OA NO.80 of 2002 on ????????????????

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE

ORIGINAL APPLICATION NO.80/2002

DATED THIS THE DAY OF ............., 2011

HON'BLE DR. K.B.SURESH ... MEMBER(J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER(A)

Smt. M.Ishwari, aged 36 years,
W/o Sri Sadanand,
Technical Assistant,
Regional Office for Health and Family Welfare,
Ministry of Health and Family Welfare,
2nd Floor, F Wing, Kendriya Sadan,
Koramangala, Bangalore – 560 034,
Residing at No.243, 'Sri Rama',
5th Main, Chamarajpet,
Bangalore – 560 018. ... ` `Applicant

(By Advocate M/s.Vagdevi Associates)

Vs.
1. The Senior Regional Director,
Health & Family Welfare,
2nd Floor, F Wing, Kendriya Sadan,
Koramangala,
Bangalore – 560 034.

2. The Director General of Health Services,
Directorate General of Health Services,
Nirman Bhavan,
New Delhi – 110 011.

3. The Secretary,
Ministry of Health & Family Welfare,
Nirman Bhavan,
New Delhi – 110 011. ...Respondents

(By Advocate Shri M.V.Rao, Senior Central Government Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


This OA was filed on 18.1.2002 and was decided by C.A.T., Bangalore Bench on 8.4.2003 dismissing the application. Hence the applicant approached the High Court of Karnataka in W.P.NO.49834/2003, and the High Court has, on 19.11.2010 set aside the order passed by this Tribunal and remanded the matter back to the Tribunal for fresh consideration in the light of certain observations made in the said judgement. Accordingly, the matter came back to this Tribunal on 14.07.2011 and was heard afresh. The matter deals with application of V Central Pay Commission (CPC).

2. The brief facts of the matter are:
The applicant who possesses an educational qualification of M.Sc. In statistics, joined the Department of Health and Family Welfare after due selection as a Technical Assistant w.e.f. 16.8.1988 in the RHO (Regional Health Office), Ministry of Health and Family Welfare, at Bangalore and was governed by IV CPC scales. The Scale of pay granted at the time of her appointment on 16.8.1988 was Rs.1400-2300/- and matched with the scale given to other colleagues posted as Statistical Assistants and dealing with statistical analysis. On applying the V CPC recommendation effective from 1.1.1996, her pay scale was revised to Rs.4500-7000/-. This is seen from Annexure-A/1 notification No.GSR/569(E) dated 30.9.1997. It is her claim that she must be given replacement scale of Rs.6500-10500/- in view of the fact that the Statistical Assistants have been given replacement pay-scale of Rs.5000-8000/-, with their entry level qualification of B.Sc., while she possesses Master's Degree right from the date of entry into service and that her job is not substantially different from that of Statistical Assistants and other equally qualified employees who have been given this pay scale. She relies for her claim mainly on the recommendations of V CPC (Central Pay Commission) in paras (i) 81.17, (ii) 56.55, (iii) 62.25, (iv) 50.37 and (v) 168.3.

3.(a) The Respondents claim at Annexure-A/4 (impugned order) that the revision of scales given to her is as per the recommendations of the V CPC. The applicant has contested this as being illegal, not based on facts and being mechanically issued without considering the grievance of the applicant. Since her OA was earlier dismissed by this Tribunal and then remanded by the High Court, it is necessary to see what are the main points of contention as discussed previously by the Tribunal and the High Court.

(b) The V CPC has elaborately discussed the posts of Statistical Assistants or Statistical Investigators who have been given a certain revision as per these elaborations. The applicant would contend that her post, namely, Technical Assistant has been left out by the V CPC from their elaborate discussions. It is further contended that her post should be treated as an isolated post and the department has to give consideration given to isolated posts rather than going by general principles.

We will be examining these issues in the latter part of the order.

4. It is pertinent to note how the CPC gives recommendations. Generally, they look at the scales and give a schedule on how to revise or replace them. These have a general application and are mentioned in Schedule 'A'. For certain categories, they suggest merger of scales or upgradation prior to revision. In such special cases, upgradation is applied first and then revision, as per general chart. Applicant's cadre has not been specifically considered, while the cadre of Statistical Assistants has been.



