pharmacist judgement central administrative tribunal

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

O.A. No. 2151/2014

Reserved On:29.04.2015

Pronounced On:06.05.2015

HON�BLE MR. G. GEORGE PARACKEN, MEMBER (J)

HON�BLE MR. SHEKHAR AGARWAL, MEMBER (A)

1. Udai Veer Singh

S/o Shiv Pal Singh

ESI, Dispensary,

Mayur Vihar Delhi.

2. Mayank Sharma

S/o H K Sharma

ESI Hospital Jhilmil,

Delhi.

3. Rahul Nimiya

S/o Om Prakash

ESI Dispensary Mayur Vihar

Delhi.

4. Mahender Kumar Meena

S/o Babu Lal

ESI Dispensary

Mayapuri II Delhi.

5. Shri Prakash Shukla

S/o Ram Bihal Shukla

ESI Dispensary,

Noida Sector 57 U.P.

6. Sanchit Barua

S/o Late Shri Bimal Barua

ESI Dispensary,


7. Hira Singh

S/o J S Negi

ESI Dispensary,


8. Suresh Sariwan

S/o Punaoo Ram sariwan

ESI Dispensary,


9. Jagdish Prasad

S/o Late Shri Phool Singh

ESI Dispensary,


10. Swati Gupta

D/o Suresh Kumar Gupta

ESI Dispensary Tilak Vihar

Delhi.

11. Raminder Jeet Singh

S/o Inder Jeet Singh

ESI Central Store Delhi.

12. Himanshu Bansal

S/o R P Bansal

ESI Central Store Delhi.

13. Lovneet Khurana

S/o S L Khurana

ESI Dispensary Tilak Vihar Delhi.

14. Mahesh Kumar

S/o Mahaveer Singh

ESI Dispensary Tigri Delhi.

15. Prakash Chand Meena

S/o Lakshmi Chand Meena

ESI Dispensary Tigri Delhi.

16. Rekha Yadav

W/o Chandra Prakash Yadav

ESIC, Dispensary,Tigri

Delhi .

17. Chandra Prakash Yadav

S/o Nand Lal Yadav

ESI Dispensary Mehrauli Delhi.

18. Om Prakash Jaat

S/o Raghunath Prasad Jaat

ESI Dispensary Mehrauli Delhi.

19. Rajinder Churawat

S/o S L Churawat

ESIC, Hospital Gurgaon

Haryana.

20. Sanjay Kumar

S/o Ramji Lal

ESIC Hospital Gurgaon Haryana

Haryana.

21. Sunil Mehto

S/o Ramji Mehto

ESIC, Hospital Gurgaon

Haryana.

22. Praveen Kumar Dubey

S/o Ram Narain Dubey

ESIC, Hospital Baddi H.P.

23. Mani Sood

D/o Lakshman Dass Sood


24. Poonam Kumari

D/o Tara Dutt Sharma


25. Vinod Kumar Swami

S/o Asha Ram Swami


26. Gautam Singh Rawat

S/o narain Singh Rawat

ESI Dispensary Nand Nagri Delhi.

27. Vijay Kumar

S/o Late Shri Rajvir Singh

ESI Dispensary,

Noida Sectot 12 U.P.

28. Prabha Adhikari

W/o Sanjay Singh Adhikari

ESI Hospital Jhilmil Delhi.

29. Devender Kumar

S/o Dharmi Lal

ESI Dispensary Nand Nagri Delhi.

30. Renu Jaiswal

S/o Dr. Jai Prakash Jaiswal

ESI Dispensary,

Noida Sector 57 U.P. �Applicants

By Advocate: Shri Sagar Saxena.

Versus

1. The Director General

ESIC Headquarters,

CIG Road, Panchdeep Bhawan,

New Delhi-110002.

2. Union of India

Ministry of Labour

Shram Shakti Bhawan,

Rafi Marg,New Delhi-110001. ...Respondents

By Advocate: Ms. Rekha Palli.

ORDER

G. George Paracken, Member(J)

The Applicants in this Original Application are Pharmacists working with Respondent-

Employees State Insurance Corporation (�ESIC� for short). Their grievance is that they do not have

any promotional avenues as there is no cadre structuring created by the Respondents.

2. The ESIC runs a number of Hospitals and Dispensaries all over India. Various categories of

employees in Group �A�, �B�, �C� and �D� are posted there. They include Medical Officers,

Radiographers, Nursing Staff, Pharmacists, Nursing Orderlies. Lab. Technicians etc. The ESIC have

also made the Recruitment Rules for the aforesaid posts and got notified in the Official Gazette. The

Recruitment Rules for the post of Pharmacists has also been framed and notified in Gazette of India

on 21.05.2011. The educational qualification for the said post is as under:-

�B. Pharmacy (i.e. 4 years technical degree course)/Sr. Secondary with Diploma in Pharmacy from a

recognized institution and qualified and registered as Pharmacist under Pharmacy Act, 1948 (Two

Years Diploma + 3 months training after Diploma)�.

