CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

OA No. 1828/2008

New Delhi, this the 23rd day of November, 2010

HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN

HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A)

Shri Surindra Bhyakta

S/o Late Shri Inder Deo Bhakta

Aged about 40 yrs.

R/o 392, Devli, New Delhi

Working as Pharmacist in the office

Of 2, RES BN, C.I.S.F.,

Saket, New Delhi-110017  Applicant

(By Advocate: Ms. Ritika Chawla for Shri Arun Bhardwaj)

Versus

1. Union of India, through Its,

Secretary, Ministry of Home Affairs,

North Block, New Delhi

2. Director General,

Central Industrial Security Force,

Block No. 13, CGO Complex,

Lodhi Road, New Delhi-110003 Respondents

(By Advocate: Shri K.R. Sachdeva)

ORDER

Mr. L.K.Joshi, Vice Chairman (A)

The Applicant is before us in the second round of litigation. He had earlier filed an OA number 35 of 1997 before this Tribunal, which was decided on 04.09.2000. The following directions were given in the aforesaid OA:

4. In the circumstances, noting that a simple change in the designation is involved, the OA is disposed of with a direction to the respondents to review the matter and if necessary, consider making amendment to the relevant rules so as to grant the scale of pay of Rs.1350-2200/- to the applicant w.e.f. 1.1.86 on par with the other Central Police Organisations in terms of the letter of the Ministry of Health dated 19.7.55. The respondents are further directed to take a final decision in the mater as far as possible within a period of two months from the date of receipt of a copy of this order under advice to the applicant and after affording full opportunity to him to state his case. The respondents are also directed to pass a speaking and a reasoned order enabling the applicant to agitate the matter further, if necessary, in an appropriate forum or a court of law. An order was passed, following the directions given by this Tribunal, on 21.05.2001, in which it was, inter alia, stated that on being consulted, the Ministry of Finance raised the basic issue regarding the genuineness of the certificate of Pharmacy produced by the Applicant. A question was raised whether the diploma from the Ram Lakhan Singh College of Pharmacy, produced by the Applicant, was valid diploma or not. It was alleged that the diploma was forged. The following observations were made in the order adverted to above: 5. That thus it transpires that you approached the Honble Tribunal with soiled hands and your case is a total wrong representation of fact and abuse of process of Law, whereon a serious view was necessary. However, in view of the correct position of the matter the question of granting any benefit at this stage does not arise. Further, for the malafide played by you it has been necessitated that the whole matter be reviewed further in the light that the Diploma Certificate produced by you is false and necessary action to be taken in the matter afresh.

6. That, however, in case you have any explanation to make, you are given an opportunity to make representation within 15 days of the receipt of this letter.

Subsequently another order dated 26.07.2007 was passed after the Applicant was exonerated of the charge of gaining wrongful employment by producing fake diploma certificate. The following

observations were made in this order:

4. Thereafter, the matter was again referred to the Ministry of Finance for grant of upgraded pay scale of Rs. 1350-2200 retrospectively wef 01-01-1986. The matter was re-examined by the Ministry of finance, Department of Expenditure. After re-examination they have found that the directions of the Honble Tribunal are limited to the respondent to review the matter and if necessary, consider making amendment to the relevant rules., within a period of two months (as far as possible) after allowing the applicant an opportunity to state his case. In the light of the above directions it has been informed that charge of designation of post with retrospective effect and amendment of Rules in individual cases would be against the spirit of the Rules itself and as such would not be in public interest. Also, in terms of provision contained in GFR, benefits of upgraded pay scales can be given only prospectively.

5. In view of the foregoing discussions, the petitioner is hereby informed that his request for grant of pay scale of Rs. 1350-2200 wef 01-01-1986 could not be acceded to. However, consequent upon re-designation of his post from Compounder to Pharmacist in the higher pay scale of Rs. 1350-30-1440-40-1800-EB-50-2200 wef 9th June, 1996 vide Battalion Service order Part I No. 34/1996 dt. 26/29 June, 1996, his pay has already been fixed wef the same date vide Battalion Service order Part II No. 206/96 dt 05-08-1996. The two orders dated 21.05.2001 and 26.07.2007 have been assailed in this OA. The following reliefs have been sought by the Applicant:

a. Quash and set aside the impugned orders dt 26.7.07 [received on 14.8.07] and 21.5.01.

b. Direct the respondents to fix the pay of the applicant in the pay scale of Rs.1350-2200 w.e.f. 01.1.1986 with all consequential benefits including arrears of pay.

c. Pass any other order/s as may be deemed fit and proper in the facts and circumstances of the case.

