Manipur High Court
The Regional Institute Of Medical ... vs Smt. Angom Rita Devi on 30 October, 2023
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WA No. 60 of 2021
Ref: WP(C) No. 374 of 2019
The Regional Institute of Medical Sciences (RIMS) Lamphelpat,
Imphal through its Director, RIMS, Imphal, Manipur, P.O. & P.S.
Lamphel, Imphal West District, Manipur Pin - 795004.
...... Appellant/s
- Versus -
1. Smt. Angom Rita Devi, aged about 56 years, w/o A.
Mohendro Singh, resident of Yaiskul Chinngakham Leirak,
P.O. & P.S. Imphal, Imphal West District, Manipur Pin -
795001.
........Principal Respondent/s
2. The Union of India, through the Secretary, Ministry of Health
& Family Welfare, Govt. of India, New Delhi, 110011.
3. P. Songlianvung, the Section Officer (NE), Ministry of
Health & Family Welfare (NE Division), Govt. of India,
Nirmal Bhavan, New Delhi - 110011.
.......Proforma Respondent/s
B E F O R E
HON'BLE MR. JUSTICE MV MURALIDARAN
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner :: Mr. BR. Sharmam, CGSC
For the respondents :: Mr. Th. Khagemba, Adv and Mr. S.
Samarjeet, Sr. PCCG.
Date of hearing :: 17.02.2023/21.02.2023/22.02.2023
Date of Judgment & Order :: 30.10.2023
WA No. 60 of 2021 Page 1
JUDGMENT & ORDER (CAV)
A. Guneshwar Sharma, J.
[1] The brief fact of the case is that on the recommendation of a
Selection Board, the respondent No.1/writ petitioner was initially appointed as
Physiotherapist (Junior) in the Comprehensive Rehabilitation Centre of the
Erstwhile Regional Medical College, Imphal [now, known as Regional Institute
of Medical Sciences (in short, RIMS)] in the scale of pay of Rs. 640-30-850-EB-
40-1410/- vide order dated 19.01.1987. After having served in the capacity of
Physiotherapist (Junior) in the Regional Institute of Medical Sciences for more
than 12 years, she was given financial upgradation in the scale of pay of Rs.
6,500-200-10,500/- pm under the Assured Career Progressive (ACP) scheme
by the Director, Regional Institute of Medical Sciences, Imphal vide order dated
06.09.2000 issued by the Director, RIMS, Imphal. On the recommendation of
the DPC meeting held on 19.08.2006, the respondent No.1/writ petitioner was
promoted to the post of Senior Physiotherapist RIMS, Imphal in the same pay
scale of Rs. 6,500-200-10,500/- pm vide order dated 25.08.2006 issued by the
Director, RIMS, Imphal.
[2] The appellant (RIMS), Imphal was taken over by the Ministry of
Health and Family Welfare, Government of India with effect from 01.04.2007,
for which MoU dated 24.04.2007 was executed between the North Eastern
Council (NEC), a statutory body having its office at Shillong (hereafter called
WA No. 60 of 2021 Page 2
NEC) and the Ministry of Health and Family Welfare, Govt. of India, Nirman
Bhavan, New Delhi.
[3] Consequent upon the taking over of the RIMS by the Union of
India, the respondent No.1/writ petitioner submitted a representation dated
20.10.2008 raising all her grievances including a request to revise the pay scale
at the range of Rs.8,000-275-13,5000/- pm in view of the Central Civil Service
(Revised Pay) Rules, 1997 as the same is given to other Senior Physiotherapist
working under the Ministry of Health and Family Welfare, Govt. of India.
Thereafter, the respondent/writ petitioner submitted another representation
dated 14.06.2010 to the Director, RIMS, Lamphel, Imphal requesting to dispose
of her earlier representation dated 20.10.2008 specifically prayed for disposing
of the earlier representation by passing a speaking order before giving effect of
the 2nd Assured Career Progression Scheme (ACP). After submitting the said
representation, the RIMS authority discussed the matter by placing it before the
Grievance Redressal Committee and after due process the said committee
approved and decided to afford the said pay scale of Rs. 8,000-275-13,500/-
pm.
[4] The respondent No.1/writ petitioner submitted another
representation dated 12.10.2010 to the Director, RIMS, Imphal, wherein she
annexed a RTI reply thereby showing the pay scale of Sr. Physiotherapist as
Rs. 8,000-275-13,500/- in other similarly situated Hospitals/Institutes. As no
positive response came from the side of RIMS authorities, the respondent No.1/
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writ petitioner preferred another representation dated 17.05.2012 with a prayer
to revise her pay scale under ROP, 2006 corresponding with the pay scale
of Rs. 8,000-275-13,500/- pm. The respondent No.1/writ petitioner again
preferred another representation dated 09.06.2014 with a prayer to revise the
pay scale of Sr. Physiotherapist held by her in the pay scale of Rs. 8,000-275-
13,500/- p.m. w.e.f. 09.08.1999 and specifically mentioned about the granting
of financial upgradation under the ACP Scheme and also about the RTI replies.
