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Bhagwati Prasad v/s Postgraduate Institute of Medical Education & Research, Sector 12, Chandigarh through its Director & Others


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    OA No. 060/00792 of 2015

    Decided On, 16 December 2016

    At, Central Administrative Tribunal Chandigarh Bench

    By, THE HONOURABLE MR. SANJEEV KAUSHIK
    By, MEMBER (J) & THE HONOURABLE MRS.RAJWANT SANDHU
    By, MEMBER (A)

    For the Applicant: Karan Singla, Advocate. For the Respondents: Sanjay Goyal, Advocate.



Judgment Text

Rajwant Sandhu, Member, A.

1. The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-

i) That the impugned office order dated 11.11.2014, Annexure A-7 may be quashed and set aside being illegal, arbitrary and discriminatory.

ii) That the respondents be directed / ordered to re-designate the applicant as Security Guard Grade II and place him in the pay scale of Rs. 800-1150 w.e.f. 3.10.2000 as recommended by SFC dated 2.8.2011 and GB dated 15.3.2000 by amending the decision of subject to approval of respondent No. 4, as allowed to erstwhile Institute Guards.

iii) That the respondent be directed to grant all subsequent benefits after re-designation of applicant as Security Guard Grade II in the Main Cadre of Security Division w.e.f 3.10.2000 including considering him for promotion as Security Guard Grade I and further in the hierarchy from the date his juniors have been promoted by fixing his inter se seniority from the date of joining the respondent Institute.

iv) That respondents be directed / ordered to pay interest @ 12% on delayed payment of proper pay fixation in the pay scale of Rs. 800-1150 w.e.f 3.10.2000 to 31.12.2005 and on the difference of arrears of pay and allowances after 1.1.2006 under 6th CPC.

2. It is stated in the OA that the applicant joined the services of respondent Institute as Work Charge (Regular) vide appointment letter dated 22.5.1984. The services of the applicant were made permanent / confirmed w.e.f. 1.4.1988 vide Office Orders dated 16.11.1988 (Annexure A-1 colly). The applicant did not get any promotion for more than 15 years from 24.5.1984 to 9.8.1999. On 5.12.2000, the Screening Committee of respondent Institute recommended 1st financial up-gradation under the ACP Scheme, 1999 w.e.f. 9.8.1999 in the pay scale of Rs. 2610-3540 and his pay was fixed under FR 22 at Rs. 3215 on 9.8.1999 and at Rs. 3280 w.e.f. 1.8.2000 i.e. from the date of next increment. The applicant attained the age of superannuation i.e. 60 years on 31.1.2015.

3. It is further stated that the respondent Institute has approved the recommendations of 2nd Cadre Review Committee in respect of Engineering Staff of PGI in SFC meeting dated 13.7.2005, Governing Body dated 31.8.2005 and Institute Body dated 20.12.2005 and made the following recommendations in respect of the four posts of Chowkidars ;

'It is felt that the security of the whole PGI should be under one wing or Division. So that control of Chowkidars in the Engineering Department should be transferred to the Security Division of the Institute and the Chowkidars in the Engineering Department should be given the same scale and designation as recommended by the Cadre Review Committee for security staff of Security Division.'

On 23.5.2006, respondent No.3 issued an Office Order transferring the services of applicant along with 3 other Chowkidars to their respective cadres in the Main Cadre of the Institute with immediate effect (Annexure A-3). The respondent No. 2 placed the services of applicant in the cadre of Security Guards Grade II and as such they had been discharging the jobs, duties and responsibilities of Security Guard Grade II and performing round the clock shift duties including on Sundays and gazetted holidays.