5. In the OA, the applicant has elaborately discussed how the V CPC has dealt with Statistical Assistants of the Health & Family Welfare department.
i) As claimed at para 4.10 of OA, it is rightly observed by the V CPC in 81.17. that the posts of Statistical Assistant and Investigators are scattered here and there with different Ministries. These are isolated posts where chances of promotion are meagre. CPC recommend that all such posts with statistical functions be constituted into subordinate statistical services eligible for promotion to ISS (Indian Statistical Services) and all recruitment to these feeder cadres be centralized and placed under the ISS Cadre Controlling Authority. All Posts of Junior Statistical Investigators with Graduation as entry level qualification and in the scale of Rs.1400-2300/- be upgraded to scale of Rs.1600-2660/- and be redesignated as SI (Statistical Investigators Gr.II). For Statistical Investigator Gr.I, post-Graduation be made as minimum qualification for direct recruits to 50% of the posts. Based on the above recommendation, the applicant has prepared a chart showing how Junior Statistical Investigator and Statistical Assistant cadres with a new designation of Statistical Investigator Gr.II will move up in the pay scale. The same is reproduced below.

a) Classification of
Statistical Function
post

b) Pre V CPC
Classification

c) New suggested
Classification

GRADE II



i) Jr. Statistical Investigator
ii) Statistical Assistants

Statistical Investigator Gr.II
GRADE I



Sr. Statistical Investigator
Sr. Statistical Assistants

Statistical Investigator Gr.I


d) Minimum entry
Level Qualification
Graduation in Statistics
Post Graduation in Statistics

e) IV Pay Commis-
sion Scales
Rs.1400-2300
Rs.1640-2900


f) Upgraded Scale
in IV CPC
Rs.1600-2660
Rs.2000-3500


g) Replacement
Scale in V CPC
Rs.5000-8000
Rs.6500-10500


h) Assured Career Progression
I. ACP




II ACP


1640-2900
(Under IV CPC)
i.e. Rs.5500-9000
(Under V CPC)

Rs.2000-3500
(Under IV CPC)
i.e., Rs.6500-10500
(Under V CPC)



Rs.2375-3750
(Under IV CPC)
i.e., Rs.7450-11500
(Under V CPC)

Entry Scale of ISS
Group-A
(Under V CPC)


Hence the applicant who is now equated to a scale of Rs.4500-7000/- is entitled not only for the replacement scale Rs.5000-8000/- but is actually eligible for scale of Rs.6500-10500/- as given to Statistical Investigator Gr.I. whose entry qualification is post-Graduation.

ii) At para 56.55, the V CPC has recommended that Statistical Assistants working with Department of Fisheries, with graduation at entry level and having pay scale of Rs.1200-2040/- should also be upgraded to Rs.1600-2660/- and then revised to Rs.5000-8000/- so as to match promotion to next higher post of Statistician in the stream of that department. Thus, good care has been taken even for those having graduate qualification, but she has been kept below them despite post-graduation. The anamoly is clear from the following comparison.

Sl.
No.
Post
Entry level
qualification
IV CPC Scale of pay
Upgraded scale in IV CPC
Replace- ment scale in V CPC.
1
Technical Assistant H&FW
Post graduation
1400-2300/-

4500-7000/-
2
Statistical Asstt.
H&FW
Graduate
1400-2300/-
1600-2660/-
5000-8000/-
3
Statistical Assistant of
Fisheries Deptt.
Graduate
1200-2040/-
1600-2660/-
5000-8000/-

iii) Further in para-62.25 of the report, it is recommended that the post of Assistant Direction General (Statistics) be encadered to ISS Group 'A' posts which would imply that Statistical Investigator Gr.I would no longer be eligible for promotion as ADG. To take care of ensuing stagnation, the ACP scales for Statistical Investigator Gr.I have been suggested in the chart. This means that the Statistical function post has to be examined not only on the basis of entry level qualification but also on the basis of presence or absence of promotional avenue and be given upgradation accordingly. The same logic should apply for Technical Assistants with post-Graduation but with no promotional avenue. It has been denied to her.

