SATYAVEER SINGH DAGUR v. PG INSTITUTE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH

27

judicial pronouncements as final and implement the same meticulously qua the applicants without any impediment in the interest of justice.

iii. Pass any other order for the grant of relief(s) to the applicant which it may deem fit in the peculiar facts and circumstances of the case.

3. The facts of the case as pleaded by the applicants are as follows:

a. The applicants are serving on various posts of Nursing Cadre in the Post Graduate Institute of Medical Education & Research, Chandigarh and are governed by the Central Civil Services Rules 1965.

b. Prior to 01.01.2006, the applicants were drawing the pay scale of Rs.5000-

8000.

c. On the basis of 6^th CPC recommendations, Ministry of Finance promulgated the Central Civil Services (Revised Pay) Rules 2008 applicable w.e.f.

01.01.2006.

d. As per the provisions of Section 1 (ii) of Part B (dealing with the upgraded category) of the First Schedule of the said Rules 2008, the pre-revised pay scale of Rs.5000-8000, as was being drawn by the applicants prior to 01.01.2006, was merged along with the pay scale categories of Rs.5500- 9000 and Rs.6500-10500 and were upgraded to the next higher grade in the Pay Band corresponding to the pre-revised pay scale of Rs.7450-11500. e. Accordingly, the upgraded pre-revised pay scale of the applicants ought to have been fixed at Rs.7450-11500 for all intents and purposes and the

28

further re-fixation/revision of pay to be given effect w.e.f. 01.01.2006 in PB- 2 with Rs.4600 as Grade Pay.

f. In accordance with the provisions of Rule 7(A)(i) of the CCS(Revised Pay) Rules 2008, the revised pay scale was to be fixed by multiplying the existing pay as on 01.01.2006 by a factor of 1.86.

g. Accordingly, since the pre-revised pay scale of the applicants had been upgraded to Rs.7450-11500 and hence they were entitled for fixation of their pay at Rs.18,460/- (Rs.7450 x 1.86 + 4600) using the multiplication factor of

1.86 as provided in the rules along with Rs.4600/- Grade Pay w.e.f. 01.01.2006. However, the pay of the applicants was wrongly fixed by the respondent PGIMER treating them as direct recruits and giving them the entry pay of Rs. 17,410 in the revised pay structure for direct recruits appointed on or after 01.01.2006 as provided in Section II Part A of 1^st Schedule viz. PB II (Rs.9300-34800) + GP Rs.4600.

h. Learned counsel for the applicants further averred that Delhi High Court in WP(C) No.8058/2015 titled Union of India and others Vs. Malbika Deb Gupta has decided in favour of the applicants and held that they were entitled for enhanced pay fixation. The Delhi High Court has ruled as follows: 11. One cannot accept that the same post can have two different pay scales, one for existing employees performing the same tasks and doing the same work on the ground that they were appointed or have been functioning on the said post prior to 1.1.2006, whereas a person

29

appointed later in point of time would get the higher pay scale. Logically and as sequitor, the argument of the Union of India that where new appointments or promotions W.P.(C) 8058/2015 & Connected matters Page 9 of 10 were made, the employees working on the posts would immediately get the benefit of pay under Rule 7A Clause (ii) is wrong and fallacious. The principle of upgradation of pay of the senior on the junior getting a higher pay scale is applicable in certain situations. Note 2A does not prescribe and record any such precept.

12. Fixation of pay pursuant to 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 High 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 v. Union of India. referring to the decision in Dharmendra Yadav (supra) takes an identical view.

13. During 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 instructions 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.

14. Resultantly, the writ petitions are dismissed with the observation that 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 matters Page 10 of

10 Rule 7 Clause (A) of the 2008 Rules.

15. This order will be implemented within 2 months from the date on which a copy of the order is received by the petitioners.

i. This judgment was further assailed by the Govt. of NCT of Delhi as well as DG, ESIC before Hon"ble Supreme Court of India by filing SLP(C) vide

30

diary No.23663/2017 and 23440/2017, which were dismissed by the Hon"ble Apex Court vide order dated 01.09.2017.

j. A similar issue relating to interpretation of Rule 7(A) of CCS (Revised Pay) Rules, 2008, came up for adjudication before the Ernakulam Bench of this Tribunal in OA.No.180/569/2014 titled All India Navel Clerks Associations vs. UOI and others wherein the Tribunal has in unambiguous terms clarified the definitions of existing basic pay and existing scale as provided in CDS (Revised Pay) Rules, 2008, which is parimateria to CCS (Revised pay) Rules, 2008 and while allowing the OA filed by the applicants directed the respondents to fix the initial pay of the applicants in existing scale of pay as on 01.01.2006 and not in old scale prior to 01.01.2006 with all consequential benefits. Learned counsel has cited numerous similar litigations which have been decided by various Hon"ble Courts.

