Delhi High Court
Sh. Narendra And Ors. vs Municipal Corporation Of Delhi on 31 October, 2014
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26.09.2014
Pronounced on: 31.10.2014
+ W.P.(C) 2259/2012, C.M. NO.6050/2014
SH. NARENDRA AND ORS. ..... Petitioners
Through: Ms. Pragnya Routray, Advocate.
Versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through: Sh. Gaurang Kanth, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
MR. JUSTICE S. RAVINDRA BHAT
%
1. The petitioners in these proceedings under Article 226 of the
Constitution of India, challenge the order of the Central
Administrative Tribunal (hereafter "CAT") dated 23.11.2011, in O.A.
No. 1179/2011, by which the CAT held that the petitioners were not
entitled to the grant of pay-scale of ₹ 5000 - 8000, or to be designated
Public Health Inspectors (PHIs) in the respondent (hereafter "MCD").
2. The brief facts are that in the 1970s, MCD had employed
vaccinators in the pay-scale of ₹ 260 - 430, for the purposes of
vaccinations for smallpox. In 1977, smallpox was eradicated. Under
the expanded immunization program, introduced in 1978, every
vaccinator was re-designated as an "Immunizer", and was required to
perform the tasks of vaccinations/inoculations for smallpox, cholera,
typhoid, diptheria, tetanus, and pertusis, as well as of birth and death
registration. Meanwhile, the MCD had also appointed "inoculators" in
W.P.(C) 2259/2012 Page 1
the pay-scale of ₹ 330 - 560. The duties of the inoculators were the
same as those of the vaccinators/Immunisers. The latter, however - as
stated above - were in the pay-scale of ₹ 260-430.
3. This disparity in pay scales led, on 31.12.1979, the Delhi
Municipal Karamachari Ekta Union to - unsuccessfully - demand
from MCD that the Immunizers should also be given the pay-scale of
₹ 330 - 560 as well. This dispute was referred to the Industrial
Tribunal. The Tribunal held that the immunizers and the inoculators
were performing the same work, and consequently, directed by its
award, dated 23.9.1988 (hereafter "the first award") that the
vaccinators/immunisers also be placed in the pay-scale of ₹ 330-560,
with effect from 23.5.1981, which was the date the reference was
made to the Industrial Tribunal. The MCD challenged the award
before this Court, but did not succeed. The MCD, accordingly, issued
a circular dated 25.3.1992, according to which the pay-scale ₹ 330 -
560 was approved for all Vaccinators who were, at the time, working
in the ₹ 260 - 430 pay-scale.
4. The said pay-scale ₹ 330 - 560 was revised to ₹ 1200 - 2040,
and then to ₹ 4000 - 6000, pursuant to recommendations of the 5th Pay
Commission. Meanwhile, the applicants/petitioners were appointed as
Vaccinators in the MCD in 1999, in the pay-scale of ₹ 950 - 1500,
which was revised to ₹ 3050 - 4590, in terms of the 5th Pay
Commission's recommendations. Through a circular in 2000, the
MCD re-designated the applicant/petitioner Vaccinators as "Assistant
Inspectors".
5. In the meanwhile, in 1996, another reference to the Tribunal
had been made at the behest of the demands of the Karamchari Sangh
W.P.(C) 2259/2012 Page 2
being I.D. No. 107/1996. The issue in this dispute was whether certain
other vaccinators were entitled to the pay-scale of ₹ 1200 - 2040 or ₹
950 - 1500. On 29.1.2001, an award was made by the Industrial
Tribunal (hereafter "the second award") according to which the
Vaccinators were to be granted a pay-scale of ₹ 330 - 560 (Now `
4000 - 6000). Crucially, it was during the pendency of this industrial
dispute that the applicants were appointed in the ₹ 3050 - 4590 scale.
6. On 7.12.2001, based on the recommendations of one Pattanayak
Committee, (set up to review the structure and functions of the public
health services of MCD), an order dated 6.12.2001 was issued, in
terms of which Health Inspectors, Vaccination Inspectors and
Assistant Inspectors, working in the pay-scale of ₹ 4000 - 6000, were
classified as Public Health Inspectors ("PHIs"), and those in the pay-
scale of ₹ 3050-4590, were designated as Assistant Public Health
Inspectors ("APHIs"). The petitioners/applicants, who were in the
second category, challenged this by W.P. No. 4419/02 before this
Court, under Article 226 of the Constitution of India.
