The Director General Esic & Ors v. Sheeja Santosh & Ors

ORDER %

04.11.2016 The aforesaid four writ petitions impugning different orders of the Central Administrative Tribunal raise a common legal issue and are, therefore being disposed of by this common order.

¶2The names of the respondents who were original applicants before the Tribunal along with the details of the respective OAs filed by them and the date of the impugnedorders of the Tribunaltherein, have been;reproducedin the table below:- S.No. Name of the original applicarit4 , OA No. Date of impugned order

¶1Mrs Malbika Deb Gupta '98/2014

27.03.2015

¶2Smt Geeta Rani 107/2014

27.03.2015

¶3Mrs. Meenu Verma . 111/2014

27.03.2015

¶4Sheeja Santosh 3679/2012

07.05.2014 . 5. Ramyamol Anil 3679/2012

07.05.2014

¶6Surna Sunil 3679/2012

07.05.2014

¶7NavlenGuria - '' 3679/2012 .

07.05.2014

¶8Tresa John 3679/2012

07.05.2014

¶9BinaVarghese 3679/2012

07.05.2014

¶10Shanti Mathew 3679/2012

07.05.2014

¶11Reni James - • 3679/2012

07.05.2014

¶12Carolin Kaviraj . 3679/2012

07.05.2014

¶13Juliet Gibi 3679/2012

07.05.2014

¶14Jayamol Jacob 3679/2012

07.05.2014

¶15Sarala Rani 3679/2012

07.05.2014

¶16Vijibiju 3679/2012

07.05.2014 W.P.(C) 8058/2015 & Connected matters

¶17Rajni 3679/2012

07.05.2014

¶18Ginu Paul 3679/2012

07.05.2014

¶19Elsamma Shaji 3679/2012

07.05.2014

¶20Joemol Renji 3679/2012

07.05.2014

¶21Seema Chaudhary 3679/2012

07.05.2014

¶22Bindhu Shibu 3679/2012

07.05.2014

¶23PoojaMaitre 3679/2012

07.05.2014

¶24Leela Adhikari 3679/2012

07.05.2014

¶25Nirmala Peter 3679/2012

07.05.2014

¶26Sajitha Shaji 3679/2012

07.05.2014

¶27Sathi Santosh 3679/2012

07.05.2014

¶28Gincy Sebi • ' 3679/2012

07.05.2014

¶29Selin Alex ,3679/2012

07.05.2014

¶30Sherly John 3679/2012

07.05.2014

¶31Suma Pandit 3679/2012

07.05.2014

¶32Silvia Babu 3679/2012

07.05.2014

¶33Neelam Singh ; ' 3679/2012

07.05.2014

¶34Bincy Philip 3679/2012

07.05.2014

¶35Ancy Reji 3679/2012

07.05.2014

¶36Binny Suraj .. - 3679/2012

07.05.2014

¶37Nirmala Sagi 3679/2012

07.05.2014

¶38Asha Joshi 3679/2012

07.05.2014

¶39Jessy George 3679/2012

07.05.2014

¶40Omana Venn 3679/2012

07.05.2014

¶41Sadhna Sudhakar Meshram 3679/2012

07.05.2014

¶42Pushpa Vinod 3679/2012

07.05.2014

¶43Sheejamol Santosh 3679/2012

07.05.2014

¶44Sandhya Jayesh 3679/2012

07.05.2014

¶45Reena Benny 3679/2012

07.05.2014 W.P.(C) 8058/2015 <6 Connected matters k

¶46Shimmy Thomas 3679/2012

07.05.2014

¶47Rajani Shaji 3679/2012

07.05.2014

¶48Manju Shaji 3679/2012

07.05.2014

¶49Amita Kindo 3679/2012

07.05.2014

¶50Kuldeep Kaur 3679/2012

07.05.2014

¶51Rachna 3679/2012

07.05.2014

¶52AnupamaToppo 3679/2012

07.05.2014

¶53Jyoti Puri 3679/2012

07.05.2014

¶54Sunita Rani 3679/2012

07.05.2014

¶55Elizabeth Muriel 3679/2012

07.05.2014 ,

¶56Dolly Johnson , ' 3679/2012

07.05.2014

¶57ResmiMinu , . . 367972012

07.05.2014

¶58Rose Mary Bijoy - 3679/2012

07.05.2014

¶59Jeena George 367972012

07.05.2014 .60. Jini Siju 3679/2012

07.05.2014

¶61Ambili Vinu 3679/2012

07.05.2014

¶62Bindii Harikumar 3679/2012

07.05.2014

¶63Mini Benny 3679/2012

07.05.2014

¶64Bini Benny Thomas 3679/2012.

