Central Administrative Tribunal - Delhi
Brham Pal vs Union Of India on 19 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 3227/2011 MA No.2379/2011 Order Reserved on 25.09.2013. Order pronounced on:19.12.2013. HONBLE MR. V. AJAY KUMAR, MEMBER (J) HONBLE MR. V. N. GAUR, MEMBER (A) 1. Brham Pal S/o Sh. Mool Chand R/o RZ-47, Gali No.5 New Delhi-110046. 2. H.B. Pandey S/o Late Sh. Ganga Datt Pandey R/o 179-180, ESIH Colony, Basi Dara Pur, New Delhi-110015. 3. Padam Singh S/o Shri Jhamman Lal R/o ESIC Colony, Type II, Q.No.115 Basandarapur, New Delhi-110015. 4. Suresh Chand S/o Sh. Goverdhan R/o RZ-82/345, Gali No.3 Shiv Puri, West Sagar Pur, Delhi. 5. Watan Pal S/o Sh. Maha Singh R/o Vill. & P.O. Ladpur Delhi-110081 6. Naresh Kumar S/o Sh. Nathan Singh R/o Village Nithari, Post Office, Sultanpuri, Delhi. 7. Ram Kishan S/o Late Sh. Mukh Ram R/o Gali No. 7, Ward No.7 Adarsh Colony, Palwal, Haryana 8. Kishna Prasad S/o Late Sh. Raj Banshi Prasad R/o RZ-35, Gali No.25B, Indra Park, Palam Co, New Delhi-110045 9. Nanak Chand S/o Sh. Dal Chand R/o F-3/606, Sangam Vihar New Delhi-110062. 10. Shi Kumar S/o Sh. Khailu Ram R/o ESI Hospital, PIL Rano, ESI Colony, Q. No. 28, Type II, Noida. 11. Ram Phool S/o Sh. Ram Nath R/o P-3/60, Mangol Puri, New Delhi-110083 12. Leela Singh S/o Sh. Bhoop Singh R/o Village Imleaka, Post Office Kasna Distt. Gotam Budh Nagar, Greater Noida (U.P.). 13. Kundan Singh S/o Sh. B.S. Rawat R/o A-1, ESI Colony, Jhilmil Delhi-110095. 14. Munesh Pal Singh S/o Sh. Suraj Pal Singh R/o D-187, Nathu Colony, School Block, New Delhi-110095 15. Satish Kumar S/o Sh. Balbir Singh R/o A-61, Chander Lok, Mandoli Road, Shahdara, Delhi-110032. 16. Rakesh Kumar S/o Sh. Atter Singh R/o ESIC Coloney, Cl. No.63 Basaidarapur, New Delhi-110015. 17. Ram Singh S/o Sh. Bhagwat Singh R/o ESIC Coloney, Cl. No.159, Basaidarapur, New Delhi-110015. 18. Jai Pal S/o Sh. Daya Nand R/o Village Sarangpur Post Office New Delhi. 19. Baljoor Singh S/o Sh. Jogi Ram R/o A-8, Type II, ESI Colony Rohini, Sector 15, Delhi-110015 20. Sahab Singh S/o Sh. Jai Singh R/o Village Mahawati, Distt. Panipat (Haryana) 21. Satish Kumar S/o Sh. Khajan Singh R/o Village Badusrai Post Office Chawla New Delhi-110071 22. Jiwan Singh S/o Late Sh. Hayat Singh R/o Q.No. 13, Type-II, ESI Nos Pital Complex, Okhla Pur, New Delhi-110020 23. Jagbir Singh S/o Sh. Umed Singh R/o Village Bhwapur, Post Office Rathdana Distt. Sonepat, Haryana 24. Ram Kumar S/o Sh. Chhotu Ram R/o C-4, Type II, ESI Hospital Colony New Delhi. 25. Raj Kumar S/o Sh. Ramasre R/o Village Madipur, Delhi-110081 -Applicants (By Advocate: Shri R.K. Sharma) Versus 1. Union of India, Through Secretary, Ministry of Health, Nirman Bhawan, New Delhi. 2. Director General, E.S.I. Corporation, Panchdeep Bhawan, Kotla Road, New Delhi-110002. 3. Director Medical Delhi E.S.I. Hospital, Basidarpur Ring Road, Delhi-110015. -Respondents (By Advocate: Ms. Rekha Palli) O R D E R Mr. V.N. Gaur, Member (A):
MA-2379/2011 for joining together in single application under Rule 4 (5) (a) of Central Administrative Tribunal (Procedure) Rules, 1987 is allowed in the interest of justice and to avoid multiplicity of litigation.