k. The Nursing Welfare Association of PGIMER, Chandigarh again approached the respondent administration and requested to refix the pay of employees whose scales have been upgraded in the light of interpretation/principles laid down by the Hon"ble Courts. l. Consequently, the PGIMER, Administration referred the matter to the Law Officer of the Institute for his opinion who considered the case in view of various judgments of Hon"ble Courts on similar issue of Nursing personnel and opined that similar orders are required to be passed by refixing the pay of the employees as per judicial pronouncements. Thereafter, respondent

31

PGIMER issued a communication dated 06.04.2019 with a copy appended to Joint Secretary, Min. of Health & Family Welfare, New Delhi, regarding grant of minimum pay to Nursing personnel in accordance with Rule 7(1)(A)(i) & (ii) of 6^th CPC and while referring to various judicial pronouncements as well as advice of Law Officer of Institute, requested the authorities to examine the issue afresh in the light of said opinion of Law Officer so that the issue raised by the Nursing Welfare Association are settled without any further delay.

m. Subsequently in terms of the reply received from the Ministry of Health and Family Welfare, Nursing Section, New Delhi, the O/o respondent No.2 i.e. Director, PGU, Chandigarh issued office order dated 25.05.2019 according sanction for the grant of re-fixation of pay of Nursing Officers as Rs.18460/- against Rs.17,140/- w.e.f. 01.01.2006. It was further mentioned in the said office order that the initial pay of Nursing Officers shall be Rs.7450 as on 01.01.2006 for refixing the pay by multiplying with the factor of 1.86 as per the recommendations of 6^th CPC under Rule 7 of CCS(Revised Pay) Rules, 2008. Accordingly, the pay of the applicant was refixed in terms of this order and the revised salary was being disbursed to the applicants. However, subsequently, respondent No.2 issued impugned office order dated 16.07.2020 whereby unilaterally, without any notice etc., respondent No.2 ordered that the office order dated 25.05.2019 regarding refixation of pay of Nursing cadre is kept in abeyance and in cases where the benefit has already been extended, the same shall be reversed to the status before the issue of

32

office order dated 25.05.2019, till clarification is received from the Ministry of Health and Family Welfare.

n. In consequence to the said impugned order dated 16.07.2020, the Accounts Wing of PGIMER has reduced the basic pay of the applicants effective from 1^st July 2020 bringing it to the stage/status before the issue of office order dated 25.05.2019.

o. The issue regarding grant of initial pay scale of Rs.7450/- as on 01.01.2006 and thereby multiplying the same with factor of 1.86 + GP Rs.4600 has already been settled upto Hon"ble Apex Court in catena of judgments and other pronouncements as reproduced and relied upon in the preceding paras and the said judgments have already been implemented qua the parties in the said cases. Moreover, the Hon"ble Apex Court in its order dated 01.09.2017 has categorically held that once the issue, in principle has been settled, it is only appropriate on the part of the Govt. of India to issue a circular so that it will save the time of the court and administrative departments apart from avoiding unnecessary and avoidable expenditure.

p. The Ministry of Health and Family Welfare has also in unambiguous terms vide communication dated 09.08.2016 as well as noting dated 06.03.2018 directed that fixation of initial pay in the revised pay structure is to be made as per Rule 7(1)(A)(i) & (ii) for Nursing Personnel working under Central Govt. Hospitals/CGHS/Autonomous bodies/States which are following central Govt. pay structure/statutory body viz. ESIC/Railway.

33

4. Shri Sanjay Goyal, learned Senior Central Government Standing Counsel has filed reply in OA.No.491/2020 and prayed that the same may be considered as common reply for all the connected cases. He submitted that the present OA is liable to be dismissed on the ground that the applicants have not availed the statutory remedy in terms of Section 20(1) of the Administrative Tribunals Act, 1985 before approaching this Tribunal and have directly filed the OA before this Tribunal instead of submitting representation to the respondents. Hence, the present OA is liable to be dismissed on the sole ground of being premature.

5. The learned counsel for the respondents has averred that the factual information as per records pertaining to the case is as follows:

a. Earlier the applicants were in the pay scale of Rs.5000-8000 as per the 5^th CPC. As per the recommendations of the 6^th CPC, the Central Civil Services (Revised Pay) Rules, 2008 were notified on 29.08.2008. These Rules came into force with effect from 01.01.2006. In these Rules, the previous pay scales were replaced by Pay Band and Grade Pay. As per the recommendations of the 6^th CPC, the pay of the Nursing cadre was notified vide para (ii), Section I in Part B of the First Schedule to the CCS(RP) Rules, 2008 and these recommendations are as follows:

S.N Post Present Scale Revised Scale Corresponding

o. Pay Band &

Grade Pay

Pay Grade

Band Pay

1. Staff Nurse 5000-8000 7450-11500 PB-2 4600

2. Nursing Sister 5500-9000 7500-12000 PB-2 4800

34

b. As can be seen from the above table, the merger of three scales of pay i.e.