iv) At para 50.37, the V CPC recommends that there should be identical pay scales for posts with identical recruitment qualification. Hence the designation of the post is not the criteria for revision of pay scale to be fixed by the individual Ministries. At para-168.3, the V CPC has also recommended that in the event of any Central Government post being left out without allotment of revised pay scales in the report, it should be given the commensurate revised scale of pay as applicable for the post with similar entry qualification, duties and responsibilities, duly retaining the horizontal and vertical relativities in the organization. The incumbents to those posts will also be eligible for the provisions of assured career progressions. Under this recommendation, the DGHS has the authority as well as responsibility to consider her case. It is pertinent to note that the CPCs would generally give a firm recommendation for majority of the cadres. But, will also leave some situations to be handled by the concerned departments in the light of various principles stated by the CPC In such cases, the concerned Heads of Departments have to apply their mind and take a decision relying on the guidelines of identical payscales for identical recruitment qualifications. The DGHS (Director General of Health Services) had, using his authority, initially revised the Scale of Statistical Assistant from Rs.1400-2300/- to Rs.4500-7000/- in general category, but, has subsequently upgraded It to Rs.5000-8000/- as seen from the DGHS order No.A26022/4/97-ADMN.II dated 5.8.1998 at Annexure-A/9. In the instant case too, the Pay Commission has not specifically examined the pay scale of Technical Assistant in the MH&FW, but the DGHS has not applied the mind to the merits of the Technical Assistants. He refused to consider that the applicant is entitled to pay scale of Rs.6500-10500/- in view of the entry level qualification being Post-graduation. He should have interpreted all the recommendations in so far as the post graduation qualification at entry level is concerned and should have allowed pay scale of Rs.6500-10500.

v) The applicant has also pointed out several other recommendations from para 40.17 and para 22.41 etc. The most important point being as quoted in (ii) above. Further, in view of the chart she also prayed for first ACP. During the pendency of the OA, ACP is granted vide order dated 25.3.2003 in the scale of Rs.5000-8000/- w.e.f. 17.8.2000. However, the prayer for being placed in the pre-V CPC pay scale of Rs.1640-2900/- still remains. The posts of Technical Assistant in the Health Department are very few, there being only 17 posts throughout India and out of them hardly 8 persons are working. In view of this small number their grievances have not been properly considered by the department.

6. We find from the records that the applicant had first approached this Tribunal in OA No.1653/2000. It was ordered on 9.7.2001 (Annexure A/3) that the representation of the applicant then pending with the respondents for the same relief as prayed in present OA should be disposed of by the respondents expeditiously within 60 days. Thereafter, the respondents had considered the representation and issued order as at Annexure-A/4 which is the communication from the office of the DGHS to the Regional Director, Bangalore, rejecting her application. The reason quoted therein is as below:
“the upgraded replacement scale to Group B&C statistical function posts located in Ministries/Departments offices of Central Government had been granted in the following manner:

Sl.No. IV CPC Upgraded Scale Replacement Scale by IV CPC in V CPC


1. 1400-2300 1600-2660 5000-8000
2. 1600-2660 1640-2900 5500-9000
3. 1640-2900 2000-3500 6500-10500

As per Recruitment Rules of the post of Technical Assistant in Regional offices of M.H & F.W., the post of Technical Asstt., is not Statistical Functional Post and as such she is not holding a Statistical Function Post and as such she is not eligible for grant of upgraded replacement scales of pay of Rs.5000-8000/- or Rs.5500-9000/-. However, she is placed in the revised pay scale of Rs.4500-7000/- on the recommendations of the V Central Pay Commission.”


7. Thus the sole reason for rejecting the application is the distinction between Statistical Assistant and Technical Assistant. It is claimed that her post namely that of Technical Assistant in the Regional office is not a Statistical Function Post and hence she is not eligible to the scale of Rs.5000-8000/-. This is challenged in the present OA. Her argument is that Technical Assistants too are performing Statistical Functions, and there is no need to make any distinction.

