By Dr. Veena Chhotray:
1. The applicants, 23 in number, are Junior Radiographers in the Employees State Insurance Corporation (ESIC), under the Union Ministry of Labour. They are getting the pay scale of Rs.3200-3950/- (5th CPC). Through this OA, filed under Section 19 of the Administrative Tribunals Act, the applicants are agitating claims for being given higher pay scale of Rs.4000-6000/-. This is by claiming pay parity on the basis of “equal pay for equal work” with their counterparts in other hospitals.
2. The following reliefs have been sought:-
“8 (i)The respondents have directed to consider and grant the pay scale of Rs.4000 - 6000 to the applicants/Junior Radiographers at par with the pay scale enjoyed by their counterparts in other Government Departments with all consequential benefits.
ii) The respondents were be directed to grant the pay scale of Rs.4000 -6000 to the applicants with effect from 1.1.96, with all arrears and interest.
iii) Pass such other further order or orders as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.
iv) Cost of proceedings, may also be awarded to the Applicants.:
3. The learned counsels, Shri Arun Bhardwaj and Shri Murari Kumar would argue the matter respectively for the applicants and the respondents.
4. The applicants have sought to canvas their claims for higher pay scales by building up broadly a two pronged argument. First, a justification due to the service conditions and the factors prevailing within their own organization. Second, a claim for pay parity qua their counter parts working in other organizations. As the matter would be argued before us by the applicants’ learned counsel, the latter is with reference to the Government hospitals under the GNCTD, MCD and the Railways.
4.1 It has been stated that for the posts of Junior Radiographers / X-Ray Assistants the required qualification under the ESIC is a Diploma or Certificate in Radiology of a recognized Institute. The applicants, however, possess the required Diploma after 12th Class. Thus, it has been submitted that the applicants possess higher qualifications than those prescribed in the RRs.
4.2 The next higher posts to Junior Radiographers are Radiographers. It has been argued that the duties of these posts are overlapping. Further, the applicants claim to have been performing the work of the higher posts from the last 17 - 19 years since 1996.
4.3 Another ground given is about there being no channels of promotions for the Junior Radiographers under the respondent body. It is submitted that quite contrary to the conditions prevailing under the Central Government Hospitals like the RML and the Safdarjung, the number of posts of Junior Radiographers is large and hence the chances of promotion as Radiographers remote. In any case, as per the existing RRs of the ESIC, Junior Radiographers are not even included in the feeder cadre for such promotions, which are filled only by directly recruited Assistants. This also is stated to be in contrast with the provisions in the RML and Safdarjung Hospitals.
4.4. The applicants feel aggrieved since their counter-parts working in several other hospitals have been granted higher pay scale of Rs.4000-6000/-. This is stated to be despite the prescribed qualifications (Diploma after 10th Class) and the nature of duties and responsibilities being the same.
4.5 It has been recognized in the OA that in several of these hospitals now higher qualifications i.e. Diploma after Class 12th have been prescribed. However, since as per the applicants they possess the higher qualifications as well, these are claimed not to stand in the way of grant of higher pay scales to them.
4.6 Though the OA avers about higher pay scales having been granted under the Central Government, Government of Delhi, Railways, All India Institute of Medical Sciences, DGHS and CGHS; the case actually built up is only on the strength of the prevailing scales in the hospitals under the GNCTD, MCD and the Railways. The learned counsel for the applicants, Shri Arun Bhardwaj would draw our attention to the following comparative tabular statement annexed as A/1:
“ESIC
MCDGNCTRLY.C.GOVT.
Jr. Radio
3200-4950
R.Rs
Jr. Radio
4000-6000
R.RsJr. Radio
4000-6000Jr. Radio
4000-6000X-Ray Asstt.
3 posts
S.H. 2 Posts
3200-4950
None in 4000-6000
Radiographes
4500-7000Radiographes
5000-8000Radiographes
5000-8000Radiographes
4500-7000S.H. Radiographes
5000-8000”
4.7 It has been argued that these organizations / departments have granted the revised pay scales as recommended by the 5th Central Pay Commission under Para-B of its report to the Radiographers and Junior Radiographers working under them.
