* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 5835/2003
% Reserved on: 26th May, 2009
Pronounced on: 3rd July, 2009.
Mrs. Sushma Bhagi & Anr. ........Petitioners
Through: Ms. Jyoti Singh with Mr. Ankur
Chhibber, Advocates
VERSUS
Union of India and Ors. ....Respondents
Through: Mr. Rajat Gaur, Advocate
CORAM:-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE V.K.JAIN
1. Whether Reporters of Local newspapers may be
allowed to see the Judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the Judgment should be reported in the
Digest? Yes.
V.K.Jain, J.
1. The petitioners were employed as Lecturers in Physiotherapy, Physiotherapists and Senior Physiotherapists. The Fourth Central WPC No. 5835 of 2003 Page 1 of 12 Pay Commission had accorded the following scales to the aforesaid categories:
1. Physiotherapists/Occupational Therapists: 1400-2300
2. Lecturers in Physiotherapists/ Occupational Therapists: 2000-3200
3. Physiotherapists Grade-I (CGHS) 2000-3200
4. Senior Physiotherapists/Senior Occupational Therapists 2375-3500
2. The Ministry of Health and Family Welfare vide its Memorandum dated 28.8.1986, recommended the following scales of pay for these categories:
1. Physiotherapists/Occupational Therapists (PTs/OTs) 2000-3200
2. Lecturers in Physiotherapy/ Occupational Therapy; 2000-3500
3. Senior Physiotherapists/Senior Occupational Therapists 2200-4000
3. The Ministry of Finance, however, did not agree to the recommendations made by the Ministry of Health and Family Welfare. OA No. 2323/89 was filed by the petitioners as well as the Association of Physiotherapists and Occupation Therapists for grant of pay scales recommended by the Ministry of Health and Family Welfare.
WPC No. 5835 of 2003 Page 2 of 12
4. Vide order dated 8.6.1994, passed in OA No. 2323/89, the Tribunal directed the respondent therein to take a fresh decision on the recommendations of the Ministry of health and Family Welfare. Vide letter dated 12th October, 1994, the Govt of India, Ministry of Heal and Family Welfare decided that replacement pay scale given to the Physiotherapists/Occupational Therapists, Lecturers in Physiotherapy and Occupational Therapy, Physiotherapists Grade-I, and Senior Physiotherapists/Senior Occupational Therapists on the recommendations of the Fourth Central Pay Commission need not be revised again. The reason given for not revising their pay scale was that there was a separate chapter in the report of the Fourth Central Pay Commission, dealing with Para-Medical posts and the Commission had given specific recommendations for certain categories of Para Medical posts through no specific recommendation was made by it in respect of the posts of Physiotherapists/Occupational Therapists. However, in para 10(i) of the report, the Commission had specifically stated that scales of pay recommended in Chapter 8 (Replacement Scales) would apply to all posts other than those for which specific recommendations had been made.
5. OA No. 901/98 was thereafter filed by the Lecturers in Physiotherapy, Physiotherapists and Senior Physiotherapists, seeking higher grades of pay, on the ground that their claims for WPC No. 5835 of 2003 Page 3 of 12 higher grade of pay were not considered by the Fourth Central Pay Commission which had given them mere replacement scales. Vide order dated 7.8.2001, the Tribunal noted that the Fourth Central Pay Commission did not consider the matter on merits and in terms of the specific recommendations made by the Ministry of Health and Family Welfare on 28.8.86. The respondent in the OA were, therefore, directed to reconsider the matter and pass a reasoned and speaking order. Thereupon, a speaking order was conveyed by the Ministry of Health and Family Welfare vide letter dated 1.2.2002. The Govt of India did not find it feasible to revise the pay scales and noted that wherever a high-power Commission like Pay Commission is set up, it may continue the old relativities and wherever it feels necessary, it may establish new relativities by disturbing the old relativities. It was noted that the Fourth Central Pay Commission, based on merits, had recommended to continue old relativities in a large number of cases and had established new relativities, wherever circumstances so demanded. Wherever old relativities were sought to be continued, the recommendations contained in Chapter 8 of Part I of the report would apply and wherever the Commission felt justified to establish new relativities, it made specific recommendations on that behalf in other relevant Chapters. If, however, there was no mention of any category/class of posts for which no specific recommendations had been made, WPC No. 5835 of 2003 Page 4 of 12 that did not mean that the Commission had not looked into the merits of those posts and the recommendations contained in Chapter 8 would apply to them, as the Commission felt to continue old relativities in all those cases. Para (B) of this letter contained detailed reasons for allowing only replacement scale of 1400-2300 to Physiotherapists/Occupational therapists. As regards the Lecturers in Physiotherapy/Occupational Therapy, the reasons for not acceding to their demand were contained in para (C) of the latter, whereas the reasons for rejecting comparison between Senior Therapists and Physicists were contained in para (D) of the letter. Para (E) of the letter contained reasons for denying pay parity to them with Doctors (Medical) and Surgeons (BDS). It was also noted that the Fifth Central Pay Commission had recommended pay scale of Rs.1640-2900 to Physiotherapists/Occupational Therapists, pay scale of Rs. 2000-3500 for Lecturers in Physiotherapy/Occupational Therapy and pay scale of Rs.2200-4000 for Senior Physiotherapists and Senior Occupational Therapists, which had been granted to them w.e.f. 1.1.96 when the recommendations of the Fifth Central Pay Commission were implemented.