7. Subsequently, the pay-scale of the PHIs was upgraded to ₹ 5000
- 8000, whereas those of the APHIs was upgraded to ₹ 4000 - 6000.
Thus, the effect of all this was that Vaccination Inspectors working in
the pay-scale of ₹ 4000 - 6000 (i.e., the beneficiaries of the first
awards) were now entitled to work as PHIs with the pay-scale of `
5000 - 8000, but those Vaccination Inspectors working in the pay-
scale of ` 3050 - 4590 (i.e., the applicants/petitioners), were not so
entitled. This, in turn, was challenged in W.P. (C) No. 1540-63/2006,
which was subsequently transferred to the Central Administrative
Tribunal, Delhi ("the Tribunal"), as T.A. No. 375/2009; W.P. No.
W.P.(C) 2259/2012 Page 3
4419/02 was, accordingly, withdrawn.
8. On 14.5.2009, the CAT disposed of the application by directing
MCD to consider the claims of the petitioners. MCD, however, passed
an order dated 5.10.2009 rejecting those claims. By O.A. No.
3632/2009, the petitioners impugned the order before the CAT which
set it aside and directed MCD to consider the claims of the petitioners
for higher pay and re-designation as per its order of 7.12.2001. By
office order dated 24.01.2011, the petitioners' claim for re-designation
as PHI, and for the pay-scale of ₹ 5000 to 8000, was rejected.
According to the MCD, the petitioners were not entitled to the said
pay-scale, because they did not perform the duties of the Inoculators.
This triggered another round of litigation before the CAT - O.A. No.
1179/2011.
9. Before the CAT the applicant employees argued that the
rejection of their claim for the pay scale ₹ 5000-8000 amounted to
hostile discrimination, since the beneficiaries of the first award (of the
Industrial Tribunal, dated 23.9.1988) were granted a pay-scale of ₹
330 - 560 (now ₹ 5000 - 8000), whereas the applicants - who were
also working as vaccinators - were only upgraded to the ₹ 3050 -
4590 pay-scale. It was argued that there was no difference in the
duties and responsibilities of the two categories of vaccinators. Thus,
the applicants asked for their re-designation as PHIs, as well as being
placed in the pay-scale of ₹ 5000 - 8000.
10. CAT rejected the petitioners' contention, and held they were not
entitled to re-designation as PHIs in the pay-scale of ` 5000 - 8000.
Its decision is premised on the fact that the petitioner-vaccinators had
not undergone inoculation training, like the original vaccinators; and
W.P.(C) 2259/2012 Page 4
that furthermore, relying upon the Supreme Court case of P.U. Joshi
vs Accountant General (2003) 2 SCC 632. In particular, the Tribunal
cited paragraph 10 of that case, wherein it was held:
"Questions relating to the constitution, pattern,
nomenclature of posts, cadres, categories, their
creation/abolition, prescription of qualifications and
other conditions of service including avenues of
promotions and criteria to be fulfilled for such
promotions pertain to the field of Policy and within the
exclusive discretion and jurisdiction of the State, subject,
of course, to the limitations or restrictions envisaged in
the Constitution of India and it is not for the Statutory
Tribunals, at any rate, to direct the Government to have a
particular method of recruitment or eligibility criteria or
avenues of promotion or impose itself by substituting its
views for that of the State. Similarly, it is well open and
within the competency of the State to change the rules
relating to a service and alter or amend and vary by
addition/substruction the qualifications, eligibility
criteria and other conditions of service including avenues
of promotion, from time to time, as the administrative
exigencies may need or necessitate. Likewise, the State by
appropriate rules is entitled to amalgamate departments
or bifurcate departments into more and constitute
different categories of posts or cadres by undertaking
further classification, bifurcation or amalgamation as
well as reconstitute and restructure the pattern and
cadres/categories of service, as may be required from
time to time by abolishing existing cadres/posts and
creating new cadres/posts. There is no right in any
employee of the State to claim that rules governing
conditions of his service should be forever the same as
the one when he entered service for all purposes and
except for ensuring or safeguarding rights or benefits
already earned, acquired or accrued at a particular point
of time, a Government servant has no right to challenge
the authority of the State to amend, alter and bring into
force new rules relating to even an existing service."