4.8 There is also an endeavour to argue that the nature and duties of the applicants are the same as of their counter-parts in these organizations. However, unlike them the benefits of higher pay scales have been denied to the applicants. An allied argument would be about the prescribed qualifications being identical in nature. The learned counsel, Shri Arun Bhardwaj would seek to establish this point by citing certain documents obtained under the RTI. As regards the prescribed qualifications and the prevalent pay scales after the 5th CPC, the learned counsel would advert to the following tabular chart enclosed along with the Rejoinder:
Sl No.Name of the Post Qualifications Implementation
After 5th CPC Department Pay Scale Functions
1. Junior Radiographer/X- Ray Assistant Matriculation or High Secondary or Senior Secondary (10+2) + Diploma in Radiography Same Delhi Govt. 4000-6000To perform all types of radiography functions (page 76)
2. -do-Matric Pass with Science subject from a recognized Board or School Diploma/ Certificate in Radiography from a recognized Institute (Page 70B)10+2 Diploma (2 years) / Certificate in RadiologyMCD4000-6000All routine professional Radiographic work like taking X-ray work in Do (Page 78)
3. Junior Radiographer Matriculation or equivalent from a recognized Board, Diploma or Certificate of recognized Institute (Page 69)Not implementedESIC3200-4900To carry out X-Ray of Patients
4. Junior Radiographer Matriculation or equivalent from a recognized Board + Diploma (2 years) (Page 50)10+2 with Diploma in Radiology Ministry of Railways4000-6000 -do-
5. Repeated representations to the authorities to cover the applicants also under Part-B of the 5th CPC and grant the claimed higher scale are stated to have been of no avail. However, on a move on the part of the Administrative Ministry to consider the matter taking place in the year 2003, a favourable recommendation from the respondent-Corporation is stated to have been made (paras 4.19 and 4.20 with Annex A/4 and A/5).
5.1. Reference to the decisions in some other Original Applications has also been made. These are: (i) OA 2243/2007 dealing with the issue of grant of pay scale of Rs.5000-8000 to the Radiographers in the Para-Military Forces under the MHA (Annex. A/6). ii) OA 2672/2003 dealing with claims of Sr. Radiographers, under the GNCTD, to the higher pay scale of Rs.5000-8000 (Annex. A/2). (iii) the OA No.308/2005 decided by the Madras Bench of the Tribunal vide its order dated 25.7.2006 (Annex A/10) dealing with the claims for higher pay scales by Radiographers, Jr. Radiographers and Operation Theatre Technicians in the ESIC. The directions by the Madras High Court in the WP (C) No.21142 of 2008 vide its judgment dated 20.4.2009 arising out of the aforesaid decision of this Tribunal (Annex A/11).
6. Opposing the claims in the OA, the respondents in their Counter Affidavit have submitted about the ESIC as a body Corporate having been established under the Employees State Insurance Act, 1948.
6.1 As per the respondents the pay scales being granted to the applicants are as per the relevant Recruitment Regulations. Further, these are also submitted to be in accordance with the recommendations of the 5th CPC.
6.2 The applicants’ claim for performing the work of the higher post of Radiographers all these years has been rebutted by the respondents.
6.3 On the point of the RRs, it has been submitted that the same are in the process of amendment.
6.4 As regards the personnel working in the other Organizations / Departments, with reference to which the pay parity is being claimed, these are stated to be under different authorities.
6.4 As regards the decisions in other Original Applications cited in support with regard to the OAs 2243/2007 and the OA 2672/2003, these are averred to be not applicable in the present case. In respect of the OA 308//2005 decided by the Madras Bench of the CAT and the directions of the High Court of Madras in the WP 21142/2008, a speaking order is stated to have been passed by the respondents with due approval of the Ministry of Labour. As per this order, the claims in question have not been found entertainable.