Rs. 5,000-8,000, Rs. 5,500-9,000 and Rs. 6,500-10,500 into a single revised

Pay Band of PB-2 was not applicable in the case of the applicants. The

applicants (Staff Nurse in the pre-revised scale of Rs. 5,000-8,000) have

been given the Pay Band & Grade Pay of PB-2 (Rs.9300-34800) with Grade

Pay of Rs.4600, which corresponds to the Pay Band & Grade Pay given for

the pre-revised pay scale of Rs.7450-11500. The pay scale of Rs.7450-11500

ceased to exist w.e.f. 01.01.2006. From this date, the nomenclature of Pay

Band and Grade pay for Rs.7,450-11,500 was PB-2 (Rs.9,300-34,800) along

with Grade Pay Rs.4,600/-.

c. As per the provisions prescribed under Rule-7, clause (A) (i) and (ii) of

notification dated 29.08.2008, the fixation of pay in the applicable Pay Band

was to be done in the following manner: 7. Fixation of initial pay in the revised pay structure:

(A) in the case of all employees: -

35

(i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.

(ii) if the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale.

d. In case of direct recruits appointed on or after 01.01.2006, the pay had to be fixed as per Section-II of Part A of the Notification dated 29.08.2008. Table -2 of the Section-II is as under:

Grade Pay Pay in Pay Band Total 4,200 9,300 13,500

4,800 13,500 18,150

As per this Table applicable in the instant case, the pay for person appointed as a direct recruit in PB-2 with Grade Pay of Rs.4600 on or after 1.1.2006, was to be fixed at Rs.17,140.

e. The fitment table given at Page No.17 of the OM dated 30.08.2008 which provides for the fixation of pay in the revised Pay Band for previous pay scale of Rs.5,000-150-8,000, is applicable to the applicants. The Table given at Page No.20of the same OM which provides for the fixation of revised pay in Pay Band-2 (Rs.9300-34800) with Grade Pay of Rs.4600 corresponding to the pre-revised pay scale of Rs.7450-225-11500, is not applicable to the applicants. This is amply clarified in para 2 of OM dated 13.10.2008 that the fitment table attached with the OM of even number dated 30.08.2008 corresponding to the pre-revised scale shall be used for the purpose of determination of pay in the pay band.

36

f. The applicant was in the pay scale of Rs.5,000-150-8,000 before the implementation of 6^th CPC recommendations i.e. before 01.01.2006. The normal replacement Pay Band and Grade Pay for this pay scale as recommended by 6^th CPC and implemented vide notification dtd.29.08.2008 was Pay Band-2 (Rs.9300-34800) with Grade Pay Rs.4200. In case of the applicants, however, they have been given the higher Grade Pay of Rs.4600 in the same Pay Band which was corresponding to the normal replacement Grade Pay of pre-revised scale of Rs.7450-225-11500. g. The contention of the applicants that their pay should be fixed taking the minimum pay of Rs.7450 of the pre-revised scale of Rs.7450-11500 and multiplying this minimum pay by 1.86 is based on wrong assumption. Technically, both the pay scales of Rs.5000-8000 and Rs.7450-11500 were as per 5^th CPC, and available only till 31.12.2005 and ceased to be in operation w.e.f. 01.01.2006 i.e. from the date of implementation of the 6^th CPC recommendations. The pre-revised pay scale of Rs.7450-11500 was replaced by PB-2 (Rs.9300-34800) with Grade Pay Rs.4600 w.e.f. 01.01.2006 itself. Hence, the pre-revised scale of applicants is Rs.5000-8000 and the table given at Page No.17 of the OM dated 30.08.2008 is applicable in case of the applicant. The pay of such upgraded posts would have to be done as prescribed in Note 2A below Rule 7(1) and illustration 4A to the CCS(RP) Rules, 2008 and fixed at Rs.17140/- and not at Rs.18460/-.

37

h. The Trained Graduate Teachers (TGTs) of Govt. of National Capital Territory of Delhi filed OA.No.3217/2014 before the Hon"ble Principal Bench of CAT. The issue in that case mainly was that the pay of petitioners was fixed lower than the direct recruits. Hence the petitioners" prayer was for re-fixing their pay as applicable to direct recruits appointed on or after

01.01.2006.

i. The Hon"ble Supreme Court vide specific order dated 01.09.2017 as arising out of the original issue raised by the TGTs of GNCTD in terms of their OA No.3217/2014 and Hon"ble High Court of Delhi vide order dated 23.03.2017 in WP(C ) No.2634/2017 directed Government to issue appropriate orders in this regard. The operating para of the Hon"ble Apex Court order dated 01.09.2017 is reproduced as under: "The present situation is that the stepping up is available only to those who have approached the Court. But since the issue has otherwise

become final, we direct the Government of India to immediately look

into the matter and issue appropriate orders for granting the pay-scale

so that people need not unnecessarily travel either to the Tribunal or the

High Court or this Court.

