O.T. (Technician) is referred to a Larger Bench. That is how the case is before us.
9. The learned counsel for the Applicant, in the instant case, has contended that in paragraph 52.78 of the report of V CPC, sub para (ii) provides pre-revised scale of Rs.1200-2040/- for the first ACP upgradation of OT (Assistant), who is in the scale of Rs.950-1500/- with minimum qualification of matric (with Science) plus certificate or 10+2 with Science for direct recruitment. The argument is that the first promotional post for OT (Assistant) is OT (Technician) and the second level of promotion is Technical Assistant. He further pointed to serial number XVII (a) in which OT (Technician) in the scale of Rs.1200-2040/- has been given the revised scale of Rs.5000-8000/-, which we have already quoted in paragraph 2 above. Reading sub-para (ii) of paragraph 52.78 and serial number VXII (a) (both at Annex. A-3) would definitely lead to the conclusion that the V CPC has granted the revised scale of Rs.5000-8000/- to OT (Technician) in pre-revised scale of Rs.1200-2040/- with minimum qualification of matric (with Science etc.). Further, in sub-para (iii) of para 52.78, scale of Rs.1600-2660/- has been provided to OT (Technician) with minimum B.Sc. plus Diploma/Certificate in the relevant subjects. The revised scale of Rs.1600-2660/- as per the first Schedule of CCS (Revised Pay) Rules, 1997 is Rs.5000-8000/- (Swamys Compilation of Central Civil Services Revised Pay Rules 1997, 7th Edition, page 69). Thus, there are OT (Technician) promoted from OT (Assistant) with Matriculation/Higher Secondary/10+2 Senior Secondary in Science with 2 years Operation Theatre Attendant Course who would be in the scale of Rs.5000-8000/-. There would be OT (Technician) of direct recruitment in the scale of Rs.1600-2660/- (pre-revised)/ Rs.5000-8000/- (revised) with higher educational qualifications. He would also argue that in the earlier scale of OT (Technician), which was Rs.1200-2040/-, there was no condition attached of having the degree of B.Sc. plus Diploma/ Certificate. He would further contend that in paragraph 52.78 (ii), the qualification prescribed is Matriculation (with Science) plus certificate or 10+2 with Science for direct recruitment of OT Assistant. The post of OT (Technician) is a promotional post for the post of OT Assistant for which an individual becomes eligible after ten years in the feeder grade. He would contend that no additional qualification has been prescribed in the aforesaid paragraph for qualifying for the post of OT (Technician).
10. The learned counsel for the Respondents, on the other hand, would contend that the recommendations in paragraph 52.78 (ii) is with regard to OT Assistants. The recommendation regarding OT (Technician) is in paragraph 52.78 (iii) in which the minimum educational qualification prescribed is B.Sc. plus Diploma for the revised scale of Rs.5000-8000/-. The learned counsel did concede during the course of his arguments that the Government of NCT of Delhi had supported the contention of the OT (Technician) for scale of Rs.5000-8000/- but stated that the Union Ministry of Health & Family Welfare in consultation with the Ministry of Finance advised that the higher scale of Rs.5000-8000/- would be applicable only in case of OT (Technicians) possessing higher educational qualifications. Those who did not possess the higher qualification of B.Sc. plus diploma could be given only the replacement scale of pre-revised scale of Rs.1200-2040/-, which is Rs.4000-6000/-.
11. We have heard the rival contentions and gone through the records placed before us with the assistance of the counsel for both parties. We have also perused the record of OAs No.521 and 522/2002.