[5] Vide letter dated 27.02.2015, the Director, RIMS, Imphal
addressed to the Secretary (H & FW), Ministry of Health & Family Welfare,
Govt. of India, for considering the case of the respondent No.1/writ petitioner
for grant of pay scale of pre-revised pay of Rs. 8,000-275-13,500/- (or 15,600-
39,100 + GP 5400) for the post of Sr. Physiotherapist on the pattern of
Safdarjung/Ram Manohar Lohia Hospital under the Ministry of Health and
Family Welfare, Govt. of India. In the said letter, it was clearly mentioned that
the request of the respondent/writ petitioner was placed in the meeting of the
Standing Finance Committee of RIMS held on 22.09.2014 and the said
Committee decided to refer the matter to the Ministry of Health & Family
Welfare for taking a view in the matter. A reminder was also written on
16.05.2015 by the Director, RIMS, Imphal to the Deputy Secretary (NE),
Ministry of Health & Family Welfare, Govt. of India. On 28.11.2015, the Director,
RIMS, Imphal wrote a letter to the Deputy Secretary (NE),Ministry of Health &
Family Welfare, Govt. of India for rectification of pay scale of Health Educator,
WA No. 60 of 2021 Page 4
Lecturer in Statistics & Demography, Sr. Physiotherapist and Sr. Occupational
Therapist on the line of other institutes under the Ministry of Health & Family
Welfare, Govt. of India, followed by a letter dated 20.05.2016 addressed to the
Secretary (H & FW), Ministry of Health and Family Welfare, Government of
India and a reminder dated 19.08.2016 was also sent in that regard. On
20.07.2016, the Director, RIMS, Imphal wrote a letter to the enquiry made by
the Ministry of Health and Family Welfare, Govt. of India letter dated
09.06.2016, thereby giving an exhaustive reply with regard to the service
conditions and financial upgradation of the petitioner and one Smt. Th.
Subadani Devi, Sr. Occupational Therapist. The Ministry of Health and Family
Welfare, Govt. of India was also requested to consider the matter of the
respondent No.1/writ petitioner and Smt. Th. Subadani Devi, Sr. Occupational
Therapist for granting the pay scale of Rs. 8000-13500/- instead of Rs. 6500-
10500/- pre-revised scale (or Rs. 9300-34800 + GP Rs. 4600/-).
[6] On 01.10.2016, the Deputy Director (Admn.), RIMS, Imphal wrote
a letter to the Deputy Secretary (NE), Ministry of Health & Family Welfare, Govt.
of India requesting for considering the case of the respondent No.1/writ
petitioner and one Smt. Th. Subadani Devi, Sr. Occupational Therapist for
granting the scale of promotional grade i.e. Rs. 8000/--13500/- instead of Rs.
6500-10500/-. A copy of the extract of the Standing Finance Committee (SFC)
meeting held on 22.09.2014 was also enclosed in the above said letter. In
pursuance to the above said letter of the Deputy Director (Admn.), RIMS,
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Imphal, the Section Officer (NE), Ministry of Health and Family Welfare (NE
Section), Govt. of India by its letter dated 26.10.2016 asked the Director, RIMS,
Imphal to submit a complete facts/records in a clear picture with Recruitment
Rules for the post of Sr. Physiotherapist and Sr. Occupational Therapist for the
institutes of (i) AIIMS, New Delhi, (ii) PGIMER, Chandigarh and (iii) JIPMER,
Puduchery. On 10.11.2016, the Director, RIMS, Imphal wrote a letter
addressed to the Deputy Secretary (NE), Ministry of Health and Family Welfare,
Govt. of India giving a detailed picture of the grievances of the respondent/writ
petitioner and Smt. Th. Subadani Devi, Sr. Occupational Therapist including
the details of Recruitment Rules of some of the Institute under the Ministry of
Health & Family Welfare. But nothing substantial seems to have happened
thereafter.
[7] Being aggrieved by the inaction on the part of the appellant, the
respondent No.1/writ petitioner filed a writ petition being WP(C) No. 213 of 2017
praying for directing the Ministry of Health and Family Welfare, Govt. of India
to give approval sought for by the RIMS, Imphal vide letter dated 20.05.2016
and 10.11.2016 and also for issuing a writ of mandamus directing the
respondents to revise the pay scale of the petitioner at the pay scale of Rs.
8000-275-13500/- on the same pattern as provided in Safdarjung Hospital, New
Delhi, Dr. Ram Manohar Lohia Hospital, New Delhi, Jawaharlal Institute of Post
Graduate Medical Education and Research, Puduchery (JIPMER) and Post
Graduate Institute of Medical Education and Research, Chandigarh (PGIMER)
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with effect from 09.08.1999 with 18 % interest. The above said writ petition was
disposed of on 06.08.2018 by directing the authorities to consider the claim of
the respondent No.1/writ petitioner for grant of CCS (Revised Pay) Rules, 2008
in terms of the notification dated 24.11.2008 by making necessary verification.
[8] The respondent No.1/writ petitioner challenged the RIMS's order
dated 21.01.2019 issued in compliance of the Hon'ble High Court order dated
06.08.2018 passed in WP(C) No. 213 of 2017 wherein it was stated that the
revised pay band and grade of the post of Sr. Physiotherapist under the CCS
(Revised Pay) Rules, 2008 as on 01.01.2006 i.e. Rs. 9300-34800/- + GP of Rs.
4200/- as specified under column 5 & 6 respectively of the First Schedule
against the grade specified under column 3 and further stated that the
respondent No.1/writ petitioner was granted the pay scale of Rs. 9300-34800/-
with GP of 4200/- after adoption of the Central Civil Services (Revised Pay),
2008 at RIMS, Imphal vide notification dated 24.11.2008. Subsequently, the
scale of pay of the respondent/writ petitioner was revised to the Scale of pay of
Rs. 9300-34800/- + GP of Rs. 4200/- w.e.f. 01.01.2006 in pursuance of the
order dated 13.11.2009 of the Ministry of Finance.