With the above observations and directions, the special leave petitions

are dismissed."

j. The Government had considered the above mentioned specific order of

Hon"ble Supreme Court and issued OM dated 28.09.2018 and directed vide

Para-8 as under: "8. Accordingly, the President is pleased to decide that in respect of those posts where entry pay for direct recruits appointed on or after

38

01.01.2006, as per Section II of Part A of the First Schedule of CCS(RP) Rules, 2008, becomes applicable by virtue of the provision of the element of direct recruitment in the relevant recruitment rules, the pay of Central Government employees who were appointed to such posts prior to 01.01.2006 and whose pay, as fixed in the revised pay structure under Rule 7 thereof as on 01.01.2006 turns out to be lower than the prescribed entry pay of direct recruits of that post, shall not be less than such entry pay w.e.f. 01.01.2006. Likewise, the pay of Central Government employees who were appointed to such posts by way of promotion on or after 01.01.2006 and whose pay, as fixed under Rule 13 of CCS(RP) Rules, 2008, happens to be lower than the said entry pay, shall also not be less than such entry pay from the date of their promotion taking place on or after 01.01.2006." k. The aforesaid OM dated 28.09.2018 is specific for the fixation of entry pay of direct recruits appointed on or after 01.01.2006 and in case the pay of the employees appointed before such direct recruits happened to be less than the direct recruits, the same have to be stepped up.

l. The All India Government Nurses Federation (AIGNF) gave a representation to Ministry of Health and Family Welfare and demanded to arrive at their minimum pay with reference to the upgraded scale and not with reference to the pre-revised pay scale. The matter was examined in the Ministry of Health and Family Welfare and forwarded to Ministry of Finance, being the competent Ministry in the matter of consideration. Ministry of Finance vide ID Note dated 21.06.2017 has conveyed that the pay in the revised scale effective from 01.01.2006 is to be fixed in PB with respect to the actual pay in the actual pre-revised scale. The, Grade Pay as applicable to the upgraded scale is allowed. The notional pay at the minimum of the pre-revised scale (for which the higher Grade Pay in the

39

revised structure has been given) cannot be taken as pay for fixation in the revised pay structure as it was never drawn, nor is the upgradation applicable in the pre-revised structure. The stepping up of pay of promotes with respect to the direct recruits joining on or after 01.01.2006 is to be considered in terms of decision dated 23.01.2013.

m. The matter was again taken up with Department of Expenditure for clarification and advice, and the Department of Expenditure vide ID Note dated 10.12.2020 has conveyed the following:

"Ministry of Health and Family Welfare (MoHFW) may kindly refer to their Note No.# 53 of their e-office File No.V-16020/29/2020-INI-I (Comp. No.300459101) seeking clarification of this Department with regard to the fixation of pay of Nursing Cadre (i.e. Staff Nurse pre- revised pay Rs.5000-8000 and upgraded to Grade Pay Rs.4600) of AIIMS wherein Nursing Union has demanded to re-fix the initial basic pay of Nursing Staff from Rs.17140 to Rs.18460 w.e.f. 01.01.2006 i.e. as per the Fitment Table for pre-revised pay scale of Rs.7450-11500/-. The above matter has been examined. In this regard, it is stated that the above said demand of Nursing Union is not consonance with CCS(RP) Rules, 2008. As regards fixation of pay where posts have been upgraded as a result of recommendation of 6^th CPC, it is stated that this Department has already issued clarification for pay fixation in such cases vide OM No.1/1/2008-IC dated 13.10.2008 which is self- explanatory. This Department has also issued OM No.8-23/2017- E.III(A) dated 28.09.2018 regarding Entry Pay for Direct Recruits appointed on or after 01.01.2006 and pay fixation in the case of persons other than such direct recruits, which is self-explanatory. In view of the above, MoHFW is advised to process the pay fixation of above nursing staff/cadre strictly in accordance with above said Rules/OMs and to direct AIIMS & other such institutes under their administrative control which have wrongly fixed the pay in r/o Nursing Staff at Rs.18460 w.e.f. 01.01.2006 as per fitment table of Rs.7450-

40

11500, to re-fix the pay strictly as per the clarifications issued by this Department vide OM dated 13.01.2008 and if applicable vide DOE"s OM dated 28.09.2018 i.e. Rs.17140 w.e.f. 01.01.2006."

n. In view of the foregoing paras, the demand of the applicants is unreasonable and not in consonance with CCS (RP) Rules, 2008. Hence, the present OA may be dismissed being devoid of merit.

6. After going through the pleadings made by the learned counsels for the applicants as well as the respondents and hearing the arguments made by them, the following point needs to be adjudicated in this matter:

"What is the existing pre-revised pay and pre-revised pay scale of the applicants on 01.01.2006 which should form the basis of pay revision subsequent to the acceptance of the 6^th pay recommendations by the Government and notification of the Central Civil Services (Revised Pay) Rules, 2008."

7. The applicants have contended that their case is covered under the ruling given by the Ernakulam bench of this tribunal, in OA No: 180/00569/2014 titled All India Naval Clerks Association and others versus The Ministry of Defence. A perusal of the ruling given by the Ernakulum Bench, vide its orders dated 3^rd April 2018, indicates that it was in relation to pay fixation of civilian employees working in the Ministry of Defence and the case is covered under the provisions of Civilians in Defence Services (Revised Pay) Rules, 2008 as applicable to them. This judgement is not applicable to the present case of the applicants, who are governed by the Central Civil Services (Revised Pay) rules of 2008.