8. The respondents have filed a short reply stating the main ground that the applicant was appointed as Technical Assistant and not as a Statistical Assistant. They have compared the duties of Technical Assistant in the Regional Office to that of Statistical Assistant in the same Regional Office and concluded that the two tasks are different. They have relied on the clarification of Ministry of Statistics and Programme Implementation which has clarified that wherever the post held by the applicant is not Statistical Function Post, such applicants shall not be eligible for grant of upgraded replacement scale of Rs.5000-8000/- as recommended in para 81.17 of the V CPC.

9. We have examined this claim in detail and the crux of the matter is whether the Technical Assistants can be denied benefits given to Statistical Assistants or Statistical Investigators, or whether their work can be categorised as statistical function.

10. Annexure-A/11 is a copy of the Recruitment Rules stating that (a) the essential qualification for Statistical Assistant is graduation in maths or economics or statistics, (b) 50% posts will be filled by direct recruitment and 50% through promotion. On the other hand, the post of Technical Assistant is filled 100% by Direct Recruitment with a minimum qualification of Post graduation. Learned counsel for applicant argued that if the duties of the Statistical Assistant and Technical Assistant are different then definitely the Technical Assistant must be considered superior. Hence refusing to treat the post of Technical Assistant as not performing Statistical functions is incorrect. Our attention was also drawn to another example. In case of her Senior Regional Director it is seen that even though he is not dealing with patients, nor dispensing medicines his pay scale is fixed as per entry level qualification in medicine and not by the nature of duties that he is performing vis-a-vis those equivalent colleagues dealing with medicine and patients. Hence if such equation applies to Senior Regional Director, the same should be allowed in case of the applicant too.
It is held in Mohan Lal Vs. Union of India in CAT New Delhi
“where revision of pay scale of various categories are made as per the recommendation of V CPC, a single employee's pay scale alone cannot be kept at original pay scale without any revision”.


11. The details examined by the Hon'ble High Court ae as under:

"2. ....... There are no avenues for promotion. In pursuance to the 4th Central Pay Commission ('CPC' for short) the basic pay attached to the said post is Rs.1400-2300/-. In the 5th CPC, the pay was revised to Rs.4500-7000/-. In view of the aforesaid, she made a representation to the authorities to refix her basic pay. .... the Tribunal was of the view that the question whether the post held by the petitioner is a statistical functional post or not cannot be determined by it, as it lacks necessary expertise. The Supreme Court has held that issues like classification of posts into different categories with different pay scales are best left to be determined by the management and the experts, such as, the pay commission, which has requisite expertise and the Courts should not normally interfere in such matters. The Supreme Court has also held that the mere fact that duties are similar does not ipso facto entitle a person to seek pay parity and it is seen that the 5th CPC has considered the pay scale to be granted to the post of Technical Assistant held by the applicant, but had only recommended the replacing scale of Rs.4500-7000/-. It further held that when the expert body like 5th CPC has not recommended the higher scale, it do not see how it can adjudicate the matter, especially when the respondents have strongly argued that the post held by the applicant is not a statistical functional post. Accordingly, it rejected the application of the petitioner. Aggrieved by the same the petitioner is before this Court.

5. ..... it is not in disputethat the applicant was recruited to the post of Technical Assistant in the Ministry of Health and Family Welfare. It is an isolated post. No promotional avenue is provided under the Rules. ... It is not disputed that the 5th CPC did not consider this post. They have not made any specific recommendation in so far as this post is concerned. .... The Tribunal has proceeded on the assumption that when the expert body like 5th CPC has not recommended the higher scale, the Tribunal has no jurisdiction to adjudicate in the matter.

(In High Court's opinion), When the 5th CPC has not considered the post of the petitioner and has not recommended any pay scale to that post specifically, it was obligatory on the part of the Tribunal to go into the question with reference to the pay scale recommended by the 5th CPC for similar qualification and the revision of pay scale in respect of other posts keeping in mind the pay scale in the 4th CPC.