2. The facts of the case in brief have been narrated hereafter. The Applicant was appointed as Compounder in the scale of pay of Rs.330-560 on 15.04.1985. The Applicant was holding the diploma of Pharmacist from Ram Lakhan Singh College of Pharmacy, Patna. The Government of India had taken a policy decision in 1955 that the Compounders working in the hospitals/dispensaries under the Central Government would be designated as Pharmacists. This was pursuant to the resolution passed by the Pharmacy Council of India. The communication addressed to the State Governments has been placed at Annex A/5 and reads thus: Sub:- Change of designation of `Compounders to `Pharmacists Resolution passed by the Pharmacy Council of India.

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I am directed to say that it was represented to the Govt of India that all `Compounders whose names had been included in the `first registers (Compiled under section 29 and 20 of the Pharmacy Act 1948) should be designated as `Pharmacist. This matter has been under the consideration of the Govt. of India for some time. Before a decision was taken, the matter had been referred to Pharmacy Council of India. That council agreed with the proposal. A copy of the resolution on the subject passed by the Pharmacy council of India at their meeting held on the 12th November, 1954 is enclosed. The change of designation of the Compounders to that of Pharmacists will not involve any change in their scale of pay which will continue to be regulated in accordance with the orders contained in the Govt. of India, Ministry of Finance O.M.No.1(53)-Est (Spl)/47 dated 14th April 1950 (copy enclosed for ready refer). I am to suggest that, if there is no objection, similar action in the mater may be taken by the State Governments in so far as Compounders/ Dispensaries working in hospitals dispensaries etc. under the State Governments are concerned. This Ministry may kindly be informed in the course of the action taken by the State Governments in the matter. The Fourth Central Pay Commission (FCPC) recommended that the Pharmacists and Radiographers, including X-ray Technicians, in the scale of Rs.350-560 should be given the scale of Rs.1350-2250. The relevant paragraph 11.82 of the recommendations of the FCPC is reproduced below: 11.82 Associations representing the above categories of posts have represented that there are no opportunities of promotion available to them. Considering the recruitment qualifications and the duties and responsibilities of the posts, we recommend that pharmacists and radiographers, including X-ray Technicians, in the scale of Rs.330-560 may be given the scale of Rs.1,350-2,200 and those in the scales of Rs. 425-640 and Rs.425-700 may be given the scale of Rs. 1,400-2,600. For improving the promotion prospects, we recommend that ministry may examine the desirability of a few higher level posts in the pay scale of Rs. 1,640-2,900. Following the above recommendation the Respondents fixed the pay of the Applicant in the scale of pay of Rs.1350-2200 by their order dated 19.01.1989. The scale was given provisionally subject to the final decision of the Ministry of Home Affairs, as follows: 2. The case in respect of Sh. Surendra Bhakta Compounder has been re-examined and it is stated that his pay in the revised scale may be fixed provisionally in the pay scale of Rs.1350-30-1440-40-1800-EB-50-2200, pending the receipt of final decision of Min. of Home Affairs regarding the pay scale applicable to Compounder/Pharmacists. However, the pay of the Applicant was re-fixed by order dated 09.01.1990 in the scale of pay of Rs.1200-2040, also ordering recovery of the excess amount paid according to the previous order. The Applicant made a representation dated 11.01.1990 praying for withholding the order dated 09.01.1990, till the Ministry of Home Affairs took the decision in the matter. Another representation was submitted on 23.12.1993 to inform the Applicant about the progress of his case. The Applicant was informed on 04.01.1994 that the Ministry of Home Affairs had not taken any decision in the matter and the Applicant would be apprised of the decision taken in due course. The Applicant gave a legal notice also on 05.08.1994. In reply to the legal notice, the Respondents informed the Applicant by order dated 26/29 June 1996 that he had been re-designated as Pharmacist in the higher scale of pay of Rs.1350-2250 with effect from 05.06.1996. The order reads thus: Consequent upon sanction of the President for the redesignation of the post of Compounder in CISF as Pharmacist, No. 851010087 Compounder Surender Bhakta of 2nd Res Bn CISF New Delhi is redesignated as PHARMACIST in the higher pay scale of Rs. 1350-30-1440-40-1800-EB-50-2200 with effect from 5th June 96. His pay in the higher new scale will be fixed accordingly. Aggrieved by the above order the Applicant gave a representation dated 31.07.1996 to the first Respondent-Ministry of Home Affairs praying that the scale of pay of Rs.1350-2250 should be made effective from 01.01.1986 instead of from the date from which it was sanctioned to the Applicant, that is, 05.06.1996. This was also rejected by order dated 05.12.1996. The Applicant thereafter approached this Tribunal in OA number 35/1993 for revision in the scale of pay on par with other Pharmacists of other Central Police Forces. The above OA was decided on 04.09.2000 with directions to take a final decision in the matter in a fixed time frame. The directions given by the Tribunal in the aforesaid Original Application have already been quoted above. In consequence of the directions given by the Tribunal, the impugned orders have been passed by the Respondents.

