Delhi High Court
Gnct Of Delhi vs Gopal Singh Negi on 27 November, 2013
Author: V. Kameswar Rao
*IN THE HIGH COURT OF DELHI AT NEW DELHIz
Judgment Reserved on October 28, 2013
Judgment Delivered on November 27, 2013
+ W.P.(C) 4391/2010
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Represented by: Ms.Zubeda Begum,
Advocate with Ms.Sana
Ansari, Advocate
versus
RAJA RAM ..... Respondent
Represented by: Dr.Ashwani Bhardwaj,
Advocate
Mr.Raj Kumar Sherawat,
Adv. for applicant in C.M
No.12433/2013
+ W.P.(C) 4899/2011
GNCT OF DELHI AND ORS ..... Petitioners
Represented by: Ms.Zubeda Begum,
Advocate with Ms.Sana
Ansari, Advocate
versus
UMA LOHANI ..... Respondent
Represented by: Ms.Avnish Ahlawat,
Advocate with Ms.Rashmi
Chopra, Adv.
+ W.P.(C) 3176/2011
GNCT OF DELHI ..... Petitioner
Represented by: Ms.Zubeda Begum,
Advocate with Ms.Sana
Ansari, Advocate
versus
W.P.(C) 4391/2010 & connected Page 1 of 21
GOPAL SINGH NEGI ..... Respondent
Represented by: Dr.Ashwani Bhardwaj,
Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. These 3 writ petitions involve common issue of law, with the
consent of the counsel for the parties, are being disposed of by this
common order.
2. The issue which falls for our consideration is whether the
respondents are entitled to pay scale of `5000-8000 with effect from
January 01, 1996 as Operation Theatre (Technician) without insisting
on the qualification of B.Sc. with 2 years Diploma/Certificate in the
relevant subject. The litigation has a chequered history. The genesis of
this litigation is the recommendations of the 5th Central Pay
Commission which were implemented by the Government of India
through its notification dated September 30, 1997.
3. Brief history
We are in this case concerned with the post of Operation Theatre
(Technician). The recruitment rules for the said post as notified on
April 12, 1984 stipulates as under:
Name of No. of Classification Scale of pay Whether sel- Age limit Educational &
the post posts ection for for direct Other qualify-
post or non- recruits cations requi-
selection post Red for direct
recruits
Technician 27 Group „C‟ Rs.330-10- Selection 21-30 yrs. 1. B.Sc. from
(Anaesthesia/ Non-Gazetted 3-80-EB-12- (Relaxable a recognised
Pipeline/CSSD/ Non-Minister- 500-EB-15- For Govt. University or
Operation/The- ial 560. Servants equivalent.
atre/Anaesthesia upto 35 2. 2 years‟
Workshop years). Operating
Room Assis-
tant Course
OR
1. Matriculat-
ion/Hr.Secon-
dary/Sr.Seco-
ndary (10+2)
with Science
2. 10 years‟
experience in
Operation
Theatre/CSSD/
Anaesthesia/
Pipeline Tech-
nician/Anaest-
hesia Workshop
in an recognised
hospital
Whether age Period of Method of rectt. In case of rectt. If a DPC exists, Circumstances
And period of Probation, if whether by direct by promotion/ what is its com- in which UPSC
educational any rectt. or by deputation/tra- position? is to be consul-
qualifications promotion or by nsfer, grades ted in making
prescribed for deputation/transfer from which rectt.
direct recruits & percentage of promotion/dep-
will apply in the vacancies to be utation/transfer
the case of pr- filled by various to be made
omotees methods
Educational 2 years By promotion Promotion:- Group „C‟ Not applicable
Qualifications: failing which Operation Departmental
Yes by direct recruit- Theatre/CSSD/ Promotion
Age : No ent - 50% Anaesthesia/ Committee
By direct recruit- Gas Plant/Ana-„‟
ment - 50% esthesia Work-
shop Assistant
with 8 years;
regular service
in the grade.
4. An amendment was carried out in the year 1988 which is to the
following effect:
Column 1 Technician
(Operation Theatres including CTS/Neuro
Surgery/ Gastro Surgery/ CSSD/
Anaesthesia/ Gas Plant/ Anaesthesia
workshop/ IOU Surgical/Resuscitation).
Column 7 (i) Matriculation/Hr.Sec.Sr.Sec. (10+2) with
science
(ii) 2 years Diploma in operating Room
Asstt. Course
Column 8 age : No
Column 10 (i) 75% by promotion failing which by direct
recruitment
(ii) 25M by direct recruitment.