The material on record discloses that for the very same post a person who is only a Graduate is now fixed a pay scale higher than that to the post Graduate. The argument was, the Graduates' functions are altogether different, whereas the functions performed by this post Graduate is not so. The petitioner is performing the functions assigned to the said post. She is possessing the I Class post-Graduate Degree (in Statistics). She has not refused to perform any other function assigned to her by the respondents. If there is no work in the post where the petitioner is working, it is for the respondents to make use of her talent and service where there is work. .... the validity of the same has not been gone into by the Tribunal on the sole ground that the expert body has considered such a situation and has made a recommendation and therefore, their jurisdiction is ousted..... When admittedly the expert body has neigher considered the post in question nor considered whether it is a statistical functional post, the Tribunal whose members are specialised in this particular field of service law could apply their mind taking into considereation the recommendation made by the 5th CPC in respect of other posts could evaluate a proper pay scale in commensurate with the educational qualification of the petitioner.
O R D E R
3. The entire matter is remitted back to the Tribunal for fresh consideration in the light of the discusions made above."


12. We have examined all the above issues in detail including the various recommendations of the V CPC from their original text. The whole emphasis of the department revolves around the two designations, viz., Technical Assistant and Statistical Assistant.

We have compared the job chart of the two categories which read as below.
Duties and responsibilities of Technical Assistant
Duties and responsibilities of Statistical Assistant
Compilation of technical reports and maintenance of Statistical figures under Family Welfare and NMEP and other National Programme – Quarterly and periodic review of the programme – Maintenance of files and correspondence.
Collection of information for research studies by undertaking frequent field trips making house to house and institutional survey. Scrutiny and consequent check of the Research data. Compilation of Health information data. Compilation and tabulation and analysis of data. Graphical representation of data. Data entry for mechanical tabulation – computer operation. Assisting for mechanical tabulation.
13. We feel that there is no material distinction between the jobs performed by the two cadres as highlighted above, being the real statistical function Other details mentioned for Statistical Assistants are merely by better elaboration of statistical function. It looks that the Department could gain by not keeping the two cadres of Technical Assistant (Statistics) and Statistical Assistant as separate but by merging the two, as that would bring about a rational distribution of the work-load. We, therefore, partly agree with the learned counsel for the applicant. The case of the applicant who is the Technical Assistant must be treated on the similar lines as those of Statistical Assistants.

14. We also consider it fit to find out the recommendations of the V CPC to the various other cadres also designated as Technical Assistants.
(a) It is seen that the Ministry of Health & Family Welfare has large number of posts carrying the nomenclature of Technical Assistant, who perform tasks such as as Food Inspection, Iodine deficiency, medical emergency, etc. Some of them, such as the present applicant, perform technical tasks related with statistics. Therefore, the nomenclature of her post can be examined vis-a-vis those performing statistical functions as well as those performing other technical jobs which are non-statistical in nature. We note that at para 69.14, while dealing with the "Prevention of Food Adulteration Division" of the same Ministry of Ministry of Health & Family Welfare where the applicant is working, the V CPC has observed as under:
"69.14 Posts in the Prevention of Food Adulteration (PFA) Division comprise a Senior Investigator/Team Leader in the scale of pay of Rs.2000-3500/-, 3 posts of Research Assistant 9PFA) (Rs.1640-2900/-), 5 Technical Assistants (FPF) (Rs.1400-2300/-) and 6 Food Inspectors also in the scale of pay of Rs.1400-2300/-. Incumbents of these posts have demanded upgradation to the new higher scale citing stagnation as the sole-basis. We are not convinced that upgration will solve the problem of stagnation. Neither is upgradation justified in view of the existing qualifications and methods of recruitment. However, we observe that the minimum qualification for direct recruitment to the posts of Technical Assistants and Food Inspectors is Graduation. These 11 posts should, therefore, be placed in the scale of Rs.1600-2660/-. No other change is called for.

(b) Further, at para 68.7 while dealing with Restructuring the Technical Cadres – Rice Mills Division, in the Ministry of Food Processing Industries, the V CPC has observed as under:
"68.7 The Rice-Mills Division should be rechristened as the Industrial Advice Division. The lone post of Technical Assistant (Rice Mills) (Rs.1400-2300/-) carries B.Sc. (Chemistry) qualification and should be upgraded to Rs.1600-2660/- and called Technical Assistant (Industrial Advice). The two Assured Career Progressions (ACPs) to the scale of pay of Rs.1640-2900/- and Rs.2000-3500/-, will be available to this post at the end of 10 and 20 years of service."