4. It is also stated that neither respondent No.2 nor respondent No. 3 took any further action for 5 years to implement the decision of 2nd Cadre Review Committee to grant same scale and designation as recommended by the Cadre Review Committee for security staff of Security Division. Finally, after persistent efforts by applicant through PGI Employees Union, the respondents placed agenda No. 21 before the Standing Finance Committee of Institute in its meeting held on 2.8.2011. The subject matter of the agenda for up-gradation of posts of Chowkidars to Security Guard Grade II was in contradiction to the recommendations made by the 2nd Cadre Review Committee, which recommended granting the same pay scale and designation as recommended by the Cadre Review Committee for security staff of Security Division. However, the SFC approved the proposal. The copy of agenda item No. 21 of SFC dated 2.8.2011 and relevant part of minutes / proceedings are being attached as Annexure A-4 (Colly). On 28.4.2012, the Governing Body ratified the minutes of SFC dated 2.8.2011 subject to the condition that all matters relating to creation & up-gradation of posts will be referred to the Union Ministry (Annexure A-5). As such the case of applicant was wrongly and arbitrarily referred to respondent No. 4 although the Director of respondent Institute is the Appointing and Disciplinary Authority for Group B, C and D categories of employees and respondent No. 1 is the Cadre Controlling Authority of Group B, C and D employees. Therefore, the reference made by Governing Body to Union Health Ministry, respondent No. 4, which has no power and authority to deal with such administrative matters under the provisions of PGI Act, was illegal and arbitrary. The respondent Institute and respondent No. 4 have filed separate affidavits in this regard in OA No. 1541 of 2013 admitting these facts. Copies of affidavits dated 24.12.2014/15.1.2015 filed by respondent No. 1 and dated 18.2.2015 by respondent no. 4 are being attached as Annexure A-6. Judgment dated 13.11.2014 in OA No. O.A.No.893/CH/2013 titled Jatinder Singh Vs. UOI and Others has been cited to buttress the contentions of the applicant that the Director, PGIMER was the cadre controlling authority of Group B, C and D employees and therefore, references made to the Union Ministry, respondent No. 4 were unwarranted.

5. It has further been stated that the respondent Institute did not take a final decision in true letter and spirit of 2nd Cadre Review Committee Report reproduced above. Therefore, the applicant and another filed OA No. 433/PB/2013 titled Ram Julum and another before this Tribunal. On 13.2.2014, this Tribunal directed respondent Institute to convey the decision within 3 months. On 11.11.2014 (Annexure A-7), the respondent No. 2 conveyed the illegal, arbitrary and discriminatory impugned office orders approved by respondent No. 1. There has been total non-application of mind on the part of respondent No.4 while dealing with the case of applicant and further it has examined the case of applicants in reference to the qualifications prescribed by 5th and 6th CPC for new recruit employees in Group D whereas the applicant and 3 other Chowkidars were initially recruited as Daily Wagers in the year 1976 on the basis of Recruitment Rules prevailing at that time and they were appointed on the substantive post of Chowkidar Work Charge (Regular) vide Appointment Letter dated 22.5.1984 (Annexure A-1). The claim of applicant and 3 other Chowkidars was rejected on the plea that they did not fulfill the requite educational qualifications and experience of the post of Security Guard Grade II as prescribed for Main Security Cadre of respondent Institute by the 2nd Cadre Review Committee w.e.f. 1.3.1992, which was approved by respondent No.3 vide letter dated 8.7.1996. Therefore, the applicant and 3 other Chowkidar were not allowed the re-designation as Security Guard Grade II and the pay scale of Rs. 2650-4000 w.e.f. 3.10.2000.

6. It is also stated that the 2nd Cadre Review Committee of Engineering Staff has recommended to grant same pay scale and designation to applicant as allowed by the Cadre Review Committee for security staff of Security Division. The SFC and GB of respondent Institute recommended the re-designation of applicant from Chowkidar to Security Guard Grade II and to grant him the pay scale of Rs. 800-1150 w.e.f. 3.10.2000 as proposed by PGI Administration. It is also clearly evident from the Agenda of SFC dated 2.8.2011 that 76 Institute Guards who did not possess the requisite educational qualification for the new post of Security Guard Grade II under 2nd Cadre Review Report w.e.f. 1.3.1992 were allowed the re-designation / placement in higher pay scale of Rs. 800-1150 by the SFC dated 4.5.1999. On 15.3.2000, the Governing Body of Institute ratified the decision of SFC dated 4.5.1999. The Institute Guards who were even illiterate were re-designated as Security Guard Grade II and placed in the pay scale of Rs. 800-11500 w.e.f. 1.3.1992. The respondents did not discriminate with the Institute Guards recruited prior to 2nd Cadre Review i.e. 1.3.1992 for re-designation as Security Guard Grade II and for placing them in the higher pay scale of Rs. 800-1150 from Rs. 750-940 w.e.f. 1.3.1992. Since the Institute (Institute Body) is the Cadre Controlling Authority and Director of Institute is the appointing and Disciplinary Authority under Schedule II of PGI Act, therefore, the SFC decision dated 4.5.1999 and GB decision dated 15.3.2000 was not made subject to the approval of respondent No. 4 and was implemented by respondent Institute at their own level.