W.P.(C) 2259/2012 Page 5
11. The CAT by its impugned order merely directed a verification
of what pay scales the applicants were enjoying as on 07.12.2001. In
case it was ₹ 4000 - 6000, they were entitled to the grade of ₹ 5000 -
8000; not otherwise.
12. Ms. Pragnya Routray, learned counsel for applicants argues that
the CAT's findings are in error. She submitted that till date no
recruitment rules for the post of APHIs have been notified and all
Vaccinators, including applicants and those who are re-designated as
PHI, were appointed in terms of recruitment regulations to the post of
Vaccinators only. It was reiterated that the pay scale mentioned in
recruitment regulation for the post of Vaccinator is ₹ 260-430. It was
next submitted that the first award resulted in parity between
Innoculators and Immunizers which was sought to be undone by the
subsequent order of MCD. This led to a second reference, which too
culminated in an award in favour of workmen, reiterating the parity
declared by the first award. The latest order, re-designating one
homogenous class into two could be justified only on the basis of
intention to discriminate. The so-called report did not result in any
legitimate effort to bifurcate one class, in a manner known to law.
Since the applicants were recruited when the second reference was
pending adjudication, they were entitled to the directions in the second
award, which meant the pay scale of ₹ 5000 - 8000. MCD was and
continued to be the same establishment which was a party to the first
and second award; consequently in terms of provisions of the
Industrial Disputes Act, the entire establishment, i.e the MCD was
bound to follow it.
W.P.(C) 2259/2012 Page 6
13. Mr. Gaurang Kant, learned counsel for the MCD, argued that
the impugned order of CAT does not call for interference. He argued
that the first award granted the higher pay scale to only those
performing the task of small pox vaccinators, who had been given
special training. The applicant petitioners, being later employees,
could not benefit from the award declaring parity. It was submitted
that in matters such as designation, parity of pay scales, etc, judicial
review is minimal. Unless the petitioners or employees are able to
establish demonstrable and manifest discrimination, which has no
justification, the courts would not issue a direction which would
supplant executive policies.
Analysis & Findings
14. Before discussing the merits of the contentions, it would be
useful to notice that the events which led to the second reference, and
the second award, were the denial of the pay scale (₹ 330 - 560)
revised as ₹ 1200 - 2040, and then to ₹ 4000 - 6000. The claimants in
the second reference (ID 107/1996) were post-first award recruits.
Their claims, in terms of the second award, were that:
"The case of the present workmen concerned is that the
Municipal Corporation of Delhi recruited them after the
Award in Case ID 253/83 duly implemented on 25-3-92 in
the pay scale of ₹ 950-1500 and accordingly, the present
workmen are being paid in that scale despite that they had
been performing identical work for some working hours as
is being done by their counterparts whose scale was revised
by the Tribunal in case ID 253/83. According to the Union,
this is discrimination on the part of the management... It is
alleged that the Corporation by violating the provisions of
their own orders based upon the judicial decisions and that
the workmen concerned are entitled to be paid the same pay
scale of ₹ 1200-2040 revised from time to time as is being
W.P.(C) 2259/2012 Page 7
paid to their counterparts by virtue of Award in Case ID
253/83.
4. The management who contested the claim of the
workmen submitted that the Vaccinators who were given an
award in their favor have been granted the said scale
preliminary subject to final decision by the Hon'ble High
Court and that since the workmen concerned had been
recruited as Vaccinators in the pay scale of in the pay scale
of ₹ 950-1500 and they being paid the same payscale, their
claim against the management for a higher scale is
unjustified and without merit. According to them the matter
is sub judice..."
15. To substantiate their claim, the workmen had relied on the
deposition of 5 witnesses besides that of their General Secretary.
MCD, however, did not lead any evidence but cross-examined the
workmen's witnesses. One of the important issues decided by the 2nd
award was whether the claimant workmen were parties to the earlier
award. The claimants clearly admitted that they were recruited much
after implementation of the first award. However, they deny that they
were not entitled to parity of pay with the claimants in the deference
that led to the first award. After considering all these, the industrial
Tribunal directed that the claimants in the second reference too were
entitled to the parity in pay scales which they had sought. The relevant
discussion in the second award is to the following effect:
"Having considered the testimony as briefly stated above
of the workmen witnesses duly corroborated by the
documents proved on their behalf, have failed to find out
any reason why the management have declined to pay the
same scale of Vaccinators to the workmen concerned in this
case as is being paid to their counterparts in pursuance of
the award Ex WW-1/M1. I fully agree with the learned A.R.
for the workmen that the action on the part of the
management in this regard is arbitrary and discriminatory.
