CAT case OA 3052/2009 & MA 2118/2009 in AIIMS case

Central Administrative Tribunal
Principal Bench

OA No. 3052/2009
MA No.2118/2009

New Delhi this the 19th day of February, 2010.

Hon ble Mr. Shanker Raju, Member (J)
Hon ble Dr. Ramesh Chandra Panda, Member (A)

Sudesh Kumar & Others -Applicants

(By Senior Counsel Mr. G.D. Gupta with Shri S.K. Sinha, Advocate)

-Versus-


1. Union of India through the Secretary,
Government of India, Ministry of
Health and Family Welfare,
Nirman Bhawan,
New Delhi.

2. All India Institute of Medical Sciences
through its Director,
Ansari Nagar,
New Delhi-110029.

3. The Secretary,
Department of Expenditure,
Ministry of Finance,
Government of India,
North Block,
New Delhi. -Respondents


(By Advocates Ms. Lata Gangwani for Shri H.K. Gangwani and Shri Sanjeev Joshi for Shri Mukul Gupta)



O R D E R
Hon ble Mr. Shanker Raju, Member (J):


Applicants working as Private Secretary and Personal Assistant (hereinafter referred to as PS and PA) in All India Institute of Medical Sciences (AIIMS) impugn respondents orders dated 25.3.2009 and 26.4.2009 whereby the department of Expenditure, Ministry of Finance conveyed to the AIIMS as to non-extension of Non-Functional Selection Grade (NFSG) to the applicants at par with their counterparts in Central Secretariat Stenographers Service (CSSS) and also the request was rejected by the Government of India, Ministry of Health and Family Welfare. Only the normal replacement scale has been given and not the revised structure as recommended w.e.f. 1.1.2006 to the Central Government employees. Declaration of historical parity with counterparts has been sought for grant of PB-2 in the pay scale of Rs.9300-34800 and PB-3 in the pay scale of Rs.15600-39100 on completion of four years service in the grade of Rs.6500-10500 at par with their counterparts in CSSS, as recommended by the Governing Body of AIIMS to grant the pay scale w.e.f. 5.9.2006 with arrears.

2. Applicants are working as PS and PA in AIIMS, an autonomous organization under the Ministry of Health and Family Welfare. Government of India vide decision dated 24.6.2005 placed PS of Central Government in NFSG of Rs.8000-13500 vide letter dated 24.6.2005 on completion of four years approved service by PS, which has been given consent to by the Department of Expenditure, Ministry of Finance on 25.9.2006. This pay scale of PA was raised from Rs.5500-9000 to Rs.6500-10500 w.e.f. 15.9.2006. There has been a historical parity between the employees of CSSS and AIIMS. Accordingly, the Finance Committee on ratifying the proposal recommended this parity. However, the impugned orders rejected the proposal.

3. Learned senior counsel Shri G.D. Gupta appearing along with Shri S.K. Sinha, Advocate contended that as per Regulation 35 of AIIMS Service Regulations, 1999, any matter, which is not provided in the Regulations, Rules as applicable to the Central Government regarding pay and allowances shall be mutatis mutandis adopted. Moreover, in CWP No.3005/2008 decision by the High Court of Delhi on 28.8.2008 as well as in CWP No.4462/1994 in P.S. Gopinath Nair v. AIIMS, the High Court allowed the pay scales at par, which is now sought to be denied to the applicants.

4. Learned senior counsel would further contend that once the recommendations of the Central Pay Commissions had maintained parity between the applicants and their counterparts in CSSS, denying such parity is an invidious discrimination, violative of Articles 14 and 16 of the Constitution of India.

5. Learned senior counsel would contend that as per Regulation 35 of the Regulations of 1999 the claim of applicants is to be treated at par with their counterparts in CSSS.

6. Learned senior counsel states that there has been a historical parity between the cadres of AIIMS and CSSS and applicants discharge onerous duties and responsibilities comparable to their counterparts. The VI Central Pay Commission in paragraph 3.1.9 has accepted the parity and accorded the same, which has to be applied to the applicants.

7. Learned counsel would lastly contend that as the Standing Finance Committee of the Institute recommended parity on approval, which was ratified by the Governing Body, the decision of the Department of Expenditure cannot be countenanced in law. Learned counsel has relied upon a decision of the coordinate Bench of this Tribunal in S.R. Dheer & Ors. v. UOI & Ors., OA-164/2009, decided on 19.2.2009, wherein the same issue of parity has been upheld and on grant of benefits in the pay bands as per VI CPC recommendations as also NFSG the same has attained finality. Learned senior counsel seeks benefit of the aforesaid decision.