3. The learned counsel for the Applicant would contend that the orders of the Respondents are in violation of the Article 14 of the Constitution of India, being discriminatory in nature in as much as the benefit of the recommendations of the FCPC regarding the scales of pay of the Pharmacists have been given to the Pharmacists working in Government Hospitals/dispensaries including in the para-military forces. The Respondents have erred in not declaring the designation of the Applicant as Pharmacist in tune with the directions of the Government of India dated 19.07.1955, already adverted to above. This is especially so in view of the fact that the Applicant was holding the Diploma of Pharmacist at the time of his appointment. The Respondents have belatedly given the designation of Pharmacist to the Applicant and are unwilling to face the reality that the same should have been given with effect from 01.01.1986. The learned counsel for the Applicant further contended that the second Respondent-Central Industrial Security Force itself had accepted the contention of the Applicant in the note dated 09.03.1996 addressed to the Department of Expenditure, which is placed at Annex A-21. The aforesaid communication of the second Respondent has been reproduced in full below: Reference discussion dated 6.2.96 with the undersigned in the case of legal notice from Shri Surendra Bhakta, Compounder in CISF claiming for higher pay scale of Rs.1350-2200/- from 1.1.86 as per recommendation of 4th Pay Commission. The point-wise position as emerged during the discussion is clarified as under:- Qualification: As per Pharmacy Act, 1948, the qualification for a qualified Pharmacist are prescribed in Section 31 & 32 of the said Act, extract of the relevant Sections is enclosed.

In CISF, the qualification for a qualified Compounder/Pharmacist are also equivalent to those prescribed in Pharmacy Act, 1948. Thus these qualifications are at par with CGHS Pharmacist.

Mode of Induction/Method of Selection/ Percentage of Induction (Direct recruitment/ promotion) :- In CISF all the post of Compounders/ Pharmacists are filled through direct recruitment. The selection is made from amongst the open market candidates who apply for the said post, by a Board on the basis of interview conducted by the Board constituted for the purpose. The Medical Officer is always nominated as a member of the Board for selection of a Compounder/ Pharmacist. There are no feeder or higher post of Compounder in CISF. Therefore, there is no scope of promotion for the incumbents of the post as yet. Duties and Responsibilities: The duties of a Pharmacist in CGHS are prescribed in Chapter-III of CGHS Manual and extract of these duties is enclosed. In CISF, the Compounders are also supposed to perform all the duties as prescribed for Pharmacist in CGHS Manual. Thus, the duties of CGHS Pharmacist and CISF Compounder/Pharmacist are at par.

2. Recruitment for Pharmacist in other CPOs :- In CRPF the post is known as Pharmacist which carries the pay scale of Rs.1350-2200/-. A copy of the RRs for the post in CRPF was handed over during the discussion to the concerned Desk Officer as directed by Director. However, a copy of the same is enclosed for ready reference. Financial Implications: The financial implications of changing the name of post from Compounder to that of Pharmacist in accordance with the Govt. of India decision taken as back as in 1955 and allowing the pay scale of Rs. 1350-2200/- w.e.f. 1.1.86, are calculated as Rs,1,20,000/- (approx) per annum. In view of the position explained above, the claim for higher pay scale of Rs.1350-2200 made by Shri Surendra Bhakta, Compounder through his legal notice appears to be genuine on the following grounds namely:-

He possesses the qualifications of a qualified Pharmacist as required under Pharmacist Act, 1948 and which are at par with the Pharmacist of CGHS and other Govt. departments.

