Delhi Medical Technical Employees vs Union Of India Through Its Secretary And Ors

Aradhana Johri, A

The instant O.A. is filed by Delhi Medical Technical Employees Association represented by its General Secretary only, hence, the same is liable to be dismissed, in limine, being not maintainable in terms of Rule 4(5)(b) of the Central Administrative Tribunal (Procedure) Rules, 1987, being not joined by any single individual affected person. However, since the instant matter was originally filed before the Hon'ble High Court of Delhi as a Writ Petition and, thereafter, on transfer to this Tribunal numbered as the instant OA, we are not dismissing the same on the said ground.

The applicants i.e. Delhi Medical Technical Employees Association, who have filed this OA, have prayed that the scale of pay recommended by 3rd Central Pay Commission (CPC), 4th CPC and 5th CPC be extended to Lab Technicians (LTs) working in various hospitals of MCD. The applicants filed a Writ Petition No. 5081/2000 before the Hon'ble High Court of Delhi which they subsequently withdrew on 10.05.2005. In this Writ Petition the ground taken was of discrimination that Lab Technicians working in National Institute of Communicable Diseases and National Malaria Eradication Plan had been given 5th CPC recommended scale of pay w.e.f. 01.01.1996. Subsequently they filed Writ Petition No.22873/2005 before the Hon'ble High Court of Delhi which was transferred to the Central Administrative Tribunal by order dated 12.04.2017.

The prayer made in this Petition is as follows:-

"(i) To issue a writ of mandamus directing the respondents to grant the members of petition association the scale of pay of Rs.380-580 w.e.f. 1.1.73 when the recommendation of the 3rd Pay Commission was accepted by the Govt. of India and the Govt. of NCT of Delhi whereas the MCD implemented the recommendations from 6.4.93 consequently the members of the petitioner association were entitled to arrears of pay and allowances which is the difference between the scale of pay of Rs.380-560 and 330-560.

(ii) To issue a further writ of mandamus directing respondent MCD to grant the member of petitioner association the scale of pay recommended by the 4th Pay Commission for paramedical staff which was further revised to 5000-8000 w.e.f. 1.1.96 on the recommendation of the 5th Pay Commission. The member of the petitioner association are also claiming the arrears of pay and allowances calculated on the basis the scale of 5000-8000 from 1.1.96 till the date of actual grant of the scale.

(iii) Any other writ/order/directions that this Hon'ble Court may deem fit and proper in the above facts and circumstances of the case may also be granted to the members of the petitioner association."

It appears that LTs working in MCD hospitals were initially given scale of pay of Rs.330-560/- under the 3rd CPC, whereas recommendations of 3rd CPC were revised to Rs.380-560/-. As per the applicants they were given the scale of Rs.380-560/- w.e.f. 06.04.1993. Thereafter, the 4th CPC, without going into the nature and responsibilities of the job of paramedical staff working in the medical laboratories, recommended the general scale of pay of Rs.1320-2040/- as against the scale of Rs.380-560/-recommended by the 3rd CPC. The 5th CPC, while dealing with pay of the paramedical staff working in the medical laboratories and operation theatres recommended parity for posts carrying the same qualifications and duties. This included parity between Lab Technicians and OT Technicians. The 5th CPC recommendations were not accepted for LTs by the Govt. of NCT of Delhi for the LTs in the hospitals of the Govt. of NCT of Delhi. It also appears that Govt. of NCT of Delhi by order dated 29.01.2004 approved by the Govt. of India rolled back the scale of pay of OT/Lab Technicians from Rs.5000-8000/- to Rs.4000-6000/-. Govt. of NCT of Delhi ultimately granted the pay scale of Rs.4000-7000/- to Lab Technicians, whereas the scale of pay recommended by the 5th CPC for Lab Technicians was Rs.5000-8000/-.

The applicants have contended that the 5th CPC in Para 52.78 (iii) itself has created a confusion since they prescribed higher qualifications of B.Sc plus Diploma/Certificate in relevant subjects. Applicants also state that the only reasonable interpretation is that the qualifications will be applicable to direct recruitment in future. In other words, the educational qualifications prescribed will have prospective effect.