Column 11 By promotion from Asstts. (Rs.950-1500)
working in the Group of these specialities
with 8 year regular service in the grade.
5. A further amendment was carried out in the year 1997. The same
was to the following effect:
"In the said schedule, for the existing entries under
column 2 (No. Of posts), Column 4 (Scale of pay),
Column 6 (Age limit fo r direct recruitment), Column 7
(New column) (Whether benefits of added years of
service admissible under rule 30 of CCS (Pension) Rules,
1972; Column 7 (New column 8) Educational & other
qualifications required for direct recruits will apply in
the case of promotes) Column 11 (New column 12) (in
case of recruitment by promotion/deputation/transfer
grades from which promotion/deputation/transfer to be
made), the following shall be substituted namely: -
Column 2 117(1997)
Subject to variation depending on workload.
Column 4 Rs. 1200-30-1560-EB-40-2040
Column 6 Below 25 years (relaxable for Govt.
Servants of NCT of Delhi upto 40 years for
general employees and 45 years for SC/ST
employees) and relaxable for Govt. Servants
in accordance with the instructions/orders
issued by the Central Government.
Column 7 No
(New Column)
Column 7 (i) Matriculation/Hr.Sec./Sr.Sec.(10 plus
2) with
(Now 8) science from a recognised Institution/Board
(ii) Operation room Asstt. Course from a
recognised institution.
(iii) 5 years experience as O.T.Assistant in
O.T./CTS/Neuro-Surgery/Gastro Surgery
CSSD/Anaesthesia/Gas plant/Anaesthesia
workshop/ICU Surgical/Resusciation in a
recognised Hospital/Institution.
Column 8 Age: No
(Now 9) Education No, but must possess
matriculation with science
Column 11 Promotion from Assistants (Rs.950-1500)
working
(Now 12) in O.T./CTS/Neuro Surgery/Gastro
Surgery/CSSD/Anaesthesia/Gas
Plant/Anaesthesia workshop/ICU
surgical/Resusciation possessing 8 years
service as Assistant in a hospital of Govt. Of
N.C.T. of Delhi.
6. The 5th Central Pay Commission vide para No.52.78 had made
the following recommendations:
"The Administrative Ministry have observed that, there is
similarity in the training, qualification & recruitment
rules among the laboratory technical staff and the O.T.
Technical Staff. In view of comparable qualifications and
duties, we recommend parity of O.T. Technicians and
Lab Technicians at the initial levels also. Accordingly,
the following grades are proposed for O.T.staff in future.
-i) OT Attendant - Rs.750-940 with 2 ACP levels of
Rs.775-1025 and Rs.800-1150 with minimum 8th
Standard qualification, at entry;
ii) OT Assistant - Rs.950-1500 with 2 ACP levels of
Rs.1200-2040 and Rs.1400-2300 with minimum
qualification of matric (with Science) plus certificate or
10+2 with Science for direct recruitment; and
iii) OT Technician - Rs.1600-2660 with 2 ACP levels of
Rs.1640-2900 and Rs.2000-3500 with minimum B.Sc.
plus Diploma/Certificate in the relevant subjects. The
existing incumbents in each organization in operation
theatres as well as sterilisation services will be placed in
appropriate matching pay scales."
7. Two Original Application Nos.521/2002 and 522/2002 were filed
by Technical Staff (O.T). Their grievance was that by the 5th Central
Pay Commission the post of Operation Theatre (Technician) has been
placed in the pay scale of `5000-8000. In the hierarchy, the promotion
post of O.T. (Technician) is that of Technical Assistant and the said
post could not have been placed in the pay scale of `4500-7000.
Further the promotion post of Technical Assistant is that of Technical
Supervisor and the said post could not have been placed in the pay scale
of `5500-9000. The prayer in the two original applications was that the
post of Technical Assistant be put in the pay scale of `5500-9000 and
the Technical Supervisor be put in the pay scale of `6500-10500. The
Original Applications were disposed of by the Tribunal vide its order
dated November 07, 2002 calling upon the respondents i.e. Union of
India and the Lt. Governor to consider the issue of pay scale in the light
of observation made by the Tribunal and pass a detailed, speaking and
reasoned order.