7. The respondents’ learned counsel, Shri Murari Kumar, would impress about the issues in question already having been considered by the Respondents. The learned counsel would advert to the speaking order dated 8.9.2009 having been passed by the Ministry of Labour in pursuance to the directions of the CAT, Chennai Bench in the OA 308/2005 and the consequent directions of Madras High Court in the Writ Petition filed by the respondents against the said order. A copy of this order has been enclosed along with the OA as Annex A/5. It would also be the stand of the learned counsel that the respondent-Corporation is bound by the directions of the Labour Ministry.
7.1 As regards the plea of the applicants regarding their not being eligible for promotion to the post of Radiographer, it would also be submitted by the learned counsel on instructions from the departmental representative present at the time of the hearing, about necessary changes already having been effected in the RRs.
7.2 On the point of the grant of higher scales in other Organizations, the submission would be that the same had been linked with modification of qualifications.
8. Before coming to an analysis of the factual submissions in this case, we find it apt to state that as per the settled law, in the matters of pay fixation and claims for pay parity, the scope of judicial review is not unfettered.
8.1 Laying down the basic law on the subject of pay fixation, the Hon’ble Apex Court in Union of India and Anr Vs P.V. Hariharan and Anr {1997 (2) SLR 233} sounded a note of caution against unwarranted judicial interference:
Fixation of pay scales is the function of the Government which normally acts on the recommendation of a Pay Commission. Besides, it is important to recognize that change of pay scale of a category has a cascading effect.
The limited grounds for judicial intervention in such matters got defined by the Hon’ble Apex Court in Union of India and Anr Vs S. Thakur {(2009) 1 SCC (LandS) 329} where the decision is found to be “unreasonable, unjust and prejudicial to a Section of the employees”.
8.2 On the subject of “equal pay for equal work” particularly relevant in the present context, there is noted to be a sea change in the application of the principle. In a catena of recent judgments the Hon’ble Apex Court has reiterated the Doctrine of “wholesale identity” being the stringent criteria for evoking this principle. In State of Punjab and Anr Vs Surjit Singh and Anr {(2009) 2 SCC (LandS) 696} the Honble Apex Court reiterated its earlier view in State of Haryana and Ors Vs Charanjit Singh and Ors {2006 (9) SCC 321}:
Principle for “Equal Pay for Equal Work” cannot be applied mechanically. Article 14 itself permits “reasonable classification”.
Laying down the Doctrine of “wholesale identity”, the Hon’ble Apex Court observed:
“24. It is no longer in doubt or dispute that grant of the benefit of the doctrine of “equal pay for equal work” depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity.”
Emphasizing the sea change in the interpretation of this principle, it was elaborated that whereas in 1970s and 1980s the Apex Court had been liberally applying this principle. However, in its recent decisions, it had been insisting upon strict pleadings and proofs to support the claims of parity. The burden of proof in such cases being clearly on the Claimant was also held by the Hon’ble Court.
8.3 Again, in UT Administration, Chandigarh and Ors vs Manju Mathur and Ors, (2011) 1 SCC (LandS) 348, rejecting the claims for pay parity in the posts of Sr. Dieticians and Dieticians held by the respondents under the UT Administration of Chandigarh with corresponding posts in the Directorate of Research and Medical Education, Punjab, the Hon’ble Apex court has reiterated its earlier view in State of MP MP Vs Ramesh Chandra Bajpai {(2010) 1 SCC (LandS) 287}):
“The doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the Court has to consider several factors and only if there was wholesale identity between the holders of the two posts, equality clause can be invoked, not otherwise.”
8.4 In State of Haryana vs Charanjit Singh referred above, the Hon’ble Apex had also propounded the view that the right forum for evaluation of such claims were expert bodies rather than the Courts. The following was observed:
“Normally the applicability of equal pay for equal work must be left to be evaluated and determined by an expert body and these are not matters where a Writ Court can interfere.”
9. Having carefully considered the respective submissions by both the sides, the material on record and the law on the subject, we find the following aspects relevant to the issues at hand:
9.1 The claims being agitated are in respect of ESIC, a statutory entity as a body corporate, with its own governing Regulations. As is trite, the decisions applicable to the Govt. employees are not suo motto applicable in such cases, but are subject to their own regulations and policy decisions.
