Central Administrative Tribunal - Madras
A Adham Sha vs M/O Home Affairs on 20 February, 2024
DATED THI: CORAM : 1 of 16 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH O.A.No.310/0 1436 of 2018, O.A.No.310/01435 of 2018 Se f 0.A.No.310/01437 of 2018, *DAY THE DAY OF FEBRUARY TWO THOUSAND TWENTY FOUR HON'BLE SHRI. MANISH GARG, MEMBER (J) HON'BLE SHRI. VARUN SINDHU KUL KAUMUDI, MEMBER (A) 1) A.ADHAM SHA (Force No.881550046), Son of Late. M.A.Abdul Rahim Sahib, aged 55 years, Residing at 8/9, Bharathiar Street, 5" Cross, Vasanth Nagar, Villianur, Puducherry-605 110, working as Pharmacist Grade-II, Composite Hospital, Central Reserve Police Force (CRPF), Avadi, Chennai- 600065. woes Applicant in O.A. 1436 of 2018. 2) K.RAJASEKARAN No.871530141), (Force Son of Late. S.Kalyanasundaram, aged 57 years, residing at J2-405, Mahindra Happinest, Paruthipattu Village, Avadi, Chennai-600071, working Pharmacist Grade-II, Composite Hospital, Central Reserve Police Force (CRPF), Avadi, Chennai-600065. saveee Applicant in O.A. 1435 of 2018. 3) 8S. KAUSALYA,(orce No.871530132), Wife of S.Muthu Kumar, aged 53 years, residing at Quarter No.2048, Type-I, B-Block, Group Centre, CRPF Campus, Avadi, Chennai-600065, working as Pharmacist Grade-II (on attachment duty), Composite Hospital, Central Reserve Police Force (CRPF), Avadi, Chennai-600065 eons . Applicant in O.A. 1437 of 2018. (By Advocate: M/s. I. Lakshmi Narayanan) INS & 2 of 16 Vs. 1. The Union of India represented by the Under Secretary to Government, Police Finance-III Desk, Police-II Division, Department of Internal Security, Ministry of Home Affairs, | North Block, New Delhi-110001; 2. The Inspector General/Director (Medical), Directorate General (Medical Branch), Central Reserve Police Force (CRPF), Opp. CGHS Dispensary, Sector,4, Pushp Vihar, New Delhi-110017. 3. The Deputy Inspector General (Medical), Composite Hospital, Central Reserve Police Force (CRPF), Avadi, Chennai-600065. ..1... Respondents in O.A. 1436 of 2018, O.A. 1435 of 2018 & O.A. 1437 of 2018. (By Advocates: Mr. K. Rajendran). CAV on :12.01.2024 3 of 16 ORDER
(Hon'ble Shri. Manish Garg, Member(J) Learned counsels on both the sides submit that the issues involved in other two OAs, ie., in OA No. 1435 of 2018 which is listed on 24.01.2024 and O.A. 1437 of 2018 which is listed on 09.02.2024, are also one and same and, therefore, requested to tag these two matters along with the instant O.A. Request of the Ld. counsels on both the sides was accepted and the above two matters are advanced and tagged along with the instant O.A. for hearing today.
2. In the instant Original Applications, the applicants are seeking the following relief:-
"To call for the records relating to the impugned order of the second respondent in No.J.11.1/2018-DA-3 dated 11/07/2018 and quash the same and direct the respondents to grant the Applicant with pay scales of 1400-40-1800-50- "2300 with effect from 17.10.1989 to 31.12.1995 and the pay scale of 5000-9000 with effect from 01.01.1996 to 09.10.1997 and 5500-9000 with effect from 10.10.1997 to 28.03.2004 with all consequential monetary benefits in the light of the orders passed by the Hon'ble Supreme Court in SLP (Civil) Nos. 15552- 15553/2016 dated 16.01.2018 confirming the orders passed by the Hon'ble High Court of Jammu and Kashmir at Jammu in LPA SW No.228/2002 dated 12.08.2015 & SWP .No.186/1998 dated 19.04.2001 and the orders issued by the Second Respondent in No.J-II-
4o0f16 1/2018-Med-3 dated the 19" April, 2018 and Render Justice."
