Delhi High Court
Amar Chand And Ors vs Union Of India And Ors on 16 January, 2020
$~11 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10645/2016 & C.M. APPL. 34498/2019
AMAR CHAND AND ORS. ..... Petitioners
Through Mr. Sudarshan Rajan and Mr. Hitain
Bajaj, Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Mr. Manish Mohan, CGSC for
Respondent No. 1
Mr. Santosh Krishnan, Mr. Yakesh
Anand, Ms. Sonam Anand and
Mr. Akshay Thakur, Advocates for
Respondents.
12
+ W.P.(C) 10649/2016 & C.M. APPL. 34497/2019
SABU THOMAS AND ORS. ..... Petitioners
Through Mr. Sudharshan Rajan and Mr. Hitain
Bajaj, Advocates
versus
UNION OF INDIA AND ANR. ..... Respondents
Through Mr. Ajay Digpaul, CGSC for
Respondent No. 1.
Mr. Santosh Krishnan, Mr. Yakesh
Anand, Ms. Sonam Anand and
Mr. Akshay Thakur, Advocates for
Respondents.
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE TALWANT SINGH
W.P.(C) 10645/2016 & W.P.(C) 10649/2016 Page 1 of 16
ORDER
% 16.01.2020
Dr. S. Muralidhar, J.:
1. Radiographers working at the Employees State Insurance Corporation
(„ESIC‟) have filed these petitions against a common order dated 10th August,
2016 passed by the Central Administrative Tribunal („CAT‟), Principal Bench,
New Delhi rejecting their prayer to be granted the pay scale of Rs.5,000-8,000/-
as given to their counterparts in other Ministries/Departments of the Government
of India with effect from the due dates in accordance with the recommendations
of the Anomalies Committee.
2. In the first round of litigation, the Petitioners filed O.A. Nos. 3627/2009 and
926/2010 before the CAT seeking grant of the pay scale of Rs.5,000-8,000/- that
was granted to their counterparts in other Ministries/Departments. By an order
dated 16th November, 2010, the CAT disposed of the said application with a
direction to the Respondents to process their claim for the grant of such pay
scale.
3. The genesis of the said O.A.s before the CAT was an earlier O.A.
No.308/2005 filed before the Madras Bench of the CAT by similarly placed
Radiographers in the ESIC. Against the order dated 25th July, 2006 of the CAT,
Madras Bench in O.A. No.308/2005 allowing the prayer for grant of the pay
scale of Rs.5,000-8,000/-, the Respondents filed W.P. No.27142/2008 in the
High Court of Madras, which, by its order on 28th April, 2009, modified the
order of the CAT, Madras Bench and directed the Respondents herein to
consider the claim of the applicants and pass an order.
4. In O.A. Nos.3627/2009 and 926/2010, it was contended by the applicants that
unless there was going to be any departure from the rules and orders applicable
to officers and employees of the Central Government while extending them to
employees of the ESIC in terms of Section 17(2) of the ESIC Act, for which
prior approval of the Central Government had to be obtained, the applicants
could not be denied the same pay scale as was applicable to Radiographers
employed in the medical establishments of/and under the control of the Central
Government. The plea was resisted by the Respondents on the ground that the
Central Government had till then not implemented the pay scale in respect of the
Radiographers working under it. It may be mentioned here that the grant of the
pay scale of Rs.5,000-8,000/- had been recommended by the 5th Central Pay
Commission („CPC‟).
5. However, in those proceedings, along with their rejoinder, the applicants
enclosed certain documents which showed that the said pay scale had in fact
been implemented by the Central Government. Considering this to be "a new
fact", a direction was issued by the CAT by its order dated 16th November, 2010
to the Central Government "to process the claim of the applicants for such grant
of pay scale" within a period of three months.