12. We have briefly mentioned the genesis of OAs No.521/2002 and 522/2002 in the preceding paragraphs. These OAs concerned the Technical Assistants and Technical Supervisors, posts higher than OT (Technician). However, since the issue in the above mentioned OAs was that OT (Technician) had been given the pay scale of Rs.5000-8000/- whereas the higher post of Technical Assistant had been placed in the scale of Rs.4500-7000/-, the scale given to OT (Technician) also came to be discussed in these above mentioned OAs and observations made by the Tribunal. Argument advanced by the respondents in the above mentioned OAs was that the OT (Technician), with qualifications of matric etc. were wrongly given the scale of Rs.5000-8000/- and such OT (Technicians) found wanting in terms of the educational qualifications as prescribed by the V CPC had to be placed in the scale of Rs.4000-6000/-. The Tribunal observed as follows in this regard:
12. We have carefully perused the recommendations made by the Fifth CPC and find that in respect of the post of OT Technician, the minimum pay scale laid down was Rs.1600-2660/-, the replacement/revised scale of which is Rs.5000-8000/-. The aforesaid recommendations go on to prescribe two ACP pay scales also in respect of the post of OT Technician. These are Rs.1640-2900 and Rs.2000-3500/-, both pre-revised. The existing incumbents of the post of OT Technician are to be placed, according to the Fifth CPCs recommendations, in appropriate matching pay scales. There is no mention any where in these recommendations that those OT Technicians who do not possess the minimum qualifications of B.Sc plus Diploma/Certificate will continue to languish in the pay scale of Rs.4000-6000/- which is merely the replacement/revised scale of the old pay scale of Rs.1200-2040/- carried by the said post. In the Notification (R-2) issued by the Central Government also, nothing has been said about the OT Technicians who do not possess the minimum qualifications of B.Sc plus Diploma/Certificate. In actual practice, as we have already seen the Government of NCT of Delhi has been working on the basis that the post of OT Technician does carry the pay grade of Rs.5000-8000/-. (emphasis supplied) It is in the context of the above observation that the Tribunal directed the Respondents in the above mentioned OAs to reconsider the pay scales of Technical Assistants and Technical Supervisors.
13. We notice that the learned Bench missed the import of sub para (ii) of paragraph 52.78 of the Pay Commission report, adverted to above. While holding that there is no mention in the recommendations of the V CPC that OT (Technicians) possessing lesser qualifications than B.Sc. plus diploma will languish in the scale of Rs.4000-6000/-, the learned Bench lost sight of the positive recommendation in sub para (ii) of paragraph 52.78.
14. In OA-2184/2005, the similar issue had been raised. The learned Bench, after reproducing paragraph 52.78 of the recommendations of V CPC, observed thus:
A bare perusal of aforesaid recommendations would show that earlier O.T. Technicians were placed in the pre-revised pay scale of 1200-2040/-, to which the normal replacement pay scale is Rs.4,000-6,000/-. 5th CPC recommended that O.T. Technicians would be placed in pay scale of Rs.1600-2660/- with two ACP levels of Rs.1640-2900 and Rs.2000-3500 with minimum B.Sc plus Diploma/ Certificate in the relevant subjects. The next sentence of aforesaid para is very crucial, which deals with existing incumbents. For the said category of officials in operation theatres as well as sterilization services, the recommendation, which is crystal clear and unambiguously, provided placement in appropriate matching pay scales. In our considered view, 5th CPC recommendations are prospective & the higher revised pay scale applicable to O.T. Technician is dependant upon and linked to educational qualifications possessed by them. In other words, recommended pay scale is applicable to said category of O.T. Technicians who possess minimum educational qualifications of B.Sc plus Diploma/Certificate. Necessary corollary to said recommendations is that those who possess Matriculation/Hr. Secondary, the revised pay scale would be the normal replacement scale, i.e. Rs.4000-6000/-, and those who are holding B.Sc. plus Diploma/Certificate would be entitled to higher pay scale of Rs.5000-8000/-. The term existing incumbents as well as appropriate matching pay scales are crucial and indicates the object & intent of 5th CPC recommendations. If the intention of 5th CPC was to grant revised pay scale of Rs.5000-8000/- to all O.T. Technicians irrespective of educational qualifications, then the last sentence of para 52.78 (iii) would be rendered otiose & nugatory.
11. On a specific query raised by us to applicants as to whether any of them was appointed as O.T. Technician, in terms of advertisement in January/February, 2002, the Ld. Counsel replied in negative. In other words, we can conclude that none of O.T. Technician appointed, based on such selection process, is before this Tribunal. As such we do not find any substance & justification in the contention raised.
12. In view of the discussion made hereinabove, we are of the view that 5th CPC recommendations do not advance & support the applicants plea & O.T. Technicians holding the qualification of Matriculation or equivalent are not entitled to higher revised pay scale. As such, applicants were wrongly allowed the higher revised pay scale of Rs.5000-8000/- to which they were not entitled. Since they were not legally entitled to said higher revised pay scale, the respondents action in rolling back to normal replacement pay scale cannot be found to be faulty. In any case, over payments made have been waived & said aspect not challenged, we are of the view that no prejudice was caused to them. Judgments cited have no application in the given circumstances. As such OA being bereft of any merit, is dismissed. No costs. We notice that in the order in OA 2184/2005 also, only sub-para (iii) of paragraph 52.78 has been noted. There is no discussion of sub-para (ii) of the above paragraph in the recommendations of the V CPC.