6. OA No. 2408/02 was, therefore, filed vide letter dated 1.2.2002. The OA was partly allowed vide order dated 21.4.2003 with the following directions:-
WPC No. 5835 of 2003 Page 5 of 12
"(i) Following the recommendations of the Fifth Central Pay Commission, we direct the respondents to grant the pay scale of Rs.1640-2900 (pre-revised) for Physiotherapists/Occupational Therapists notionally w.e.f. 1.1.1986 and with actual benefits only with effect from 1.1.1996;
(ii) Similarly, the revised pay scales/replacement scales recommended by the 5th Central Pay Commission for the other categories of staff for the posts held by the applicants i.e. revised pay scales of Rs. 2000-3500 and Rs. 2200-4000 shall be granted to them notionally w.e.f. 1.1.1986 and with actual benefits from 1.1.1996.
(iii) The consequential nonetary benefits, as a result of the aforesaid directions, shall be granted to the applicants within three months from the date of receipt of a copy of this order."
Thus, the Tribunal has maintained the pay scales granted by the Fifth Pay Commission, but has directed notional grant of those pay scales to the petitioner w.e.f. 1.1.1986, though actually the benefit accrues to them w.e.f. 1.1.1996.
7. The first grievance of the petitioner is that the Physiotherapists/Occupational Therapists have been granted pay scale of 1640-2900 whereas the Ministry of Health and Family Welfare had recommended pay scale of 2000-3500 for them. A perusal of letter/OM dated 28.8.86, sent by the Ministry of Health and Family Welfare to the Ministry of Finance shows that pay scale of 2000-3200 for Physiotherapists/Occupational Therapists was recommended by it on the sole ground that in the Report of the WPC No. 5835 of 2003 Page 6 of 12 Fourth Central Pay Commission, there was no mention of category of Physiotherapists and Occupational Therapists, and that category as a whole had been omitted by the Commission at the time of consideration of revised scale of pay. Thus, no justification on merits was given by the Ministry of Health and Family Welfare for recommending the pay scale of 2000-3200 for Physiotherapists/Occupational Therapists.
8. The recommendation made by The Ministry of Health and Family Welfare was not binding on the Ministry of Finance. The recommendation made by an Administrative Ministry is not binding on Ministry of Finance; even if reasons are given in support of the recommendations. Ministry of Finance was well within its right in not agreeing with the Administrative Ministry. In the present case, the recommendation made by Ministry of Health and Family welfare did not even give any reason in support of the pay scales recommended by it. Hence, it cannot be said that these recommendations ought to have been accepted by the Govt. A perusal of the speaking order of Govt of India, conveyed vide letter dated 1.2.2002, would show the Pay Commission recommends new pay scales only wherever it is felt necessary to establish new relativities by disturbing old relativities. Wherever the old relativities were sought to be continued, the recommendations were contained in Part I of Chapter 8 of its Report. Mere non-mention of WPC No. 5835 of 2003 Page 7 of 12 any category/class of posts or making no specific recommendation for a particular category/class of posts does not mean that the Commission had not looked into the merits of the pay scales for those posts. Had the Commission found any justification for according a higher pay scale to them, it would have recommended accordingly. The very fact that the Commission chose not to recommend any particular pay scale for them indicates that it found no justification for doing so. The absence of reference to these posts in the report does not mean that the Commission had not examined the matter on merit. What it means is that it had not deemed it appropriate to recommend a higher pay scale for these categories. It has to be appreciated that there are posts in hundreds of categories in the Govt. The Pay Commission receives hundreds and may be thousands of representations, from employees as well as their associations. These representations are examined by the Commission, and personal hearing is also given to the associations, before taking a view on their demands. It is neither feasible nor necessary for the Commission to expressly refer to its deliberation on the pay scales of all those posts, in its report. We find no reason to reject the reason given by the Govt of India for not accepting the contention that the case of the petitioner was not at all considered by the Fourth Pay Commission, on merits. Had the Commission found it necessary to revise pay scales of the petitioners, it would WPC No. 5835 of 2003 Page 8 of 12 have specifically recommended so. Since the Fourth Pay Commission did not recommend any higher pay scale of the petitioner, it obviously means that it had decided to maintain the existing pay scales for them. Accordingly these employees were entitled only to replacement scales of the pre-revised pay scales enjoyed by them. No other ground has been urged before us for granting higher pay scale to Physiotherapists/Occupational therapists. Therefore, we reject the contentions of the petitioner in this regard.