[9] Being aggrieved by the order dated 21.01.2019 issued by the
RIMS, Imphal, the respondent No.1/writ petitioner challenged the same by way
of the instant writ petition being WP(C) No. 374 of 2019 and the Hon'ble High
Court set aside the said order and directed the RIMS, Imphal to fixed her pay
scale notional as Rs. 8000-13500/- for the period from 01.04.2007 to
WA No. 60 of 2021 Page 7
23.11.2008 in terms of the Central Civil Services (Revised Pay) Rules, 1997
being implemented by the RIMS, Imphal vide notification dated 13.01.1998.
[10] RIMS filed counter affidavit to the writ petition filed by the
respondent No.2/writ petitioner stating that RIMS is a society registered under
the Societies Registration Act, Manipur. Its affairs are governed by the statutory
provisions as contained in the Memorandum of Association (MOA), Rules &
Regulations and Bye-Laws of the Institute. It is stated in para 12 of the counter
affidavit that the pay scale given to the post of Senior Physiotherapist, RIMS
Imphal is based on the recruitment rules of RIMS and hence, pay scale enjoyed
by Senior Physiotherapists in other Medical Colleges/Institutes under the
Ministry of Health and Family Welfare, Govt. of India cannot be granted as
'....... the Recruitment Rules in terms of educational qualification, experience,
etc. may vary from institute to institute.' It is further stated that vide approval
letter dated 06.01.1998 of the Chairman, Executive Council, RIMS, the Central
Civil Services (Revised Pay) Rules, 1997 was implemented for the employees
of RIMS by way of a Memorandum dated 13.01.1996 subject to the terms and
conditions mentioned therein. The pay scale for the post of Senior
Physiotherapist was fixed as Rs.6500-200-10500/- wef 01.01.1996. When the
respondent No.1/writ petitioner was promoted to the post of Senior
Physiotherapist after granting the benefit of ACP on completion of 12 years of
service, she was given pay scale of Rs.6500-2--10500 as per existing rules.
After RIMS was transferred to the Ministry of Health & Family Welfare wef
WA No. 60 of 2021 Page 8
01.04.2007, no revision of pay scale of the employees of RIMS was not
undertaken in parity with those employees under the Central Government. The
employees of RIMS were brought over to the pay scales as prescribed in the
Central Civil Services (Revised Pay) Rules, 2008 based on the pay scale
prevailing in RIMS as on 01.01.2006. It is admitted in para 16 of the counter
affidavit that '.... once the 6th CPC is made to operate/adopt in the RIMS, the
pay structure of the RIMS prevailing before such adoption ceased to exist and
the pay structures as provided in the 5th CPC has to be taken into account for
fixing the pay scale to be given to various posts as provided in the adopted 6 th
CPC .....'. It is averred that the Grievance Redressal Committee is not
competent to approve the increase in the pay scale of the employees of RIMS.
It is further stated in para 7 of the counter affidavit that any proposal submitted
by RIMS for increase in the pay scales of any post duly recommended by the
Standing Finance Committee and the Executive Council, has to be examined
by the Ministry of Health & Family Welfare, Govt. of India considering
parameters/guidelines attached to the post in consultation/concurrence of the
Integrated Finance Division (IFD) and with the approval of the Competent
Authority, the proposal is then sent to the Ministry of Finance, Department of
Expenditure for its concurrence/final approval.
[11] In the rejoinder affidavit, the respondent No.1/writ petitioner has
stated that the pay scales of all the employees of RIMS were revised when
Revision of Pay (ROP) 1996 came into effect and was adopted at par with the
WA No. 60 of 2021 Page 9
Central Government employees. Pay scale of the respondent No.1/writ
petitioner has to be fixed as per the ROP as provided in the Central Civil
Services (Revised Pay) Rules, 1997 which has been adopted by RIMS by its
Memorandum dated 13.01.1998. She has been claiming the pay scale of
Senior Physiotherapist should be Rs.8000-275-13500 as provided in the
Central Civil Services (Revised Pay) Rules, 1997 as adopted by RIMS. It is
highlighted that all throughout 2014, RIMS authorities have been supporting
and accepting her claim by way of various communications/letters (Annexures-
A/9 colly, A/10, A/11 colly, A/12, A/13 & A/15 to the writ petition) sent by RIMS
to the Central Government to the effect that the pay scale of the respondent
No.1/writ petitioner should be Rs.8000-275-13500 in place of Rs.6500-10,500/-
on her promotion to Senior Physiotherapist. The effective date of adopting the
5th CPC by RIMS is 01.01.1996 and the pay scale of Senior Physiotherapist
should be Rs.5500-175-9000, but she was wrongly given only Rs.5000-8000
pay scale contrary to the pay structure as provided in the 5th CPC. Accordingly,
she was given ACP in the wrong scale of Rs.6500-200-10500 instead of actual
scale of Rs.8000-135000 pre-revised. It is also stated that the correct and
entitled pay scale of Senior Physiotherapist as accepted by RIMS is Rs.8000-
275-13500 (or Rs.9300-34800 + GP Rs.5400) and they are bound to give her
the said correct pay scale. It is submitted that RIMS authorities cannot now take
a contrary stand which is inconsistent with their earlier views as proposed to
the Central Government.