7. It is further stated that the Governing Body of the Institute in its meeting held on 28.4.2012 has made a patent error by treating the case of the applicant for re-designation and placement as creation and up-gradation of a post. Even otherwise, the respondent Institute is competent to create posts under Rule 7 (1) of PGIMER, Chandigarh (Rules) 1967 of PGI Act except the post of Professor and the respondent No.4 has no role, statutory power and authority under PGI Act. The 2nd Cadre Review Committee of Engineering Staff in its report, which had been approved by SFC, GB and IB as stated above had categorically recommended to grant same pay scale and designation to applicant as allowed and recommended by the Cadre Review Committee for security staff of Security Division. In view of these hard facts, the respondents have illegally and arbitrarily rejected the claim of applicant vide impugned office orders dated 11.11.2014 and singled out the applicant for discriminatory treatment, which needs to be quashed and set aside. The applicant deserves to be allowed all subsequent and consequential benefits after re-designation of applicant as Security Guard Grade II in the Main Cadre of Security Division w.e.f 3.10.2000 including considering him for promotion as Security Guard Grade I and further in the hierarchy from the date his juniors have been promoted by fixing his inter se seniority from the date of joining the respondent Institute. Hence this OA.

8. In the written statement filed on behalf of the respondents, it has been stated that as per record, applicant was getting pay scale of Rs. 2550-3200 (Central pay scale). Thereafter, he was granted pay scale of Rs. 2610-3540 from 09.08.1999 under ACP (5th CPC). After implementation of 2nd cadre review in Engineering Department, applicant was shifted to Security division along with other chowkidars w.e.f. 06.07.2006 vide order No.PGI/Engg/SHE/2006/4319. His case for up-gradation was initiated in 2009 and the agenda was placed before the SFC/GB of the Institute. In the meetings held on 02.08.2011 and 28.04.2012, the said bodies decided that all the matters related to creation and up-gradation of posts be referred to the Ministry (Annexure R-1). Accordingly, the case of the applicant for up-gradation was sent to the Ministry on 04.08.2012 (Annexure R-2). In response to the letter dated 04.08.2012, Ministry sought some information under points A to C, vide letter dated 25.09.2012 for considering the proposal (Annexure R-3). In response to the letter of the Ministry, reply was sent on 06.11.2012. During this period, applicant filed OA No.433/PB/2013 before this Tribunal for up-gradation. The same was disposed of by this Tribunal, directing the respondents to convey the decision regarding reference made by the PGIMER, Chandigarh on the subject of up-gradation of the post of Chowkidars transferred from Engineering Department to Security Division within three months.

9. Since the applicant did not fulfill the requisite qualification i.e. matric for up-gradation to the post of Security Guard Grade-II, the same was rejected by the Ministry. The case for financial up-gradation has already been considered and applicant was granted grade pay of Rs. 1800/- in the pay scale of Rs. 5200-20200 from 01.01.2006. In view of the recommendation of 6th CPC, he was imparted training of adult literacy on dated 14.07.2014 and thereafter he was placed in the pay band of Rs. 5200-20200 GP 1800/- with effect from 01.01.2006. Accordingly, arrears amounting to Rs. 90000/- (approximately) was paid to him under benefit of service. Besides this, his case for placing him in the pay band of Rs. 5200-20200+ GP 2000 and GP 2400 is under process and the same will be finalized in due course.

10. It has also been stated that Ministry of Health and Family Welfare rejected the case of the applicant for upgradation as the applicant, a Chowkidar, did not fulfil the requisite qualification of matric. It is also stated that all the officials who were fit for the post of Security Guard Grade II, have been promoted as such taking into consideration their date of joining and seniority etc. The case of the applicant for allowing 50% benefit of the daily wage service rendered by him was also stated to be under consideration.

11. In the rejoinder filed on behalf of the applicant, it has been stated that it is a settled law that the subsequent enhancement / improvement of Recruitment Rules and Educational qualifications should not affect the prospects of an existing employee who is discharging and performing same jobs, duties and responsibilities. The respondent Institute has revised the Recruitment Rules and Educational Qualifications of various categories of Faculty and non-Faculty staff of Institute but these have never affected the prospects of existing employees in respect of grant of pay scales, allowances and promotions / ACP / MACP. The respondents have already re-designated 76 Institute Guards who did not possess the requisite educational qualification for the new post of Security Guard Grade II under 2nd Cadre Review Report w.e.f. 1.3.1992 but were allowed the re-designation / placement and higher pay scale of Rs. 800-1150 by the SFC dated 4.5.1999. It is denied that the case of applicant for financial up-gradation was considered and he was granted Grade Pay of Rs. 1800 in the pay scale of Rs. 5200-20200 from 1.1.2006. As a matter of fact, the respondents have illegally and arbitrarily delayed the pay fixation of applicant in the Grade Pay of Rs. 1800 under 6th CPC by delaying in deputing him for training for consideration and grant of Grade Pay of Rs. 1800 under 6th CPC w.e.f. 1.1.2006, which has been implemented at the respondent Institute in the year 2008. The respondents arranged the training of applicant as prescribed under 6th CPC after a delay of 5-6 years in September, 2014. Thus the applicant was deprived of pay fixation in Grade Pay of Rs. 1800 under 6th CPC w.e.f. 1.1.2006 till October, 2014 and respondents continued paying him salary in the lower Grade Pay of Rs. 1400 without making proper pay fixation under 6th CPC w.e.f. 1.1.2006 thus causing financial loss and hardship. The grant of Grade Pay of Rs. 1800 under 6th CPC w.e.f. 1.1.2006 amounts to pay fixation and not up-gradation of post or pay scale.