2.1 Ld. counsel for the applicants have drawn our attention to the following comparative chart:-
Sl. Subject Combatised Non-Combatised No Pharmacists Pharmacists 1 Posting Hard Field, Field {Hard Field, Field and Static/Peace jand Static/Peace 2 {Earned Leave 60 days 30 days
3. [Ration Money Admissible where- | Applicable when ever they are posted inJ&K posted North East and LWE Areas 4 JEducational Qualifications D, Pharm D, Pharm registered with registered with Pharmacy Council [Pharmacy Council 5 Nature of Duty Entitled Not Entitled 6 jRisk Allowance Entitled Not Entitled 7 Retirement Age 57 60 8 Rules Governed by CRPF Act and CCS Rules ~[Rules 2.2 He would contend that, on comparative analysis of the table mentioned above, it can be seen that Combatised Pharmacists are working in the CRPF and the nature of their duties and responsibilities are similar and identical to those of the Non-Combatised Pharmacists working in the CRPF.
C3 5of16 Therefore, it is crystal clear that there is no qualitative and quantitative difference, whatsoever, between the duties and responsibilities expected to be shouldered by the Combatised Pharmacists and the Non Combatised Pharmacists in the CRPF. However, the combatised pharmacists are granted additional allowances and the non-combatised personnel are forced to suffer huge monetary loss. In addition to the above, both the Combatised Pharmacists and the Non Combatised Pharmacists in the CRPF had undergone several medical oriented training programmes which do not form part of the D. Pharm curriculum.
2.3 He would further urge that in the case of K.T.Veerappa and others v. State of Karnataka & Ors reported in (2006) 9 SCC 406, wherein the Hon'ble Supreme Court observed that courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. In the present case, the second respondent is denying the upgraded pay scale in total ignorance of material and relevant factors governing the service conditions of the combatised and non-combatised personnel in the CRPF, though both are in possession of same qualifications and perform similar and identical duties, without any iota of difference. In the said circumstances, the impugned order is * liable to be set aside. It has been submitted that it is an undisputed fact that there 6 of 16 are about 60 personnel serving under the non-combatised category. Therefore, extension of benefits granted to the combatised personnel will not be a major financial constraint for the department. Even then, the Respondents cannot put forth rationalization of expenditure as a ground only with regard to a limited category of employees. It cannot be said that the Union of India is financially sound in so far as granting of upgraded pay scales to other employees, but finds financial constraints only when it comes to dealing with the applicants, who are similarly placed in the same category. In similar circumstances, the Hon'ble Supreme Court in the Union of India vs S. B. Vohra, reported in [2004] 2 SCC 150, observed that financial implications vis-a-vis effect of grant of a particular scale of pay may not always be a sufficient reason and differences should be mutually discussed and tried to be solved. In the light of the above judicial pronouncement, the request of the applicants deserve to be considered. It has been urged that the sole reason assigned by the second respondent for non- extension of benefit to the applicants is non-exercise of option for combatisation as per the combatisation order, dated 17.10.1989. To counter the said arguments, the learned counsel would contend that both the personnel are appointed based on same educational qualifications. Source of their recruitment and method of appointment are 'one and the same, without any iota of difference. In this regard, the Hon'ble Supreme Court, in the case of the State Bank of India and another vs M. R. Ganesh Babu & others, reported in (2002) 4 SCC 556, reiterated that equivalence of post has not to be judged merely with MT eRe ant denis -
7 of 16 reference to mere volume of work. The touchstone on which equivalence has to be determined would be to consider the source of recruitment, educational and other qualifications required, as also the qualitative and quantitative nature of jobs. Therefore, denial of pay scale to applicants, in spite of the fact that the Applicants have clearly established the working conditions, responsibilities and nature of duties, etc., are similar to their counter-parts, working as combatised personnel in the same department, is totally unfair and arbitrary. Therefore, in all fairness when the pay scale of combatised personnel was upgraded, the second respondent ought to have applied the same principles to the applicants to maintain parity. Absence of the said action on the part of the second respondent renders the impugned order illegal, entitling the Applicants to succeed in the present O.As.
