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Bhartiya Pratiraksha Mazdoor Sangh and Others Vs. Union of India, Through the Secretary, New Delhi and Others - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Principal Bench New Delhi
Decided On
Case NumberO.A. No. 2660 of 2012 & M.A. Nos. 0643 & 2848 of 2012
Judge
AppellantBhartiya Pratiraksha Mazdoor Sangh and Others
RespondentUnion of India, Through the Secretary, New Delhi and Others
Excerpt:
.....d (fy. ii) has been advised on 7.1.11 to consider the issue as per the recruitment rules, pay scales, qualifications, eligibility criteria etc., for the post of laboratory technicians in defence establishments, ministry of railways and ministry of health and f.w. comparatively, and take a view in consultation with the integrated finance.” 8. from the agenda papers for the steering committee for the departmental council (jcm) to be held on 21.08.2010 it is seen that the concerned branch observed that “no such proposal has been received from ofb in this regard.” in the meeting of the council held on 29.09.2010 it was noted that the issue was being deliberated in the departmental anomaly committee. in the anomaly committee meeting held on 18.02.2010 it was decided.....
Judgment:

V.N. Gaur, Member (A):

1. MA No.643/2012, for joining together in single application under Rule 4 (5) (a) of Central Administrative Tribunal (Procedure) Rules, 1987 and MA No.2848/2012, seeking condonation of delay in filing the present OA, are allowed in the interest of justice.

2. The applicants, Bhartiya Pratiraksha Mazdoor Sangh and four others, who are working as Laboratory Technicians in the hospitals under the Ordnance Factory Board (OFB), filed this OA with the following prayers:

“A. All Laboratory Technicians working with the respondents should be granted the pay scale of Rs.5000-8000 as per the recommendation of the Vth Central Pay Commission (revised Pay Band II and G.P. 4200 as per the VIth Pay Commission Recommendations) irrespective of the qualifications of the incumbents as has been given to Medical Assistants.

B. The benefits of such orders should be given to the applicants/Laboratory Technicians from the date of acceptance of the Vth Central Pay Commission.

C. Grant consequential benefits to the applicants consequent to grant of benefits above.”

3. In brief, the case of the applicants is that Laboratory Technicians form part of paramedical staff in various hospitals in the OFB. Until the 3rd Central Pay Commission (CPC) Laboratory staff was not dealt with as a separate category, but were included along with the scientific staff. However, with the inception of the 4th CPC Laboratory staff was grouped as a separate category and the pay sales were recommended. The 5th CPC recommended the pay scale of Rs.1600-2660 to Laboratory Technicians prescribing B. Sc. with diploma/ certificate as minimum qualification. The Department of Personnel and Training (DoPandT) vide their Memorandum dated 25.05.1998 had laid down that where there was a change in the educational qualifications pursuant to the implementation of the 5th CPC report, the recruitment rules of the posts should be amended. Citing the example of Ministry of Railways who granted the pay scale of Rs.5000-8000 by amending the recruitment rules the applicants contend that similar action has not been taken by the respondents in this case. Though the respondents amended the recruitment rules to the post of Laboratory Technician in 2005 and provided for the enhanced qualifications, as prescribed by the 5th CPC, the scale of Rs.4500-7000 given to Laboratory Technicians was not in consonance with the recommendations of the Pay Commission. It has been argued on behalf of the applicants that it is a settled proposition of law that once the qualifications and job profile of a post under two ministries are the same, then the pay scale in the two ministries ought to be equal. The applicants have made various representations to the respondents for grant of the aforesaid benefits, including raising the matter in Joint Consultative Machinery (JCM) held on 03.11.2008 the issue remains unsolved. The applicants have also cited an extract from the report of the VI CPC with regard to Laboratory staff, which is reproduced below:-

“3.8.14 Laboratory staff exists in Groups ‘B, ‘C and ‘D pay scales. All the posts of Laboratory staff presently in Group ‘D (commonly designated as Laboratory Attendants Grade I, II and III) shall now be placed in the revised pay band PB-1 of Rs.4860-20200 along with grade pay of Rs.1800 after their skills are suitably enhanced. The post of Laboratory Assistant exists in different scales of Rs.3050-4590, Rs.4000-6000 and Rs.4500-7000. All these posts shall be extended the corresponding replacement pay band and grade pay. Laboratory Technicians exist in different scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500. The posts of Laboratory Technician Gr. II and III in the existing scales of Rs.5500-9000 and Rs.5000-8000 respectively shall stand merged in the revised pay band PB2 of Rs.8700-34800 along with grade pay of Rs.4200. The post of Laboratory Technician Gr. I in the existing pay scale of Rs.6500-10500 shall be upgraded and placed in running Pay Band PB-2 along with grade pay of Rs.4600 corresponding to the pre-revised pay scale of rs.7450-11500.”