8. Pursuant to the order dated November 07, 2002 the petitioners
herein passed an order dated January 29, 2004 whereby it was decided
to roll back the pay scale of Operation Theatre (Technician) working in
various hospitals from `5000-8000 to `4000-6000 with effect from
January 01, 1996. The Operation Theatre (Technician) challenged the
order dated January 29, 2004 in an Original Application No.401/2004
before the Tribunal. The Tribunal vide its order dated January 13, 2005
had quashed the order dated January 29, 2004 on the ground that while
passing the said order no show cause notice was issued by the
petitioners.
9. The petitioners in compliance of the order dated January 13, 2005
issued show cause notices to the Operation Theatre Technicians
including some of the respondents herein to submit their representation
as to why their pay scales should not be reduced from `5000-8000 to
`4000-6000. The petitioners sustained their show cause notice and
reduced the pay/retiral benefits of the respondents in WP(C)
No.3176/2011 and WP(C) No.4391/2010 to `4000-6000 with effect
from January 01, 1996 vide order dated September 20, 2005. The
respondent in W.P.(C) 4391/2010 filed an Original Application
No.1167/2006, the details of which would be given hereinafter.
10. Some of the Operation Theatre Technicians approached the
Tribunal challenging the order dated September 20, 2005 by way of
Original Application No.2184/2005. Suffice would it be to say that the
Tribunal did not find any merit in the Original Application and it
upheld the rolling back of the pay scale of the Operation Theatre
(Technician) from `5000-8000 to `4000-6000.
11. The two petitions, Original Application No.266/2000 and
Transfer Application No.4/2005 filed by Operation Theatre Technicians
working in Safdarjung Hospital under the Government of India
claiming the pay scale of `5000-8000 were dismissed vide order dated
August 03, 2006 holding that they are not entitled to higher pay scale of
`5000-8000.
12. The order dated August 03, 2006 of the Tribunal as referred
above was challenged by way of writ petition No.13566-80/06 in this
Court. This Court disposed of the writ petition vide its order dated
August 23, 2006 upholding the order of the Tribunal. In the operative
para, this Court had given liberty to the petitioners therein namely
Mahender Pal Sharma & Ors. to raise the issue whether imposition of
the condition of possessing higher qualification of B.Sc with
diploma/certificate in relevant subjects is necessary for all such
Operation Theatre (Technicians), including the existing incumbents or
it is for the future recruits for grant of higher scale of `5000-8000.
13. We may state here that the order dated May 17, 2005 in Original
Application No.2184/2005 was also challenged before this Court in writ
petition No.6405/2007. The said writ petition was dismissed on
November 21, 2007. In other words the order dated September 20, 2005
of the respondent was upheld. Suffice would it be to say that the writ
petition No.6405/2007 was disposed of on the same lines of writ
petition No.13566-80/2006 Mahender Pal Sharma & Ors. vs. Union of
India & Ors. decided on August 23, 2007. In the aforesaid background
the brief facts of each of the writ petitions which we are considering in
this order are as under:
W.P.(C) 4391/2010
The respondent Raja Ram was appointed as a Nursing Orderly on
March 25, 1963. He was promoted to the post of Operation Theatre
(Assistant) on April 20, 1987. He was subsequently promoted to the
post of O.T (Technician) with effect from March 07, 1996. As an O.T
(Technician) he was drawing the pre-revised pay scale of `1200-2040
(4th Central Pay Commission). Pursuant to the recommendations of 5th
Central Pay Commission his pay scale was revised as `5000-8000. He
superannuated on December 31, 2004. By an order of the Health &
Family Welfare Department the pay scale of `5000-8000 was rolled
back to `4000-6000 retrospectively with effect from January 01, 1996
which resulted in re-fixation of his retiral benefits. He filed Original
Application No.1167/2006 challenging the order dated August 22/23,
2005 whereby the petitioners had rolled back the pay of the respondent
from `5000-8000 to `4000-6000. The Original Application
No.1167/2006 was referred to a Full Bench which decided the issue on
January 07, 2009 by holding that in terms of the recommendations of 5 th
Central Pay Commission in para No.52.78 the Operation Theatre
(Technician) would be entitled to pay scale of `5000-8000 irrespective
of the qualification. Based on the conclusion of the Full Bench the
Division Bench allowed the Original Application No.1167/2006 of the
respondent and granted the pay scale of `5000-8000 vide its order dated
February 20, 2009. The petitioners have impugned both the orders
dated January 07, 2009 and February 20, 2009 in this writ petition. This
writ petition was dismissed by this Court on July 06, 2010. An SLP was
filed against order dated July 06, 2010 by the petitioners herein which
was withdrawn on the submission that the department would like to file
a review petition in writ petition(civil) No.4391/2010. The review
petition was allowed by this Court on May 27, 2011 and the writ
petition was directed to be listed for hearing. The primary reason for
this Court to allow the review petition was that the impugned decision
of the Tribunal need to be looked into with reference to the decision of
this Court in writ petition (civil) No.13566-80/2006 Mahender Pal
Sharma & Ors. vs. Union of India & Ors.