2. The applicants are Plaster Assistants (PA) in different Employees State Insurance Corporation (ESIC) hospital who were given the scale of Rs.3200-4900 by the 5th Central Pay Commission (CPC). According to the applicants the respondents did not extend to them the scale of Rs.4000-6000, which was notified by the Central Government on 30.09.1997 for the technical posts, requiring matriculation with some experience instead of Rs.3200-4900. It has been submitted that the PAs have had traditional parity with (i) Laboratory Assistants, (ii) Nurse D grade and (iii) Auxiliary Nurse and Midwife, they have been given common scale in the past. In the case of Nurse D grade/Auxiliary Midwife the upgraded pay scale of Rs.4000-6000 was sanctioned but the same was denied to the Laboratory Assistants and PA. The Laboratory Assistants, however, had approached this Tribunal in OA-1464/2003 Ashok Kumar and others v. Union of India, and this Tribunal vide order dated 13.01.2004 granted the pay scale of Rs.4000-6000 to the Laboratory Assistants. Subsequently, in OA nos.1145/HP/2002, 1464/2003, 1253/2002, 1401/ 2006, 825/2007 and 1145/2002 this Tribunal has granted the scale of Rs.4000-6000 to the Laboratory Assistants. It has been submitted by the learned counsel for the applicants that though an appeal is pending in the Honble High Court of Delhi against the judgments of this Tribunal, no stay has been granted and the respondents have implemented the orders of this Tribunal in respect of those Laboratory Assistants. The learned counsel further submits that the applicants case is similar to that of the Laboratory Assistants, as they have the same conditions of service, method of recruitment and eligibility conditions and, therefore, the judgment of this Tribunal in respect of the Laboratory Assistants will squarely be applicable to the PAs.
3. Further elaborating on the claim of the applicants learned counsel stated that the method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation are governed by the Regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of Central Government drawing corresponding scales of pay. Since the Central Government has extended the scale of Rs.4000-6000 to similarly placed employees the same should be applied to the PAs of ESIC hospital (respondents). In this context it was averred that PAs working in all the hospitals/Institution, DGHS and other similar organization under the Ministry of Health and Family Welfare are getting the pay scale of Rs.4000-6000 and therefore denying the same scale to the applicants is totally discriminatory.
4. The learned counsel for the respondents raised the preliminary objection of limitation stating that the 4th CPC recommendations were implemented way back in 1997 and at this stage this OA is not maintainable, relying on State of Maharashtra vs. Digambar (1995) 4 SCC 683. He further submitted that parity with the Laboratory Assistants cannot be drawn at this stage because the scale of Rs.4000-6000 is being given to them provisionally since the appeal is pending in the Honble High Court. He also raised a legal objection that as the applicants had been taking the salary in the scale of Rs.3200-4900, it amounted to acquiescence to the decision of the respondents and they were estopped from challenging the same. In their counter reply the respondents have argued that recruitment rule for the PAs, even though provide matriculate or equivalent qualification along with one year experience in application of Plasters in an Orthopaedic unit of a Hospital, there is no qualification laid down for promotion to this post. Nursing orderly/stretcher bearer/dresser/ aya with 5 year experience for matriculate and 7 years for non-matriculate are also eligible for appointment. Therefore, the scale of Rs.4000-6000 recommended by 5th CPC for technical posts requiring matriculation with some experience as minimum qualification for direct recruitment cannot be extended to the applicants.