12. It is unfortunate that the respondents did not allow even a single promotion to the applicant in his entire career of more than 30 years and even did not consider him for grant of 2nd and 3rd ACP / MACP in the GP of Rs. 2000 and Rs. 2400 w.e.f. 24.5.2008 and 24.5.2014 are shamelessly claiming that the matter is still under process for 2nd and 3rd financial up-gradation under ACP / MACP Scheme and will be decided in due course whereas the applicant had already retired on superannuation w.e.f. 31.1.2015. Besides, the respondents were linking the case of redesignation of the applicant with upgradation and educational qualifications ignoring the fact of redesignation of 76 Institute Guards as Security Guards Grade II in the pay scale of Rs. 800-1150 by Apex Body of PGIMER without insisting for the compliance of RRs and educational qualifications and this had been effected under 2nd Cadre Review, 1992.13. Arguments advanced by learned counsel for the parties were heard when learned counsels reiterated the facts and grounds taken in the OA, rejoinder and written statement respectively.

14. We have given our careful consideration to the matter. It is seen from the material on record that the applicant was a Chowkidar working in the Engineering Department of the PGIMER. He was in the pay scale of Rs. 2550-3200 which was the corresponding scale of Rs. 750-940 which was the pre-5th CPC scale at the entry level. The 5th CPC had recommended merger of Group D comprising Peons, Daftries, Chowkidars and Security Attendants etc and the prescribed qualification at this level was middle i.e. 8th standard. The 2nd Cadre Review was implemented in Engineering Department w.e.f. 03.10.2000 and it was recommended that the security of the whole PGI should be under one Division or Wing. The control of the Engineering Department Security should be transferred to the Security Division of the Institute and Chowkidars in the Engineering Departments should be given the same scale and the pay scale as recommended by the Cadre Review Committee for security staff of the Security Division. The actual shifting of the four Chowkidars of the Engineering Wing to the Security Division was effected through order dated 06.07.2006 and since then, these Chowkidars were discharging the jobs, duties and responsibilities of S

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ecurity Guard Grade II. With their shift to the Security Division and the implementation of the scales recommended by the 6th CPC, these Chowkidars were given the scale of pay of Rs. 5200-20200 with Grade Pay of Rs. 1800 which was the lowest level in PB I. Since the applicant only underwent the Adult Literacy Programme on 14.07.2014, his actual grade pay revision to Rs. 1800 from Rs. 1400 was effected in this scale on that date, but w.e.f. 1.1.2006. Since the applicant was a Chowkidar and not an Institute Guard prior to 2006, the claim for redesignation as Security Guard II and placement in the scale of Rs. 800-1150 w.e.f. 1.3.1992 cannot be supported. The 76 persons who, it is alleged, did not also fulfil the qualifications of 8th class/matric, were redesignated as Security Guards Grade II in the pay scale of Rs. 800-1150 w.e.f. 1.3.1992, were Institute Guards earlier also. This decision was taken in SFC of 04.05.1999 approved by GB on 15.3.2000. The applicant did not claim parity at that time. 15. However, it is seen that in the written statement, the respondents have admitted that although the applicant retired from service on 31.01.2015, his case for 2nd ACP w.e.f. 24.05.2008, 3rd MACP w.e.f. 24.05.2014 and counting of 50% of the daily wage service for pensionary benefits is still pending. The respondents are hence directed to finalize their decision on these three pending issues in respect of the applicant within a period of two months from the date of a certified copy of this order being served upon the respondents and arrears due to the applicant may be released within the same time frame. The pension of the applicant would also have to be revised and further delay in the matter cannot be countenanced. The arrears in regard to revision of pensionary benefits may be released within a further period of two months and interest on delayed payment may be allowed in accordance with the rules. OA is disposed of accordingly. No costs.
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