The respondents have filed a short affidavit in which they have pointed out that the OA is barred by time, delay and latches. Further, they have stated that they have granted several pay scales after this. They also stated that Lab Technicians in MCD have got revised pay scales of Rs.1320-2040 from the date on which Delhi Administration granted this pay scale to Lab Technicians, i.e., on 6.4.1993. They have denied that the 5th CPC pay scale of Rs.5000-8000/- has been accepted by the Govt. of NCT of Delhi. They have indicated that they are in process of amending the RRs of Lab cadre as per the recommendations of Pay Commission and accordingly after a decision of the Competent Authority, the same will be implemented, after the approval of House of the Corporation.

Heard Mr. Amit Anand, learned counsel for the applicant as well as Mr. D.S. Mahendru, learned counsel for the respondents.

Though the applicants had prayed for granting the scales of pay recommended by the 3rd, 4th and 5th CPC respectively but they did not press for 3rd and 4th CPC, as the relevant relief is time barred.

The applicants have relied upon the decision of the Coordinate Bench of this Tribunal in case of Bhartiya Pratiraksha Mazdoor Sangh & Ors. Vs. Union of india & Ors. decided on 11.10.2013. In that particular matter as per recommendations of the CPC though RRs were amended but the scale of pay was not given. The Coordinate Bench of CAT passed the following orders:-

" 12. From the recommendations of the 5th CPC it is quite clear that a differential was intended to be maintained between the Laboratory Technicians with upgraded qualification and those with the earlier qualification of Matriculation with DMLT and that is why the Pay Commission had recommended both the scales, i.e. Rs.1600-2660 and Rs.1320-2040. However, it nowhere said that the existing incumbents were debarred for consideration of higher scales even when they possess the required qualification.

In the light of the foregoing discussion, we are of the view that the issues raised by the applicants needs to be examined by the respondent no.1 and appropriate decision taken. Accordingly, we direct the respondents to take a final decision with regard to the representations submitted by the applicants and communicate their decision within a period of 03 months. Needless to add that the issue has been hanging in fire for nearly 15 years, without any satisfactory resolution and, therefore, the respondents would consider the matter with due urgency, taking into account the recommendations of the 5th CPC and our observations in the preceding paragraphs. The OA stands disposed of with the above directions. No costs."

It is clear from this order that a Coordinate Bench has held that a differential was intended to be maintained on the basis of qualifications. However, it did not debar the incumbents who possessed the required qualifications from consideration of higher scales of pay. In view of the matter, the applicants in the current OA have prayed that the enhancement of qualifications recommended by 5th CPC should not be applicable to them but only applicable to direct recruits for the future. The 5th CPC have included Para 52.78 (iii) in its recommendations wherein OT Technicians and Lab Technicians were equated and minimum qualification BSc + Certificate in the relevant subject was mentioned, with further remarks 'existing incumbent in each organization will be placed in appropriate matching pay scales'. The view of the applicants cannot be upheld since the intent of the 5th CPC was clearly to link scales with qualifications.

It appears from the perusal of the documents and oral arguments that there was always a differential between pay scales of Lab Technicians in GNCTD/MCD with those under Government of India. This situation prevailed with respect to both 3rd and 4th CPC, though some increase was given at a later date. This differential continued to be maintained in the 5th CPC perhaps due to their lower qualifications. MCD follows the decisions of Govt. of NCT of Delhi in this matter.

The applicants contend that 5th CPC was accepted for LTs of GNCTD. The applicants were given further opportunity on 13.11.2018 to file documents of GNCTD granting pay scales of Rs. 5000-8000/- to Lab Technicians under 5th CPC. However, they have filed Govt. of NCT of Delhi, Health and Family Welfare department Order No.F1(591)/TRC/H&FW/2013/Pt.File-I/1731-62 dated 7.09.2015 which only speaks about 6th CPC pay scales and does not refer to any 5th CPC pay scales of Rs. 5000-8000/- .

On the basis of above discussions, it emerges that a case cannot be made out for conferring of 5th CPC pay scales on LTs working in MCD hospitals. Further, 2 more CPCs have also taken place. Anomalies can be taken up before the Anomalies Committee. However, an overall view needs to be taken in this matter. The respondents averred in their counter reply way back in the year 2005 in the Hon'ble High Court that they are in process of amending the Recruitment Rules (RRs) as per the recommendations of the CPC. Though 13 years have passed this exercise has not been completed. As a result, the whole cadre is suffering for the reason that if ad-hoc view is taken there may be legal complications. Therefore, it is desirable that Recruitment Rules need to be amended and finalized at the earliest taking all aspects into consideration, especially recommendations of the relevant CPCs. We are, however, not issuing directions in the matter but suggesting this course of action.

With these observations, this OA is dismissed. There shall be no order as to costs.