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Judgment
O R D E R
Hon’ble Mr. R.N. Singh, Member (J)
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Memorandum dated 26.3.2013 vide which the respondents have refused to redress the grievances of the applicant qua anomaly in his pay scale in comparison to one Shri Binu M. Mathews, Radiographer. The applicant has prayed for the following reliefs:-
“A. Quash the office order dated 26.03.2013 whereby the request of the applicant for removal of disparity in the pay of the applicant and similarly situated has been refused;
B. Direct the respondents to grant a pay scale of Rs.5000-8000 to the applicants as is being given to their counterparts in other Ministries/Departments.
C. Direct that the arrears of pay and allowances be afforded to the applicants as they are entitled to the pay scale of Rs.5000-8000 w.e.f. 1996 since the time their counterparts have also been given such benefits.
D. direct the respondents to give the benefit of the judgment of Binnu Methew and thereafter, refix his pay and salary;
E. Afford the benefit of the judgments annexed at Annexure A-3 to the applicants as they stand on a similar footing.
F. Pass such other further order or orders as this Hon’ble Court may deem fit and proper in the facts of the case and in the interest of justice.”
By way of the M.A. No.475 of 2015, the applicant has prayed for condonation of delay in filing the aforesaid OA.
Pursuant to notice, the respondents have filed reply to the OA as well as MA.
The facts leading to the present OA are that the applicant has been working on the post of Radiographer under the respondent No.1. In consonance with the Recruitment Rules for Sashastra Seema Bal (in short ‘SSB’), Para Medical Staff, the educational qualification for Radiographer will be Matriculation or equivalent from recognized Board/University and two years Diploma in Radiography and the Pay scale will be Rs.4500-7000. Similarly placed persons, namely, Binu M. Mathews and Mathew Stephen, working under the same respondent, i.e., respondent No.1 raised the claim for grant of pay scale of Rs.5000-150-8000 to Radiographers of SSB (Non Combatised) instead of Rs.4500-125-7000/-w.e.f.1.1.1996 and when their claim was not acceded to by the respondents, they approached this Tribunal by way of OA 2243/2007, titled Binu M. Mathews and another vs. Union of India and others, and the said OA was disposed of by this Tribunal vide Order/Judgment dated 11.9.2008.
In purported compliance of the directions of this Tribunal, the respondents passed the order dated 13.4.2009 (Annexure R-2) and in the said order, the respondents stated that the applicants were working in different hospitals and dispensaries of SSB as Radiographers and they have agitated that while Radiographers in Government of UT of Delhi are getting the pay scale of Rs.5000-150-8000/- w.e.f. 1.1.1996 whereas the Radiographers of SSB were not given the pay scale of Rs.5000-150-8000/- w.e.f. 1.1.1996. A separate para of the said order contains that 5th Central Pay Commission vide its para 52.107 has recommended to place the Radiographers with minimum qualification of two years of Diploma/certificate after 10+2 at the level of Rs.1320-2040. However, the post of Radiographer in SSB as per RRs, requires Matriculation plus two years Diploma in Radiography as essential qualification and, therefore, the pay scale of Rs.4500-7000 was found to be appropriate for the said post. Vide the said order, the claim of the similarly placed persons, namely, Binu M. Mathews and another was rejected by the respondents by further holding that in consonance with the Recruitment Rules for SSB Para Medical Staff, the Radiographer should be Matriculate or equivalent from a recognized Board/University with 2 years diploma in Radiography whereas in CGHS, Government of UT of Delhi, Matriculation with Science, Diploma in Radiography and one year experience in the Department of Radiography is desirable and as such there being a notable difference in the RRS and nature of duties, responsibilities and hierarchy of both the establishments/cadres and hence they are neither identical nor comparable. The said order dated 13.4.2009 was challenged by the said Binu M. Mathews and Mathew Stephen before this Tribunal by way of OA No.1494/2009 and this Tribunal after considering the Order/Judgment dated 29.8.2007 of the Hon’ble High Court of Delhi in CWP No.3070/2007, titled Union of India & others vs. Central Govt. Radiographer Welfare Association, the judgment of the Hon’ble Supreme Court in the case of B. Renjith Kumar vs. State of Kerala, reported in 2008 (12) SCC 219 and also the decision of this Tribunal vide Order/Judgment dated 11.1.2020 in OA No.1030/2009, titled All India Ordnance Factories vs. Union of India and another, set aside the order dated 13.4.2009 passed by the respondents vide Order/Judgment dated 22.12010. The operative portion of the said Order/Judgment dated 22.1.2010 reads as under:-
“6.Resultantly, the grounds adduced by the respondents to deny the pay sale to the applicants at part with counterparts in Govt. of UT of Delhi as well as Ministry of Health and Family Welfare are not apt in law. OA is partly allowed. Impugned orders are set aside. Respondents are directed to reconsider granting the revised pay scale to the applicants i.e. Rs.5000-8000 w.e.f. from the date their counterparts have been allowed the same with arrears thereof within a period of three months from the date of receipt of a copy of this order. No costs.”