41

8. A careful perusal of the Central Civil Services (Revised Pay) Rules, 2008 notified by the Ministry of Finance vide their notification No.G.S.R.622(E) dated 29.08.2008 reveal the following provisions applicable in the present case:

3. Definitions - In these rules, unless the context otherwise requires -

(1) "existing basic pay" means pay drawn in the prescribed existing scale of pay, including stagnation increment(s), but does not include any other type of pay like „special pay", etc.

(2) "existing scale" in relation to a Government servant means the present scale applicable to the post held by the Government servant (or, as the case may be, personal scale applicable to him) as on the 1^st day of January, 2006 whether in a substantive or officiating capacity.

Explanation- In the case of a Government servant, who was on the 1^st day of January, 2006 on deputation out of India or on leave or on foreign service, or who would have on that date officiated in one or more lower posts but for his officiating in a higher post, "existing scale" includes the scale applicable to the post which he would have held but for his being on deputation out of India or on leave or on foreign service or, as the case may be, but for his officiating in a higher post;

(3) "existing emoluments" mean the sum of (i) existing basic pay, (ii) dearness pay appropriate to the basic pay and (iii) dearness allowance appropriate to the basic pay + dearness pay at index average 536 (1982=100).

(4) "present scale" in relation to any post/grade specified in column 2 of the First Schedule means the scale of pay specified against that post in column 3 thereof;

(5) "pay in the pay band" means pay drawn in the running pay bands specified in Column 5 of the First Schedule.

(6) "grade pay" is the fixed amount corresponding to the pre-revised pay scales/posts.

(7) "revised pay structure" in relation to any post specified in column 2 of the First Schedule means the pay band and grade pay specified against that post or the pay scale specified in column 5 & 6 thereof, unless a different revised pay band and grade pay or pay scale is notified separately for that post.

42

(8) "basic pay" in the revised pay structure means the pay drawn in the prescribed pay band plus the applicable grade pay but does not include any other type of pay like special pay, etc.

9. The fixation of initial pay in the revised pay structure has been provided for under Rule-7 of these rules which are as follows:

7. Fixation of initial pay in the revised pay structure:

(1) The initial pay of a Government servant who elects, or is deemed to have elected under sub-rule (3) of rule 6 to be governed by the revised pay structure on and from the 1^st day of January, 2006, shall, unless in any case the President by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely :-

(A) in the case of all employees:-

(i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.

(ii) if the minimum of the revised pay band/ pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale;

Provided further that:-

Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For this purpose, the increment will be calculated on the pay in the pay band. Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching.

In the case of pay scales in higher administrative grade (HAG) in the pay band PB-4, benefit of increments due to bunching shall be given taking into account all the stages in different pay scales in this grade. In the case of

43

HAG+ scale, benefit of one increment for every two stages in the pre-revised scale will be granted in the revised pay scale.

If by stepping up of the pay as above, the pay of a Government servant gets fixed at a stage in the revised pay band/ pay scale (where applicable) which is higher than the stage in the revised pay band at which the pay of a Government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former.

(iii) The pay in the pay band will be determined in the above manner. In addition to the pay in the pay band, grade pay corresponding to the existing scale will be payable.

10. The applicants" posts, mentioned in First Schedule annexed to these Rules under Section II of Part B(XII), are as follows:

XII NURSING & PARAMEDICAL STAFF

11. Part A of First Schedule broadly indicates revised Pay Bands and Grade Pay for

the posts carrying present scales in Group „A", „B", „C" & „D" except posts for

44

which different revised scales are notified separately. For the posts in Part B of the First Schedule, the following Note 2A below Rule-7 is also relevant: Note 2A - Where a post has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the

First Schedule to these Rules, the fixation of pay in the applicable pay band

will be done in the manner prescribed in accordance with Clause (A) (i) and

(ii) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor

of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition. Illustration 4A in this regard is in the Explanatory Memorandum to these Rules.

12. The applicants were in the pre-revised pay scale of Rs.5000-150-8000 which was the existing pay scale for Staff Nurse. As per the table given in Part A of Section I of the First Schedule of the revised pay Rules, the pay scale of Rs.5,000-150-8,000 would normally have been replaced in the revised pay structure by PB-2(Rs. 9,300- 34,800) with corresponding Grade Pay of Rs.4200. However, the post of the applicants (Staff Nurse) was separately listed under Part B of the revised pay scales of these Rules. In this part B, the revised pay for the post of Staff nurse was provided as PB-2 (9,300-34,800) with Grade Pay of Rs.4,600 instead of Rs.4,200. This revised grade pay of Rs. 4,600/-, corresponds to the pre revised scale of Rs.7,450-225-11,500 in the Vth CPC.