6. Pursuant to the above order dated 16th November, 2010 of the CAT, the
Respondents purported to process the claim of the applicants by way of a
speaking order dated 11th April 2011, which found them ineligible for the grant
of the higher pay scale of Rs.5,000-8,000/- on the ground that it was "to be
granted only to such of the post of Radiographer for which minimum
qualification of three years diploma has been prescribed", which was not a
prerequisite for appointment of Radiographers in the ESIC.
7. A C.P. No. 702/2011 was filed before the CAT against the abovesaid
speaking order dated 11th April, 2011, which was disposed of by way of an order
dated 31st October, 2011, holding that while there was no contumacious conduct
on the part of the Respondents in the passing of the aforementioned order, the
applicants would be at liberty to challenge the said speaking order dated 11 th
April, 2011 in appropriate proceedings. This led to the second round of litigation
in which two sets of O.A.s, O.A. No. 707/2012 and O.A. No. 1338/2012 were
filed afresh.
8. It requires to be noticed that under the Recruitment Rules („RRs‟) for the post
of Radiographers in the ESIC, the education qualification is "matric or
equivalent qualification from a recognised board, diploma (2 years course) in
radiography." A further requirement is that the applicant has to have at least one
year‟s experience in Radiography. The pay scale attached to the post was
Rs.330- 560/-, revised to Rs.1350-2200/-. At the time of filing of the petitions,
the Petitioners were drawing a pay scale of Rs.4000-6000/-.
9. The pay scales for Radiographers/X-Ray staff have been discussed at length in
the recommendations of the 5th CPC, the relevant portions of which are as under:
"52.105. Radiography and x-ray staff, numbering about 383 have
different cadre structures in different central Government Hospitals
in the following pay scales:
1. Sr. Radio therapy Rs. 1640-2900
Tech. (supervisor)/
Sr. Tech. Asstt./
Radiographer (Sup)
Sr. Radiographer/
Sr. Radiographer Supervisor/
Radiographic Gr. I
2. Sr. Radiographer Rs. 1600-2660
3. Sr. Radiographer/Sr. X-ray
Tech/Radiographer Gr. I Rs. 1400-2600
4. Sr. Radio Therapy Tech/
Sr. Radiographer/Tech.
Asstt./Radiographer Gr. II Rs. 1400-2300
5. Radiographer/X-ray
Technician/Radiographer Gr.II Rs. 1350-2200
6. Sr. Dark Room Asstt.
Technicians Rs. 1200-2040
7. Dark Room Asstt.
Radiographer Gr. III Rs. 975-1540
8. Dark Room Asstt/
Jr., Radiographers Rs. 950-1500
9. Tech. Asstt. (X-ray) Rs. 825-1200
10. Dark Room Attendant Rs. 800-1150
52.106. Radiography and x-ray staff have demanded that their posts
should be upgraded in view of enhancement of entry level
qualifications. Apart from provision of adequate promotion
prospects, grant of a radiation risk allowance has also been asked
for.
52.107. On an analysis of the recruitment rules of various
institutions engaging these personnel, we find that Radiographers
usually enter service at three levels. As dark room Assistants in the
scale of pay of RS. 950-1500 recruitment is 100% direct with
qualifications of Matric plus certificate in Radiography. The next
higher level is that of x-ray Assistant/Sr. Dark room Assistant (RS.
1200-2040) recruited 50% by promotion from among dark room
Assistants and 50% by direct recruitment with the same
qualifications. Radiographers in the scale of pay of Rs. 1350-2200
are recruited 20% by direct recruitment with Matric plus a
Assistants. Higher posts of Technical Assistant (Radiography) Sr.
Radiographer (SUP), Radio Therapy Technician etc. are usually
filled by promotion from these lower grades. The Association of
these employees has represented that a lot of hospitals and
institutions have converted this minimum 2 years requirements of
diploma certificate, in Radiography to a 3 year Diploma in
Radiological technology. And accordingly the minimum entry for
radiographers with these qualifications should be placed in the scale
of pay of Rs. 2000-3500 keeping in view the nature of duties and
educational qualifications and the existing levels in various hospitals
and institutions. We recommend following entry levels for this
category for future recruitments, as for Laboratory and OT personnel
as follows:
S.No. Existing Present Proposed Proposed
scales scales (Rs.) designation
(Rs.)