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[12] The respondent No. 2/Union of India did not filed any counter
affidavit before the learned Single Judge, but chose to file an affidavit-in-
opposition in the appeal where it is stated that transaction of Business Rules
provides that no department shall, without the prior concurrence of Ministry of
Finance, issue any orders which may relate to the number or grade of posts, or
to the strength of a service, or to the pay or allowances of Government servants
or to any other conditions of their service having financial implications. It is
stated that grant-in-aid of RIMS, Imphal is released from consolidated fund of
India and any proposal bearing financial implication may require prior approval
of Ministry of Finance. As per Ministry of Finance's OM dated 20.06.1984, all
the proposals of upgradation of existing posts are treated as proposals for
creation of new posts in a near pay scale and as per Ministry of Finance's OM
dated 03.05.1993, Group A posts below the level of JS, Group B and Group C
posts require approval of Finance Minister. Further it is stated that the
respondent/writ petitioner, retired Sr. Physiotherapist is not similarly situated
with the Central Government Employees as the recruitment qualification of Sr.
Physiotherapist of RIMS and other Autonomous Institute under the Central
Government are not same including the functional consideration in terms of OM
dated 13.07.2017 and subsequent OM dated 26.07.2017 issued by the DoE.
Moreover, it may be noted that the respondent/writ petitioner was promoted to
the post of Sr. Therapist w.e.f. 25.08.2006 as per the notified recruitment rules
of the post and the recruitment rules can be amended for pay scale upgradation
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in consultation with Department of Expenditure prospectively. RIMS in its
appeal have also mentioned that no revision of pay scale of any staff of the
RIMS was done partly with those of other staff employed under Union of India.
[13] In para 6 of the impugned judgment dated 31.08.2021 in WP(C)
No. 374 of 2019, learned Single Judge framed the short question to be
consideration as below:
"[6] From the pleadings as aforesaid, the short question that arises for
consideration by tis Court, is whether, in facts and circumstances of the
case, the petitioner was entitled to the pay scale of Rs.15,600-29,100
+ GP Rs.5400 fixed for the Senior Physiotherapist in the Central Civil
Services (Revised Pay) Rules, 2008 adopted by the RIMS, Imphal. If
the answer is in affirmative, whether the petitioner would be entitled to
the benefit of the said pay scale with effect from 01.01.2006 or not?"
[14] It may be pointed out here that in the impugned order, the pay
scale of Rs.15,600-39,000 + GP Rs.5400 [corresponding to Sl. No.17 of First
Schedule appended to Notification dated 24.11.2008 issued by RIMS adopting
Central Civil Services (Revised Pay) Rules, 2008] is wrongly written as
Rs.15,600-29,000 + GP Rs.54,000. This may be due to inadvertence and it is
clarified that the 29,000 be read as 39,000 in the impugned order.
[15] Before the learned Single Judge, it has been submitted on behalf
of the writ petitioner that she was entitled to the pay scale of Rs. 15,600-39,100
+GP Rs.5400 fixed for the post of Senior Physiotherapist in the Central Civil
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Services (Revised Pay) Rules, 2008 on the ground that on the date of
enforcement of Rules of 2008, she was already working as Senior
Physiotherapist and all Senior Physiotherapists working in similarly situated
Hospital/Institutes were given the said pay scale as prescribed in the pay rules.
On the other hand, it has been submitted on behalf of RIMS that the writ
petitioner was entitled to the pay scale as fixed in the Central Civil Services
(Revised Pay) Rules, 2008 corresponding to the pay scale which she was
enjoying on the date of adoption of Rules of 2008. As the writ petitioner was
getting the pay scale of Rs.6500-200-10500 fixed vide Office Memorandum
dated 13.01.1998 (which was not challenged by her), she would be entitled to
the corresponding pay scale of Rs.9300-34,800 with GP of Rs.4600 as fixed in
the Central Civil Services (Revised Pay) Rules, 2008.
[16] In para 9 of the impugned judgment, learned Single Judge has
observed that after taking over of the management of RIMS by the North
Eastern Council (NEC) from 01.04.1995, no pay commission was constituted
to fix or revise the pay scales of its employees. It was only on 13.01.1998 that
RIMS issued an OM by which the Central Civil Services (Revised Pay) Rules,
1997 (corresponding to 5th CPC) was adopted and implemented with certain
modifications. The pay scale for the Senior Physiotherapist therein was fixed at
Rs.6500-200-10500 and the writ petitioner was given the said pay scale at the
time of her promotion to the post of Senior Physiotherapist. When RIMS was
taken over by the Central Government wef 01.04.2007, it became an
WA No. 60 of 2021 Page 13
autonomous body under the Ministry of Health & Family Welfare, Govt. of India
and its employees would be entitled to the pay scale as fixed in the Central Civil
Services (Revised Pay) Rules, 1997 which was given to the Central
Government employees. Due to the failure of both RIMS and Central
Government to take a policy decision in this regard, the employees of RIMS
were getting pay scale at a lower level. Consequently, when the Central Civil
Services (Revised Pay) Rules, 2008 were adopted and implemented in RIMS,
it revised the pay scale of the writ petitioner from the lower pay scale which she
was enjoying at that time and not from the pay scale which she was entitled to
as fixed in the Central Civil Services (Revised Pay) Rules, 1997. Accordingly,
the writ petitioner was denied the pay scale of Rs.8000-275-135--as fixed in
the Central Civil Services (Revised Pay) Rules, 1997 even after RIMS was
taken over by the Government of India. It has been held that denial of higher
pay scale as enjoyed by employees of similar Hospitals/Institutes under the
control of Central Government would be violation of the doctrine of equality as
enshrined in Article 14 of the Constitution of India.
