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Judgment
Delivered by: Mr. Anjani Nandan Sharan, Member (A)
Heard Shri Pradeep Kumar Tiwari, learned counsel for the applicants and Ms. Jyotsana Srivastava, learned counsel for the respondents.
The instant Original Application, under section 19 of the Administrative Tribunal Act, 1985, has been filed by the applicants, seeking following reliefs:
“1)To quash the orders dated 11.09.2023 passed by Respondent No.3 by which representation of the applicants have been rejected illegally by the Respondent No. 3
11)To direct the Respondent No. 3 and 4 to provide upgraded pay scale in Level-4 of 7th Central Pay Commission to the applicants as provided other employees as per Head Quarter Order vide file No. 111-A-18/15/OT-CSR/Court case-2022-admin-2 dated 23.11.2022 from the date of their promotion on the post of OT Assistant along with interest.
III) Any other and further order may be passed as this Hon'ble Tribunal may deem fit and proper under fact and circumstances of the instant case, in favour of the applicant.
IV) Award the costs of the petition to the applicant.”
The brief facts of the case, as stated by the applicants, are that the applicants joined the Employees’ State Insurance Corporation (ESIC) as Nursing Orderly through direct recruitment. The Applicant No. 1 joined the respondents’ department on 08.10.2010 and Applicant No. 2 on 23.03.2011. Thereafter, both the applicants were promoted as O.T. Assistants on 26.02.2020 and their initial pay fixation was carried out by the respondents vide order dated 30.03.2020 in Level-3.
It is the contention of the applicants that employees working on analogous posts in other regions of ESIC have been granted the upgraded pay scale corresponding to Pay Level-4 under the 7th CPC. They rely upon the order dated 23.11.2022 issued pursuant to the judgment of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 4644/2015 (Ajit Singh & Ors vs Union of India & Ors). The applicants have also relied upon the judgment passed by Principal Bench of this Tribunal in O.A. No. 2995/2014 (Dharmveer Singh Ranga & Ors. v. ESIC & Ors.) decided on 19.04.2016, wherein O.T. Assistants/CSSD/CSR Assistants were granted the pay scale of Rs. 4000-6000 on the ground of parity with similarly placed employees.
The applicants submitted representations dated 09.01.2023, followed by reminders dated 28.02.2023 and 10.04.2023, seeking grant of the upgraded pay level. Thereafter, they approached this Tribunal by filing O.A. No. 553/2023 before the Tribunal, wherein vide order dated 17.07.2023, the respondents were directed to consider and decide their representation by a reasoned and speaking order. In compliance thereof, the applicants’ representations were considered and were rejected vide the impugned order dated 11.09.2023.
It is the contention of the applicants that the rejection is arbitrary since the respondents themselves have admitted that similarly situated O.T. Assistants have been granted Pay Level-4 pursuant to the Tribunal's decision in O.A. No. 4644/2015. Feeling aggrieved, the applicants have again approached this Tribunal by way of filing the instant Original Application.
Counter affidavit has been filed by the respondents stating therein that the applicants who were party in the Original Application No. 4644/2015 were granted the benefit of Level-4 and the instant Original Application is liable to be dismissed.
Rejoinder affidavit has been filed by the applicants reiterating their averments.
Submissions of learned counsel for the parties have been heard and records have been gone through.
It is noted from the records that the applicants are seeking parity with similarly situated employees who have been granted Level-4 in compliance of the directions of Principal Bench of this Tribunal. It further reflects that the applicants have relied upon the judgment of Principal Bench of this Tribunal passed in Original Application No. 4644/2015. For better understanding, the relevant portion of the said judgment is quoted as under:
“The applicants are aggrieved that they have not been awarded the pay scale of Rs.4000-100-6000 pursuant to the recommendations of 5th Central Pay Commission (CPC) in the year 1996, whereas this pay scale has been awarded to several other similarly placed categories.