W.P.(C) 2259/2012 Page 8
Assuming that the Award in question has been challenged
by the management in the Hon'ble High Court, yet there can
be no ground for the management to adopt different yard
sticks in case of employees of the same categories doing
identical work for identical hours. I am therefore of the
considered view was that the workmen concerned in this
case can not be denied the pay scale of Rs. 1200 - 2040
simply for the reason that there were recruited in the lower
payscale..."
It is therefore evident that the second award was premised upon
identical work performed by the claimant workmen; they had been
recruited by MCD after the first award was implemented.
16. Interestingly, the MCD's position with respect to the present
petitioners- in OA 1179/2011 before CAT, can be gathered from the
following extract of their counter-affidavit, filed before the CAT:
"The Vaccinators who are appointed prior to 23-05-1981
and discharging the duties of Vaccinators/Immunizers were
given the pay scale of Rs.330 - 560(Pre-Revised) on the
analogy of Inoculators and LHVs on the basis of equal work
equal pay, as the payscales of Immunizers at that time was
Rs.260-430 (Pre-revised) but the pay scale of Inoculators at
that time and LHVs was Rs.330 - 560(Pre-Revised) where
the petitioners neither attained the training of Inoculation
nor ever discharged the duties of Innoculators/Immunizers
as they were appointed in 1998 - 99 in the pay scale of Rs.
3050-4590 [as per revised pay scale in the 5th Pay
Commission] as per the Recruitment Rules of the post of
Vaccinators and were redesignated as Assistant Public
Health Inspectors and were granted the pay scale of Rs.
4000-6000 as per the Hon'ble High Court Orders and were
given the appointment from back date, i.e 30-10-1998, later
on this pay scale was revised upgraded to Rs. 4000-6000
vide Corporation Resolution No. 84 dated 28-04-2005
referred to above. Whereas Vaccinators who were the
beneficiary of Award in ID No. 253/83 were granted the pay
scale of Rs. 5000-8000 (pre-revised) and were designated
W.P.(C) 2259/2012 Page 9
as PHI.
Now these Vaccinators i.e Petitioners in the instant case
who were appointed in 1998-99 are asking for higher pay
scale & designation of the post of PHI i.e the pay scale
which they will get after their first promotion on the
grounds that the Vaccinators were granted higher pay scale
by virtue of the Award in ID No. 253/83 passed by the
Industrial Tribunal vide orders dated 23-09-1988 referred
to above.
The present Vaccinators/APHI's cannot claim parity with
Inoculators/Vaccinators as they never performed the duties
of Inoculators. Since PHI is promotional post of APHI as
per our RRs being framed APHI will be considered for
promotion to the post of PHI after fulfilling qualifying
service in the post of APHI. APHI cannot be placed in the
grade of Rs. 5000-8000."
17. It is quite apparent that the parity sought by the workmen
claimants in the first reference leading to the first award in ID No.
253/83 is no different from what was sought by the claimant workmen
in the second reference, ID 107/1996. The extract of the second award
would show that the same defence, sought to be set up by the MCD -
in the second reference- was rejected by the Industrial Tribunal in the
second award. There is no material, or even averment by or on behalf
of MCD to show how the petitioners are any different from those who
had sought the reference in ID 107/1996. The latter, i.e claimants in
the second reference leading to the second award, were post first
award employees (recruited after 28.3.1992, the date when the first
award was implemented). Their position and that of the Petitioners is
identical; the latter, i.e the petitioners were appointed/recruited in
1998-1999. Thus, the Petitioners, in the opinion of the Court, have
W.P.(C) 2259/2012 Page 10
been clearly able to establish their identity as those Vaccinators who
were part of the same class of such employees, in favour of whom the
second award was made.