4. Learned counsel of applicants would contend that the action on the part of the respondents in continuing with a lower scale as compared to similarly placed employees in other ministries is contrary to Article 14 of the Constitution of India. The respondents have accepted the enhanced qualifications following the recommendations of the 5th CPC but have not provided the recommended scale for the same. The 6th CPC has also taken note of the situation and recognized that the Laboratory Technician exists in different scales of pay, viz., Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500. It does not even recognize the pay scale of Rs.4500-7000 as one of scales applicable to Laboratory Technicians.

5. Learned counsel for the respondents submits that the 5th CPC Report needs to be looked at more minutely. He drew our attention to the Note below the relevant recommendation with regard to Laboratory Technician Grade-III in the scale of Rs.1600-2660, which reads as follows:

“Those Laboratory Technicians presently in the grade of Rs.1320-2040 will be placed in the pay scale of Rs.1400-2300.”

He also pointed out that earlier the qualification prescribed for the Laboratory Technicians was only matriculation, which was upgraded by the 5th CPC to B. Sc. with diploma/ certificate along with higher scale. Thus, the Pay Commission envisaged that the higher scale will be applicable only to the new entrants with the prescribed higher qualifications. The instructions of the DoPandT to revise the recruitment rules where even higher educational qualifications had been prescribed by the 5th CPC should be seen in that context. The revision of recruitment rules by itself would not mean that the recommendations of the CPC contained in the “Note”, reproduced above, will be superseded and higher scale will be released to the Laboratory Technicians without reference to their qualification. The learned counsel further submitted that the counterparts of the applicants in the Railways with similar entry qualification of matriculation with science and DMLT were given the same scale of Rs.4500-7000. Thus there was no discrimination as alleged by the applicants.

6. We have considered the submissions made by the rival sides. At the outset, we would like to observe that the Report of the 5th CPC was implemented in the year 1998 and there was an unambiguous direction from the Ministry of Personnel, Public Grievances and Pensions vide OM dated 25.05.1998 that wherever changes have been brought about, in the eligibility conditions etc. they “have to be incorporated in the Recruitment Rules/Service Rules by suitable amendments so that necessary steps like holding of DPC etc. are taken to fill the posts carrying the revised scales, particularly merged scales, on regular basis.” It further stated that in view of the urgency for amending the Recruitment Rules/Service Rules on the above lines, it was expected that “Ministries/Departments would complete the review in this regard and furnish necessary amendment proposals to Department of Personnel and Training/Union Public Service Commission in the case of Group ‘A and ‘B posts within two months from the date of issue of the Office Memorandum. Simultaneously, they will, no doubt, be taking similar action for amending the recruitment rules for Group ‘C and ‘D posts, which is within their competence under the delegated powers.” The recruitment rules in respect of the cadre of the Laboratory Technician have been notified by the respondents after 07 years in the year 2005 which was expected to have been done within two months or thereabout. The VI CPC recommendations became effective from 01.10.2006. Such a delay in notifying the revised recruitment rules as a follow up to the recommendations of the Pay Commission can under no circumstances be justified. We are making this observation in the context that by the time rules have been notified the time has come for implementing the recommendations of the next Pay Commission (VI CPC). Thus, there is hardly any time for the objectives behind the recommendations of that Pay Commission to be fulfilled within 10 years period to which it relates.

7. Coming to the specifics of this case it is observed that the 5th CPC had recommended a scale of Rs.1600-2660 (pre-revised) to the Laboratory Technicians with the revised qualification of B. Sc. with Diploma in Medical Laboratory Technology (DMLT). It also stated that the Laboratory Technicians who were in the grade of Rs.1320-2040 (pre-revised) at that time would be placed in the pay scale of Rs.1400-2300 (pre-revised). In terms of the 5th CPC scales these translated to Rs.5000-8000 and Rs.4500-7000 respectively. The respondents, however, did not carry out the required amendments in the recruitment rules to change the qualification for direct recruits to B. Sc. + diploma for giving the scale of Rs.1600-2660 corresponding to Rs.5000-8000 and when this amendment was carried out and notified in 2005 the qualification was raised as recommended by the 5th CPC but the scale was retained at Rs.4500-7000 corresponding to Rs.1320-2040. The applicants have been following up their demand for grant of Rs.5000-8000 scale with the upgraded qualifications with regularity. From the papers placed on record in the OA itself it is seen that in the action taken report on the points discussed in the 88th Meeting of the Departmental Council (JCM) held on 18.12.2009 the following was recorded:

“The issue was discussed in the Departmental Anomaly Committee meeting held on 18.2.10 and 20.10.10. In this regard, D (Fy. II) has been advised on 7.1.11 to consider the issue as per the recruitment rules, pay scales, qualifications, eligibility criteria etc., for the post of Laboratory Technicians in Defence Establishments, Ministry of Railways and Ministry of Health and F.W. comparatively, and take a view in consultation with the Integrated Finance.”