The said Order/Judgment dated 22.1.2010 is stated to have been implemented by the respondents and the applicants therein in the said OA have been granted the pay scale of Rs.5000-150-8000/- w.e.f. 1.1.1996. By the present OA, the applicants are seeking extension of benefit of the aforesaid Order/Judgment dated 22.1.2010 passed by this Tribunal in the case of Binu M. Mathews (supra).
During the pendency of the OA, it has come on record that the office under which the applicant has been working has been merged with the respondent no.4 and accordingly, amended memo of parties was filed by the applicant. Notice was issued to the newly impleaded respondent, i.e., respondent no.4. Learned counsel for the respondents has submitted that the reply already filed on their behalf shall be the reply also on behalf of the newly impleaded respondent no.4 as well.
In the reply, the respondents have averred that DOP&T vide its decision dated 24.9.1994 communicated by the Cabinet Secretariat vide Circular Instruction No.1/95 issued vide No.31/14/93-EA.III-273 dated 19.1.1995 provides that it is the Government policy not to extend benefit of CAT/Court Judgments to non-petitioners who are similarly placed. The respondents have further asserted that as per Recruitment Rules for SSB Para Medical Staff, the Radiographer should be Matriculate or equivalent from a recognized Board/University with 2 years Diploma in Radiography whereas in CGHS, Government of UT of Delhi, Matriculation with Science, Diploma in Radiography and one year experience in the Department of Radiology is desirable. As such there is notable difference in the RRs, nature of duties, responsibilities and hierarchy in both the establishment/cadre which is neither identical nor comparable. 5th Central Pay Commission vide its Para 52.107 had recommended to place the Radiographers with minimum qualification of two years diploma/certificate after 10+2 at the level of Rs.1320-2040/-.
Shri Anand, learned counsel for the applicant has submitted that once the issue raised by the applicant has already been settled by this Tribunal in the case of Binu M. Mathews (supra), the applicant being similarly placed should have been accorded the same treatment by the respondents. However, when the same was not accorded to the applicant, the applicant has made representation and the said representation of the applicant was rejected in a mechanical manner by the respondents vide their communication dated 26.3.2013, impugned in the present OA. He has further submitted that in the present OA, the applicant has prayed for grant of pay scale admissible to him, and as granted to similarly placed persons under the same respondents, the applicant has been suffering recurring loss and though the present OA is within limitation, however, as an abundant caution, the applicant has filed a Misc. Application NO.475/2015 seeking condonation of delay and this Tribunal, vide Order dated 11.9.2017, has allowed the said MA.
On merit, learned counsel for the applicant has argued that the issue raised by the respondents about the fact that the Recruitment Rules for SSBs Para Medical Staff, Radiographers are different to that of Radiographers in CGHS, Govt. of UT etc. has already been settled by this Tribunal in series of cases, including in the case of Binu M. Mathews (supra) as well as by the Hon’ble High Court of Delhi vide common Order/Judgment dated 16.1.2020 in Writ Petition (Civil) NO.10645/2015 and another connected case, titled Aman Chand and others vs. Union of India and others.
Learned counsel for the respondents has submitted that DoP&T vide its decision dated 24.9.1994 communicated by the Cabinet Secretariat vide Circular Instruction No.1/95 issued vide No.31/14/93-EA.III-273 dated 19.1.1995 that as per the Government policy not to extend benefit of CAT/Court Judgments to non-petitioners who are similarly placed. Learned counsel with the assistance of the averments in the reply has argued that there is a difference in the Recruitment Rules for the post of Radiographer in SSB and the Recruitment Rules for the post in question in CGHS and Govt. departments, besides there being difference in duties as well.