He carries out the duties and responsibilities at par with the Pharmacist in other Govt. departments and as prescribed in CGHS Manual.

The Govt. of India had taken a decision in 1955 to re-designate all the posts of Compounders under Govt. of India as Pharmacists.

In CRPF, a sister-organisation, the name of the Compounder has been changed to that of Pharmacist based on Govt. of India decision as stated above.

There was no difference in the pay scale of Compounder and Pharmacist prior to the recommendation of 4th Pay Commission effective from 01.01.86.

There is no mention of separate pay scale of Compounder in the Report of 4th Pay Commission recommendations. It only provides for pay scale of Rs.1350-2200/- for Pharmacist in para-9 pertaining to scales of para medical staff (copy enclosed). The position has also been got clarified from Ministry of Health Affairs vide their notes dated 30.9.95 (page 22&23/N main file already held with Ministry of Finance) that the Compounder in CISF may be designated as Pharmacist.

The various benches of the CAT have given their verdict in favour of the petitioners allowing the higher pay scale of Rs.1350-2200/- from 01.01.86.

A submission has been made before the Hyderabad bench of CAT at Hyderabad while contesting the case filed by Shri P.M. Kumar, Compounder of CISF that the matter is already under consideration with the Govt. in the case of Shri Surendra Bhakta on which the court has passed directions that the decision taken in the case of Shri Bhakta be also extended to the petitioner. In case of any adverse decision, he may approach the appropriate judicial forum for redressing the grievance.

5. In view of the above, it is required that the decision in the case of Shri Bhakta be conveyed at an early date.

Sd/-

( K.M. PAL )

ASSTT. INSPECTOR GENERAL/L&R

The learned counsel would place reliance on the judgement of the Cuttuck Bench of this Tribunal in D R Chatterjee and others V. Union of India and another, reported in (1990) 13 Administrative Tribunals Cases 293 in OA number 367 of 1987 decided on 13.07.1989. In this OA the applicants were Pharmacists under the Dandkaranya Development Authority (DDA) and were praying for grant of scale of pay of Rs.1350-2200. The Tribunal held thus: 5. There is no denying the fact that the applicants had the qualification prescribed in the recruitment rules and as the recruitment has been done under these rules, they ought to be given the pay scale prescribed for the post. The circular (Annexure A-1) is dated January 18, 1982 i.e. long after the report of the Third Central Pay Commission came into effect from January 1, 1973. As the Third Central Pay Commission recommended a pay scale of Rs.330-560 for the fully qualified Pharmacists and the applicants were fully qualified in terms of paragraph 125 of Chapter XVI of the Third Central Pay Commission, the extract of which is at Annexure R-3, they ought to have been given the pay scale of Rs.330-560 on their appointment as Pharmacists. However, I agree with Mr. A.B. Mishra that the claim for this scale of pay is barred by limitation under Section 21 of the Administrative Tribunals Act, 1985. As stated above, Mr. Pal does not claim benefit of this claim of pay under the report of the Third Central Pay Commission. All that he has asked for is that the applicants should be given the Pharmacists pay scale as has been recommended by the Fourth Central Pay Commission. I do not agree with Mr. A.B. Mishra that only because the applicants accepted the pay scale given by the D.D.A. in 1982, they will be deprived of the pay scale specifically recommended by the Fourth Central Pay Commission for Pharmacists. It is iniquitous to condemn for all time a man to the consequences of a wrong deed in which he once acquiesced. At the risk of repetition I may say that the Fourth Central Pay Commission has specifically recommended the pay scale of Rs.1350-2200 for Pharmacists and this recommendation should apply to the applicants and not the general recommendation for Group `C and `B posts, vide Annexure R-5. In certain circumstances, higher pay can be given for higher qualifications but when a particular level of qualification has been prescribed in the Recruitment Rules, there is no escape from giving the benefit of the Recruitment Rules to all those who have got the prescribed qualification. The facts of the case of State of J & K v. Trilokinath Khosa before the Honble Supreme Court are different from the facts of the present case. We are concerned here with a question of giving effect to the recommendations of the Fourth Central Pay Commission.

6. In view of what has been stated above, I hold that the applicants should be given a pay scale of Rs.1350-2200, as recommended by the Fourth Central Pay Commission and accepted by Government of India with effect from January 1, 1986. The arrears should be calculated taking into account the pay they have already drawn and they should be given the balance within three months from the date of receipt of a copy of this judgment.