07.05.2014

¶65Annamma Daniel 3679/2012

07.05.2014

¶66Mary Reena Mathew 3679/2012

07.05.2014.

¶67Aneyamma James 3679/2012

07.05.2014

¶68Annamma L. 3679/2012

07.05.2014

¶69Sheeja Boban 3679/2012

07.05.2014

¶70Jayamol Shiju 3679/2012

07.05.2014

¶71Sheena Suresh 3679/2012

07.05.2014

¶3The respondentsbeforeus were appointedas directrecruitsto the post of Staff Nurses and subsequentlypromoted as Nursing Sisters. Prior to W.P.(C)8058/2015 & Connected matters Paged of 10

1.1.2006, the pay scale for Staff Nurses was Rs. 5000-8000 and Rs. 5500-9000 for Nursing Sisters. As per the CCS (Revised Pay) Rules, 2008 the pay scale was upgraded to Rs. 7450-11,500. Consequently, the petitioners were placed in the grade post S-13 with the Pay band, Rs. 9300-34,800 and grade pay of Rs. 4600/-.

¶4The issue raised in these writ petitions filed by the Union of India pertains to interpretation of Rule 7A of the CCS (Revised Pay) Rules, 2008 ('the 2008 Rules' for short) and the Note-2A. For the sake of convenience, we would reproduce Rule 7A and Note-2A as under: "7. Fixation ofinilialpay:in the,revisedpay structure: The initialpay of a Governmentservant,who elects, or is deemed to have elected under sub-rule (3) of ride 6 to be governed by the revised pay structureon andfrom the F' day ofJanuary, 2006, shall, unless in any case the Presidentby specialorder otherwisedirects,bejixedseparatelyin respect ofhis substantivepayin thepermanentposton which he holdsa lienorwoidd have helda lien if it had not been suspended,and in respectofhispay in the followingpost heldby him, inthefollowingmanner, namely:-.(A) in the case ofall employees:-

(i) the pay in the pay band/ pay scale will be determinedby multiplyingthe existingbasicpay as on 01.01.2006by afactor of1.86androundingoffthe resultantfigure to the nextmultipleof10;

(ii) If the minimumofthe revisedpay band/ pay scale is more than the amount arrivedat as per .(i) above, ihe.payshall be fixed at the minimum of the revisedpay band / pay scale: XXX Note2A:lVhereapost has been upgraded.asa resultofthe recommendationsof theSixth CPCas indicatedinPart BofPart C ofthe First Schedideto these Rides, thefixation of pay in the applicable pay band will be done in the mannerprescribed in accordancewith Clause (A) (i) and (ii) of Rule 7 by multiplyingthe existingbasicpay as on 01.01.2006by afactor of 1.86and rounding the resultantfigure in the next multiple of ten. The grade pay correspondingto the upgradedscale as indicatedin Column 6 ofPart B or C vAll be payable in addition. Illustration 4A in this regard is in the explanatory Memorandumin these Rides."

¶5In the case of the petitioners - Northern Railways, the applicable Rules are known as Railway Service Revised Rules, 2008. It is, however. W.P.(C) 8058/2015& Connectedmatters accepted by the parties that the Rule 7 and Note 2A of the said rules are identical.

¶6Rule 7A clause (i) postulates for computationof the revised pay by multiplication of the existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. Thus the existing pay scales are to be multiplied by a factor of 1.86 and would be rounded off as indicated. However, clause (ii) thereof stipulates that where minimum revised pay scale is more than the amount arrived at as per clause

(i), the pay will be fixed at the minimumof the revisedbasicpay / pay scale. The clause (ii) refers to the pay scale and grade pay as applicable on enforcement of the Revised Pay Rules, 2008. In case the minimum revised pay scaleunderthe RevisedPay,Rules,2008is more than the figurearrived at under clause(i)of Rule 7A, clause(ii) wouldbe applicable.

