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2002 DIGILAW 1617 (DEL)

EMPLOYIS STATE INSURANCE CORPORATION v. DWARKA NATH

2002-10-11

body2002
ANIL DEV SINGH ( 1 ) THIS is a writ petition whereby the appellant challenges the order of the Central administrative Tribunal, Principal Bench, New Delhi, in O. A. No. 347 of 2001 dated february 12, 2002. By that order the Central Administrative Tribunal allowed the o. A. to the extent that the petitioners were directed to consider revising the pay scale of the post of Blood Bank Technicians attached to the Employees State Insurance corporation (E. S. I.), talcing into account the pay scales granted to the other Laboratory technicians employed with the E. S. I. This direction was required to be implemented within four months from the date of receipt of the copy of the order of the Central administrative Tribunal. Upon the pay scales of Laboratory Technicians of the Blood bank being revised pursuant to the directions of the Central Administrative Tribunal, the respondents were required to be given consequential benefits as are admissible in accordance with the rules, instructions and judicial pronouncements on the subject. The facts are not many and can be stated thus: ( 2 ) THE respondents are employed with the Employees State Insurance Corporation ltd. as Blood Bank Technicians in the E. S. I. Hospital, Basai Darapur, New Delhi. From January 1, 1996 the respondents are in the pay scale of Rs. 4,000-6,000. Prior to the report of the Fifth Pay Commission, all Laboratory Technicians were placed in the pay scale of Rs. 1,320-2,040. This grade was applicable to the Laboratory Technicians including Blood Bank Technicians. As a sequel to the recommendation of the Fifth Pay commission, the pay scale of Rs. 1,320-2,040 applicable to the Laboratory technicians including Blood Bank Technicians was revised to Rs. 4,000-6,000. Subsequently, on March 26, 1999 the pay scale of Rs. 4,000-6,000 to Rs. 4,500-7,000 was further revised, but employees working in the Blood Bank of the E. S. I. Hospital were denied this scale and instead have been receiving the scale of Rs. 4,000-6,000. The respondents, who are two in number, as already pointed out, are working as Blood bank Technicians in the ESI Hospital. Since they were denied the grade applicable to the Laboratory Technicians in the Central Government and other offices of the employees State Insurance Corporation, they filed O. A. No. 347/2001 before the central Administrative Tribunal, Principal Bench, New Delhi, claiming parity of pay scale with other Laboratory Technicians. Since they were denied the grade applicable to the Laboratory Technicians in the Central Government and other offices of the employees State Insurance Corporation, they filed O. A. No. 347/2001 before the central Administrative Tribunal, Principal Bench, New Delhi, claiming parity of pay scale with other Laboratory Technicians. The Central Administrative Tribunal vide its order dated February 12,2002 allowed the application to the following effect:- " In the light of the foregoing the O. A. succeeds and is allowed to the extent that Respondents should consider revising the pay scale of the post of blood Bank Laboratory Technicians taking into account the pay scales granted to the Laboratory Technicians and other surrounding facts and circumstances. The directions should be implemented within four months from the date of receipt of a copy of this order. Upon the pay scales of the post of Blood Bank Lab. Technicians being revised pursuant to these directions applicant shall be entitled to consequential benefits as are admissible in accordance with rules, instructions and judicial pronouncements on the subject. " ( 3 ) THE petitioners, Employees State Insurance Corporation and the Medical superintendent, ESIC- Hospital, have filed the instant writ petition challenging the aforesaid order passed by the Central Administrative Tribunal. We have heard the learned counsel for the petitioners. The learned counsel for the petitioners submitted that the nature of the work performed by the Blood Bank Technicians is different than that performed by the Lab Technicians. It was claimed that the two types of technicians do not discharge similar duties, functions and responsibilities. ( 4 ) THE learned counsel for the petitioners relied upon the decisions of the Supreme court in Federation of All India Customs and Central Excise Stenographers (Recognised) and others v. Union of India and others. AIR 1988 S. C. 1291; K. S. Mahalingegowda and others v. Secretary to Government. Department of Vocational education, Kamataka and others. 1995 Supp (2) S. C. C. 95; and Puma Chandra Nanda v. State of Orissa and another, (1996) 9 SCC 221 , in support of the submission that the blood Bank Technicians cannot claim the same pay scale as is being paid to the laboratory Technicians w. e. f. January 1, 1996 on the ground of dissimilarity of responsibilities, nature of duties and types of work. According to him, the principle of equal pay for equal work does not apply to the instant case. According to him, the principle of equal pay for equal work does not apply to the instant case. ( 5 ) WE have considered the submissions of the learned counsel for the petitioners. But we do not find any reason to interfere with the impugned decision of the Tribunal. It must be clearly understood that prior to the recommendations of the Public Service commission all the Lab. Technicians including Blood Bank Technicians, whether in the ESI Hospital or the Central Government, were in the same scale of Rs. 1,320-2,040. Pursuant to the recommendations of the Fifth Pay Commission, revised scale of rs. 4,000-6,000 was made applicable to the Lab. Technicians as well as the Blood Bank technicians. Therefore, the parity