W.P.(C) 4899/2011
The respondent herein was appointed as O.T (Technician) in
G.B. Pant Hospital in the pay scale of `5000-8000 pursuant to an offer
of appointment issued to her on September 07, 1999. In the month of
May 2010 the competent authority decided to reduce the pay scale from
`5000-8000 to `4000-6000. It is this action of the petitioners which was
challenged by the respondent by filing Original Application
No.2732/2010 which was allowed and directed the continuance of the
respondent in the grade which has been prescribed in the advertisement
and indicated in the offer of appointment.
W.P.(C) 3176/2011
The respondent had joined the service of the petitioners as
Nursing Orderly on August 29, 1979. He was promoted as Operation
Theatre (Assistant) in the year 1987. Thereafter he was promoted as
O.T (Technician) in the month of March, 1995. Pursuant to the
recommendations of the 5th Central Pay Commission, his pay was
revised to `5000-8000. Pursuant to the directions in an earlier litigation
the petitioners issued a show cause notice dated March 31, 2005 and
considering the various representations passed an order dated
September 20, 2005 whereby the pay scale of O.T (Technician) had
been rolled back to `4000-6000 retrospectively with effect from
January 01, 1996. Being aggrieved by the action of the petitioners the
respondent had filed Original Application No.3517/2009. The Tribunal
allowed the Original Application on the ground that the case of the
respondent is covered by the decision of the Full Bench in the case of
Raja Ram vs. GNCTD, Original Application No.1167/2006 vide order
dated March 08, 2010. It is this order which has been impugned by the
petitioners in this writ petition.
14. We may note here that certain persons holding the post of
Technical Assistant, which is a promotion post to the post of Operation
Theatre (Technician), have filed three original application
Nos.2594/2011, 2595/2011 and 2587/2011 before the Tribunal inter-
alia seeking scale of `5500-9000. This claim of the Technical
Assistants is premised on the ground that the Operation Theatre
(Technician) which is a feeder post has been granted `5000-8000 by the
Tribunal, necessarily the promotion post must also be in the higher
scale of `5500-9000. The claim of the Technical Assistants was
allowed by the Tribunal vide order dated March 26, 2012 read with
order dated October 11, 2012 whereby the Tribunal has directed the
petitioners to grant the scale of `5500-9000 to the applicants therein
who are working as Technical Assistants which is a promotion cadre to
the Technician.
15. The Technical Assistants, on the strength of the order of the
Tribunal dated March 26, 2012 and October 11, 2012 has filed C.M
No.12433/2013 in Writ Petition No.4391/2010 seeking their
impleadment on the premise that the relief granted by the Tribunal in
their original application Nos. 2594/2011, 2595/2011 and 2587/2011 is
directly dependent upon the outcome of the present application.
According to them, if the respondents in the writ petitions under
consideration are granted the pay scale of `5000-8000 then the
Technical Assistants would also become eligible for `5500-9000.
16. It is not clear whether the petitioners have implemented the
orders dated March 26, 2012 and October 11, 2012 in favour of the
Technical Assistants.
17. One more fact which is of relevance here is the issuance of letter
dated June 02, 2011 whereby the Ministry of Health & Family Welfare,
Hospital Division has conveyed to the Medical Superintendents of
Dr.Ram Manohar Lohiya Hospital, New Delhi and Safdarjung Hospital,
New Delhi its decision that the additional qualification cannot be
imposed on the existing staff at the time of promotion, linking of the
B.Sc qualification to the O.T (Technician) at the time of promotion is
not justified. According to the Ministry the amendment of the
recruitment rules would only bind the future recruitments and action
with regard to scale of pay be taken with respect to the existing O.T
(Technical Staff). In other words the Ministry of Health & Family
Welfare was of the view that the qualification of B.Sc is not a pre-
requisite for the existing staff for grant of higher scale.
