Central Administrative Tribunal - Delhi
Lok Nayak Hospital vs Govt. Of Nct Of Delhi Through on 30 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2816/2011 M.A. No.2015/2011 Order reserved on 04.07.2012 Order pronounced on 30.07.2012 Honble Mr. G.George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) 1. Lok Nayak Hospital Paramedical and Technical Employees Union Near Main Gate, MRD Block, Lok Nayak Hospital, New Delhi-110002 (Through Sh. Amit Dixit, General Secretary) 2. Raj Kumar Goyal S/o Laxmichand Goyal R/o 11/6, Shiv Mandir Gali, Mauj Pur, Delhi-110053. -Applicants (By Advocate: Shri Deepak Verma) Versus Govt. of NCT of Delhi Through 1. The Chief Secretary Delhi Secretariat New Delhi. 2. The Secretary, Principal Health, A-Wing, 9th Floor, Delhi Secretariat, New Delhi. 3. The Chairman, Delhi Subordinate Service Selection Board, Institutional Area, Karkardooma, Delhi-110092. -Respondents (By Advocate: Mrs. Harvinder Oberoi) O R D E R Honble Mr, Sudhir Kumar, Member (A):
This OA has been filed by a Union of Paramedical and Technical employees through its General Secretary, with one of the members of the Union joining as the representative second applicant.
2. The applicants are aggrieved by the Employment Notification issued through the Employment News 26 December, 2009-01 January, 2010, through which the Delhi Subordinate Services Selection Board (DSSSB, in short) has notified vacancies for the posts of Senior Radiographers in Health and Family Welfare (H&FW, in short) Department of Govt. of NCT of Delhi (GNCTD, in short) Post Code No. 85 of 2009 and Junior Radiographers, Post Code No.86 of 2009 through Advertisement No.004/2009, in which the essential qualifications and pay scales have been mentioned as follows:-
Name of the Post: Sr. Radiographer in H&FW, GNCT Delhi Post Code: 85/09 Number of Vacancies : 34(UR-19, OBC-09, SC-04 and ST-02 including EXSM-03) Essential Qualifications:
1.Matriculation/Hr. Secondary/Sr. Secondary (10+2) with science
2. Certificate (2 years course) in Radiography or Diploma (02 years course) in Radiography or B.Sc. (Radiography) or Radiological Technology (02 years).
Essential Experience: At least 03 years experience as Radiographer in a recognized hospital.
Pay Scale: PB2. 5200-20200/- plus Grade Pay Rs.2800/- Group C;
Probation Period; Two years Age Limit: 21-32 years. Upper age limit relaxable for SC/ST-05 years, OBC-03 years.
Departmental candidates with 03 years continuous service who are in the same line or allied cadres upto 40 years for General Employees and upto 45 years for SC/ST employees in accordance with the instructions/orders issued by the Central Govt.) (R.No.F.10(4)/PHC/TRC/Rectt./06/5709 dated 22/10/09) Name of the Post: Jr. Radiographer in H&FW, GNCT Delhi Post Code: 86/09 Number of Vacancies : 56 (UR-29, OBC-15, SC-08, ST-04 including EXSM-05) Essential Qualifications: Upper age limit relaxable for
1.Matriculation/Hr. Secondary/Sr. Secondary (10+2) with science
2. Certificate (2 years course) in Radiography or Diploma (02 years course) in Radiography or B.Sc. (Radiography) or Radiological Technology (02 years).