24 ° In view of the above, he would contend that the applicants are entitled to the aforesaid relief sought in the O.As..
3. Ld. counsel for the respondents relied upon the averments made in the counter affidavit and would contend that the nature of duties of the Combatised Pharmacists and the Non-Combatised Pharmacist, as per the chart, are different. Merely, because they are holding similar qualification, as stated in the comparative chart, cannot be relied upon, as it does not hold much water.
He further contends that option was"sought from the applicants whether they 8 of 16 wanted to be in the Combative Pharmacist or the Non-Combative Pharmacist category.
3.2 The applicants themselves had then opted to be non-combative Pharmacist, therefore, they are not entitled to any pay parity with the combative pharmacists while working as non-combative pharmacists.
3.3 It is has been contended by the Learned Counsel for the respondents that, O.A. No. 1436/2018, filed by No. 881550046 Pharmacist, A. Adham Sha (Herein after called as the Petitioner) of Composite Hospital, CRPF, Avadi versus UOI / Inspector General/ Director(Medical) Directorate and DIGP(Medical), CH, CRPF, Avadi, before the CAT, Madras Branch, to quash the message / signal, dated 11/07/2018, in proceedings No. J.II-1/2018- DA-3 and direct the respondents to grant to the Petitioner the pay scale of Rs. 1400-40-1800-50-2300 from 17/10/1989 to 31/12/1995 and the pay scale of Rs, 5000- 8000 from 01/01/1996 to 09/10/1997 and Rs. 5500-9000 from 10/10/1997 to 28/03/2004, with all consequential monetary benefits at par with the Combatised Staff, as granted to them by the 2" Respondent order, dated 19/04/2018, in proceedings No. J.II-1/2018- Med-3. In this context, it is submitted that, since the Petitioner is a Non-Combatised Hospital Staff, he is not eligible for the above pay scale at par with the Combatised Hospital Staff. The position on non-consideration of the benefits to all Non-Combatised Hospital Staffin the CRPF had already been conveyed to all the formations of 9 of 16 the CRPF, vide 2 Respondent message No. J.II-1/2018-DA-3, dated 11/07/2018. Hence, the present O.A. has no merits and may be dismissed.
3.4 He further relied upon para-4(b) of the reply which is considering the necessity of para medical services in the field and operational areas. The competent authority felt necessary to obtain the concurrence of the existing Pharmacists (civilian) to submit their option for Combatisation in the CRPF. Accordingly, vide GOI, MHA order No, 27011/44/88-FP-I, dated 19/09/1989, Group 'C' and 'D' Hospital Staff existing in the CRPF were asked to submit their option within three months for Combatisation in the CRPF or to remain as Civilian staff. The Petitioner opted to remain as Pharmacist (Civilian) and he had given his 'unwillingness' for Combatisation. Hence, the Petitioner has been continuing his services as Pharmacist (Civilian) in the CRPF, in the pay scale of Rs.1350- 2200, as admissible and availing the benefits of Civilian Hospital Staff, like leave, superannuation at the age of 60 years, etc., while all the pharmacists who submitted their option for Combatisation in the CRPF, within the prescribed time, were given the rank of Assistant Sub Inspector (Pharmacist), in the pay scale of Rs. 1320-2040, w.e.f. 17/10/1989. However, these Assistant Sub-Inspectors (Pharmacists), subsequentiy, had taken up the case to assign them the rank of Sub Inspector (Pharm) in the pay scale of Rs.