9.2 It is revealed from the respondents’ order dated 8.9.2009 (Annex A/5) that as per the ESIC Act the rules and orders applicable to the Offices of the Central Government are ordinarily applicable in the case of ESIC also. Any deviations or departures from the same are by way of an exception, requiring prior approval of the Central Government. The relevant extracts about Section 17 (2) as quoted from this order are reproduced hereunder:
As per Section 17 (2) of ESI Act, wherever any departure from rules and orders applicable to the officers and employees of Central Government is made, the Employees’ State Insurance Corporation shall obtain prior approval of the Central Government.
9.3 The pay parity in question is being sought qua the Government hospitals under the GNCTD, MCD as well as the Railways. The averment of the higher pay scales having been granted in the hospitals under the Central Government, the DGHS, CGHS has not been pressed before us. In fact, the OA explicitly mentions about the claimed pay scales not having been granted to the X-Ray Assistants (said to be inter-changeable with Junior Radiographers) being given the same pay scale (3200-4950) as the applicants. The same is also stated to be the case in respect of Central Government hospitals such as RML and Safdarjung. The fact of the Central Government hospitals (the Railway hospitals stand on a different footing) not having granted the higher scales would be admitted by the learned counsel for the applicants.
The point that is important to note is that the claims now being advanced through this OA are not in accordance with the statutory provisions of the respondent corporation, and can only be considered as a “departure” from the standard norms.
9.4 Given the aforesaid statutory frame work, the very premise of the present claims seems to rest on slippery foundations. Besides, it is not in consonance with the Doctrine of “wholesale identity” propounded by the Hon’ble Apex Court in matters of “equal pay for equal work”.
For the very same reasons, it would also not be really necessary for us to go into the details of the various factual contentions raised by the applicants and rebutted by the respondents. In any case, several of such contentions - such as the applicants being more qualified than as per the prescribed regulations; claims of their duties being overlapping with those of the higher post of Radiographer - are not found to be either tenable or really relevant in the present context.
9.5 Even if for argument’s sake, credence was to be given to the various factual submissions being now adduced in support of the claims; the fact that the issue has already been examined by the respondents is a highly pertinent factor. We are here referring to the follow-up speaking order dated 8.9.2009 passed by the respondents in pursuance of the directions of the Chennai Bench of CAT in the OA 308/2005 and the subsequent directions by the Hon’ble Madras High Court in the Writ Petition arising out of the said order of the Tribunal. As this is found to have a direct bearing on the issues agitated in the present OA, we would need to dwell on the judicial directions in these cases and the consequent order passed by the respondents.
9.5.1 The OA 308/2005 had been filed by the ESIC Hospital Employees Union seeking a direction to the Union Ministry of Labour and the ESIC to consider and grant higher pay scales for Radiographers, Junior Radiographers and O.T. Technicians. This was on the basis of certain recommendations made by the Pay Anomaly Committee of the ESIC. In case of Junior Radiographers (same as the applicants in the present OA), the claim was for a pay scale of Rs.4000-6000 instead of Rs.3200-4900. The Ld. Coordinate Bench vide its judgment dated 25.7.2006 had directed the Union of India to consider, in accordance with law, grant of benefit of pay scales as recommended by the Pay Anomaly Committee to the incumbents of all these posts with all attendant benefits.
On a challenge to this order before the Hon’ble High Court of Madras in a Writ Petition, vide its order dated 28.4.2009, the Hon’ble High Court had directed the Union of India to consider the recommendations of the Pay Anomaly Committee regarding the payment of higher pay scales to the holders of these posts w.e.f. 1.1.1996.
