Director General Esi Corporation ... vs Vinesh D. Meshram & Ors
2016 Latest Caselaw 2431 Del

$~14.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        WRIT PETITION (C) NO. 6330/2015
%                                       Date of decision: 29th March, 2016
        DIRECTOR GENERAL ESI CORPORATION & ANR... Petitioners
                             Through Ms. Sonam Anand, Advocate for Mr.
                             Yakesh Anand, Advocate.
                             versus
        VINESH D. MESHRAM & ORS.                 ..... Respondents

Through Mr. Rahul Sharma & Mr. Vinod Kumar Tiwari, Advocates for UOI.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.K. GAUBA

SANJIV KHANNA, J.:

Director General of ESI Corporation and Director (Medical), Delhi

ESI Dispensary Complex, Tilak Vihar, have filed this writ petition,

impugning the order dated 17th July, 2014 passed by the Central

Administrative Tribunal in OA No. 4079/2012.

2. The OA No.4079/2012 was filed by nine applicants, who were

working as Lab Technician/Senior Lab Technician in the Employees State

Insurance Hospitals under the control of petitioner No. 1. Their grievance

was that they had not been given entitled benefits under the Assured Career

Progression Scheme (ACPS) after completion of 12/14 years of regular

service, as the "upgradation" granted was in the identical pay scale of

Rs.4500-7000.

3. The tribunal by the impugned order has allowed said OA after

noticing that their counterparts in Dr. RML Hospital and Safdarjung

Hospital and those working in CGHS had been granted pay scales of

Rs.5500-9000 and Rs.6500-10500 as the first and the second ACPS benefit.

Reference was made to order passed by the tribunal in OA No. 915/2011,

titled Suman Lata, Lab Technician, CGHS, Delhi versus Union of India,

pursuant to which the Directorate General of CGHS had issued the order

dated 18th July, 2012 granting their employees benefit of pay scales of

Rs.5500-9000 and Rs.6500-10500 as the first and the second financial

upgradation.

4. The memo of parties to this writ petition would show that the original

applicants, nine in number, have been impleaded as respondent Nos. 1 to 9.

However, order dated 6th July, 2015 passed in this writ petition records that

the petitioners have accepted the order in seven cases and had taken steps to

implement the directions issued by the tribunal. The petitioners had

accepted the impugned order in seven cases in view of the CGHS order

dated 18th July, 2012. However, in the case of respondent Nos. 2 and 5, i.e.,

Claramma John and Omana Madhu, it is submitted that they are not entitled

to the financial upgradation in terms of the order passed by the tribunal.

Distinction drawn is that the said respondents are promotee Lab Technicians

and not direct recruits Lab Technicians. Hence, in their case, the benefit

given to direct appointee Lab Technicians would not be applicable.

5. Having heard learned counsel for the petitioners, we do not find any

merit in the said contention. Learned counsel for the petitioners has

accepted that the said respondents were appointed as Lab Assistants in the

year 1983 and were promoted as Lab Technicians in the year 1991 and

1995, respectively. After the implementation of the Fifth Pay Commission

with effect from 1st January, 1996, the Lab Technicians became entitled to

the replacement pay scale of Rs.4500-7000. The same pay scale of

Rs.4500-7000 was payable to Senior Lab Technicians. Before the Fifth Pay

Commission, the pay scales of Lab Technicians and Senior Lab Technicians

were Rs.1320-2040 and Rs.1350-2200, respectively. Thus, there was

merger of pay scales. The said pay-scales were equally applicable and

payable to both direct recruit and promotee Lab Technicians/Senior Lab

Technicians.

6. Learned counsel for the petitioners has accepted, during the course of

arguments, that the respondent Nos. 2 and 5 are entitled to one financial

upgradation under the ACP Scheme, after they were promoted to the post of

Lab Technicians. She, however, submits that this financial upgradation

would not mean increase in pay scale or higher salary, as the promotional

post of Senior Lab Technician also carries the same pay scale of Rs.4500-

7000. The said contention, according to us, has to be rejected because there

has to be parity between the promotee officers, who would be entitled to

only one financial upgradation and direct recruit Lab Technicians, who

would also be entitled to financial upgradation under the ACP Scheme. No

distinction can be drawn between direct recruit and promotee Lab

Technicians, when we consider and apply the financial upgradation, which

will be granted under the ACP Scheme. The upgradation has to be same

and identical, whether the Lab Technician is a direct recruit and a promotee

Lab Technician. Both of them are similarly placed and are entitled to same

pay scale. Consequently, financial benefit under the ACP Scheme should

be similar and identical. No doubt true, the CGHS circular dated 18th July,

2012 refers to first and the second financial upgradation under the ACP

Scheme to direct recruit, but this does not mean and it would not follow that

the promotee Lab Technicians, who are identically placed as direct recruit

Lab Technician, are not entitled to similar financial upgradation under the

ACP Scheme. Why and for what reason the promotee Lab Technician

should be denied the said benefit, is not stated and elucidated. In spite of

repeated questioning, learned counsel for the petitioners could not justify

and explain any reason to distinguish between the promotee and direct

recruit Lab Technician. The stand of the petitioners in these circumstances

is discriminatory and not in accordance with the mandate of Articles 14 and

16 of the Constitution of India.

7. In view of the aforesaid position, we do not find any merit in the

present writ petition and the same is dismissed. No costs.

(SANJIV KHANNA) JUDGE

(R.K. GAUBA) JUDGE MARCH 29, 2016 VKR