2.Brief facts of the case are that the applicants are variously employed/appointed and CSSD Assistant/Technicians as OT Assistants/CSSD Technicians in the Employees State Insurance Corporation (ESIC). Subsequent to the recommendations of 5th CPC in the year 1996, they were placed in the pay scale of Rs.3050-4590. The Central Civil Services (Revised Pay) Rules got introduced in the year 1997 and vide the Notification dated 30.09.1997 of the Ministry of Finance, several categories were awarded the pay scale of Rs.4000-100-6000/-. The applicants are aggrieved that all of these categories, which were awarded higher pay scale, were enjoying the same pay scale as the applicants prior to the recommendations of the 5th CPC …..
8.In view of the aforesaid, the present OA is disposed of with direction to the respondents to grant the pay scale of Rs.4000-100-6000 to the present applicants, in accordance with the order/judgment dated 19.04.2016 of this Tribunal in OA No.2995/2014 with connected OA titled Dharambir Singh Ranga Vs. Employees State Insurance Corporation & Ors. However, as directed in the judgment in OA No.2996/2014, the applicants shall be entitled to arrears only with effect from the date of filing of this OA, without any interest thereon. It is clarified that, as recorded, this OA was filed on 17.12.2016. They shall also not be entitled to payment of any interest upon the arrears so calculated. The respondents are directed to comply with the directions within a period of eight weeks from the date of receipt of a copy of this order. We add that this order shall be subject to the outcome of Writ Petition filed by the respondents challenging the earlier orders of this Tribunal on this issue…..
Learned counsel for the applicants have also placed the letter dated 23.11.2022, whereby the aforesaid order of this Tribunal has been implemented. The relevant portion of the said implementation order is reproduced as under:
“F.no.- 111-A-18/15/OT-CSR/CourtCase/2022-Admn.2Date:23.11.2022
To,
The Medical Suptd./Director(Med.)Noida.
ESI Hospital/D(M)N,
Okhla / Jhilmil/ Basaidarapur /Rohini/ Noida/ Faridabad/ Gurugram/
Manesar/ Sahibabad/ Delhi/Haryana /UP
Sub: Reg implementation of orders of Hon'ble CAT, PB. New Delhi in Q.A. no. 4644/2015 filed by Sh. Ajit Singh & Others,
Sir/Madam,
Please find enclosed Hqrs. Letter no. 18015/21/2022-LIG&INT dated 01/11/2022 along with the order dated 04/08/2022 passed by the Hon'ble CAT, PB, New Delhi in O.A. no. 4644/2015 filed by Sh. Ajit Singh & others, with the request to implement the same.
Compliance report of the above orders may be submitted at the earliest possible. This issues with the approval of Competent Authority.”
As per the applicants, Writ Petition No. 6414/2015 and connected matters have also been disposed of by the Hon’ble Delhi High Court vide order dated 04.02.2026. The relevant portion of the said order is quoted as under:
“1.Learned counsel representing the Petitioners are at ad idem that these writ petitions may be disposed of in terms of the order dated 02.02.2026, passed by this Court in W.P.(C) 3136/2006 and connected matters.
2.Learned counsel representing the Petitioners submit that in compliance of the order passed by the learned Central Administrative Tribunal, the Respondents who were working as Laboratory Assistants have been granted revised pay scale of ₹4,000-6,000, with effect from 01.01.1996, as per recommendations of Vth Central Pay Commission and the Respondents have already demitted office after attaining the age of superannuation.
3.They submit that while leaving the question of law open, the writ petitions may be disposed of as the Petitioners do not wish to make any recovery from the Respondents.
4.Keeping in view the aforesaid position, the present writ petitions along with the pending applications are disposed of while leaving the question of law open.
5.A photocopy of the Order passed today be kept in the connected matters.”