13. The applicants, who were in the pre revised pay scale of Rs.5,000-150-8,000, were to be given the revised pay structure in PB-2 (Rs. 9,300-34,800) with Grade Pay of Rs.4600 instead of the standard replacement Grade Pay of Rs. 4,200. It is nowhere mentioned in these rules that, before their pay fixation, the applicants should be first given the pre revised pay scale of Rs.7,450-225-11,5000 and then

45

subsequently be given the revised pay structure of PB -2 with Grade Pay of Rs.4,600.

14. A careful reading of Rule 3 which defines existing basic pay and pay as well as revised pay structure and grade pay, indicates as follows: Existing basic pay means pay drawn in the prescribed existing scale of pay. Existing scale in relation to a Government servant means the present scale

applicable to the post held by the Government servant as on the 1^st day of

January, 2006.Pay in the pay band means pay drawn in the running pay

bands specified in Column 5 of the First Schedule and grade pay is the fixed

amount corresponding to the pre-revised pay scales/posts.

15. The mechanism for fixing the initial pay in the revised pay structure has been

specified in Rule 7 (A)(i) as follows: The pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the

resultant figure to the next multiple of 10.

16. The contention of the applicants is that the existing basic pay as on 01.01.2006 should be taken as the minimum of the pay scale of Rs.7450-11500 i.e. Rs.7450. This should be multiplied by a factor of 1.86 and the pay should be fixed by rounding the resultant figure to the next multiple of ten. On the other hand, the contention of the respondents is that the existing basic pay of the applicants was never Rs.7,450/. It was, what was being drawn by the applicants in the pre revised pay scale of Rs.5000-150-8000 and that existing pay needs to be multiplied by a factor of 1.86 to arrive at the revised pay in the Pay Band.

17. The existing basic pay scale of the applicants was Rs.5000-150-8000 prior to the pay revision. Subsequent to the pay revision, the applicable pay scales for the applicants were PB-2 (9300-34800) with the Grade Pay Rs.4600. This revised pay

46

scale of PB-2 with 4600 GP corresponds to the existing pay scale of Rs.7450- 11500. The revised pay rules, do not prescribe anywhere, that the existing pay scale of Rs.5000-150-8000 before revision, should first be stepped up to Rs.7,450- 11,500, and then subsequently be revised to PB-2 with GP 4600. There is no mechanism prescribed for fixing the pay in this so called intermediate pay scale of Rs.7450-11500. There could be cases of persons drawing an existing pay greater than Rs.7450 in the existing pay structure of Rs.5000-150-8000. In such cases, his revised pay cannot be fixed based on the assumption that he would be drawing the minimum of the pay scale of Rs.7450-11500.

18. It is therefore obvious, that perusal of the pay rules provide for fixation of revised pay based on the existing pay being drawn in the pre revised pay scale of Rs.5000- 8000, in case of the applicants. There is also a provision in the revised pay rules for fixation of entry pay in the revised pay structure for direct recruits appointed on or after 01.01.2006. The entry pay, to be drawn by direct recruits appointed on or after 1.1.2006, in posts in PB-2 with Grade Pay of Rs.4600, has been fixed at Rs.17,140. The Government has also specified vide OM dated 28.09.2018 in pursuance of specific orders of Hon"ble Supreme Court, that the pay of Central government employees, who were appointed to such posts prior to 01.01.2006 and whose pay is fixed as per Rule 7 as on 01.01.2006, shall not be less than such entry pay w.e.f. 01.01.2006.

19. The revised pay of the applicants had accordingly been fixed at Rs.17,140/ keeping in view the above provision. The applicants have also stated the same fact in their

47

pleadings that, their pay was initially fixed at Rs.17,140/- based on the entry pay of the direct recruits with Grade Pay of Rs.4,600.

20. The issue of pay revision in the 6^th CPC was first referred by PGIMER administration to the Law Officer of the Institute, for his opinion, based on various judgments of Hon"ble Courts on similar issues. Subsequently, based on the opinion of the Law Officer, the issue was referred to the Ministry of Health & Family Welfare, requesting the authorities to examine the issue afresh in the light of the opinion of said Law Officer and in view of the issues raised by the Nursing Welfare Association.

21. In their letter dated 06.04.2019 addressed to the Joint Secretary, Government of India, Ministry of Health & Family Welfare, Nursing Section, Nirman Bhawan, New Delhi, the PGIMER, Chandigarh had stated that the Law Officer of the Institute had opined as under on this issue:

"The orders of the Ernakulam Bench of Hon"ble CAT are not ipso-facto applicable to PGIMER, Chandigarh. However, in the present case, not only the Hon"ble CAT, Ernakulum, but also Hon"ble CAT, Delhi and also Hon"ble High Court at New Delhi, has passed the similar orders. It is appropriate to mention here that the Hon"ble Supreme Court of India in Appeal filed by Govt. of NCT of Delhi & Anr. Vs. Somvir Rana (TGT ENG) & ors. has categorically observed that:

"…there are several matters in which the aggrieved employees have been going to the Tribunal, then to the high Court and thereafter those matters are brought before this Court at the instance of the Union of India/NCT of Delhi.