¶7The contentionof the petitionersis that Rule 7A (ii) will not apply whenNote 2A is applicable.We do not agree with the said argument.Note 2A does not contradict the said Rule 7A or carve out an exception overriding the mandate of Rule 7A. The note stipulates that for posts upgraded as indicated in Part B and C of the First Schedule of the Rules, the fixation of pay will be done in the mannerprovided,in clauses(i) and(ii) of Rule 7A by multiplicationof the pay scale as existingon 01.01.2006by a factor of 1.86 and rounding of. Note 2A/in effect, makes reference to clause (i) of Rule 7 Clause A and is identically worded as clause (i) to Rule 7A. This does not mean that clause (ii) to Rule 7A would not be applicable. If this was the intent and purpose of Note 2A, the Note would have been differently worded. In simple and plain words, it would have been stated that clause (ii) would not be applicable till first direct recruits were appointed or first W.P.(C) 8058/2015 & Connected matters Page 6 of10 I promotionspost 1^ January, 2006 were made. Referenceto clause (ii) of Rule 7A would not have been made in this manner. Rule 7A and Note 2A are to be construed and interpreted harmoniously so as to make them consistent to avoid any conflict.

¶8The argument of the petitioner ignores and contradicts the second and third sentence of Note 2A. The second and the third sentence in Note 2A state that the grade pay in the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition and illustration 4A is the applicable illustration. Section II of Part B of the ! Schedule in Column 6 refers to the correspondinggrade pay applicablein the:pa:y band. The earliercolumnsof the table in sectionII refer to the-presentscale, i.e., the pay scale, as was applicableprior to 1.1.2006,and the pay :SQale granted consequentto the merger of the posts, and then states the correspondingor equivalentPay bandand gradepay applicablewithreferenceto the revisedpay scale.

¶9Illustration 4A is as under:- "Illustration4A: Pay Tixatiohin cases where posts have been upgraded e.g. posts iri prerevised pay scale of Rs.3050-75-3950-80-4590 to Rs.3200-85-49pti scale

¶1Existing Scale of Pay Rs.3050-4590(CorrespondingGrade Pay;Rs.I900) 2^ PayBandapplicablePB-1 Rs.5200-20200

¶3Upgradedto the• Scale of Pay'Rs.3200-4900-(Corresponding Grade Pay Rs.2000) ,

¶4Existing basic pay as on 1.1.2006 Rs.3125

¶5Pay after multiplication by a factor of 1.86 Rs.5813 (Rounded off to Rs.5820)

¶6Pay in the Pay Band PB-2 Rs.5820

¶7Pay in the pay band after includingbenefitof bunchingin the pre-revisedsealeof Rs.3050-4590,if admissibleRs.6060

¶8Grade Pay attachedto the scale of Rs.2000Rs.3200-4900 W.P.(C)8058/2015& Connectedmatters Page 7of 10

¶9Revisedbasic pay - total of pay in the pay band and grade pay Rs.8060" The illustrationrefers to the computationof pay under both Rule 7A clause(i) and clause (ii).

¶10Even otherwise, the interpretation propounded by the Union of India is incoherent and leads to absurdity. A new direct recruit, when appointed, is to be paid in the pay scale as per the 2008 Rules. He would be entitled the minimum of the pay band plus applicable grade pay. His pay would be computed ,as per Rule 7A Clause (ii) of the Rules. However, employees on the same post prior to 1.1.2006 would not get the benefit of clause (ii) to Rule 7A and would have to wait till a junior is appointed to the same post after 1.1.2006.Thus, when the appointmentsare delayed,or not made, the benefitof the new pay scalesunderPart B and C would be delayedor even denied. Consequently,the contentionof the petitionersthat the respondents would be entitled to benefit of Rule 7A Sub Clause (ii) only from the date when the junior is appointedto the said postby way of directrecruitmentor by way of promotionis fallacious and has to be rejected. The aforesaid argumentis, to cover up the anomaly which is being created as a result of their misinterpretation of Rule 7A (ii) and Note 2A.