1. Radiographer 2000-3500 Radiographer Dynamic
technician/su ACP Scale
pervisor/Sr.
Radiographer
2. Radiographer 1640- 1640-2900 Radiographer- No change
Technician/su 2900 II
pervisor/
Sr.Radiograp
her
3. Radiographer 1350- 1600-2660 Radiographer Upgradation
III In view of
DR
qualification
4. 1400-2300 Asstt. Dynamic
Radiographer- ACP Scale
I
5. Senior Dark 1200- 1320-2040 Asstt. Post
Room 2040 Radiographers redesignated,
Asstt. -II pay scale
Technician rationalized
(X-ray)
6. Dark room 950-1500 950-1500 Asstt. Post
Asstt. Tech. Radiographer- redesignated
Asstt. (X-ray) III
The present incumbents in the posts of Radiographers, requiring a
minimum of 2 years, diploma/certificate after 10+2 may be placed at
the level of Rs.1320-2040. Entry level qualification for Asstt.
Radiographers will be at least 10+2 with science, besides a certificate
in Radiography. Since posts at SI. No. 1 form feeder to the latter, the
gap may be bridged by placing Sr. Dark Room Assistants at the level
of Rs. 1320-2040; with an ACP at the level of Rs. 1400-2300.
Radiography Technician/supervisors and Sr. Radiographers being
promotion posts, may be placed at the level of Rs.1640-2900. There
will be one more level for 2nd ACP of Radiographers at the scale of
Rs. 2000-3500. Dark Room Attendants may be merged with the
common category of group D. As Radiographers are trained to handle
risks of radiation, a special radiation risk allowance is not
recommended."
10. Thus, the pay scale of Radiographers i.e. Rs.1350-2200/- was first to be
upgraded to Rs.1600-2660/-, after which the replacement scale was to be granted
in accordance with the general recommendations, which was Rs.5,000-8,000/-.
11. The 5th CPC categorised the Radiographers as a group into two sub-
categories as under:
"a. Radiographers with three intermediate degrees in between:
(i) Radiographers Grade I with the pay scale of Rs. 2000-3500
under Dynamic ACP II
(ii) Radiographers Grade II with the erstwhile pay scale of Rs.
1640-2900 with corresponding replacement and
(iii) Radiographers Grade III with the erstwhile pay scale of Rs.
1350-2200 upgraded to Rs. 1600-2660 with corresponding
replacement scale of Rs. 5000-8000
b. Sub grades of Radiographers
(i) Assistant Radiographer Grade I with the pay scale of Rs. 1400-
2300 and corresponding replacement scale tenable under the
dynamic ACP scale.
(ii) Senior Dark room assistant called Assistant Radiographer Grade
II with the erstwhile pay scale of Rs. 1200-2040, to be upgraded to
Rs. 1320-2040 and given the corresponding replacement scale.
(iii) The Dark room Assistant called Assistant Radiographer Grade
III with the erstwhile pay scale of Rs. 950-1500 a corresponding
replacement."
12. The recommendations of the 5th CPC were accepted by way of a notification
dated 30th September, 1997. The Petitioners have pointed out how the abovesaid
replacement scale has been granted to Radiographers in the Central Government
Health Scheme („CGHS‟) as well as government-run hospitals in Delhi like the
Safdarjung Hospital and the All India Institute of Medical Sciences („AIIMS‟).
The latter came to be done by virtue of an order dated 13th April, 2004 of the
CAT in OA Nos. 2672/2003, 2748/2002 & 2438/2002.