18. Section 18 of the Industrial Disputes Act deals with binding
nature of industrial awards and settlements. Section 18 (3) reads as
follows:
"(3) A settlement arrived at in the course of conciliation
proceedings under this Act or an arbitration award in a case
where a notification has been issued under sub-section (3A)
of section 10A or an award of a Labour Court, Tribunal or
National Tribunal which has become enforceable] shall be
binding on-
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings
as parties to the dispute, unless the
8
Board, arbitrator,] Labour Court, Tribunal or National
Tribunal], as the case may be, records the opinion that they
were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an
employer, his heirs, successors or assigns in respect of the
establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is
composed of workmen, all persons who were employed in
the establishment or part of the establishment, as the case
may be, to which the dispute relates on the date of the
dispute and all persons who subsequently become employed
in that establishment or part.
(emphasis supplied)
Section 19 deals with the duration of time for which an award is
binding and provides as follows:
"19. Period of operation of settlements and awards.-
(1) A settlement 1 shall come into operation on such date as
is agreed upon by the parties to the dispute, and if no date is
agreed upon, on the date on which the memorandum of the
settlement is signed by the parties to the dispute.
W.P.(C) 2259/2012 Page 11
(2) Such settlement shall be binding for such period as is
agreed upon by the parties, and if no such period is agreed
upon, for a period of six months 2 from the date on which the
memorandum of settlement is signed by the parties to the
dispute], and shall continue to be binding on the parties
after the expiry of the period aforesaid, until the expiry of
two months from the date on which a notice in writing of an
intention to terminate the settlement is given by one of the
parties to the other party or parties to the settlement.
(3) 3 An award shall, subject to the provisions of this
section, remain in operation for a period of one year 4 from
the date on which the award becomes enforceable under
section 17A]: Provided that the appropriate Government
may reduce the said period and fix such period as it thinks
fit: Provided further that the appropriate Government may,
before the expiry of the said period, extend the period of
operation by any period not exceeding one year at a time as
it thinks fit so, however, that the total period of operation of
any award does not exceed three years from the date on
which it came into operation.
(4) Where the appropriate Government, whether of its own
motion or on the application of any party bound by the
award, considers that since the award was made, there has
been a material change in the circumstances on which it
was based, the appropriate Government may refer the
award or a part of it 5 to a Labour Court, if the award was
that of a Labour Court or to a Tribunal, if the award was
that of a Tribunal or of a National Tribunal] for decision
whether the period of operation should not, by reason of
such change, be shortened and the decision of 6 Labour
Court or the Tribunal, as the case may be] on such
reference shall, 7 be final.
(5) Nothing contained in sub- section (3) shall apply to any
award which by its nature, terms or other circumstances
does not impose, after it has been given effect to, any
continuing obligation on the parties bound by the award.
W.P.(C) 2259/2012 Page 12
(6) Notwithstanding the expiry of the period of operation
under sub- section (3), the award shall continue to be
binding on the parties until a period of two months has
elapsed from the date on which notice is given by any party
bound by the award to the other party or parties intimating
its intention to terminate the award."
19. A close reading of the above provisions would reveal that by
virtue of Section 18 (3) (d), not only parties to a proceeding leading to
an industrial award, but all workmen employed in the establishment-
management (on the date of the award) and future employees too, are
bound by the award; equally the management is bound by the award.
The duration of the award is -subject to express stipulation to the
contrary- one year from its enforceable date (i.e date of publication
under Section 17). By virtue of Section 19 (6) the expiration of that
one year period does not end the binding nature of the award; it
continues to bind the parties alike till a notice intending to terminate is
issued, and a period of two months lapses after issuance of such
notice. These features were dealt with and commented upon by the
Supreme Court in Life Insurance Corporation v D.J. Bahadur AIR
1980 SC 2181:
"The award or settlement under the ID Act replaces the
earlier contract of service and is given plenary effect as
between the parties. It is not a case of the earlier contract
being kept under suspended animation but suffering
supersession. Once the earlier contract is extinguished and
fresh conditions of service are created by the award or the
settlement, the inevitable consequence is that even though
the period of operation and the span of binding force expire,
on the notice to terminate the contract being given, the said
contract continues to govern the relation between the
parties until a new agreement by way of settlement or
statutory contract by the force of an award takes its place. If
W.P.(C) 2259/2012 Page 13
notice had not been given, the door for raising an industrial
dispute and fresh conditions of service would have have
been legally open. With action under Section 9-A, Section
19(2) or (6), the door is ajar for disputes being raised and
resolved. This, in short, is the legal effect not the lethal of
invitation to industrial trial of strength with no contract of
service or reversion to an obsolete and long ago 'dead'
contract of service.
.......................