¶11One cannot accept that the sa^me post can have two different pay scales, one for existing employeesperformingthe same tasks and doing the same workon the groundthatthey were appointedor have beenfunctioning on the said post prior to 1.1.2006,whereasa personappointedlater in point of time would get the higher pay scale. Logically and as sequitor, the argumentof the Union of Indiathat where new appointmentsor promotions tf.P./q 8058/2015& Connectednuitters Page8 of10 were made, the employeesworkingon the posts would immediatelyget the benefit of pay under Rule 7A Clause (ii) is wrong and fallacious. The principleof upgradationof pay of the senior on the juniorgettinga higher pay scale is applicablein certainsituations.Note 2A does not prescribeand record any such precept.

¶12Fixationof pay pursuantto the 2008 Rules is a right.This right cannot be defeated and postponed. It is not subject to the principle of stepping up of pay of the senior when the junior gets a higher pay. The decision of the Fligh Court of Delhi in Dharmendra Yadav v Union of India & Ors., 2016 (5) SLR 644 (Delhi) is well reasoned and, detailed. Similarly, the judgment dated 18.07.2016 passed in W.P.(C) No;10071/2015, Ram Niwas x. Union of India, referring to the decision'm Dharmendra Yadav (supra) takes an identical view.

¶13During the course of arguments, learned counsel for the petitioners has submitted that the respondents had made a prayer that the multiplier of

1.86 should be applied to the upgraded grade pay or pay scale. Counsel for the respondents on instmctions have uniformly stated that they are not pressing or raising the said contention. We take the said statement on record to avoid and clear any doubt.

¶14Resultantly, the writ petitions are dismissed with the observationthat the petitioners will pay to the respondents the minimum computation under clause (i) to clause (A) to Rule 7 and then compute the minimum pay applicable with reference to the pay band plus grade pay applicable to the revised pay scales as mentioned in section II of Part B of the First Schedule to the 2008 Rules. If the net resultant figure as per clause (ii) to Rule 7A is higher, then the respondents would be entitled to benefit of sub-clause (ii) to W.P.(C) 8058/2015 Connected mutters Rule 7 Clause (A) of the 2008 Rules.

¶15This orderwill be implementedwithin2 monthsfrom the date on whicha copyof the orderis receivedbythepetitioners.

¶16Pending CMs are also disposed of. No orders as to costs. NOVEMBER 04,2016 Ird/ssn ./ SANJIV KHANNA, J sunita'gupta, j W.P.(C)8058/2015 & Connected matters

$-10 to 12&22 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 8058/2015 & CM 16635/2015(stay) LTNION OF INDIA & ORS. Petitioner Through Mr Jagjit Singh, Sr. Counselwith Mr Ashok Singh, Advs. versus MALBIKA DEB GUPTA Respondent Through Mr A.K. Trivedi, Mr Vaibhav Trivedi and Mr Abhishek Trivedi, Advs. + . W.P.(C) 8060/2015 & CM 16640/2015 (stay) UNION.OF INDIA & ORS. '. Petitioner Through Mr Jagjit Singh, Sr. Counsel with Mr Ashok Singh, Advs. versus GEETARANI Respondent Through Mr A.K. Trivedi, Mr Vaibhav Trivedi and Mr Abhishek Trivedi, Advs. + ',W.P.(C)8333/2015&CM 17635/20.15(stay) UNION OF INDIA & ORS Petitioner Through Mr Jagjit Singh, Sr. CounselwithMr Ashok Singhi Advs. versus MEENUVERMA • .... Respondent Through; Mr A-K- Trivedi, Mr Vaibhav Trivedi and Mr Abhishek Trivedi, Advs. + W.P.(C) 1096/2015 THE DIRECTOR GENERAL ESIC & ORS. Petitioner Through Ms Sonam Anand, Adv. versus SHEEJA SaNTOSH & ORS. Respondent Through Mr Padma Kumar, Sr. Adv. with Mr Krishna Kumar Mishra and Salik Ghai, Advs. W.P.(C) 8058/2015 Connected mutters Page I of 10 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MS. JUSTICE SUNITA GUPTA