13. The said O.A.s were filed by Senior Radiographers in various hospitals of
the Government of NCT of Delhi. They went before the CAT after the revised
pay scale of Rs.5,000-8,000/- granted to them pursuant to the recommendations
of the 5th CPC which was sought to be withdrawn by notifications dated 1 st July,
2002, 15th July, 2002, and 2nd August, 2002 in purported compliance with an
order dated 8th August, 2001 passed by the CAT in O.A. No.1219/1999 filed by
Technical Assistants and Technical Supervisors from Departments of Radiology.
14. In defending the said decision to revert the pay scale of the applicants from
Rs.5,000-8,000/- to Rs.4,500-7000/-, it was contended by the Respondents that
in terms of the qualification for the post of Radiographer, the pay scale of
Rs.5,000-8,000/- could only be extended to those posts for which the minimum
qualification was the three year diploma in Radiological Technology. The Health
Department had moved a proposal on 18th April, 2002 for the removal of the
anomaly pointed out in O.A. No.1219/1999, after which the Department of
Personnel and Training („DoPT‟) took a decision to remove the anomaly by
placing Senior Radiographers in the pay scale of Rs.4300-7000/-and Junior
Radiographers in the pay scale of Rs.4,000-6,000/-. Thus, the pay scale of
Rs.5,000-8,000/- of Senior Radiographers stood withdrawn with effect from 1st
January, 1996.
15. The CAT, in the aforementioned order dated 13th April, 2004 found that the
withdrawal of the pay scale of Rs.5,000-8,000/- retrospectively from 1st January,
1996 was without issuing any Show Cause Notice to the applicants, and was
therefore violative of the principles of natural justice. It was further observed
that:
"24. Another aspect which has to looked into is invidious
discrimination. The hostility in action is apparent as the counter
parts in various other Ministries and departments despite having
identical qualifications have been placed in the higher pay scale of
Rs.5000-8000 a similar treatment has been denied to applicants
which would amount to creating a class within the class which does
not pass the test of reasonableness and violates principles of
equality."
16. Accordingly, the following directions were issued:
"25. Having regard to the aforesaid discussion and conclusion
arrived at, we are of the considered view that the issue requires
reconsideration by the Government. Respondents are directed to re-
examine the entire matter in the light of our observations and take a
final decision within a period of six months from the date of receipt
of a copy of this order. Till then status quo with respect to
applicants in the context of the present pay scale be maintained and
recovery shall not be given effect to. No costs."
17. The challenge by the Union of India to the abovesaid order dated 13th April,
2004 of the CAT was negatived by this Court in W.P.(C) 3070/2007 by an order
dated 29th August, 2007. It was noted, inter-alia, as under:
"The petitioner approached this Court in April, 2007, i.e. three years
after the impugned judgment and after giving assurances to the
Tribunal to implement the judgment and taking extension on the
basis of this plea. In view thereof, we are not inclined to exercise
our extraordinary jurisdiction under Article 226 of the Constitution.
This petition is dismissed as barred by laches and delay as well as
on the principles of estoppels, with costs quantified at Rs. 10,000/."
18. In the meanwhile, on 8th November, 2006, the CAT passed a similar order in
a batch of O.A.s, of which the lead matter was O.A. No. 791/2006 (K. Upendra
Mohan vs. Government of India). These O.A.s were by Radiographers working
with the Ordnance Wing of Ministry of Defence at different stations. By the said
order dated 8th November, 2006, the CAT directed the Respondents to re-
examine the question of the reversal of the pay scale from Rs.5,000-8,000/- to
Rs.4500-7,000/- in light of the observations of the CAT in its order dated 13 th
April, 2004 in O.A. Nos. 2672/2003, 2748/2002 & 2438/2002.
19. The Respondents, thereafter, themselves convened a Committee for the
removal of anomalies. The said „Pay Committee‟ submitted its detailed report
where, inter-alia, the revision of the pay scale of Radiographers in the pay scale
of Rs.4,500-7,000/- was fixed at Rs.5,000-8,000/-.