18. The issuance of the letter dated June 02, 2011 was during the
pendency of the writ petitions, this Court being conscious of the fact,
granted time to the counsel for the petitioners to file additional
affidavit. In fact, an affidavit dated December 02, 2011 of Mr.Vipin
Garg, Deputy Secretary, Health & Family Welfare, Govt. of NCT of
Delhi was filed wherein the stand of the Govt. of NCT with regard to
letter dated June 02, 2011 is as under:
"That as regards the letter dated 2/6/2011, the annexure
to the reply, the said letter at best gives fresh cause of
action to the respondent in respect of which the
Competent Court of the jurisdiction is Central
Administrative Tribunal."
19. We have heard the learned counsel for the parties.
20. Ms.Zubeda Begum, learned counsel for the petitioners would
submit that the respondents are not entitled to the higher scale of
`5000-8000. The issue stands decided by this Court in writ petition
Nos.13566-80/2006 and 6405/2007. These petitions need to be allowed,
otherwise grant of scale to the Operation Theatre (Technician) would
have a hierarchical effect on the higher posts as well.
21. On the other hand, Ms.Avnish Ahlawat, learned counsel for the
respondents appearing in Writ Petitions (C) No.4899/2011 would
submit that the respondents were rightly granted the pay scale of `5000-
8000. The condition of higher qualification is not required to be
fulfilled by the respondent. The same is for future recruits. She would
also submit that the issue stands decided after the issuance of letter
dated June 02, 2011 by the Ministry of Health & Family Welfare. She
would also rely upon the judgment of the Tribunal in the case of
Mahender Singh & Ors. vs. Union of India & Ors. Original Application
No.3018/2010 decided on August 30, 2011, wherein the Tribunal
relying upon the aforesaid letter of the Ministry of Health & Family
Welfare dated June 02, 2011 has allowed the O.A of the Operation
Technicians working in Lady Harding Medical College and
Smt.S.K.Hospital.
22. Dr.Ashwani Bhardwaj, learned counsel for the respondents in
other writ petitions would make similar submissions that the
respondents are entitled to the higher pay scale of `5000-8000 which is
not dependent upon possessing a higher qualification.
23. We have considered the rival submissions made on behalf of the
parties and the written submissions filed by the counsel for some of the
parties.
24. On a reading of the facts, it is noted that this Court in an earlier
round of litigation has upheld the order of the Tribunal wherein the
Tribunal has denied the grant of higher scale of `5000-8000 to the
respondents. This Court had granted liberty to the respondents to take
up the matter with the 6th Pay Commission as to whether the imposition
of the condition of requisition of higher qualification of B.Sc with
diploma/certificate in relevant subject is necessary for all such O.T
Technicians including the existing incumbents or it is only for future
recruits. It appears that no such reference was made to the 6th Pay
Commission. Rather the Ministry of Health & Family Welfare issued an
O.M dated June 02, 2011 with the approval of its finance division to say
that the insistence of higher qualification at the time of promotion is not
justified and action with regard to the scale of pay of existing Operation
Theatre (Technical Staff) and amendment of recruitment rules for future
recruitments in pursuance of the recommendations need to be taken.
25. We note that the aspect of grant of pay scale of `5000-8000 vide
order dated June 02, 2011 was referred to the Department of
Expenditure, Ministry of Finance, Government of India for its approval.
The same was not accepted by the Ministry of Finance vide its note
dated December 21, 2011 wherein the following was recorded:
"2. The matter has been examined. It would not be
feasible to place O.T Technicians in the upgraded py
scale of Rs.5000-8000 without adhering to the minimum
education qualifications stipulated by the 5th CPC (Para
52.78)."
26. In view of the aforesaid decision, whether the Operation Theatre
(Technician) is entitled to the scale of `5000-8000 on an interpretation
of para No.52.78 is the issue before us. The recommendations in para
No.52.78 are confined to O.T (Attendant), O.T (Assistant) and
Operation Theatre (Technician). We have not been shown any similar
recommendations made with regard to promotional posts of Technical
Assistant and Technical Supervisor. Holders of the said posts were
given the normal replacement pay scale of `4500-7000 and `5500-9000
respectively with effect from January 01, 1996. If the claim of the
respondents, Operation Theatre (Technician) is to be accepted for
`5000-8000 without insistence of higher qualification then surely it
would have an impact/cascading effect on the higher post as well
inasmuch as the pay scale of higher posts need to undergo a change.