Pay Scale: PB2. 5200-20200/- plus Grade Pay Rs.2400/- Group C;
Probation Period; Two years Age Limit: 18-27 years. Upper age limit relaxable for SC/ST-05 years, OBC-03 years. Departmental candidates with 03 years continuous service who are in the same line or allied cadres upto 40 years for General Employees and upto 45 years for SC/ST employees in accordance with the instructions/orders issued by the Central Govt.) (R.No.F.10(4)/PHC/TRC/Rectt./06/5709 dated 22/10/09)
3. The contention of the applicants is that the Notification allows persons with Matriculation/Higher Secondary qualifications also to apply for these two posts along with the Senior Secondary (10+2) essential qualifications. The contention of the applicants is that such a provision, which has been borrowed in the impugned Advertisement from the existing Recruitment Rules, is illegal, violates the Safety Code laid down by the Atomic Energy Regulatory Board (AERB, in short) in terms of the Atomic Energy Act, 1962, and is also violative of the recommendations of the 6th Pay Commission, which were accepted and Gazette notified by the Union of India. In the result, the applicants have prayed for the following reliefs:-
Quash the impugned notification for recruitment to the post of x-ray technician/radiographers by the respondents;
Direct the respondents to quash the RRS whereby the qualification for x-ray technician/radiographers has not been suitably amended to bring it in consonance with the Atomic Energy Act, 1962;
Direct the respondents to frame new RRs as per the Atomic Energy Act, 1962 and also the RRs safety code for medical diagnosis and X-ray equipment; order exemplary cost against the respondents and in favour of the Applicants; may also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
4. The applicants have taken the ground that respondents have been careless in not having amended the Recruitment Rules for the concerned posts to bring them in-conformity with the Atomic Energy Act, 1962, and the AERB Code for handling and operation of the medical diagnosis X-ray equipments, which provides for a minimum qualification of 10+2 Higher/Senior Secondary for X-ray Technicians. They have also alleged that this amounts to a violation of the statutory provisions of the Atomic Energy Act, 1962, and actually amounts to an offence punishable under Section 24 of the said Act, with the imprisonment for a term which may extend to one year, or with fine, or with both.
5. The applicants have also contended that the impugned Employment Notification allows ineligible people to compete against persons who are lawfully eligible to handle the X-ray machine equipments. Therefore, they have prayed for the OA to be allowed, specifically in terms of the Newspaper notice published by the AERB through their Notification dated 29.07.2011 (Annexure A-4).
6. In their reply written statement, the respondents conceded that in the Recruitment Rules as they exist at present, Matriculation or Higher Secondary have also been prescribed as qualifications along with Sr. Secondary (10+2), with Science as essential qualification, for applying for the relevant posts, but they submitted that since the bifurcation of students into Science and Arts streams does not take place before the Sr. Secondary (10+2) level, in fact, no Matriculate passed person can apply for the posts of X-Ray Radiographers. They denied that the present Recruitment Rules are contrary to the provisions of the Atomic Energy Act, 1962, since the essential qualifications prescribed in the RRs for the post have also prescribed the possession of a certificate (2 years course) in Radiography or Diploma (2 years course) in Radiography or B.Sc (Radiography) or Radiological Technology (2 years), which qualifications are in fact on a better footing even than the qualifications prescribed in the Act. Therefore, they pleaded that the Recruitment Rules of GNCTD are on a better footing, and denied that any person, being a simple Matriculate can apply for the posts of Radiographers. Therefore, the respondents pleaded that since no person having a simple Matriculation is eligible to be appointed as Radiographer in H&FW Department of GNCTD, the OA is liable to be rejected. In support of their contentions, the respondents had filed a copy of the Gazette of India Extra Ordinary dated January 5,1974, through which the said Recruitment Rules had been notified and prescribed for the sanctioned posts of Radiographers.
7. Respondents have also filed the relevant Recruitment Rules through pages 8 & 9 of their reply, running pages 92 & 93, which continue to show the prescribed qualifications as follows:-
1. Matriculation or Higher Secondary or Senior Secondary (10+2) with Science.
Certificate (2 years course) in Radiography or Diploma (2 years course) in Radiography or B.Sc (Radiography) or Radiological Technology (2 years).
8. The applicants filed a rejoinder on 26.04.2012 contending that the stand of the respondents is in conflict with the law, and submitted that if a person has a diploma with only a matriculation, even then he cannot be allowed to become an X-ray technician as per the Atomic Energy Act,1962, because the minimum qualification prior to obtaining the 2 years diploma is possession of Senior Secondary (10+2) educational qualification, which is mandatory as per the Act. They submitted that many of the persons appointed in a particular hospital of the Association are only 10th class passed, though they are having a diploma in Radiography, and are still working, but since they have been appointed as per the Recruitment Rules which are contrary to the law, the applicants are not seeking any relief qua these persons, and only prayed that it should only be that in future any person with just Matriculation, with a diploma, should not be allowed to be appointed, as per the Notification issued by the respondents.
