Delhi High Court
Gnct Of Delhi vs Delhi Medical Technicians And ... on 1 July, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: July 01, 2013
+ W.P.(C) 2641/2010
GNCT OF DELHI ..... Petitioner
Represented by: Ms.Avinash Ahlawat
and Mr.Nitesh Kr.Singh,
Advocates
versus
DELHI MEDICAL TECHNICIANS AND EMPLOYEES
ASSOCIATION AND ANR. ..... Respondents
Represented by: Mr.Rakesh Kumar
Dudeja, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J. (Oral)
1. Undisputed position is that the post of Laboratory Technician
and Technical Assistant are feeder posts to the promotional post of
Senior Laboratory Technician. All 3 posts came to be placed in the
pay scale `4500-7000. Indeed, an anomalous situation came into
existence because 2 feeder posts and the 1 promotional post were
placed in the same pay scale.
2. Issue came up as to what should be the pay scale in which
Laboratory Technician and Technical Assistant need to be placed
under the Assured Carrier Progression Scheme. The scheme in
question, at the relevant time, envisaged one financial upgradation if
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an employee had rendered 12 years service and had not earned a
promotion. Such an employee was to get, what is technically known
in law as an 'in situ' promotion.
3. The scheme envisaged that if there was a hierarchy in the posts
the ACP benefit would be by placing the employee in the pay scale
of the promotional post. If there was no hierarchy in the posts the
scheme envisaged that the employee concerned would be placed in
the next pay scale.
4. The exact problem was that the post of Laboratory Technician
and Technical Assistant had the hierarchical promotion post of a
Senior Technical Assistant.
5. The next above pay scale was `5500-9000. Proposals sent by
the Government of Delhi to the Central Government to permit it an in
between pay scale of `5000-8000 was responded to by the
Government as under:
Subject:-C.P.(c) No.373/2004 in O.A. No.2615/2003
filed by S.Manju Kalagaonkar and other Technical
Assistants of MAMC-
Sir,
I am directed to refer to your letter
No.PHC/TRC/CAT/373/04/12351 dated
14.12.2004 on the above mentioned subject and
to say this matter relates to the request of the
Technical Assistants of MAM College, New
Delhi for upgradation of their pay scale to
Rs.5500-9000 from Rs.4500-7000 w.e.f. 1.1.96
due to alleged anomalous situation of granting
pay scales (i.e. Rs.4500-7000) to Lab.
Technicians and Technical Assistants, which
are feeder and promotional post respectively.
W.P.(C) 2641/2010 2 of 5
As already pointed out in this Ministry's letter
of even number dated 9.11.2004, this matter
requires consideration in the light of the
instructions dated 24.11.2000. According to
those instructions in such cases appropriate
restructuring of the cadres is to be carried out
and in case this restructuring is not feasible on
functional, operational and administrative
considerations, only extension of benefit of
fixation of pay under FR 22(1)(a)(1) can be
considered on the merits of each case and
provided that all the conditions for the grant of
this benefit are fully satisfied and promotion to
the posts in question actually involves the
assumption of higher responsibilities. All such
cases have to be sent to the Department of
Expenditure for their prior approval
consideration.
Accordingly, mere upgradation of pay scale of
feeder post does not in itself entitle grant of
higher scale to the promotional post. The
instructions dated 24.11.2000 clearly provide
that mere fact of a post in a hierarchy being a
promotion post is not an adequate justification
for placing the promotion post in the hierarchy
in a higher pay scale in your letter under
reference it has been indicated that the OM
dated 24.11.2000 had been gone through and
the proposal sent by GNCT vide letter dated
18.3.2003 has been reiterated which was for the
upgradation of the pay scale of the pay scale of
the Technical Assistant from Rs.4500-7000 to
Rs.5000-8000 due to alleged anomalous parity
in the pay scale i.e. Rs.4500-5700 of Lab.
Technician and Technical Assistant because the
former post is a feeder post for the latter post.
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Accordingly it is seen that the ground for
upgradation proposed is only the placemen
feeder and promotional grade in the same pay
scale as a result of Vth CPC recommendation.
There is no additional reasons/ grounds
provided in support of proposal for upgradation
in view of the clear instructions contained in the
OM dated 24.11.2000 it will not be possible to
recommend your proposal for upgradation of
the pay scale of the Technical Assistants
Maulana Azad Medical College New Delhi to
the Ministry of Finance for their consideration.
Petitioners/ Applicants in the matter clearly
bringing out the instructions of the Ministry of
Finance for not agreeing to upgradation of the
pay scale, under intimation to this Ministry. The
position may also kindly be explained before
the Hon'ble CAT Delhi suitably in regard.
This issues with the approval of the Secretary
(Health and Family Welfare).
6. Suffice would be it to state that the letter dated December 17,
2004 addressed by the Central Government to the Government of
Delhi recognizes an anomalous situation: that of a feeder cadre post
being in the same pay scale as that of the promotional post. The
Central Government recognized the fact that the ACP scheme
required to be worked out in such situation by placing the employee,
who was entitled to an ACP benefit, in the upgraded pay scale. But
what would be that upgraded pay scale was not responded to by the
Central Government.
7. The solution projected in paragraph 2 by the Central
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Government i.e. of giving benefit under FR 22(1)(a)(1), to say the
least, is absurd. Benefit under the Fundamental Rule in question is
given when a person assumes responsibility of a higher post. The
Rule requires such a person to pay fixation by stepping up the pay by
one increment. It is not applicable to an Assured Carrier Progression
Scheme.
8. In our view, the simple logic would be that where a feeder
cadre post and a promotional post are placed in the same pay scale
ACP benefit has to be in the next above pay scale; be it in the
hierarchy of posts or the next above pay scale.
9. In the instant case the undisputed position is that whether it is
the hierarchy of posts or the next above pay scale, above the pay
scale of `4500-7000 is the pay scale of `5500-9000; this is the pay
scale in which ACP benefit has been directed to be granted to the
respondents as per the impugned decision dated September 15, 2009.
10. We find no infirmity in the view taken by the Tribunal and
accordingly we proceed to dismiss the Writ Petition but without any
order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
JULY 01, 2013
km
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