[17] Regarding the plea that RIMS requires prior approval from the
Central Government specially with respect to revision and upgradation of pay
scale of its employees, learned Single Judge has considered this aspect
minutely in para 12 of the impugned judgment. The issue is as to whether prior
approval of the Ministry of Health & Family Welfare, Govt. of India is required
before any policy decision is taken by RIMS. Reliance has been placed to a
WA No. 60 of 2021 Page 14
decision of a Division Bench of this Court in order dated 22.04.2021 in WA No.
42 of 2020. Clause IV of the Memorandum of Association of RIMS provides the
overall management of the Institute is entrusted to (i) Board of Governors,
headed by the Union Minister of Health & Family Welfare and (ii) Executive
Council headed by the Secretary, Ministry of Health & Family Welfare, Govt. of
India. Clause 8 of the Rules and Regulations of RIMS deals with the power of
the Executive Council and Clause 8(iii) vests in the Executive Council the
management and administration of the Institute and has the powers and
functions as enumerated under sub-clauses (a) to (m). Under sub-clauses (a)
to (l), the Executive Council is empowered to control the overall management;
approval of budget estimates including revised and supplementary; approval,
creation, upgradation and abolition of post & revision of pay scales and
allowances; etc. Only sub-clause (m) mandates prior concurrence of the
Ministry of Health & Family Welfare, Govt. of India with respect to the power to
amend bye-laws, rules and regulations of RIMS. It is observed that the order in
WA No. 42 of 2020 has attained finality. Relying on the above referred findings,
learned Single Judge is of the view that prior approval of the Ministry of Health
& Family Welfare, Govt. of India is not required to be sought in all policy
decisions except in respect of those relating to amendment of bye-laws and
rules & regulations. It is held that the Executive Council is the competent
authority empowered, so far revision of pay scales and allowances is
concerned as per sub-clause (c) to Clause 8(iii) of the Rules and Regulations
WA No. 60 of 2021 Page 15
of RIMS. It is further held that inaction of both RIMS and Central Government
for redressal of the grievances of the writ petitioner for a long time and denying
the same by order dated 21.01.2019 is highly unfair and hit by provisions of
Article 14 of the Constitution of India. Learned Single Judge also held that
principle of estoppel would be attracted against RIMS as it could not take a-U
turn from its written recommendations in favour of the writ petitioner sent to
Central Government for consideration. The stand of the RIMS to the effect that
Grievance Redressal Committee is not competent to take a decision in respect
of the increase in the pay scale of the writ petitioners is not fair and
unreasonable.
[18] In para 14, learned Single Judge has held that the writ petition is
entitled to the relief prayed in the writ petition. It is observed that on 25.08.2006
when the writ petitioner was promoted to the post of Senior Physiotherapist, the
Central Civil Services (Revised Pay) Rules, 1997 was adopted with
modification by RIMS vide the OM dated 13.01.1998. The pay scale fixed as
per the OM dated 13.01.1998 for Senior Physiotherapist was Rs.6500-200-
10500 and the writ petitioner was granted the said scale. With the taking over
of RIMS by the Central Government wef 01.04.2007, the pay scale of the Senior
Physiotherapist ought to have been changed to the pay scale of Rs.8000-275-
13500 in accordance with the Central Civil Services (Revised Pay) Rules, 1997
at par with Senior Physiotherapists of similarly situated Hospitals/Institutes
under the control of the Central Government. The same was not done by RIMS
WA No. 60 of 2021 Page 16
as well as the Central Government. It has been further held that the writ
petitioner is entitled to the corresponding pay scale of Rs.15,600-39,100 + GP
Rs.5400 when the Central Civil Services (Revised Pay) Rules, 2008 was
adopted by RIMS vide Notification dated 24.11.2008. Since the writ petitioner
was not promoted to the post of Senior Physiotherapist on the date of
implementation of the Central Civil Services (Revised Pay) Rules, 1997 wef
01.01.2006 and she was promoted only on 25.08.2006, in para 15 of the
impugned judgment, learned Single Judge directed RIMS to notionally fix the
pay scale of the writ petitioner (i) as Rs.8000-275-13500 for the period from
01.04.2007 to 23.11.2008 in terms of the Central Civil Services (Revised Pay)
Rules, 1997 adopted in RIMS vide OM date 13.01.1998, (ii) Rs.15600-29,100
+ GP Rs.5400 for the period from 24.11.2008 to date on which the Central Civil
Services (Revised Pay) Rules, 2008 adopted by RIMS, and thereafter
notionally fix the corresponding revised pay scales till the date of
superannuation. The whole exercise was directed to be completed within a
period of three months, failing which interest @ 6% per annum would be
accrued. Accordingly, the writ petition was allowed vide judgment & order dated
31.08.2021 in WP(C) No. 374 of 2019.
[19] Being aggrieved by the impugned judgment & order dated
31.08.2021 in WP(C) No. 374 of 2019, RIMS preferred the present writ appeal
amongst on the following grounds:
WA No. 60 of 2021 Page 17
(a) Learned Single Judge has wrongly directed RIMS to fix the pay
scale of the writ petitioner as Rs.8000-275-13500 for the period from
01.04.2007 to 23.11.2008 in terms of the Central Civil Services
(Revised Pay) Rules, 1997 without challenging the pay fixed by RIMS
for the post of Senior Physiotherapist in RIMS in the initial appointment
as Rs.6500-10,500 + GP Rs.4200.
