J.C. Roy, J. - (1.) In this application the applicants have challenged the order dated 23.4.1987 (Annexure A/1 (a) of the Director General of Health Services, Government of India by which the pay scale of the applicants were reduced from Rs. 1350 -2200/ - to Rs. 1200 -2040 on the ground that Clerk -cum -Compounder and Compounder do not fall within the category of Para -medical staff and therefore, they could not be given the higher pay scale as recommended by the Fourth Central Pay Commission (CPC for short) Their additional prayer is for creation of a selection grade post, as a measure of promotional avenue to the basic category, for the Clerk -cum -Compounders and Clerk -cum -Laboratory Assistants of the Port Health Organisation at Calcutta and Bombay. The original application was filed by Shri Sambhu Nath Mondal and Shri Dipak Kumar Bhowmick, both of whom are designated as Compounder and Clerk -cum -Compounder in the Port Health Organisation under the Director General of Health Services, Government of India. There was a supplementary application for including Shri Alok Kumar Banerjee, Clerk -cum -Laboratory Asstt as one of the applicants of this case. However, during the hearing the Learned Counsel for the applicants pleaded the cases of S/Shri Shambhu Nath Mondal and Dipak Kumar Bhowmick alone. This application was filed on 14.10.1987 and was admitted on 1.1.1988. Since then the Learned Counsel of the opposite parties took a number adjournments for the purpose of filing reply. By an order dated 26.3.1990 a Division Bench of this Tribunal ordered the hearing of the case to be adjourned to 4.6.1990 and directed the respondent to file their reply within 4 weeks. It was also clearly ordered that if the respondents failed to file their reply the matter would be heard ex parte on the date so fixed. On 4.6.1990 we found that no reply was filed by the respondents. However, Mr. C.R. Bag Addl. S.C. for the Central Government argued the opposite parties case before us.
(2.) The applicants case is that both the applicants are registered as Pharmacists under the Pharmacy Act, 1948 and qualified as Pharmacist under Sec. 31 of the said Act. Although their designations were Compounder and Clerk -cum -Compounder, the 3rd CPC in its report (Chapter 45 Para. 47) recommended a scale of Rs. 330 -560/ - for them. They also made no difference between the designations of Pharmacist, Compounder and Dispenser. Accordingly, after the 3rd CPC recommendations they were fixed in the pay scale of Rs. 330 -560/ -. The 4th CPC in para 10.433 of their recommendations recommended the pay scale of Rs. 1350 -220 for this group of officers. Accordingly, with effect from 1.1.1986 the applicants were granted the pay scale of Rs. 1350 -2200. However, by the impugned order dated 23.4.1987 the Director General of Health Services ordered their pay to be fixed in the scale of Rs. 1200 -2040 on the ground that Compounder and Clerk -cum -Compounder did not come under the category of Para -medical Staff for which higher scale was recommended by the 4th CPC. On the question of second prayer, the applicants case is that in the Port Health Organisation in basic grade of Compounder, Clerk -cum -Compounder, Clerk -cum -Laboratory Asstt there are three posts and the incumbents of these posts including the applicants are stagnating for long years. The 3rd CPC recommended, as a measure of promotional avenue, a higher scale of pay in the selection grade. Of course only 20% of the posts were to be placed in the selection grade and since the total number of posts in the basic cadre is a fraction even one selection grade post was not sanctioned by the Government. Their prayer is that even where it is a fraction at least one post should be placed in the selection grade for preventing stagnation in the same post.
(3.) Shri N. C. Chakraborty, counsel appears before us on behalf of the applicants and as already mentioned. Addl. Standing Counsel for Central Government, Shri C. R. Bag represented the Central Government. Shri Chakraborty argued that the 3rd CPC made no difference in the pay scale between Pharmacist, Compounder and Dispenser. Both the applicants got the benefit of the recommended scale of Rs. 330 -560 as per the 3rd CPC, although their designations were Compounder and Clerk -cum -Compounder. The authorities now are trying to distinguish them from Pharmacist on the ground that in the recommendations of the 4th CPC the scale of Rs. 1350 -2200 was only for Pharmacist and not for Compounder. He argued that the relief recommended by the 4th CPC has to be read with corresponding scale of the 3rd CPC. The opposite party did not appreciate this, but unilaterally concluded that as Compounder and Clerk -cum -Compounder the applicants were entitled only to the lower scale of pay. The second leg of argument by Mr. Chakraborty was that the Recruitment Rules of Compounder, Clerk -cum -Compounder and Pharmacist were framed by the Ministry of Health and notified on May 9, 1959. According to these Recruitment Rules the educational and professional qualifications required for these 3 classes of officers are almost identical. In the present case both the applicants are registered as Pharmacists and have qualifications prescribed in Sec. 31 of the Pharmacist Act, 1948. By denying the applicants the pay scale prescribed by the 4th CPC not only the opposite party is denying them 'equal pay for equal work' but also violating the provisions of Art. 14 of the Constitution of India. On the question of the second prayer regarding sanction of selection grade Shri Chakraborty referred to the Ministry of Finance (Department of Expenditure) O.M. No. F.7(59) - E.III(A)/78 dated 31.8.84, according to which the selection grade in the case of the applicants can be created as there are 3 posts of compounder, Clerk -cum -Compounder and Clerk -cum -Laboratory Asstt. in the Port Health Organisation. 20% of 3 works out to 0.6 and according to this order one post out of 3 could be easily upgraded to the selection grade. He submitted that the first applicant, Shri Sambhu Nath Mondal is working in the same grade for the last 35 years and is due to superannuate on 31.7.1990. Unless this relief is granted to the first applicant he will retire from the post where he has been working for 36 years. Mr. C. R. Bag argued that the Central Pay Commissions are expert bodies who alone are competent to make recommendations on the complex question of job evaluation and other environmental factors and then recommend the pay scale and other remunerations for hundreds of different class of Government employees. In his opinion the 4th CPC recommended the scale of Rs. 1350 -2200 specifically for Pharmacist. Therefore, neither the pay scale recommended in the 4th CPC report in para 10.433 nor the selection grade posts for paramedical staff recommended in para 11.82 of the said report apply in the case of the applicants who are designated Compounder and Clerk -Cum -Compounder respectively. He, therefore, argued that there is no merit in the case and it deserves dismissal.;