5. We have heard both the sides and perused the documents placed on record. With regard to limitation, the law is well established that the matter of granting pay scale is a continuing cause of action and we have no hesitation in rejecting this plea of the respondents. As per the averment of the applicants they started representing to the respondents immediately after grant of the pay scale of Rs.3200-4900, which has not been denied by the respondents. Representations were submitted by the applicants in the year 1999, 2000, 2003, 2007 and 2010 but the matter was not decided by the respondents till the applicants filed OA no.3138/2010. As such, the principle of estoppel cannot be applied in this case. The applicants had parity with Laboratory Assistants/Nurse D grade/Auxiliary Nurse and midwife till 4th Pay Commission and they were given identical pay scale of Rs.975-1540 by the 4th CPC. The 5th Pay Commission maintained that parity and recommended a common scale of Rs.3200-4900. The problem arose when subsequently vide Government notification dated 30.09.1997, the scale was upgraded to Rs.4000-6000 and the same was not implemented for the PAs. There is no averment as to why the respondents decided to discard the parity with Nurse D grade and Auxiliary Nurse and midwife from that point in time onwards. The Resolution dated 30.09.1997 through which the recommendations of the 5th CPC were given effect to, states as follows:-
XXII OTHER TECHNICIANS
(a) Posts requiring Matriculation with 4000-100-6000 52.111 some experience as minimum qualification for direct recruitment.
6. Respondents have taken the plea that since there is a component of promotion in the grade of PA from the feeder grades of Nursing orderly/stretcher bearer/ dresser/aya where no minimum qualification has been prescribed, the aforesaid recommendation of the 5th CPC as notified in the resolution dated 30.09.1997 cannot be applied. This is highly specious argument for various reasons. The scale attached to a post is a function of job content, degree of hardship, risk etc. involved in discharging the duties. The academic qualification and experience is fixed keeping the competence level required from the persons who will be occupying the posts. If the employer has taken a view that the same competence level can be achieved by a recruit by having matriculation and one years experience in the case of direct recruitment, or 5 years experience for matriculates and 7 years experience for non-matriculates in case of promotion, there does not appear to any further scope for discrimination in the matter of remuneration. As the employer in this case has already taken care to enhance the experience level to 5 years and 7 years respectively for promotion of matriculate and non-matriculate nursing orderly etc. it does not stand to logic that the entire cadre of PA should be given a lower pay scale for this reason alone. The hollowness of the logic put forward by the respondents gets further exposed if we consider the fact that the cadre where there is no promotion and the appointment is only by direct recruitment, a candidate with matriculation and one year experience will be eligible for higher grade of Rs.4000-6000 but a mixed cadre of direct recruit and promotees (with 5 to 7 years experience) as a whole will be downgraded to a lower pay scale. This is obviously a discrimination.
7. This Tribunal in the case of Laboratory Assistants has already taken a view in favour of admissibility of scale of Rs.4000-6000 and the respondents have implemented it provisionally subject to the outcome of the pending Writ Petitions in the Honble High Court of Delhi. However, we are not linking up the order in this OA with the order of this Tribunal in respect of Laboratory Assistants.
8. In the light of the discussion in the preceding paragraph and the reasons explained, we quash the order dated 17.01.2011 passed by the respondents in compliance of the directions of the Tribunal in OA-3138/2010 and MA no.2432/2010. The respondents are further directed to implement the scale notified vide resolution dated 30.09.1997 for other technicians (Posts) requiring matriculation with some experience as minimum qualification for direct recruitment, i.e., 4000-6000. The respondents shall implement this order within a period of two months and will also pay arrears to the applicants from the date of filing of this O.A. The O.A. stands allowed in the aforesaid terms. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.