47. At this stage, I may record my firm conclusion that for
the reasons already given the settlement under the ID Act
does not suffer death merely because of the notice issued
under Section 19(2). All that is done is a notice "intimating
its intention to terminate the award". The award even if it
ceases to be operative qua award, continues qua contract.
Therefore, if the ID Act regulates the jural relations
between the LIC and its employees -- an 'if' we will
presently scan -- then the rights under the Settlement of
1974 remain until replaced by a later award or settlement."
20. In the present case, there is no material shown by MCD to
suggest that the duration of the award was curtailed by any notice; in
fact it is conceded on its behalf that both the claimant employees in
the second reference and the present petitioners were appointed after
1992. In the absence of any notice (terminating the award) so as to
enable MCD to say that the petitioner workmen were not entitled to its
benefits, Section 18 (3) (d) bars any argument on their behalf to the
effect that being later recruits, they were disentitled to the higher pay
scale decreed by the second award.
21. P.U. Joshi (supra), no doubt, cautions courts from second
guessing policy decisions such as appropriate pay scales, pay fixation,
etc. Yet even that decision concedes that that such executive primacy
is "subject, of course, to the limitations or restrictions envisaged in the
Constitution of India." It is nobody's case that ordinarily, the creation
W.P.(C) 2259/2012 Page 14
of posts, promotional avenues, eligibility criteria, and so on, are
matters of policy. However, the policy (and whatever rules might be
framed in accordance with it) must conform to Articles 14 and 16 of
the Constitution. It is the case of the petitioners/applicants that
differential pay-scales for equivalent work violates those
constitutional principles. In fact, a perusal of the prior history of this
case adequately demonstrates that the question of equalizing pay-
scales was repeatedly determined by the question of the nature of the
tasks performed by the employees placed in different pay-scales. This
is in line with established Supreme Court rulings on the point.
22. This court is mindful that the basic constitutional principle is of
equal pay for equal work (Roop Lal vs Lt. Governor, (2000) 1 SCC
644). In Union of India vs P.K. Roy, (1968) 2 SCR 186, it was held
that equivalence in pay scales (in a States Reorganization scenario)
depends on four factors: the nature and duties of a post; the
responsibilities and powers exercised by the officer holding a post; the
minimum qualifications; and salary. Furthermore, in Vice-Chancellor,
L.N. Mithila University vs Dayanand Jha, 1986 (3) SCC 7, a three-
judge bench of the Supreme Court held that equivalence depends upon
the status and nature and responsibility of the duties attached to the
two posts. Therefore, it is within that framework - and within the
framework of the judgments of the Supreme Court determining the
application of Articles 14 and 16 to pay-scales - that this Court must
consider this question.
23. Besides P.U. Joshi (supra) which, as seen earlier, does not help
MCD's case on its own, CAT also relied upon the fact that the
petitioner/applicants were not provided inoculation training. This was
W.P.(C) 2259/2012 Page 15
also the basis of the Office Order, dated 5.10.2009, in which it was
stated:
"The present Vaccinators cannot claim parity with
Inoculators/Vaccinators as they never performed the duties
of the Inoculators. Since Public Health Inspector is
promotional post of Assistant Public Health Inspector and
as per RRs being framed Assistant Public Health Inspector
will be considered for promotion to the post of Public
Health Inspector after fulfilling qualifying service in the
post of Assistant Public Health Inspector, APHI cannot be
placed in the grade of Rs. 5000 - 8000."
24. Therefore, this case must turn upon the fact as to whether that is
a relevant difference, justifying the difference in pay-scales. Here this
Court notes four important sets of facts in this regard. The first is that
the bifurcation between the posts of PHI and APHI, with different pay-
scales, was not undertaken pursuant to any amendment in the
Recruitment Rules. The Recruitment Rules, therefore, continue to have
only one category of "Vaccinators", with identical qualifications and
pay-scale. These qualifications are limited to sanitary/health inspector
diploma from a recognized institution or equivalent, and draw no
distinction on the basis of prior training in inoculation. The second is
the MCD Circular dated 18.10.2007, which lists out the duties of the
PHI and the APHI. Both sets of employees are required to investigate
the occurrence of any illness/outbreak/unusual event, distribute
chlorine tablets and ORS packets, set up chlorine and ORS depots, and
take health education measures; both sets of employees are required to
perform "immunizations as and when required", "supervision of
cremation grounds, burial grounds etc.", prosecutions under the
W.P.(C) 2259/2012 Page 16
DMC Act against unlicensed trades", "surveillance of communicable
and non-communicable diseases under Integrated Disease
Surveillance Project" etc. Furthermore, one of the responsibilities of
the APHI is to "assist PHIs in any job/duty assigned to him". These
facts reveals that, for the most part, the APHIs and the PHIs are
performing identical functions, for which identical qualifications are
needed. The differences - e.g, the responsibility of the APHIs to
attend fairs and festivals for preventive health measures - are
cosmetic, and are not relevant to the distinction between the two
categories, i.e. the fact that the category of vaccinators working in the
PHI category had received extra inoculation training.