1400-40-1800-50-2300, as given in the Indo Tibetan Border Police (ITBP), and also filed SWP No. 186/1998 before the Hon'ble High Court of J&K, and, vide 10 of 16 judgment, dated 19.04.2001, of the Honorable High Court of J&K, were declared entitled to the same scale of pay and rank, as given to their counterparts in the ITBP. The respondents appealed before the Division Bench of the High Court of J & K and the Hon'ble Supreme Court, and, finally, vide the Directorate General (Medical Branch), CRPF, New Delhi Order No. J.II- 1/2018-Med-3, dated 19/04/2018, upgraded all the Asstt. Sub Inspectors (Pharmacist), who were Combatised, as Sub-Inspectors (Pharmacist) in the pay scale of Rs. 1400-40-1800-50-2300 (Pre-revised), at par with their counterparts in the ITBP, in compliance with the Hon'ble High Court of Jammu and Kashmir and Supreme Court orders, dated 19/04/2001, 12/08/2015 and 16/01/2018, in SWP No. 186/1998, LPASW No. 228/2002 & MP No. 278/2002 and. SLP No. 15552-15553/2016, respectively. Since the Petitioner opted not to get combatised in the CRPF, his pay was not revised as the above court order is not applicable to him.
4, We have heard the counsels for the respective parties and gone through the records of the case in details.
5. ANALYSIS 5.1 The only question involved in all the aforesaid original applications is whether non-combatised staff, when posted in static area or not, that is to say non-operational area, are entitled to the same benefits of pay scale and allowances as that of the combatised staff, on the principle of "equal pay for equal work"?
11 of 16 5.2 We find that the issues pertaining to grant of Ration allowance /Ration Money/Risk allowance and other allowances, which are admissible to the combatised staff are no longer res integra, in the light of the decision rendered in CA No.148/98, decided by the Hon'ble Apex Court in the Union Of India & Ors vs Shri Ram Gopal Agarwal & Ors decided on 15 January, 1998, AIR 1998 SUPREME COURT 783, 1998 (2) SCC 589, wherein it has been held as under :-
"We have heard learned counsel for the parties and we find that there is clear distinction in the terms and conditions of service, the nature of work and even tenure of service inter sé between combatised and non-combatised personnels. The combatised personnel retire at the age of 53 while the non-combatised personnel retire at the age of 55. The nature of work, so far as combatised personnel are concerned, are arduous in nature in the operational and sensitive areas. In fact even the.non-combatised personnel while working in that operational areas and such sensitive, places are granted the ration allowances. It is only when they are working in 'static areas there is no provision for this allowance. Even terms and: conditions, service conditions are totally different. The combatised personnels are governed by Central Reserve Police Farce Act and Rules which is an army rule more stringent in nature while non- combatised staff is governed by the civilian law, namely, C.C.S. Rules made by the Government of India under Article ' 309 of the Constitution. The question of discrimination in 12 of 16 the matter of allowances has to be listed differently even inter se between those falling under classes of "equal pay for equal work". In cases where some performing overtime duties, night duties, duties in hazardous places viz, mountain, terrain at heights or at sensitive border areas an _ additional allowance is made applicable for the nature of work they perform. Similarly, when option is given it is with clear intention of there being plus and minus points in the two categories. That by itself differentiates inter se between the two. Once not option to enjoy the benefit as in the present case, to continue in service of one category up to larger length of service (55 years) and not to involve in the hazardous nature of duties with stringent service conditions cannot come forward to claim and benefit of the other . eategory also on the ground of discrimination. In fact, treating unequal to be equal itself would be discriminatory, Thus, we conclude it is neither a case of "equal pay for equal work" nor a case of discrimination or violation of Articles 14 and 16 of the Constitution of India."
5.3 Hence, allowances which are given to the combatised staff cannot be granted to the applicants on the principle of "equal pay for equal work".
54 + Now, the point for determination is whether the applicants can be 7 discriminated qua pay scales which are being granted to the combatised staff.