Once the question, in principle, has been settled, it is only appropriate on the part of the Government of India to issue a Circular so that it will save the time of the Court and the Administrative Departments apart from avoiding unnecessary and avoidable expenditure.

48

The present situation is that the stepping up is available only to those who have approached the Court. But since the issue has otherwise become final, we direct the Government of India to immediately look into the matter and issue appropriate orders for granting the pay-scale so that people need not unnecessarily travel either to the Tribunal or the High Court or this Court."

With the above observations/directions, the Hon"ble Supreme Court of India has dismissed the Special Leave Petition filed by Govt. of NCT of Delhi & Anr. against Sh.Somvir Rana (TGT ENG) &Ors. This judgment is dated 1.09.2017. The Union of India might have issued appropriate orders in compliance to the directions of the Hon"ble Supreme Court of India."

22. The PGIMER had requested, that the matter may be examined afresh in light of above opinion of Law Officer, and the Institute may be informed accordingly so that the issue raised by the Nurses Welfare Association is settled.

23. The Ministry of Health & Family Welfare, Nursing Section, vide their reply dated 25.04.2019, enclosed a copy of OM No.Z.28015/5/2016-N (pt.4) dated 09.10.2018 for information and further appropriate action at their end. The OM dated 09.10.2018 from the Ministry of Health & Family Welfare in turn had referred to an OM No.8-23/2017-E.IIIA dated 28.09.2018 issued by the Department of Expenditure on the subject. A careful perusal of the OM dated 28.09.2018 issued by the Ministry of Finance, Department of Expenditure indicates that the subject of this OM was "entry pay for direct recruits appointed on or after 1.1.2006 and pay fixation in the case of persons other than such direct recruits". This OM had referred to the various Court cases and finally recorded the following decision in the matter:

"8. Accordingly, the President is pleased to decide that in respect of those posts where entry pay for direct recruits appointed on or after 1.1.2006, as per Section II of Part A of the First Schedule of CCS(RP) Rules, 2008,

49

becomes applicable by virtue of the provision of the element of direct recruitment in the relevant recruitment rules, the pay of Central government employees who were appointed to such posts prior to 1.1.2006 and whose pay, as fixed in the revised pay structure under Rule 7 thereof as on 1.1.2006 turns out to be lower than the prescribed entry pay for direct recruits of that post, shall not be less than such entry pay w.e.f. 1.1.2006. Likewise, the pay of Central Government employees who were appointed to such posts by way of promotion on or after 1.1.2006 and whose pay, as fixed under Rule 13 of CCS(RP) Rules, 2008, happens to be lower than the said entry pay, shall also not be less than such entry pay from the date of their promotion taking place on or after 1.1.2006."

24. The clarification issued by the Ministry of Health & Family Welfare addressed to the PGIMER, was, as is apparent from the OM itself, not at all concerned with the clarification sought by PGIMER regarding pay fixation based on the pre revised pay scale of Rs.7450-11500. The OM dated 28.9.2018, enclosed by the Ministry, related to fixation of pay of persons other than direct recruits in cases where entry pay for direct recruits appointed on or after 01.01.2006 had been fixed under CCS(RP) Rules. In fact, the pay of the applicants (Staff Nurses) had already been fixed at Rs.17140/- w.e.f. 01.01.2006 based on parity with the entry pay of direct recruit Staff Nurses as provided for by this OM dated 28.9.2018.

25. The OM appended with the reply of the Ministry, was erroneously interpreted by the PGIMER to mean that the pay scale of Nursing Officers should be considered as upgraded and merged with the pay scale of Rs.7450-11500 from the level of Rs.5000-8000, prior to the pay revision. Consequently, after this misinterpretation, the pay was also erroneously fixed to Rs.18,460/- as compared to Rs.17,140/- fixed earlier with effect from 1.1.2006 through an Office Order dated 25.5.2019. However, subsequent to further clarifications sent by the Ministry in the matter, the matter was re-examined by PGIMER and the office order dated 16.07.2020 was

50

issued keeping the earlier office order dated 25.05.2019 in abeyance till a further clarification is received from the Ministry which was sought vide PGIMER letter dated 30.07.2020.

26. The Department of Expenditure, vide its note dated 10.12.2020, has subsequently conveyed, that the demand of Nursing Union is not in consonance with CCS(RP) Rules 2008 and fixation of pay in the matter of nursing staff has to be strictly as per the clarification issued vide OM dated 13.10.2008, and if applicable vide DOE"s OM dated 28.09.2018.