4. The learned counsel for the Respondents would contend that the Applicant had been enrolled as Pharmacist only on 05.03.1992 and in view of this the question of giving the scale of pay from 01.01.1986 would not arise. It has been stated thus in paragraph 4.15 of the counter affidavit: 4.15 That the Applicant passed the Diploma in Pharmacy Examination in 1980 from Ram Lakhan Singh Yadav College of Pharmacy and got himself registered as Registered Pharmacist on 05.03.1992 i.e. after 11 years of his getting Diploma in Pharmacy. It is, therefore, not clear whether his Diploma from the said College was recognized prior to that and if so, from which date. In case his diploma was not recognized by the State Pharmacy Council, his appointment was irregular. It was further contended that the Applicant was designated as Compounder and his designation was changed to Pharmacist only with effect from 29.06.1996. The learned counsel for the Respondent would contend that the Applicant would be eligible for the revised scale of pay only from the date he was re-designated as Pharmacist. He would contend that the recruitment rules could not be changed for an individual to give that individual the benefit of re-designation with retrospective effect.

5. On considering the arguments of the learned counsel for the parties and perusing the documents which have been placed on record, we find that the Respondents have been changing their stance continuously. In the order dated 21.05.2001, the stand of the Respondents was that the plea of the Applicant could not be considered because he had secured employment on the basis of a fake certificate. Subsequently the stand taken was that change of designation of post with retrospective effect and amendments of the rules in individual case would be against the spirit of the rules themselves and would not be in public interest. We are unable to agree with this argument. The Applicant was appointed as Compounder on 15.04.1985. The designation of the Compounder had been changed to that of Pharmacist by an order passed 30 years earlier, that is, in the year 1955, as has been seen from the letter of the Government of India, which has already been quoted above. The matter, therefore, remains merely of semantics as far as the argument about the change of designation from Compounder to Pharmacist is concerned. In such view of the matter there would be no question of amending the recruitment rules for an individual. The Applicant should have been given the designation of Pharmacist from the outset of his appointment itself. It is not material as to the date from which the Applicant has enrolled himself as Pharmacist. It is not the case of the Respondents that it is a precondition for the appointment to the post of Pharmacist that the candidate should be registered with the Delhi Pharmacy Council. The Applicant has all the necessary qualifications for the post and that has not been denied. If it were not so the Applicant would not have been appointed to the post of Compounder, which has been re-designated as Pharmacist. The argument of the Respondents in this regard is that late registration of the Applicant with the Delhi Pharmacy Council, 12 years after his passing the examination, would show that his diploma might not have been recognized till 1992. The argument cannot be accepted now in view of the fact that the Respondents had conducted an enquiry in the matter regarding the alleged fake degree of the Applicant and given him clean chit, as discussed above. It is also not the case of the Respondents that the recruitment rules were amended on designating the post of Compounder to that of Pharmacist. The amendment of the recruitment rules would only entail change of designation from that of Compounder to that of Pharmacist, which, in any case, ought to have been done from the outset itself when the post of Compounder was created under the second Respondent, in the light of the directions of the Government of India dating back to the year 1955. In the case of D R Chatterjee (supra) also this Tribunal has held that a candidate with required educational qualification would be eligible to be given the scale of pay of Rs.1350-2200 in the grade of Pharmacist. The above cited case is of a piece with the instant OA. The second Respondent itself has given detailed reasons for upgrading the scale of pay of the Applicant in the letter dated 9.03.1996, which has been quoted in extenso above. None of these arguments have been considered by the Department of Expenditure. None of these arguments have been controverted in the impugned orders. The Respondents have also not contradicted the argument that the scale of pay of Rs.1350-2250 has been given to the Pharmacists in the hospitals/dispensaries of the Government, including the CPFCs.

6. In the light of the above discussion, we are of the considered opinion that the Applicant is eligible for the scale of pay of Rs.1350-2250 from 01.01.1986, when the recommendations of the Fourth Central Pay Commission were implemented. The Respondents are, therefore, directed to grant the scale of Rs.1350-2250 to the Applicant from 01.01.1986 and pay the arrears, as early as possible but not later than eight weeks from the receipt of a certified copy of this order. No costs. ( L.K. Joshi ) ( V.K. Bali )

Vice Chairman (A) Chairman