(b) Learned Single Judge has failed to appreciate the detail reasons
given in the order dated 21.01.2019 for fixation of the pay scale of the
writ petitioner in the post of Senior Physiotherapist.
(c) The direction to fix pay scale of Senior Physiotherapist in RIMS in
terms of pay scale of AIIMS, PGI Chandigarh is without any basis.
(d) Learned Single Judge has failed to distinguish that order dated
22.04.2021 in WA No. 42 of 2020 is not applicable to the present case.
[20] Heard Mr. BR Sharma, learned counsel for the appellant/RIMS,
Mr. Th. Khagemba, learned counsel for the respondent No.1/ writ petitioner and
Mr. S. Samarjeet, learned Sr. PCCG for respondent No.2/UOI.
[21] First submission of Mr. BR Sharma, learned counsel for the
appellant is that the writ petition was enjoying the pay scale of Rs.6500-200-
10500 on her promotion to the post of Senior Physiotherapist under the 5th CPC
with the adoption of the Central Civil Services (Revised Pay) Rules, 1997 in
RIMS vide OM dated 13.01.1998. Without challenging the said pay scale by the
writ petitioner, learned Single Judge was wrong in directing the RIMS to grant
WA No. 60 of 2021 Page 18
pay scale of Rs.8000-275-13500 under the Central Civil Services (Revised
Pay) Rules, 1997 on taking over of RIMS by Central Government. The
corresponding pay scale for Senior Physiotherapist under the Central Civil
Services (Revised Pay) Rules, 2008 would be Rs.9300-34,800 + GP Rs.4600
on adoption of the Central Civil Services (Revised Pay) Rules, 2008 by RIMS
with the adoption of the Central Civil Services (Revised Pay) Rules, 2008 vide
Notification dated 24.11.2008. It is also pointed out that the writ petitioner has
never challenged the adoption of 5th and 6th CPCs in RIMS and hence she is
not entitled to the higher pay scale as granted by the learned Single Judge.
[22] The second submission of Mr. BR Sharma is that the writ
petitioner cannot claim parity of pay with other Central institutes/hospitals such
as AIIMS, PGI Chandigarh, etc. as there are differences in the service rules
and nature of works. He has pointed out that RIMS has only 528 beds while
AIIMS has 2200 beds. His third submission is that the writ petitioner was
already given ACP on completion on 12 years of service and she was already
enjoying a higher pay scale and hence nothing prejudice has been caused to
her. Reliance is place on the decision of Hon'ble Supreme Court in the case of
Mewa Ram Kanojia v. AIIMS : AIR 1989 SC 1256 @ Para 4 which held that
the principle of 'equal pay for equal work' is applicable when employees holding
the same rank perform similar functions and discharge similar duties and
responsibilities. It is open to the State to prescribe different scales of pay for
different posts having different qualifications, duties and responsibilities of the
WA No. 60 of 2021 Page 19
post. It is submitted that Senior Physiotherapists in RIMS are different and
cannot be compared with those of other institutes due to difference in rules and
nature of works and duties. Learned counsel further refers to another decision
in the case of Hukum Chand Gupta v. Director General, ICAR: (2012) 12
SCC 666 @ Para 20 & 21 which upheld different pay scales for the employees
working at headquarters and those working at institutional level. In that case,
the employees working at headquarters are governed by a different set of rules
and hierarchy of posts and promotional avenues are different. It was held that
merely because any two posts at the headquarters and at the institutional level
have same nomenclature, would not necessarily require that same pay scale
on the said two posts and different pay scales would not violate the principle of
equality before law. It is also pointed out that any upgradation of pay scale will
require concurrence of Finance Ministry, Govt. of India. It is prayed that the
impugned order be set aside being non-consideration of the points raised
herein above.
[23] Per contra, Mr. Th. Khagemba, learned counsel for respondent
No.1/writ petitioner submits that the writ petitioner is claiming for
rectifying/granting the pay scale from Rs.6500-10500 pre-revised scale (or
Rs.9300-34800 + GP Rs.4600 revised) to Rs.8000-13,500 pre-revised (or
Rs.15,600-34800 + GP Rs.5400 revised). As per 5th CPC the pay scale of
Senior Physiotherapist is Rs.8000-275-13,500 on adoption of the Central Civil
Services (Revised Pay) Rules, 1997 in RIMS vide OM date 13.01.1998. It is
WA No. 60 of 2021 Page 20
stated that the corresponding pay scale in 6th CPC is Rs. Rs.15,600-39,100 +
GP Rs.5400 as indicated in Sl. No.17 of First Schedule to the Central Civil
Services (Revised Pay) Rules, 2008. It is pointed out that the Central Civil
Services (Revised Pay) Rules, 2008 was adopted in RIMS vide Notification
dated 24.11.2008. Mr. Khagemba, learned counsel draws the attention of this
Court to First Schedule appended to Rules of 2008 where the pay scale of
Rs.15,600-39,100 + GP Rs.5400 was provided as corresponding pay scale of
Rs.8000-275-13500 and the writ petitioner is claiming a pay scale adopted by
the RIMS which is similar with the pay scale prescribed in the Central Civil
Services (Revised Pay) Rules, 2008. Due to lapse/inaction of RIMS, the writ
petitioner could not enjoy the higher pay entitled to her as per 5th CPC as well
as 6th CPC. It is stated that as admitted by RIMS in para 16 of its counter
affidavit, on adoption of 6th CPC, the pay structure of RIMS prevailing on the
date of such adoption ceased to exist and hence the writ petitioner is entitled to
the pay scale prescribed under the Central Civil Services (Revised Pay) Rules,
2008.