On the other hand, learned counsel for the applicant has submitted that the said contention of the respondents is misconceived, since it is settled law that once pay scale has been decided by the competent Court of Law and the same has been implemented in respect of a few, all the similarly placed persons are deserved to be extended the same treatment.
We have considered the pleadings on record and also submissions made by the learned counsels for the parties.
It is not in dispute that the applicant is working on the post of Radiographer under the respondent no.1 and on the same post two other Radiographers under the same respondents approached this Tribunal by way of OA 1494/2009, titled Binu M. Mathews and another vs. Union of India and others, and the same grounds and the same defence were raised by the respondents to refuse the pay scale of Rs.5000-8000 in the said case. However, this Tribunal after extensively considering the facts and law, allowed the said OA vide Order/Judgment dated 22.1.2010 and the respondents were directed to consider the cases of the applicants therein for grant of revised pay scale of Rs.5000-8000 with effect from the date their counterparts have been allowed with arrears thereof. It is also not in dispute that by implementing the aforesaid directions of this Tribunal in Order/Judgment dated 22.1.2010, the applicants in the said case Binu M. Mathews (supra) have been granted the pay scale of Rs.5000-8000, as prayed for by the applicant in the present OA. Moreover, an identical issue has been considered by the Hon’ble High Court of Delhi in the case of Aman Chand (supra). In the said case, Radiographer working under the Employees State Insurance Corporation (ESIC) have filed the petition against the common Order/Judgment dated 10.8.2016 passed by this Tribunal rejecting their prayer for grant of the pay scale of Rs.5000-8000 as given to their counterparts in other Ministries/Departments, Govt. of India, w.e.f. the due date. The Hon’ble High Court after considering the RRs for the post of Radiographer in ESIC, recommendations of 5th CPC and various other facts have allowed the said Writ Petition, vide Order/Judgment dated 16.1.2020, paras 8, 14, 24 and 34 thereof read as under:-
“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/-.
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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
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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/-.
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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.”
Once the issue of grant of pay scale of Rs.5000-8000 has been decided by this Tribunal in the case of Binu M. Mathews (supra) and implemented by the respondents in the case of the applicants therein, we are of the considered view that it was expected from the respondents to extend the same benefits to the similarly placed person(s) at their own without compelling their each and every employee to approach this Tribunal. In this regard, we may place reliance upon the law laid down by the Hon’ble Supreme Court, delivered by the Hon’ble three Judges Bench, in K.C. Sharma and others Vs. Union of India and others, reported in 1998 (1) AISLJ 54, wherein the Hon’ble Supreme Court held that “this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal.” Moreover, once it has been decided by the competent Court of Law that Radiographers working under the respondents are entitled for the pay scale of Rs.5000-8000/- w.e.f. 1.1.1996 and such decision has been implemented by the respondents, grant of lower pay scale to similarly placed employee(s) cannot be justified.
From the aforesaid, it is evident that objection raised by the respondents in their counter reply by showing that there is a slight difference in the RRs for the post of Radiographer in SSB with that of the post of Radiographer in Government of UT of Delhi etc. has already been adjudicated by this Tribunal in the case of Binu M. Mathews (supra). Moreover, similar issue has not only been considered by the Hon’ble High Court of Delhi vide Order/Judgment dated 16.1.2020 in the case of Aman Chand (supra) but from para 24 of the said Order/Judgment, it is evident that Hon’ble High Court has categorically noted that Radiographers working in Sashastra Seema Bal under the control of the Ministry of Home Affairs, have also been granted the pay scale of Rs.5,000-8,000/- by an office order dated 15th February, 2011.
In this view of the matter, we are of the considered view that the present OA deserves to be allowed and the same is accordingly allowed with the following directions:-
Impugned office order dated 26.03.2013 is set aside;
The respondents are directed to grant the pay scale of Rs.5000-8000 to the applicant from the date on which the recommendations of 5th CPC became effective, i.e., 1.1.1996 and/or w.e.f. from the date the same was granted to the Radiographer working in SSB under the control of the Ministry of Home Affairs by Office Order dated 15.2.2011;
Arrears will be paid to the applicant within a period of 12 weeks, failing which simple interest at the rate of 6% will be payable on the said amount for the period of delay;
Corresponding order implementing the aforesaid directions and granting the subsequent revision of pay on the above basis will be issued within a period of 12 weeks;
However, in the facts and circumstances of the case, there shall be no order as to costs.