25. The third is the "List of Business" document, circulated by the
MCD, for the meeting of the Medical Health and Public Relief
Committee, held on 22nd May 2008, and obtained through RTI. Here,
during the discussion of the re-designation of "vaccinators,
LHV/inoculators" to "APHI/PHI respectively", it is stated that:
"after the eradication of smallpox in the year 1977 the
vaccination staff is not doing any vaccination work and was
assigned the duty of prevention and control of Cholera,
gastro-entritis, registration of births and death and other
duty of public health importance. For last thirty years, the
most of vaccination staff is not doing vaccination work.
Therefore there is need to change the designation of these
posts."
26. It is clear from the above statement - and is also further borne
out in the document - that "Vaccinators" is treated as a single class,
with no mention of the bifurcation between PHI and APHI on the
basis of the extra inoculation training received by the vaccinators who
W.P.(C) 2259/2012 Page 17
were beneficiaries of the 1988 award. In fact, the document simply
goes on to state that:
"Commissioner, MCD vide order dated 07.12.2001
accorded approval for designating vaccinators/assistant
inspector (Epid) in the pay scale of 3050-4590 as Assistant
Public Health Inspectors. Vide order dated 07.12.2001
Health Inspectors/Vaccination inspectors/Inspectors (Epid)
and Vaccinators/Assistant Inspectors (Epid) working in the
pay scale of Rs. 4000 - 6000 were designated Public Health
Inspectors."
These facts reveal that the bifurcation appears to have been made
solely on the basis of differential pay-scale, and nothing more.
27. In its order in T.A. No. 266/2009, directing the Respondent to
consider the claims of the vaccinators, the CAT had earlier pointed at
how a revision and re-designation of the cadre had "arbitrariness writ
large on the face of the decision." Similarly, in its order in O.A. No.
3632/2009, the Tribunal observed:
"Once the pay scale of Rs. 4000 - 6000 is that sole criterion
of re-designating PHI applicants, who were admittedly in
the pay-scale from 1.1.1998 when the decision was taken to
re-designate on 7.12.2001, they cannot be re-designated as
APHI and accorded the same pay scale of Rs. 4000 - 6000.
The basis of grant of higher pay scale of Rs. 5000 - 8000,
being the erstwhile pay scale of Rs. 4000 - 6000, cannot
deny the benefits to the applicants.
Moreover, though the respondents maintain that PHI and
APHI are performing the different duties, PHI applicants,
who were admittedly in the pay-scale from 1.1.1998 when
the decision was taken to re-designate on 7.12.2001, they
cannot be re-designated as APHI and accorded the same
pay scale of Rs. 4000 - 6000. The basis of grant of higher
pay scale of Rs. 5000 - 8000, being the erstwhile pay scale
W.P.(C) 2259/2012 Page 18
of Rs. 4000 - 6000, cannot deny the benefits to the
applicants.
Moreover, though the respondents maintain that PHI and
APHI are performing the different duties, yet we find that
the qualifications for both posts in the recruitment rules
being identical, the additional factor of training for
immunization is a device methodology of the respondents to
save all vaccinators earlier with the nomenclature of
inoculators being ousted from the Department." As such,
they were given re-designation to the post of Vaccinator
otherwise we do not find any real difference in Vaccinators
and Inoculators, as both the words by their literal sense
refer to as a basic ingredient of Vaccinator."