[24] Mr. Th. Khagemba, learned counsel has raised the plea of
estoppel on the ground that RIMS authorities have been canvassing the plea
of the writ petitioner to the Ministry for granting pre-revised pay scale of
Rs.8000-13500 instead of Rs.6500-10500 on her promotion to Senior
Physiotherapist by way various letters sent to the Ministry. Now, RIMS
authorities cannot take a U-turn and plead that she is not entitled to the said
WA No. 60 of 2021 Page 21
pay scale as proposed by them. Reliance is placed on the decision of Joint
Action Committee v. Director General of Civil Aviation reported as (2011)
5 SCC 435 @ Para 11 & 11 holding that law does not permit a person to both
approbate and reprobate. It is also submitted that new plea to the effect of non-
challenge to pay scale in 5th & 6th CPCs has been taken for the first time in writ
appeal and the same deserves to be rejected at threshold. Learned counsel
refers to the decision in the case of Adbul Khader v. Tarabai: (2011) 6 SCC
199 @ Para 18,19 & 20 that having failed to raise the plea before Single Judge,
the same cannot be raised before Division Bench. It is prayed that the writ
appeal may be rejected being devoid of any merit and the findings and
directions of the learned Single Judge in the impugned judgment and order be
upheld.
[25] Relying on the affidavit filed in writ appeal, Mr. S. Samarjeet,
learned Sr. PCCG for the Union of India has supported the submission of Mr.
BR Sharma, learned counsel for RIMS. It is submitted that RIMS is an
autonomous body and recommendations of the Central Pay Commission are
not automatically applicable to such body. Referring to the Government of India
(Transaction of Business) Rules, 1961 (as amended upto 03.04.2020), it is
pointed out that without the prior concurrence of Ministry of Finance, no
department shall issue any orders relating to the number or grade of posts, or
to the strength of a service, or to the pay or allowances of Government servants
or any other conditions of their service having financial implications. It is also
WA No. 60 of 2021 Page 22
stated that any proposal bearing financial implication may require prior approval
of the Ministry of Finance. It is prayed that the writ appeal be allowed.
[26] Perused the materials on record and considered the submissions
made at bar along with the case laws cited.
[27] It is seen from the above discussion that RIMS has not constituted
any Pay Commission for its employees and recommendations of the Central
Pay Commission are adopted from time to time with necessary modification.
RIMS was taken over by the Ministry of Health & Family Welfare, Govt. of India
wef 01.04.2007. At that time the writ petitioner was working as Senior
Physiotherapist in RIMS on promotion vide order dated 25.08.2006 issued by
the Director, RIMS in the pay scale of Rs.6500-200-10500. Vide OM dated
13.01.1998, the recommendations of the Central Civil Services (Revised Pay)
Rules, 1997 was adopted in RIMS. Hence, the writ petitioner was entitled to the
pay scale of Rs.8,000-275-13,500 for the post of Senior Physiotherapist on the
adoption of the Central Civil Services (Revised Pay) Rules, 1997. But such
revision was not made by the RIMS as well as the Central Government and as
such the writ petitioner continued in the lower pay scale of Rs.6500-200-10500.
On adoption of the Central Civil Services (Revised Pay) Rules, 2008 in RIMS
by Notification dated 24.11.2008, the pay scale of the writ petitioner was
wrongly fixed as Rs.9300-34800 + GP Rs.4200 and later on upgraded to FP
Rs.4600 instead of the correct pay scale of Rs.15,600-39,100 + GP Rs.5400
WA No. 60 of 2021 Page 23
as mentioned in First Schedule of the Notification dated 24.11.2008 adopting
6th CPC in RIMS.
[28] We are of the considered view that the wrong fitment of the pay
scale of the writ petitioner at the scale of Rs.9300-34,800 + GP Rs.4600 in the
Central Civil Services (Revised Pay) Rules, 2008 adopted in RIMS is due to the
inaction/lapses of the authorities concerned for their failure to upgrade her pay
scale of Rs.8000-275-13500 (pre-revised) on her promotion to the post of
Senior Physiotherapist and on adoption of the Central Civil Services (Revised
Pay) Rules, 1997 in RIMS vide OM dated 13.01.1998. RIMS as well as the
Central Government cannot take the plea that the writ petitioner is not entitled
to the pay scale of Rs.15,600-39,100 + GP Rs.5400 as she did not challenge
the earlier fitment to the scale of Rs.6500-200-10500 in the Central Civil
Services (Revised Pay) Rules, 1997 and the adoption of 5th & 6th CPCs in RIMS.