(c) As already pointed out at para 5(ii) (supra), the Statistical Assistants having IV CPC scale of Rs.1200-2040/- also have been upgraded to the scale of Rs.1600-2660/-.
Sl.
No.
Post
Entry level
qualification
IV CPC Scale of pay
Upgraded scale in IV CPC
Replace- ment scale in V CPC.
1
Technical Assistant H&FW
Post graduation
1400-2300/-

4500-7000/-
2
Statistical Asstt.
H&FW
Graduate
1400-2300/-
1600-2660/-
5000-8000/-
3
Statistical Assistant of
Fisheries Deptt.
Graduate
1200-2040/-
1600-2660/-
5000-8000/-

15. We feel that the present distinction that the department has maintained between the cadres of Technical Assistant and Statistical Assistant is an artificial distinction that may have had its justification many years ago, but not now when the dynamics of the department requires much better quality of statistical analysis and the capabilities of the Technical Assistant for statistics can be better utilised, assuming that this is not being done as at present. In any case, that cannot be allowed as a ground to continue the cadre of Technical Assistant at a discriminated level even when their entry qualification is Post graduation.

16. In view of all these, we agree with the applicant on this aspect and therefore, we consider it just and proper to direct that the applicant be given the upgraded scale in the IV CPC of Rs.1600-2660/- and a replacement scale in the V CPC of Rs.5000-8000/-. However, we do not agree for giving her the replacement scale of Rs.6500-10500/- in the V CPC as the Recruitment Rules for Technical Assistant provides for entry grade qualification of Post graduate OR a graduate with three years of experience.

17. Thus, the OA is partly allowed. The Respondents are directed to give the applicant the V CPC scale of Rs.5000-8000/- with effect from 1.1.1996. Her First ACP scale as well as VI CPC scale would be fixed accordingly with effect from 17.08.2000 and 1.1.2006 respectively. No order as to cost.

(LEENA MEHENDALE) (Dr. K.B. SURESH)
MEMBER (A) MEMBER (J)

psp.
The two brinef points to be decided are as under:


1. Whether the Technical Assistant and the Statistical Assistant perform the same duty and can it be said that the case of Technical Assistants remained inadequately represented before the V CPC because of the smaller number of incumbents unde that cadre as claimed by the applicant. A related question is whether the simile drawn by the applicant from the case of ............................ at para .......... supra can be stretched to apply to the cadre of Technical Assistants.

2. The second question takes us to the anamoly of lower pay scale to the applicant even with Post graduate qualification in Statistics vis-a-vis the consideration shown not only to the Statistical Assistant whose entry level qualification is only graduation and who were in the pay scale of Rs.1600-2660/- but also to the Jr. Statistical Investigators, the scale of Rs.1400-2300/- whose entry level is also graduation and whose scale was upgraded to Rs.1600-2660/, thereby making them eligible for the replacement scale of Rs.5000-8000/-. This comparison is brought out in the following chart.




a) She possess the qualification of Post-graduation in statistics and this is the required entry level qualification for recruitment to her first post of Technical Assistant in the Department of Family Welfare.

b) Although her post is not a Technical post in the same sense as that of a medical scientist, it is still a technical post in the nature of technical expertise required for data collection and data analysis. But, the crux is that Department is not considering it equivalent to the post of Statistical The job description of post involves collecting statistical data for the Department of Health and Family Welfare and its analysis through techniques of trend analysis, time regression, geographical variance and mean deviations. Without the analysis of the statistical data no proper assessment of the bottle-necks in the scheme implementation can be detected and no modifications can be introduced and no effective policy can be framed. Hence, her job of handling statistical material in a huge organisation such as Health and Family Welfare Department deserves to be treated on par with the jobs handled by other technical employees possessing the qualification of graduation in medical sciences and working on medicine related technical aspects under the Department.