20. Meanwhile, as noted hereinbefore, Radiographers working in South India
approached the CAT, Madras Bench in O.A. No.308/2005 seeking
implementation of the recommendations of the Pay Committee. By an order
dated 25th July, 2006, the CAT, Madras Bench allowed the said OA and directed
the Respondents to implement the said recommendations.
21. The aforesaid order dated 25th July, 2006 was challenged by the Union of
India in the High Court of Madras by way of W.P. No.27142/2009. In
modification of the said order of the CAT, Madras Bench, the High Court
directed the Respondents to consider the applicants‟ prayer for the
implementation of the recommendations of the Pay Committee.
22. Thereafter, by an office order dated 3rd October, 2008, the Safdarjung
Hospital in New Delhi granted to Radiographers the pay scale of Rs.5,000-
8,000/- in terms of the order of the CAT in OA Nos. 2672/2003, 2748/2002 &
2438/2002 as upheld by this Court in W.P.(C) 3070/2007. It has been pointed
out how the Recruitment Rules („RRs‟) for the post of Radiographers in the
Safdarjung Hospital are the same as the RRs for Radiographers in the ESIC.
23. Similarly, the pay scale of Radiographers in Ordnance Factories was fixed at
Rs.5,000-8,000/- pursuant to an office order dated 29th October, 2010. It has
been further indicated that the qualifications for the post of Radiographers in
Ordnance Factories were the same as that for Radiographers in the Safdarjung
Hospital. Radiographers in the CGHS are also evidently drawing the same pay-
scale, whose RRs are also similar to the RRs of the ESIC as far as Radiographers
are concerned.
24. Radiographers working in the Sashastra Seema Bal („SSB‟), under the
control of the Ministry of Home Affairs („MHA‟), have also been granted the
pay scale of Rs.5,000-8,000/- by an office order dated 15th February, 2011.
Likewise, Radiographers in the Municipal Corporation of Delhi („MCD‟) have
been granted the pay scale of Rs.5,000-8,000/-.
25. As already noticed, in the first round, the Petitioners filed O.A. Nos.
3627/2009 and 926/2010, which came to be disposed of on 16th November,
2010, directing the Central Government to process the claim of the Petitioners
within three months. The claim of the Petitioner was rejected by the
Respondents by the speaking order dated 11th April, 2011. Thereafter, the
Petitioners approached the CAT and the impugned order dated 10th August, 2016
in O.A. Nos. 707/2012 and 1338/2012 was passed.
26. The Petitioners point out how in the meanwhile Radiographers of Ram
Manohar Lohia („RML‟) Hospital also approached the CAT in O.A. No. 3627/
2012, which was allowed on 7th November, 2012.
27. Learned counsel for the Respondents at the outset pointed out that since
there was no stay granted by this Court on the impugned order of the CAT, the
Respondents, by way of implementing the directions contained in the impugned
order, constituted yet another „Independent Expert Committee‟ which submitted
a report dated 24th August, 2017. The Respondents submit that the said
„Independent Expert Committee‟ observed as under:
"The Committee observed that though Ram Manohar Lohia (RML)
Hospital, Ministry of Health & Family Welfare (MoH&FW), had
granted the Grade Pay of Rs.4200/- to Radiographers, the same did
not resolve the issue of merging of posts of Radiographer and Sr.
Radiographers. Both the posts were drawing same Grade Pay of
Rs.4200/-, but earlier drew different pre-revised pay scales of
Rs.5000-8000/- and Rs.5500-9000/- respectively. The Committee in
its report, recommended to confirm the grade pay of Rs.4200/- to
Radiographers from RML Hospital (MoH&FW) in view of the
recommendation of 6th Pay Commission. The Committee further
recommended to restructure the cadre and amend the Recruitment
Regulations of the Radiographers by including degree in the field
with relevant experience as eligibility qualification criteria for
appointment strictly in accordance with RRs in Central Health
Services."