was being maintained earlier to the recommendations of the Fifth Pay Commission and even after the recommendations. Thus, the parity was time tested and maintained over long period of time obviously for the reason that both Lab. Technicians and Blood Bank Laboratory Technicians were performing similar fonctions and discharging same type of duties and responsibilities. It is not the case of the petitioners that when same scale of pay was fixed for the Lab. Technicians and Blood Bank Technicians it was not the result of value judgment of the administrative authorities who were charged with the duty and responsibility of fixing the scales of pay and other conditions of service. It is not even urged that in the past when the decision was taken by the administrative authorities to fix same pay scale for the Technicians, some material which ought to have been considered escaped their attention or some material which was not relevant by mistake was taken into consideration by them. It is not even pleaded that earlier decision bringing into being the parity in the scales was wrong. While there cannot be any quarrel with the proposition of law laid down by the decisions cited by the learned counsel for the appellant, but neither before the Tribunal nor before us any cogent reason for differentiation in the pay scales has been established. ( 6 ) IT was pointed out by the learned counsel for the petitioners that as per the recruitment regulations the requisite qualifications for the two posts are different. ( 6 ) IT was pointed out by the learned counsel for the petitioners that as per the recruitment regulations the requisite qualifications for the two posts are different. This argument was sought to be made out on the basis of the following parts of the regulations- ( 7 ) THE aforesaid regulations show that the basic qualification for both the posts is more or less the same. The requirement of being a Science Graduate, or matriculation or having an equivalent qualification with diploma in Medical lab. Technology is the same for the Lab Technicians as well as Blood Bank Lab Technicians. While for the post of Lab Technician an experience of one year in the line is required, for the post of blood Bank Technician two years experience in Blood Bank is needed. This shows that an aspirant for the post of Blood Bank Technician is required to have higher experience than an incumbent applying for the post of Laboratory Technician. It is important to note that the aforesaid qualifications for the posts of Technicians, namely, blood Bank Lab Technicians and Lab Technicians, were prescribed as far back as 1985 vide Notification No. A-11 (11)-13m-Estt. I (A) dated February 18, 1985 read with notification No. A/12/11/3/76-Estt. I July 29, 1978. Despite the so called difference in the prescribed qualifications for the post of Lab Technicians and Blood bank Lab technicians, same pay scale was made applicable to them. In case there was real difference between the qualifications, functions, duties and responsibilities attached to the two posts, surely the same scale of pay would not have been fixed by the authorities for the incumbents thereof. In other words, unless the Blood Bank Lab Technicians were performing equal work as was/is being performed by Blood Bank Technicians and the Lab Technicians, the former would not have been given same scale of pay as was given to thelatter. It needs to be highlighted that the parity in pay scales continued for more than a decade. This was obviously in recognition of the principle of equal pay for equal work. It has not been pointed out by the learned counsel for the petitioners as to what change took place in the nature of functions, duties and responsibilities attached to the two posts which suddenly made the authorities create two different scales of pay for Laboratory Technicians and Blood Bank Technicians. It has not been pointed out by the learned counsel for the petitioners as to what change took place in the nature of functions, duties and responsibilities attached to the two posts which suddenly made the authorities create two different scales of pay for Laboratory Technicians and Blood Bank Technicians. That apart, the Tribunal has pointed out that under proviso to section 17 (2) (a) of the employees State Insurance Act, 1947, prior approval of the Central Government for making a departure from maintaining parity of pay scale in respect of Blood Bank technicians and Laboratory Technicians has not been obtained. Reacting to the observation of the Tribunal the learned counsel for the petitioners has presented before us a memorandum dated March 26, 1999 issued by the Joint Director-Ill, Employees state Insurance Corporation, conveying the approval of the Financial Commissioner for adoption of orders contained in the letters of the Government of India, Ministry of health and Family Welfare No. Z-28021/29/27-PMS dated April 7, 1993, No. Z- 28021/22/97-PMS dated April 24, 1998 and No. Z-28021/53/97-PMS dated April 16, 1998, thereby revising the pay scales of certain categories of employees of the E. S. I. including Laboratory Technicians w. e. f. January 1, 1996. According to the aforesaid memorandum, the pay scale of the Laboratory Technicians was revised from Rs. 4,000- 100-6,000 to Rs. 4,500-125-7,000. But that does not mean that the Central Government had considered and approved the departure in maintaining parity of pay scales between blood Bank Technicians and Laboratory Technicians. Nothing has been brought on record to show that the queston was ever brought up before the Central Government in consonance with section 17 (2) (a) of the Employees Estate Insurance Act, 1947. ( 8 ) IN view of the aforesaid discussion, we do not find any merit in the writ petition. Accordingly, the same is dismissed.