The above judgments relate to grant of pay scales w.e.f. 01.01.1996 after implementation of recommendations of 5th Pay Commission. In the instant case, it is noted that the applicants joined the Employees State Insurance Corporation (ESIC) through direct recruitment as Nursing Orderly on 08.10.2010 and 23.03.2011. Thereafter, they were promoted as OT Assistant in February, 2020. On their promotion their pay was fixed in Pay Level-3. The applicants have been arguing that their pay may be fixed in the Pay Level-4 as per headquarter order No. 111-A-18/15/OT-CSR/Courtcase/2022/asmin-2 dated 23.11.2022. The applicants are also praying for fixation of their pay in Level-4 in the light of order of Principal Bench of this Tribunal dated 04.08.2022 in OA No. 4644/2015. It is noted that in OA No. 4644/2015 the applicants were aggrieved that they had not been awarded the pay scale of Rs.4000-100-6000 pursuant to the recommendations of 5th Central Pay Commission (CPC) in the year 1996, whereas this pay scale has been awarded to several other similarly placed categories. Since the applicants have joined in 2010 and 2011 respectively i.e. much after the implementation of recommendations of 5th Pay Commission and the applicants were not born in cadre on 01.01.1996, the prayer of the said judgment in OA No. 4644/2015 will not apply to the applicants in the instant Original Application.
It is settled principle that an employee cannot clam pay scale parity, seniority or promotion benefits from a date or period when they were not yet appointed or “born” into that specific cadre. Similar issue fell for consideration before the Hon’ble Supreme Court in the case of Maheshkumar Chandulal Patel & Anr vs. The State of Gujarat & Ors. in Civil appeal No. …./2024 arising out of SLP(C) No. 9098/2018, wherein it was observed as under:
32.It is to be noted that in the present case, the anomaly in pay is not a direct result of Rule 21. Rather, the alleged anomaly arose because the 85 Assistant Professors [1984-95 Group] have been granted the benefit of Senior Scale/Selection Grade Pay by taking into account the ad hoc services that they have rendered in the past. Therefore, Rule 21 becomes inapplicable in the present case.
33.Moreover, if the present appeals are allowed, then it would amount to giving benefit to the appellants and others of the earlier years, during which admittedly they were not even born in the cadre and not even serving. This would go against the principle of equity. Such a benefit cannot be claimed by the Petitioners for the years of service that they have not actually rendered.
The respondents have rejected the representation of the applicants on 11.09.2023. The grounds mentioned in the case of both the applicants are similar and the grounds mentioned in the case of applicant-2 are reproduced as under:
“Brijendra Singh S/o Indrajeet is presently working as O.T. Assistant (w.e.f. 26.02.2020) in ESIC Hospital, Jajmau, Kanpur in pay level-3 as per 7" CPC as per applicable Recruitment Rules for the post of O.T. Assistant in ESIC.
1.He filed an O.A. No. 553/2023 before Hon'ble CAT, Allahabad for higher pay scale of Level-4 as per 7th CPC on basis of Head Quarter Order No. 111-A-18/15/OT-CSR/Courtcase-2022-admin-2 dated 23.11.2023 from the date of their promotion l.e. 26.02.2020 on the post of O.T. Assistant.
2.In his representation dated 09.01.2023, Brijendra Singh demanded higher pay Level-4 on ground on of Head Quarter Order No. 111-A-18/15/OT-CSR/Courtcase-2022-admin-2 dated 23.11.2023 as same has been given to similarly placed employee in ESIC.
3.I have gone through the relevant records. Perusal reveals that the higher pay Level-4 has been given only to the petitioner O.T. Assistant on the specific directions of Hon'ble CAT Principal Bench New Delhi in verdict OA No.4644/2015 Dated 04.08.2022.
4.Recruitment regulation for the post of O.T. Assistant prescribes for the pay Level-3 for the post. Therefore, Brijendra Singh is not eligible for higher pay Level-4,
5.In view of the aforesaid, the representation dated 09.01.2023 of Brijendra Singh lacks merit and cannot be acceded to.
The Speaking Order is issued in compliance of directions of Hon'ble CAT, Allahabad Bench in OA No.553/2023 Order Dated 17.07.2023.”
In view of above, it is noted that recruitment regulations for the post of OT Assistant prescribe Pay Level-3 for the post of OT Assistant and not Pay Level-4. Therefore, the applicants are not entitled for fixation of their pay in Pay Level-4. Therefore, no interference is warranted in the impugned order dated 11.09.2023 passed in respect of applicants. Accordingly, the instant Original Application stands dismissed.
Interim Order, if any, stands discharged.
All the related MAs stand disposed of.