Can this Court in judicial review grant a relief which may create an
anomaly? The answer is "No". The grant of a higher scale of `5500-
9000 to the holders of the next higher post of Technical Assistant by the
Tribunal while deciding three Original Application Nos.2594/2011,
2595/2011 and 2587/2011 vide order dated March 26, 2012 on would
not remove the anomaly, as there exists a higher post of Technical
Supervisor, which is still in the scale of `5500-9000. We note that even
the Tribunal was conscious of the fact, while deciding the aforesaid
three Original Applications, that the Technical Assistants would be
entitled to the pay scale of `5500-9000 only if Operation Theatre
(Technicians) get the pay scale of `5000-8000 and not otherwise.
27. The interpretation with regard to recommendations of 5 th Central
Pay Commission in para No.52.78 should be left to the Government.
The scope of judicial review is very limited when ex-facie the denial of
a particular scale is arbitrary, which is not the case here. This Court
while deciding writ petition No.13566-80/2006 on August 23, 2007 has
upheld the order of the Tribunal dated August 03, 2006 by holding that
the view taken by the Tribunal that the higher pay scale of `5000-8000
could only be granted to those Operation Theatre (Technicians) who
were having minimum qualification of B.Sc plus Diploma/Certificate in
the relevant subjects as a plausible view. This Court having already
upheld the action of the petitioners for rolling back the pay scale to
`4000-6000 we see no reason to differ with that view. Rather in the
interregnum, the Ministry of Finance, had considered the issue and did
not accord the approval for grant of pay scale of `5000-8000.
28. The Courts/Tribunals cannot grant a particular pay scale. In this
regard reference is made to the judgment of the Supreme Court reported
as (2007) Vol.7 SCC 472 Union of India vs. Arun Jyoti Kundu wherein
it is held as under:
"19. We are afraid that the tribunal has exceeded its jurisdiction
in issuing the direction, it has issued. The fact that
notwithstanding the Fifth Pay Commission not recommending,
particularly, the payment of higher scale to two sets of typists,
typists in English language and typists in Hindi language, the
Government chose to give them relief with effect from 31-1-2000
would not justify an inference of discrimination or a finding that
the authority has acted arbitrarily or unreasonably. As this Court
has clarified in the decisions adverted to, it is for the
Government to act on the report of the Pay Commission or either
to accept or not to accept its recommendation. Once the
recommendations of the pay commission are accepted, in full, it
could also give effect to it from the date recommended in that
behalf. But when admittedly no provision was made in respect of
the English and Hindi typists and they pointed to the anomalies
and the Government on the basis of the recommendation of the
Anomalies Committees decided to given them the scale with
effect from 31-1-2000, it could not be held to be discriminatory
or to be beyond the power of the Government.
20. When a concession was being extended as distinct from
implementing a specific recommendation of the Pay Commission
with reference to a particular point of time, it is open to the
Government to provide that the benefit it proposes to give, would
be available only from a notified date. As this Court has
observed, neither the Central Administrative Tribunal nor the
High Court, can direct the merger of any cadre. That is a policy
decision for the Government to take. So long as it is not done, it
is not open to the tribunal or the court to issue directions in that
regard and to follow it up with what are thought to be
consequential directions."
29. We find that the Full Bench of the Tribunal in its order dated
January 07, 2009 has held grant of two scales of `5000-8000 and
`4000-6000 on the basis of qualifications as arbitrary and
discriminatory. Regrettably, while holding so the Full Bench had
overlooked the position of law that on the basis of qualification
different pay scales can be prescribed. In this regard reference is made
to the opinion of the Supreme Court in the case reported as (2007)
Vol.5 SCC 528 Sohan Singh Sodhi vs. Punjab State Electricity Board,
Patiala, wherein it is held as under:
"11. The circular issued by the Board provided for parity
in the scale of pay in the induction post and not on a
higher post. The said circular, therefore, has no
application in this case. The jurisdiction of the Board to
lay down different scales of pay for the employees on the
basis of educational qualification per se is not
discrimination. (See Triloki Nath Khosa, see also State of
Punjab v. Kuldip Singh)
XXXXXX
14. . In Govt. of W.B. v Tarun K. Roy, a three-Judge Bench
of this Court, noticing several other decisions opined that
parity in the pay cannot be claimed when the educational
qualification is different."