28. It is pointed out by the Respondents in the counter affidavit that:
"The Respondent Corporation granted the pay scale of Rs.4500-
7000/- as per the recommendation of 5th CPC. The pay scale was
further revised to Pay Band-1 of Rs.5200-20200/- with grade pay of
Rs.2800/- as per 6th CPC. Thereafter, the pay scale of Rs.5000-
8000/- and Rs.5500-9000/- merged together with grade pay of
Rs.4200/- for both the posts i.e. Sr. Radiographers and STA
(Radiology) and similar action was taken by ESIC, which merged
the posts of Sr. Radiographers with STA (Radiology) with grade
pay of Rs.4200/-."
29. In paragraph 11 of the counter affidavit, a table showing the comparison
between Radiographers in the ESIC and Central Health Services, in terms of the
existing RRs, has been set out. While there is hardly any dramatic change or
difference in the minimum qualifications for the different posts of
Radiographers, it is sought to be demonstrated that the post of Senior
Radiographer now stands merged into the post of Senior Technical Assistant
(Radiology), pursuant to the recommendations of the 6th CPC.
30. It is further pointed out that the RML Hospital also placed both
Radiographers and Senior Radiographers "in the same pay grade of Rs.4,200/-
(pre-revised)." According to the Respondents, the Expert Committee concluded
that:
"ESIC cannot upgrade the pay of Radiographers only, in parity with
Central Health Services as both have different hierarchy and
requisite educational qualifications. It required complete cadre
review subsequent to amendment in RR by Ministry of Health &
Family Welfare, if any, may be taken up in future."
31. In the present case, it is seen that there was already a Pay Committee that
recommended the grant of the revised pay scale of Rs.5,000-8,000/- to
Radiographers, accepting the recommendations of the 5th CPC. There was no
justification for the withdrawal of the said revised pay scale on the ground of
difference in educational qualifications. As far as the education qualifications for
the post of Radiographers in the ESIC is concerned, they differ very slightly
from the qualifications for the post of Radiographers in the CGHS and other
Government Hospitals. While the qualification for the post of Radiographers in
the ESIC is matriculation or equivalent qualification from a recognised board
and a two years‟ diploma course in Radiography, the corresponding qualification
in the CGHS is different only to the extent that a three years‟ diploma course is
required. This difference of a year in the lengths of the required diploma courses
cannot be used to justify not giving the pay scale of Rs.5,000-8,000/- to
Radiographers working in the ESIC. This is made all the more significant when
it is seen that the requirement of experience is the same for either Radiographers
working in the CGHS, or with the ESIC.
32. Turning now to Section 17 (2) of the ESIC Act, it is seen that there was no
decision taken to depart from the applicable norm of extending to employees of
the ESIC the pay scales granted to employees of the Central Government.
Therefore, even from the perspective of Section 17 (2) of the ESIC Act, the
impugned decision to withdraw the revised pay scales of Rs.5,000-8,000/-
cannot be sustained.
33. The CAT ought to have granted the relief itself to the Petitioners instead of
relegating the matter to the Respondents to examine it afresh. Since the Pay
Committee had already examined this question in light of the recommendations
of the 5th CPC, there was no need for re-consideration on the part of the
Respondents.
34. In that view of the matter, the impugned order dated 10th August, 2016 of the
CAT is set aside to the extent that it denies the relief prayed for by the
Petitioners. The Petitioners will be granted the revised pay scale of Rs.5000-
8000 from the date on which the 5th CPC recommendations became effective,
i.e. 1st January, 1996. The arrears will be paid to the Petitioners within a period
of 12 weeks failing which simple interest at 6% per annum will be payable on
the said sum for the period of delay. The corresponding orders implementing the
present judgment and granting the subsequent revision of pay on the above basis
will be issued within the same period of 12 weeks.
35. The petitions are allowed but in the circumstances no order as to costs. The
pending applications are also disposed of.
S. MURALIDHAR, J.
TALWANT SINGH, J.
JANUARY 16, 2020
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