8. On the other hand, learned counsel of respondent No.3 would vehemently oppose the contentions and stated that as per Rule 7 (1) of the Rules it is for the Institute to create post and to approve the pay scale. It is in this backdrop stated that the residuary provision of Regulation 35 is not applicable and as an autonomous body the decision not to extend the revised pay scale and the NFSG is justifiable as Department of Expenditure has not approved it.

9. The other respondents, viz., Ministry of Health and Family Welfare though were served, respondents counsel having failed to file reply despite several opportunities, their right to file reply is forfeited. However, their contentions have been taken into consideration.

10. On careful consideration of the rival contentions, insofar as parity is concerned, in S.R. Dheer (supra) the following observations have been made by the Tribunal:

55. A discriminatory and contradictory stand is antithesis to the fairness in law. As the issue of NFSG of RS.8000-13500 to the OSs in case of CBI, a non-secretariat office at par with CSS/CSSS, decision in S.C. Karmakar (supra) was affirmed by the High Court of Delhi. Even the decision of the Tribunal in the case of R&AW Department has been implemented by the Government by grant of pay scale/NFSG to the concerned SOs, by order dated 19.01.2009 and also the SOs/PSs in AFHQ were allowed the pay scale on 25.09.2008. This clearly shows that the 6th CPC recommendations in para 3.1.9 have been adhered to not only in the case of SOs/PSs of the CSS/CSSS but also in the case of SO/PSs in other Organisations, who have had historical parity. As such, exclusion of the CAT employees and not meeting out the same treatment in respect of Grade Pay without any intelligible differentia having reasonable nexus with the object sought to be achieved, is an unreasonable classification and an invidious discrimination, which cannot be countenanced in the wake of Article 14 of the Constitution of India.

56. In the light of the discussions made above, issue no. (i) framed by us is answered to the extent that as in the matter of grant of pay scale there has been an unreasonableness and accepted recommendations having not been followed and applied to the applicants at par with their counterparts in CSS/CSSS, an exception has been carved out as per the trite law to interfere with the decision of the Government in judicial review by us.

As far as the issue No. (ii) is concerned, we have already concluded that the SOs/PSs of CAT have always had historical parity with their counterparts in CSS/CSSS.
Accordingly the issue no. (iii) is answered on the basis of the above observations that such an application is misconceived, misplaced and contrary to law.

57. Resultantly, for the foregoing reasons, we have no hesitation to hold that the decision of the Government to deny Grade Pay of Rs.4800/- in PB-2 to the PSs and SOs of the CAT initially and Grade Pay of Rs.5400/- in PB-3 on completion of four years service in the grade is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India, since they are having established historical parity with their counterparts in CSS/CSSS and, therefore, applicants are entitled to these Pay Bands with Grade Pay. The interim order is made absolute. The difference in arrears of pay shall be disbursed to the applicants within a period of one month from the date of receipt of a copy of this order. The OA is accordingly allowed to the aforesaid extent. No costs.


11. As we find that the parity has always been maintained between the applicants and their counterparts in CSSS and the Governing Body of AIIMS has also approved the proposal, non-extending the same, when all functional requirements are identical, is violative of the principle of equal pay for equal work , which has assumed a Fundamental Right as per the dicta of the Apex Court in State of Kerala v. B. Renjith Kumar, (2009) 1 SCC (L&S) 142. We also find the claim of applicant in pari materia with the claim of PS and PA in the Central Administrative Tribunal, where the issue of parity based on the VI CPC recommendations has since been upheld and the orders have been implemented, applicants cannot be discriminated despite being in autonomous organization by virtue of Regulation 35, where the Government Rules and Instructions and the decision in pay and allowances would mutatis mutandis extend to them.

12. In the result, for the foregoing reasons, OA is allowed to the extent we quash the impugned orders at Annexure A-1 and A-2. We direct re-examination of the claim of the applicants for grant of NFSG of Rs.8000-13500 w.e.f. 15.9.2006 and also extend revision of pay scale in PB-2 and PB-3 to the applicants with arrears by passing a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order. No costs.


(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)



San.