In the case of Chandi Prasad Uniyal v. State of Uttarkhand: (2012) 8 SCC
417 @ Para 15, Hon'ble Supreme Court held that '..... the excess payment
made due to wrong/irregular pay fixation can always be recovered'. The
ratio of Chandi Prasad Uniyal (supra) is that wrong fixation of pay scale
can be corrected at any stage and excess payment, if any, can be
recovered from the employee except in some special cases where there
will be hardship to the employee. As a corollary, deficient payment has
also to be made to the employee, if his pay scale has wrongly been fixed
by the employer at a lower scale. We do not find any merit in the plea
WA No. 60 of 2021 Page 24
of RIMS as well of the Central Government to the fact that since the writ
petitioner did not challenge the wrong fitment of her pay scale to a lower
level on her promotion to the post of Senior Physiotherapist, she cannot
claim to the pay scale of Rs. 15,600-39,100 + GP Rs.5400 in the Central
Civil Services (Revised Pay) Rules, 2008 as adopted in RIMS vide Notification
dated 24.11.2008.
[29] On close scrutiny, we also do not find any merit to the stand of
RIMS and the Central Government that no policy matter affecting financial
aspect of any department shall be taken without prior concurrence of the
Ministry of Finance, Govt. of India and hence the pay scale of Rs.15,600-39,100
+ GP Rs.5400 will not be applicable to RIMS for the post of Senior
Physiotherapist. It is an admitted fact the recommendations of 6th CPC have
been adopted by RIMS with enforcement of the Central Civil Services (Revised
Pay) Rules, 2008 vide Notification dated 24.11.2008. The said pay scale is
shown at Sl. No.17 of the First Schedule appended to the Notification dated
24.11.2008 issued by the Chairman of the Executive Council of RIMS in
exercise of powers conferred by Rule 6.1.3 of its Constitution and Bye-Laws.
Writ petitioner is not claiming a different and higher pay scale not provided in
the First Schedule. It is also a fact that the Central Civil Services (Revised Pay)
Rules, 1997 & 2008 were made by the President exercising the powers under
Article 309 of the Constitution. In other words, the recommendations of 5th & 6th
CPCs have been enforced by following statutory procedures as prescribed in
WA No. 60 of 2021 Page 25
this regard. The same have been adopted by RIMS vide OM dated 13.01.1998
and Notification dated 24.11.2008 by the Executive Council in exercise of
power conferred on it by its bye-laws. As discussed earlier, a Division Bench of
this Court held in order dated 22.04.2021 in WA No. 42 of 2020 that in view of
Clause 8(iii)(c) & (m) of the Rules and Regulations of RIMS, the Executive
Council is the competent authority for revision of pay scale of its employees
and prior concurrence of Ministry of Health & Family Welfare, Govt. of India is
mandatory for amendment of bye-laws, rules and regulations. These findings
have attained finality and it does not lie in the mouth of RIMS as well as Central
Government that recommendations of CPC cannot be enforced in RIMS
without approval of both Ministries of Health & Family Welfare and Finance.
[30] The authorities of RIMS are very unfair and unethical to the cause
of the writ petitioner. From the very beginning, they are canvassing to the
Ministry on her behalf for upgradation of her pay scale to Rs.8000-275-13500
in the Central Civil Services (Revised Pay) Rules, 1997 and to Rs.15,600-
39,100 + GP Rs.5400 in the Central Civil Services (Revised Pay) Rules, 2008
as evident from their letters and correspondence with the Ministry of Health &
Family Welfare, Govt. of India. Suddenly, they took a somersault and took a
stand that she was not entitled to the higher pay scale as claimed by her. It is
the settled proposition of law that a person, that too an authority established
under law, cannot approbate and reprobate in the same transaction at different
time according to its benefit [Kindly see Union of India v. Subrata Das: (2020)
WA No. 60 of 2021 Page 26
12 SCC 784]. Accordingly, we are of the view that RIMS cannot take a different
stand altogether in the litigation, after supporting the case of the writ petitioners.
[31] The plea of non-applicability of equal pay for equal to the writ
petitioner as compared to similar employees in other central institutes/hospital
is raised on the misconception that she is claiming a pay scale not provided in
the relevant rules. As seen from First Schedule appended to the Notification
dated 24.11.2008 issued RIMS with the approval of its Executive Council for
adopting the Central Civil Services (Revised Pay) Rules, 2008, the pay scale
of Rs.16,500-39,100 + GP Rs.5400 is provided at Sl. No.17. Hence, the writ
petitioner is claiming a pay scale adopted by RIMS itself and she is relying on
similar pay scale given to persons similarly situated like her in other central
institutes as an example. The case laws cited by Mr. BR Sharma are not
applicable in the facts of the present case.
[32] In view of the observations and findings arrived as above, we are
of the considered opinion that the writ appeal is without merit and accordingly
dismissed. Parties are directed to bear their own cost. As pointed in para 14
above, in the impugned judgement, the pay scale of Rs.15,600-39,100 + GP
Rs.5400 for Senior Physiotherapist has wrongly been recorded as Rs.15,600-
29,100 + GP Rs.5400. It is clarified that the correct pay scale be read as
Rs.15,600-39,100 + GP Rs.5400. The directions of the learned Single Judge
as recorded in para 15 of the impugned judgment be complied within a period
WA No. 60 of 2021 Page 27
of three months from the date of receipt of this judgment. It is clarified that the
Ministry of Health & Family Welfare, Govt. of India has to sanction/bear the
additional amount entitled to the respondent No.1/writ petitioner, as RIMS is
autonomous body 100% funded by the Central Government. Registry is
directed to send a copy of this judgment to the appellant for doing needful.
JUDGE JUDGE
FR/NFR
joshua
KH. Digitally signed by
KH. JOSHUA
JOSHUA MARING
Date: 2023.10.31
MARING 14:24:44 +05'30'
WA No. 60 of 2021 Page 28