30. As has been noted above, the Ministry of Finance has not
approved grant of the scale of `5000-8000 to the matriculates. It is a
settled law that the revision of pay scale becomes effective when a
decision has been taken to accept it. Since there is no acceptance by the
Nodal Ministry for grant of higher scale of `5000-8000 with regard to
the matriculates, the same cannot be given by the Court in exercise of
judicial review. Reference is made to the opinion of the Supreme Court
reported as (2009) 1 SCC 73 Chandrashekar A.K. vs. State of Kerala &
Anr., wherein it is held as under:
"14. The question as to whether the scale of pay would be
revised or not is a matter of policy decision for the State.
No legal right exists in a person to get a revised scale of
pay implemented. It may be recommended by a body but
ultimately it has to be accepted by the employer or by the
State, who has to bear the financial burden. This aspect of
the matter has been considered by this Court in HEC
Voluntary Retd. Employees Welfare Society v. Heavy
Engg. Corpn. Ltd. stating: (SCC p.716, para 19)
"19. It is not in dispute that the effect of such
voluntary retirement scheme is cessation of
jural relationship between the employer and
the employee. Once an employee opts to retire
voluntarily, in terms of the contract he cannot
raise a claim for a higher salary unless by
reason of a statute he becomes entitled thereto.
He may also become entitled thereto even if a
policy in that behalf is formulated by the
Company."
31. Having concluded that the respondents are not entitled to grant of
the scale of `5000-8000 we find that there are two set of cases here: (i)
where the respondents (in W.P.(C) 4391/2010 and W.P.(C) 3176/2011)
were working with the petitioners as on January 01, 1996 i.e. date of
implementation of 5th Central Pay Commission; (ii) where the
respondent is appointed as Operation Theatre (Technician) in G.B.Pant
Hospital on September 07, 1999 in the pay scale of `5000-8000
pursuant to an advertisement prescribing the scale of `5000-8000. In
the former cases the pay scale of `5000-8000 was granted to the
respondents with effect from January 01, 1996 but later on withdrawn
with effect from the said date. In Writ Petition No.4391/2010 the
respondent is a pensioner whose pension has been re-fixed after the pay
scale has been rolled back from `5000-8000 to `4000-6000.
32. The case of respondent in Writ Petition No.4899/2011 before the
Tribunal was that she having been appointed in the pay scale of `5000-
8000, the same cannot be rolled back to the pay scale of `4000-6000. It
was her submission that the terms of appointment must be maintained.
The Tribunal accepted the said submission of the respondent. It is true
that the respondent in Writ Petition No.4899/2011 was appointed in the
pay scale of `5000-8000. This was during the period when the
petitioners had granted the higher pay scale to the Operation Theatre
(Technicians). It was subsequently on a consideration that the
petitioners decided to roll back the pay scale of `5000-8000 to `4000-
6000. It is not the case of the respondent that despite having higher
qualification her pay scale has been rolled back to `4000-6000. An
appointee whose appointment is regulated by recruitment rules is
eligible to get pay scale as prescribed for the post to which he/she is
appointed. We are conscious of the fact that on her appointment the
respondent started drawing salary in a higher pay scale. How to
reconcile a position where the benefits which she had earned because of
grant of higher scale are protected and simultaneously her appointment
is made compatible with the pay prescribed. This can be done by
protecting the pay she had drawn till the roll back was effected in the
pay scale of `4000-6000. The difference of pay be made personal to
her.
33. We, therefore, allow the writ petitions and set aside the order
dated January 07, 2009 and February 20, 2009 passed in Original
Application No.1167/2006, order dated February 08, 2011 passed in
Original Application No.2732/2010 and order dated March 08, 2010 in
Original Application No.3517/2009 passed by the Tribunal.
Consequently the Original Applications filed by the petitioners before
the Tribunal are dismissed.
34. No costs.
C.M No.12433/2013 (u/o 1 Rule 10 CPC
This is an application filed by the Technical Assistants on the
strength of the order passed by the Tribunal on March 26, 2012,
whereby the Tribunal granted pay scale of `5500-9000 to them, which
has been made subject to the outcome of these petitions. Since in these
batch of writ petitions we are concerned with grant of pay scale of
`5000-8000 to O.T (Technician), the present application is not
maintainable and is dismissed.
(V.KAMESWAR RAO)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
NOVEMBER 27, 2013
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