Delhi High Court
Mrs. Sushma Bhagi & Anr. vs Mrs. Sushma Bhagi & Anr. on 3 July, 2009
Author: V. K. Jain
* 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
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.
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
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,
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:-
"(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
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
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
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.
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
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.
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'