8. From the Agenda papers for the Steering Committee for the Departmental Council (JCM) to be held on 21.08.2010 it is seen that the concerned branch observed that “no such proposal has been received from OFB in this regard.” In the meeting of the Council held on 29.09.2010 it was noted that the issue was being deliberated in the Departmental Anomaly Committee. In the Anomaly Committee meeting held on 18.02.2010 it was decided that the demand of Laboratory Technicians of Ordnance Factories hospital should be examined along with the Laboratory Technicians of the Navy. In the action taken note submitted to the Departmental Anomaly Committee on 18.02.2010 again it was recorded that the proposal submitted by the NHQ was under consideration while the proposal on this issue had not been received from the Ordnance Factory Board (OFB). The situation remained unchanged by the time the Departmental Anomaly Committee met on 20.10.2010, i.e., proposal was yet to be received from the concerned organization and till the year 2011 only reminders and follow up letters were being exchanged.

9. From the above sequence of events what comes out is that (i) respondents have never seriously applied their mind to the demand of the applicants and never formally examined the issue in consultation with their Integrated Finance as they had decided, (ii) the proposal of the respondent no.2, if there was any, with regard to the demand of the applicants, did not reach the departmental anomaly committee till the year 2011 and (iii) this is a sad reflection on the functioning of the respondents that the issues arising out of 5th CPC recommendations have to be referred to the departmental anomaly committee in 2010 and 2011 when they should be considering the anomalies arising out of the recommendations of the 6th CPC. Now in the counter filed by the respondents a uniform stand has been taken against most averments in the OA that since the recruitment qualification at the time of the recruitment of the existing Laboratory Technicians (LTs) in the Ordnance Factories was matriculation with diploma in DMLT, they were granted the scale of Rs.4500-7000. It may be recalled here that 5th CPC had recommended upgradation of the basic qualification of L.T. to B. Sc. alongwith DMLT and grant of higher pay scale of Rs.1600-2660 (corresponding to Rs.5000-8000). The respondents for some unknown reasons have raised the qualification of L.T. in the recruitment rules published in the year 2005 as recommended by the 5th CPC but retained the pay scale at Rs.4500-7000 (Rs.1320-2040 pre-revised) which was meant for the LTs with the basic qualification of matriculation. If the logic behind retaining lower pay scale is that all existing LTs (as on 01.01.2006) were matriculates (which is not true!) and therefore cannot be given higher pay scale, then it does not make sense to upgrade the qualification to B. Sc. level. On the other hand if the intention is to improve the quality of intake into the cadre by upgrading the qualification, then it does not make sense to give new recruits or incumbents with B Sc. plus DMLT qualification the pay scale of LTs with matric qualification. A list of 42 LTs working in Ordnance Factory Hospital filed by the applicants in their rejoinder shows that nearly half of them possess B. Sc. (or higher) plus DMLT qualification.

10. In this context in must the appreciated that the Pay Commissions have been trying to upgrade basic qualifications and skill sets of the employees by recommending higher pay scales linked to such upgradations. In the context of the issues of the present OA, we observe that the 2005 recruitment rules for LT strikes at the root of the recommendation of the 5th CPC. Secondly the respondents have ignored the spirit behind that recommendation by not considering the scale upgradation even for those LTs who possess higher qualifications. The statement made in the counter reply is quite categorical that all LTs as on 01.01.2006 were recruited with the minimum qualification of matriculation! In this context we find that the document R-2 annexed to MA no.2277/2013 filed by the respondents, which gives recruitment rules for Laboratory Staff in West Central Railway, contains the following Note:

“ii) Serving Staff with qualification prescribed for DR are also eligible for promotion in accordance with selection as para 165 (5) of IREM-89.”

11. In the present case also it would have been desirable to incentivize acquiring of higher qualification by existing staff also by making similar provision.

12. From the recommendations of the 5th CPC it is quite clear that a differential was intended to be maintained between the Laboratory Technicians with upgraded qualification and those with the earlier qualification of Matriculation with DMLT and that is why the Pay Commission had recommended both the scales, i.e. Rs.1600-2660 and Rs.1320-2040. However, it nowhere said that the existing incumbents were debarred for consideration of higher scales even when they possess the required qualification.

13. In the light of the foregoing discussion, we are of the view that the issues raised by the applicants needs to be examined by the respondent no.1 and appropriate decision taken. Accordingly, we direct the respondents to take a final decision with regard to the representations submitted by the applicants and communicate their decision within a period of 03 months. Needless to add that the issue has been hanging in fire for nearly 15 years, without any satisfactory resolution and, therefore, the respondents would consider the matter with due urgency, taking into account the recommendations of the 5th CPC and our observations in the preceding paragraphs. The OA stands disposed of with the above directions. No costs.


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