28. On examination of the record, this court is in agreement with
the CAT's above observation. Under the recruitment rules, which have
not been amended, there is a common post of "vaccinator", with
common qualifications. The functions of the PHI and the APHI are
similar (if not wholly identical) with a few cosmetic differences
having nothing to do with the stated reason for a differential pay-scale,
i.e., prior inoculation training. Furthermore, the documents of the
MCD reveal that the bifurcation was made purely on the basis of pay-
scale (which, in turn, was determined by whether or not a particular
employee had been employed before the Industrial Tribunal's award),
and not on any objective differentiation in qualifications or duties. In
light of the judgments of the Supreme Court discussed above, we hold
that the Respondent's classification of vaccinators into "PHIs" and
"APHIs", with different pay-scales, is illegal and arbitrary.
29. This court is also unpersuaded by the MCD's argument that the
Pattnayak Committee's recommendations could have been the basis of
the distinction in pay scales. Concededly, the petitioners and those
W.P.(C) 2259/2012 Page 19
who were initiators of the second reference (ID 107/1996) belonged to
the same class (i.e post first award recruits). The MCD could not have
under the circumstances made a hyper classification between those
who sought the reference and those who did not- such classification is
forbidden in view of the express terms of Section 18 (3) (d) of the
Industrial Disputes Act. Besides, the report of the Committee could at
best be recommendatory and a justification for a future change in the
recruitment rules. However, the stand of the MCD was that the rules
"are being amended" - as late as in 2011 in their counter affidavit
before CAT.
30. The Court is conscious that the State can prescribe pay scales,
depending upon the nature of duties and functions attached to the post,
the qualifications prescribed and the experience gained. Yet, when
historically equivalence has been established -through successive
judicial determinations which attain finality, the route to set at naught
such established parity has to be a Constitutionially recognized mode,
i.e amendment of rules and overriding a judgment or award in a
manner known to law. Here no such thing has happened; the MCD
blandly prescribed two pay scales in respect of persons falling within
the same class. The only justification it could fall back upon was that
the petitioners here were not parties to the previous reference. As seen
earlier, the dictates of provisions of the Industrial Disputes Act,
overbear such an argument. There is consequently a palpable
arbitrariness in the resultant classification which this Court cannot
tolerate. Here it would be useful to recollect the opinion of the
Supreme Court in Re The Special Courts Bill, 1978- [1979] 2 SCR
476 to the following effect:
W.P.(C) 2259/2012 Page 20
"6. The law can make and set apart the classes according to
the needs and exigencies of the society and as suggested by
experience. It can recognise even degree of evil, but the
classification should never be arbitrary, artificial or
evasive.
7. The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left out
but those qualities or characteristics must have a
reasonable relation to the object of the legislation. In order
to pass the test, two conditions must be fulfilled, namely, (1)
that the classification must be rounded on' an intelligible
differentia which distinguishes those that are grouped
together from others and (2) that differentia must have a
rational relation to the object sought to be achieved by the
Act.
8. The differentia which is the basis of the classification and
the object of the Act are distinct things and what is
necessary is that there must be a nexus between them. In
short, while Article 14 forbids class discrimination by
conferring privileges or imposing liabilities upon person
arbitrarily selected out of a large number of other persons
similarly situated in relation to the privileges sought to be
conferred or the liabilities proposed to be imposed, it does
not forbid classification for the purpose of legislation,
provided such classification is not arbitrary in the sense
above mentioned."
Later, applying those principles, the Court again stated, in Federation
Of Hotel & Restaurant Association vs Union Of India & Ors AIR
1988 SC 1291, that:
"We must, therefore, look beyond the ostensible classi-
fication and to the purpose of the law and apply the test of
'palpable arbitrariness' in the context of the felt needs of the
times and societal exigencies informed by experience to
determine reasonableness of the classification."
W.P.(C) 2259/2012 Page 21
31. The classification - in the present case- between the petitioners
and the others enjoying the PHI pay scales is neither rational nor
intelligible; it is based entirely on the existence of the power to
classify; consequently, it is a case of palpable arbitrariness.
32. Consequently, the CAT's impugned order cannot be sustained
and is set aside. The Respondent is directed to designate the
petitioners/applicants as PHIs, with the pay-scale of `5000-8000, with
all benefits of arrears of pay and allowances, on parity with that
enjoyed by the other Vaccinators who have that benefit. The MCD is
directed to issue consequential directions within eight weeks from
today. The writ petition is allowed in the above terms along with the
pending application without order as to costs.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
OCTOBER 31, 2014
W.P.(C) 2259/2012 Page 22