9.5.2 From a perusal of this order, it is further revealed that consequent to the implementation of the 5th CPC recommendations in ESIC certain pay scales had been granted to these categories of employees w.e.f. 1.1.1996. In case of Jr. Radiographers the pay scales were 3200-4900, for OT Technicians Rs.4000-6000 and for Radiographers Rs.4500-7000. A Pay Anomaly Committee had, however, been constituted by the ESIC to remove anomalies wherever arisen and to recommend pay scales. The said Committee had recommended higher pay scales (Rs.4000-6000 for Jr. Radiographers, Rs.5000-8000 for OT Technicians and Radiographers). However, these recommendations were conditional upon the higher pay scales actually having been implemented in the CGHS. Further, a recommendation had also been made about the simultaneous amendments in the recruitment regulations.
9.5.3 On consideration by the Administrative Ministry, these recommendations for grant of higher pay scales had not been found acceptable. The reasons were cited as below:
“The Pay Committee was an internal committee set up by the ESI Corporation to give recommendations of Pay Scales to certain posts mainly wherever anomalies had arisen and the ESI Corporation is free, either to accept or reject any of its recommendations. The Pay Committee recommended fixing higher pay scale subject to the condition that higher pay scales had actually been implemented in CGHS. The fact is that these pay scales were not implemented by the Central Government. Secondly, this recommendation goes beyond removal of anomalies and deviates from the report of Vth Central Pay commission and was to be implemented with reference to the Recruitment Regulations of ESI Corporation for the said posts.”
In the penultimate paragraph, as the concluding reasons for non-approval, it had been stated that such up-gradations had not been implemented by the Central Government in respect of its employees. The relevant extracts are reproduced as below:
“As per section 17 (2) of ESI Act, wherever any departure from rules and orders applicable to the officers and employees of Central Government is made, the Employees’ State Insurance Corporation shall obtain prior approval of the Central Government. Accordingly, the recommendations of the Pay Anomaly Committee were referred to Government of India (Ministry of Labour). The Ministry upon examining the recommendations, did not approve the proposals on the ground that the pay scale for the post of radiographer, Jr. Radiographer and O.T. Technician could not be upgraded since the Central Government had not implemented the same in respect of its employees.
9.6 As was held by the Hon’ble Apex Court in Charanjit Singh’s case (supra), evaluation of claims regarding “equal pay for equal work” are best left to expert bodies. In the present case, the claims as being canvassed by a few individual applicants, are virtually the same as had been earlier sought by the ESIC Employees Association. The only difference was that whereas the present claims are only in respect of one category of employees i.e. Jr. Radiographers, the claims of the Association were much broader in their scope and had included also the claims of other posts in the hierarchy i.e. Radiographers and OT Technicians. In its OA before the Chennai Bench, the Association had sought directions for implementing the recommendations of the Pay Anomaly Committee of ESIC. As stated above, this Committee had recommended higher pay scales (which included the pay scale now being claimed by the applicants as Jr. Radiographers), however, subject to certain stipulations.
As per the judicial directions in the Chennai case, on examination the administrative ministry has not found it feasible to accept the recommendations for grant of higher pay scales for the reason that such pay scales have not been implemented by the Central Government in respect of its own employees. This view is in consonance with the provisions of the ESI Act. We also do not find it falling in the category of “unreasonable, unjust and prejudicial to a section of the employees” held by the Hon’ble Apex Court to be the valid grounds for judicial intervention in matters of pay scales {UOI and Anr. Vs S. Thakur (supra)}. Further, in case of the higher pay scale of 4000-6000 being granted to the Jr. Radiographers a “cascading effect” on the other posts in the Organization cannot be ruled out.
9.7 We are not finding it necessary to deal at length with the other two OAs referred by the applicants. In any case, these pertained to different Organizations and factually were different. As was observed by the Hon’ble Apex Court in Ramesh Chand Daga Vs Rameshwro Bai; (2005) 4 SCC 772:
“Judgment, as is well known, is not to be read as a statute. A judgment, it is trite, must be construed upon reading the same as a whole. For the said purpose the attendant circumstances may also be taken into consideration.”
9.8 Before concluding, we find it relevant to note the respondents’ submission regarding the changes already having been made in the RRs including Jr. Radiographers as eligible for promotion for the post of Radiographers.
10. In view of the reasons elaborated in para 9 above, the claims in the OA are not found to be tenable. The OA is dismissed with no orders as to costs.