Sh.V.Stephen vs Union Of India & Ors
2010 Latest Caselaw 330 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P. (C.) No.418/2010

%                            Date of Decision: 21.01.2010

Sh.V.Stephen                                                  .... Petitioner
                             Through Mr.J.S.Mann, Advocate.

                                      Versus

Union of India & Ors                          .... Respondents
            Through       Mr.Subhash C.Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.      Whether reporters of Local papers may be               YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                  NO
3.      Whether the judgment should be reported in              NO
        the Digest?


ANIL KUMAR, J.

*

The petitioner challenges the order dated 16th September, 2009

passed in O.A No.1732/2008 titled V.Stephen v. Union of India through

the Secretary, Ministry of Defence and Ors dismissing his plea for grant

of patient care allowance at Rs.160/- per month with effect from 1st

August, 1997 and Rs.700/- per month with effect from 29th December,

1998 and arrears of patient care allowance along with interest at the

appropriate rate.

The plea of the petitioner before the Tribunal was that he was

absorbed in Indian Air force and has been working as Pharmacist-cum-

clerk. He contended that pursuant to implementation of 5th Pay

Commission with effect from 1st August, 1997 he has become entitled

for patient care allowance at the rate of Rs.700/- per month with effect

from 29th December, 1998 in terms of Ministry of Health and Family

Welfare letter dated 2nd January, 1999.

The claim of the petitioner was contested by the respondents

contending inter-alia that as per the Government of India (Ministry of

Defence) circular dated 17th November, 2005 grant of patient care

allowance/HPCA is now admissible only to Group C and D employees of

the Armed Forces Hospital/medical establishment to the selected three

broad categories of such group employees. According to the respondents

Pharmacist-cum-Clerk are not within nine types of employees notified

in the circular and consequently the petitioner is not entitled for patient

care allowance/HPCA. The claim of the petitioner was also contested on

the ground of delay and latches. The respondents also contended that

the petitioner was receiving the patient care allowance at the old rate of

Rs.80/- per month on account of mistake and even the payment

already made to him was not justified.

The Tribunal has noted the Appendix to the Government of India

letter dated 17th November, 2005 entitling nine categories of Group C

and Group D employees eligible to get patient care allowance/HPCA.

The 9 categories of Group C and D employees are as under:-

                              S.No.                Categories

                             1.                   Lady Attendent
                             2.                   Safaiwala/Safaiwali
                             3.                   Washerman
                             4.                   Barber
                             5.                   Cook
                             6.                   Mess Waiter
                             7.                   Water Carrier
                             8.                   Washer Up
                             9.                   Laskar/Laskar Tindal

It has been noticed that patient care allowance is admissible to

those employees whose regular duty involves continuous routine

contact with the patients affected with communicable diseases or who

have to handle infected materials, instruments and equipments which

can spread infection as their primary duty working in health care

delivery institutions. It has been held that Pharmacist-cum-Clerk does

not fulfill the condition by which the controlling department would be in

a position to continue them to get patient care allowance.

The plea of the petitioner that he was getting patient care

allowance/HPCA under the old scheme and by letter dated 17th

November, 2005 the provision for patient care allowance has only been

extended to additional categories of employees of hospital/medical

establishment in Air Forces has been declined on the ground that

patient care allowance scheme has undergone restructuring at regular

intervals and, therefore, the new scheme supersedes the old scheme

and, therefore, the conditions to be fulfilled to be eligible for claim of

patient care allowance has also undergone changes and, therefore, the

petitioner is not eligible for the same.

The only plea raised by the learned counsel for the petitioners is

that by letter dated 17th November, 2005 the scheme has been extended

to additional nine categories of employees and not only to nine

categories of employees. The scheme stipulated in Government of India,

Ministry of Health and Family Welfare letter No.Z-28015/24/2001-H

dated 4th February, 2004 and 5th May, 2005 has been extended only to

eligible Group C and D categories of the hospital/medical establishment

in Air Force with effect from 8th November, 1995 that is the date from

which patient care allowance was introduced to AMC units. The learned

counsel for the petitioner is unable to show that petitioner was entitled

for patient care allowance even under the scheme dated 4th February,

2004 and 5th May, 2005. The plea of the petitioner is that he had been

getting the allowance at the rate of Rs.80/- since long which has been

categorically refuted by the respondents by filing an affidavit of

Sh.A.S.Bhonsle, Air Commandor, Air Officer Commanding, 412, Air

Force Station, Race Course Road, New Delhi contending that patient

care allowance was paid to the petitioner on account of mistake and the

payment made to him was wrong. It has not been established that the

petitioner was entitled for patient care allowance under the scheme

dated 4th February, 20054 and 5th May, 2005 which had been further

extended to nine other categories of employees by circular dated 17th

November, 2005. In the circumstances, it cannot be held that the

petitioner is entitled for patient care allowance in terms of letter dated

17th November, 2005.

In any case the learned counsel for the petitioner is also unable to

satisfy that the petitioner as Pharmacist-cum-Clerk performs such

duties which involve continuous and routine contact with the patients

infected with communicable diseases or that the petitioner is handing

patients with communicable diseases as his primary duty. In the

circumstances, the petitioner has not been able to make out a case for

grant of patient care allowance in the facts and circumstances and the

order dated 16th September, 2009 of Central Administrative Tribunal,

Principal Bench declining patient care allowance to the petitioner

cannot be faulted. The writ petition in the facts and circumstances is

without any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

JANUARY 21, 2010                                  MOOL CHAND GARG, J.
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