9. Heard.
10. Clause (h) of sub Section (1) of Section 2 of the Atomic Energy Act, 1962 defines X-ray to be radiation within the Act. Sub Section (e) of Section 3 of the said Act provides for the Government to have power of control over radioactive substances or radiation generating plants in order to prevent radiation hazards, secure public safety and safety of persons handling radioactive substances or radiation generating plants. Clause (c ) of sub Section (1) of Section 17 of the Act allows the Central Government to prescribe qualifications of the persons for employment at the premises of any radiation generating plant, equipment or where any such appliances are used, and sub Section (2) of Section 24 of the Act dealing with offences and penalties prescribes that whoever contravenes any provisions of this Act, or any order made under the Act, shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. Section-26 also provides that all offences under the Act shall be cognizable under the Code of Criminal Procedure.
11. It is also seen that while notifying Revised Pay Scales for certain common categories of staff on the recommendations of the 6th Central Pay Commission, while accepting the recommendations made by the 6th Central Pay Commission in Para 52.107 of its report, it has been notified by the Union Government that the posts of Radiographers would require a minimum of 2 years diploma/certificate after 10+2 Senior Secondary qualification.
12. The legal regime for regulating medical X-ray equipments in the Hospitals is therefore governed by the following Acts, Rules, and Subordinate legislations:-
Atomic Energy Act, 1962.
Atomic Energy (Radiation Protection) Rules, 2004;
Radiation Surveillance Procedure for Medical Applications of Radiation, 1989; AERB Safety Code for Medical Diagnostic X-ray Equipment and installations.
13. The Code referred to at Sl. No.(iv) summarizes and quotes in its Appendix-I, the minimum qualifications for X-ray Technologists as follows:-
10+2 or equivalent examination passed with science subjects from a recognized board, and Radiographers/X-ray technologists course of minimum one year duration (including in field training in diagnostic radiology) passed from an institution recognized by the competent authority.
14. It is, therefore, clear that the respondents cannot continue to have their present Recruitment Rules, which are not in conformance with the Atomic Energy Act, 1962, or the Atomic Energy (Radiation Protection) Rules, 2004, or the Radiation Surveillance Procedure for Medical Applications of Radiation, 1989, as well as the Atomic Energy Regulatory Board Safety Code notified on 30.12.1986, as they appear to have been having so far.
15. In the result, the prayers at Para 8 (i),(ii) and (iii) of the OA, as cited in para 3/above, are allowed. The impugned Employment Notification advertisement No.004/09 is quashed in so far as it relates to the post of Sr. Radiographers and Junior Radiographers Post Code No.85/09 & 86/09. Further, the present existing Recruitment Rules of the respondents for these posts, still allowing for Matriculate(s) or Higher Secondary (10th pass) students, if they possess the further diploma in Radiography etc., to compete along with those who have passed Senior Secondary (10+2) examination, are also quashed, as such Recruitment Rules are not in conformity with the law as laid down.
16. The respondents are directed to amend their Recruitment Rules as per the enabling legal provisions properly notified by the AERB through their Notification dated 29.07.2011 (Annexure A-4).
17. However, from the rejoinder filed by the applicants, it is clear that some persons, already recruited under the old Recruitment Rules, who do not fulfill the criteria as prescribed by the Notification dated 29.07.2011, are already working in the H&FW Department of GNCTD. None of such persons have been made opposite party respondents in this OA. Therefore, as per the law, the continued employment of such persons shall not be affected by this order, or by the amendment of the Recruitment Rules now directed to be made by the respondents for the purpose of further fresh recruitments.
18. With the above observations, the OA is allowed in respect of prayers at Para 8 (i), (ii) & (iii), but there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.