5.5 Interestingly, in the case of W.P.(C) 1358/2014, Sunil Kumar vs. UOI & Ors. and batch matters, decided by the Hon'be High Court, vide 13 of 16 decision, dated 21.9.2015, the situation was otherwise reverse, wherein the petitioners (therein) who were combatised Staff Nurses were asking for parity of pay with common category Staff nurses, the Hon'ble High Court observed as under :-
"17. 'It is astonishing that the CRPF rationalizes the disparity in pay structure within the organization, between nursing staff. The essence of discrimination is where the state of its agency treats two individuals or groups ' unequally, where there is no justification to do so. To sustain the differentia CRPF highlights certain points, viz that Non-Combatised staff get less leave and are not recipients of certain privileges which Combatised staff secure. However, these differences have no bearing on the salient aspect of identity of work between the two categories. It is obvious that Combatised nursing staff have to be given the same leave allowances and facilities which other Combatised staff are granted: that is the mandate of * Article 14, as between those two groups, because both are Combatised and discharge onerous duties, in forward and "non-siatic" areas. In the same breath, given, that Combatised nursing staff discharge onerous duties under difficult circumstances cannot be a valid justification to deny parity in the general pay structure- to wit, grade pay with Non-Combatised nursing staff, because both perform if identical duties in hospitals, clinics and dispensaries.
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24. The Central Government -- and the CRPF as well as ITBP do not dispute that in regard to the replacement scales and increments, allowances recommended, ete by the Sixth PC,~there is unreserved acceptance. However in regard to Grade Pay (and fixation in scale) there is resistance. This Court has already expressed why the CRPF''s justification for denial of parity to Combatised nursing staff with its Non-Combatised nursing staff is discriminatory. The same logic prevails in respect of the claim of ITBP personnel. They may not be Combatised; yet, they do perform "arduous" duties. The pay scales recommended by the Sixth Pay Commission have been given them. The rationale for specifically denying grade pay (as claimed by them) is that they receive "3200/- per month as nursing allowance. However, that logic is a self defeating one; the allowance was recommended for all evident from the above extract of the Sixth CPC. Like in the CRPF, that the nursing staff secure some allowance cannot be a counter to denial of what was recommended as their grade pay.
25, For the foregoing reasons, the writ petitions have to succeed. In W.P.(C) 1358/2014 the respondents are directed to accord parity.to Combatised Sub-Inspector Nurses with Non-Combatised Staff Nurses (holding the rank of Sub-Inspector [SI]) and fix their grade pay at 4600/- per month, as claimed by them. Similarly, in W.P. (C) 3829/2014, the petitioners shall be granted parity with Nursing Sister, in the grade pay of '4600/- (PB-2) in the 15 of 16 pay scale of °9300/-34800/- of the Indo Tibetan Border Police Force (ITBP) in thé case of all petitioners, except Petitioner Nos. 10,12,18,19 and 20- in the case of the latter, the grade pay shall be 4800/-. In both these petitions, the grade pay shall be in Category S-10 under the Central Civil Services (Revised Pay) Rules, 2008, (2008 Rules). The fixation shall be effective from the date the said rules came into force; consequential orders releasing differential amounts shall be issued within 12 weeks from today. W.P. (C) 1358/2014 and W.P.(C) 3829/2014 are allowed in the above terms; there shall be no order as to costs.
5.6 Needless to say, facts narrated in the present OA(s), as set out in detail herein-above, are the same. The applicants are also from same organization. Without dwelling any further on the basis of the analogy in W.P. (C) 1358/2014 SUNIL KUMAR versus UOI AND ORS, we cannot deviate from the same.
6. -CONCLUSION:-
We partly allow the OA (s), thereby quashing and setting aside the impugned order, dated 11/07/2018, of the second respondent, in so far as fixation of pay scale is concerned.
6.2 "We direct the respondents to accord parity to the Non-Combatised Staff with the Combatised cadre of Pharmacist and fix their grade pay, accordingly, as claimed by them. We refrain from granting any arrears of pay 16 of 16 till the date of filing of the present OA{s), ie, OA No.1435/2018. However, the respondents shall re-fix the pay, as per the Rule position, of each individual Pharmacist notionally and grant arrears from date of filing of the OA -
No.1435/2018. The said exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.
6.3 All the three OA (s) are disposed of in the aforesaid terms. All pending applications are also disposed of. No Costs.