15. The Recruitment Rules for OT (Technician) as issued by notification No.F.53/42/87-M&PH dated 12.08.1988, which is enclosed with the record of OA 521/2002 at Annex. A-7 (page 31 of the paper book) provides the following qualifications for OT (Technician) :
A N N E X U R E I
----------------------
RECRUITMENT RULES FOR THE POST OF TECHNICIAN (ANAESTHESIA PIPELINES/ C.S.S.D./OPERATION THEATRE/ ANAESTHESIA WORKSHOP) IN MEDICAL INSTITUTIONS UNDER THE DELHI ADMINISTRATION, DELHI Name of the Post No. of Posts Classification Scale of Pay Whether selection post or non-selection Age limit for direct recruits Educational & other qualifications required for direct recruits (1) (2) (3) (4) (5) (6) (7) Technician(Anaesthesia/ Pipeline/CSSD Operation Theatre/Anaesthesia Workshop 27 Group`C Non-Gazetted Non-Ministerial Rs.330-10-380-EB-12-500-EB-15-560 Selection 21-30 years (Relaxable for Govt. servants upto 35 years 1.B.Sc. from a recognized University or equivalent.
2. 2 years, Operating Room Assistant Course.
OR
1.Matriculation / Hr.Secondary/Sr. Secondary (10+2) with science.
2.10 years, experience in Operation Theatre/ CSSD/ Anaesthesia / Pipelines Technician / Anaesthesia Workshop in any recognized hospital
16. What emerges from the above is that there are two sets of qualifications required for direct recruits for the post of OT (Technician). The candidate for the post would be required to have the degree of B.Sc. plus two years Certificate/ Diploma in the relevant subject. On the other hand, the other qualification is Matriculation/ Higher Secondary/ Senior Secondary (10+2) with Science with 10 years experience in Operation Theatre. Thus the qualification of B.Sc. plus Diploma has been equated with Matriculation/ Higher Secondary/ Senior Secondary (10+2) with Science with 10 years experience in Operation Theatre. It would be absolutely repugnant to the concept of fair play and justice to have two separate pay scales for the same post of OT (Technician) based on two different qualifications. It would be an egregious error. It is our considered view that there cannot be any objection to the aforesaid equation in which the qualification of B.Sc. plus Diploma is considered to be equivalent to the qualification of Matriculation/ Higher Secondary/ Senior Secondary (10+2) with Science with 10 years experience in Operation Theatre. The recommendation of the V CPC is unambiguous that the qualification of B.Sc. plus Diploma as prescribed in paragraph 52.78 (iii) would be for direct recruitment to the post of OT (Technician) and the qualification of Matriculation/ Higher Secondary/ Senior Secondary (10+2) with Science plus 10 years experience in Operation Theatre would apply for those who are promoted from the post of OT Attendant as there is a mention of ACP scales. The recommendation in serial number XVII (a) is for only one pay scale of Rs.5000-150-8000/- for OT (Technician). Therefore, there can be no manner of doubt that OT (Technician) with either of the aforesaid qualifications would be eligible for the scale of Rs.5000-150-8000/-. The discrimination in pay scales between OT (Technician) with qualification of B.Sc. plus Diploma/ Certificate and the qualification of Matriculation/ Higher Secondary/ Senior Secondary (10+2) with Science with 10 years experience in Operation Theatre, is discriminatory, arbitrary and unjust.
17. On the basis of above discussion, the pay scale of OT (Technician) as per the recommendations of V CPC in paragraph 52.78 read with Serial Number XVII (a) of Part `B of the recommendations would be Rs.5000-150-8000/- irrespective of qualifications of B.Sc. plus Diploma/ Certificate or Matriculation/ Higher Secondary/ Senior Secondary (10+2) with Science with 10 years experience in Operation Theatre. The contrary view of the learned Bench in OA 2184/2005 is overruled. The OA is remitted to the Division Bench for decision on merit.
(L.K. Joshi) (M. Ramachandran) (V.K. Bali) Vice Chairman (A) Vice Chairman (J) Chairman /dkm/