27. The Principal Bench of this Tribunal in OA.No.2835/2011, in a similar case of pay revision of teachers had also observed vide order dated 22.12.2014, as follows: Thus if we go strictly by rules and instructions, there is no infirmity in the fixation of pay of the applicants and the same is fixed with due regard to the

rules. Besides after the recommendation of the Sixth CPC, there could be no

pay scale like 4500-7000; 5500-9000 and 6500-10500/- and these are only

the pay bands and the grade pay which could be operative and the pay

scales are only referred to as guiding factor to identify the grade pay

admissible to an employee. In these cases, once the pay attached to the post

of PST, TGT and PGT was upgraded, the upgraded pay scale was referred

to only to identify the grade pay admissible to them, otherwise they were

placed in the pay band of Rs.9300-34800. In brief applicants can say that

w.e.f. 1.01.2006, they are entitled to draw their pay with reference to the pay

band in which they were placed and the grade pay applicable to the post

held by them, but cannot ask for fixation of their pay first in the upgraded

pay scales as introduced by the Fifth CPC and then in the pay band/grade

pay introduced by Sixth CPC. Likewise the pay of the fresh recruit was

required to be fixed with reference to the Pay Band and Grade Pay i.e. on

51

their joining, their pay could have been fixed by adding the minimum of the pay band plus the grade pay applicable to the post to which they are appointed plus other allowances such as HRA, CCA and TA etc. etc. Nevertheless, in the present case, the stand of the counsels for the applicants is also that the pay of new entrant has been fixed with reference to the pay fixation tables in the revised pay band circulated vide M.F.D.E.Exd. D.O.M F.No.1.1.2008-IC dated 30.08.2008.

28. It is therefore clear, that after the implementation of the recommendations of the 6^th CPC, the pre-existing pay scales are no more in existence on 01.01.2006 since they have been replaced by the Pay Bands and Grade Pays provided under 6^th CPC recommendations. In brief, the applicants are entitled to draw their pay with reference to the Pay Band in which they are placed and the Grade Pay applicable to the post held by them. Further they cannot ask for first refixation of pay in the old pay scale of 5^th CPC, and then consequently in the Pay Band/Grade Pay introduced by the 6^th CPC. Similarly, the pay of a fresh recruit, appointed on or after 1.1.2006 is required to be fixed with reference to the Pay Band and Grade Pay as prescribed in 6^th CPC, keeping in view the entry pay fixed by the 6^th CPC for Direct Recruits appointed on or after 1.1.2006.

29. The contention of the applicants that the revision of pay and pay scales should be a two step process i.e. first the existing pay scales should be replaced by the upgraded pay scales in the existing pay structure of 5^th CPC, and then fixed in the revised pay scales of 6^th CPC i.e. pay bands and grade pay, is erroneous and not supported by any Rule prescribed by the Government. The pay revision is a single step process where the existing pay and pay scales in the pre-revised scales of pay

52

are to be replaced with the revised pay bands and grade pay as prescribed in 6 th CPC. This is also amply clear from the subsequent orders and clarifications issued by the Ministry of Finance.

30. Keeping the above in view, it is apparent that the PGIMER had no reason to suo- moto, revise the pay fixation of the applicants by misinterpreting the clarifications issued by the Ministry of Finance and Department of Expenditure. They had no basis, under the pay rules, to revise the pay of the applicants from Rs.17,140/- to Rs.18,460/-. The Office Order dated 25.05.2019 was withdrawn vide orders dated 16.07.2020 on the grounds that the matter will be decided only after clarification is received from the Ministry of Health & Family Welfare.

31. The Department of Expenditure, vide its Note dated 10.12.2020, has conveyed that the demand of Nursing Union is not in consonance with CCS(RP) Rules 2008 and the Ministry of Health & Family Welfare is advised to process the pay fixation of the nursing staff/cadre strictly in accordance with the above said Rules/OMs. It has also been stated that the fixation of pay in respect of the nursing staff at Rs.18,640 w.e.f. 01.01.2006 as per fitment table of Rs.7,450-11,500 is incorrect and the pay has to be refixed strictly as per the clarifications issued by this Department vide OM dated 13.10.2008 and, if applicable, vide DOE"s OM dated 28.09.2018.

32. The refixation of the pay of the applicants on 1.1.2006 from Rs. 17,140/- to Rs.18,460/- by PGIMER, was based on an incorrect interpretation of the Rules/clarification given by the Ministry of Health/Finance, by PGIMER. It is not in consonance with the CCS (RP) Rules as applicable to the applicants in the

53

matter. Now that the Ministry of Expenditure has clarified the position keeping in view the provisions of the CCS (RP) Rules, the pay fixation has to be made strictly as per the provisions of Rule 7(A)(i) of Revised Pay Rules. This needs to take into account the actual pay being drawn by the applicants as on 01.01.2006 prior to the pay revision, and use the multiplying factor of 1.86 on the actual existing pay drawn by the applicants on that date. If the revised pay plus grade pay comes to be lower than Rs.17,140/-, then it should be fixed at Rs.17,140/- keeping in view the fact that the revised pay shall not be lower than the entry pay fixed for direct recruits as on 01.01.2006 as provided for in OM dated 28.09.2018.

33. The OAs, therefore, being devoid of any merits are dismissed. However, there shall be no orders so as to costs.

(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)

MEMBER (A) MEMBER (J)

/ps/