9. The only reason given by the Tribunal for giving pay scale of Rs.1640-2900 to the Physiotherapists/Occupational Therapists, pay scale of 2200-3500 to the Lecturers and pay scale of 2200-4000 to the Senior Physiotherapists/Occupational Therapists, is that the Fifth Pay Commission itself had felt that present pay scale of 1400- 2300 for Physiotherapists/Occupational Therapists was low vis-a-vis minimum qualifications and had also recommended the pay scale of Rs.2000-3500 for Lecturers, 2200-4000 for Senior Physiotherapists/Senior Occupational Therapists. The Tribunal felt that this was a case where taking into account the recommendation of Fifth Pay Commission itself and lack of it in the Fourth Pay Commission, part of the relief claimed by the Petitioners had to be allowed.
WPC No. 5835 of 2003 Page 9 of 12
10. We have nothing to say that on the merits of the partial relief granted by the Tribunal, as the order of the Tribunal has not been challenged by the official respondents. We, however, find absolutely no justifiable reason for granting pay scales recommended by the Fifth Pay Commission to the petitioners on actual basis w.e.f. 1.1.1986, when the recommendations of the Fifth Pay Commission were effective for all govt employees only w.e.f. 1.1.96. The petitioners have not been able to make out a case on merits for grant of pay scale of Rs.1640-2900 to Physiotherapists/ Occupational Therapists, pay scale of Rs. 2000-3500 to Lecturers in Physiotherapy and Occupational Therapy and pay scale of Rs.2200- 4000 to Senior Physiotherapists and Senior Occupational Therapists, w.e.f. 1.1.86. We cannot convert the notional benefit given by the Tribunal into actual benefit w.e.f. 1.1.1996 unless justification on merit is given for granting such a benefit to the petitioners from a retrospective date. It is for the expert bodies like Pay Commissions to examine the revision of pay scales of particular posts on merits and take an appropriate view. The Court cannot sit in judgment over the recommendations of such expert bodies and cannot substitute its own views for the views taken by the experts. This is more so when no such material has been placed before us by the petitioners, as would compel us to hold that they were entitled to higher pay scales w.e.f. 1.1.1986. We cannot say that merely WPC No. 5835 of 2003 Page 10 of 12 because the Fifth Pay Commission has recommended revision of pay scale for them from 1.1.96, the Fourth Pay Commission also ought to have given the same pay scale to them. We do not know what were the reasons, which persuaded the Fifth Central Pay Commission to recommend higher pay scale for the categories in which the petitioners are employed. We also do not know the reasons for which the Fourth Pay Commission had not recommended these very pay scales to them. We cannot sit in appeal over the view taken by Pay Commissions and cannot replace their conclusions, by our own. We have to leave this job to the experts unless we find that there was some apparent discrimination or that the recommendations made by the experts are arbitrary and wholly irrational. Obviously, the petitioners had failed to convince the Fourth Pay Commission, though they succeeded before the Fifth Pay Commission. They have failed to persuade us to hold that the Fourth Pay Commission ought to have granted this revised pay scale to them on the merits of their case prevailing at that time. WPC No. 5835 of 2003 Page 11 of 12
11. For the reasons given in the preceding paragraphs, we find no reason to interfere with the orders passed by the Tribunal. The writ petition is hereby dismissed.
(V.K. JAIN)
JUDGE
(A.K. SIKRI)
JUDGE
July 3, 2009.
'raj'
WPC No. 5835 of 2003 Page 12 of 12