Some of the Applicants have been appointed in the year 1985 and since they have been working as

Pharmacists at the initial grade without having any promotional avenues. According to them, the

ESIC has not taken any decision on their various applications for creating promotional avenues as in

the case of similarly placed Pharmacists in other Hospitals under the Union and the State

Government. As a result, they will have to superannuate from the same post. On the other hand,

the other categories of employees like Doctors and Nurses employed by them in their various

Hospitals and Dispensaries, there are well defined cadre systems. As far as Doctors are concerned,

their initial appointment is against the post of IMO Grade-II. Then they are promoted to the grades

of IMO Grade-I, CMO, NFSG and SAG on time bound basis. As regards the Nurses are concerned,

they are initially appointed as Staff Nurse. Then they get periodical promotions in the higher grades

of Nursing Sister, Assistant Nursing Superintendent, Deputy Nursing Superintendent, Nursing

Superintendent and Chief Nursing Officer. In the case of Nursing Orderlies, which is the base cadre of

medical service in the ESIC, they have also multiple channel of promotions. Initially they join as

Nursing Orderly and then they have the avenues of promotion to the post of Jr. MRT/Dark Room

Assistant, CSSD Asstt./OT Asstt./Lab. Asstt. CSSD Technician/OT Technician/Sr.MRT, Sr. CSSD

Technician/Sr.OT Technician/Lab Technician/Blood Bank Technician/Radiographer, Sr. Technical

Assistant/Sr. Lab. Technician/Medical Record Officer/Sr. Technical Assistant Radiology etc.

3. In other organizations also, the Pharmacists have well defined cadre structure and

promotional avenues. In All India Institute of Medical Sciences (�AIIMS� for short), the Pharmacists

initially join as Pharmacist Grade-II and then get their periodical promotions to the higher post of

Pharmacist Grade-I, Sr. Pharmacist/Manufacturing Pharmacist and Chief Pharmacist. The State of

Uttrakhand has got a cadre for their Pharmacist consisting of Pharmacist, Chief Pharmacist, Prabhari

Adhikari (Pharmacy), Vishesh Karya Adhikari and Up Nideshak (Pharmacy). The Health Department in

the State of Kerala, the cadre of Pharmacist consists of following posts:-

Sl.No.

Posts in the Pharmacist Cadre

1.

Pharmacist Grade-II

2.

Pharmacist Grade-I

3.

Pharmacist Store Keeper

Stores Superintendent

(Hospitals) (Gazetted post)

4.

Stores Verification Officer (District)

Stores Officer/FW/IPP

Stores Verification Officer

5.

Asstt. Director (Medical Supplies)

4. The Applicants have also submitted that the Pharmacy Council of India (�PCI� for short)

established under Section 3 of the Pharmacy Act, 1948 enacted by the Parliament on 04.03.1948

which is an Expert Statutory Body to regulate the profession of Pharmacy in the country has also

recommended to 5th Pay Commission regarding pay scales and service conditions of Pharmacist

with the following cadre structure vide its letter No.10-08-81-PCI/5013 dated 28.09.1995:-

Sl.No.

Posts

Pay Scales

1.

Pharmacist (30% of total strength)

1640-2900

2.

Sr. Pharmacist (after 5 years of experience as Pharmacist) (30% of total strength)

2000-3500

3.

Chief Pharmacist (after 7 years of experience) (30% of total strength)

2200-4000

10% of total strength should be in Sr. Group �A� Gazetted post

4.

Pharmacy Officer (after 10 years of experience)

3000-4500

5.

Asstt. Director (Pharmacy)

3700-5000

6.

Dy. Director (Pharmacy)

4500-7000

7.

Director (Pharmacy)

Equivalent to Director of Medical Education

5. The Department of Family Welfare, Government of NCT of Delhi has already constituted a

Committee under the Chairmanship of Dr. Jille Devi, Director, Health Services for the redressal of

similar grievance of the Pharmacists working in the Hospitals under them. The said Committee has

submitted its report in November, 2007. The relevant observations contained in the said report are

as under:-

�After detailed deliberations the Committee feels that absence of higher placement promotional

avenues is an important fact in demoralizing the employees which in turn leads to disinterest and

sub-optimal performance. Moreover, due to these very reasons Govt. of NCT of Delhi is facing

problems in getting good quality technical staff. Hence, incorporation of promotional higher

placement avenues is a must as an employee welfare measure�.

The Committee has also specially recommended the higher pay scales and Standardization of

designation with 5 tier promotional channel for the Pharmacists as detailed below:-

S.No.

Posts

Placement

1.

Pharmacist

Entry Level Recruitment

2.

Senior Pharmacist

Ist Placement

3.

Assistant Chief Pharmacist

2nd Placement

4.

Additional Chief Pharmacist

3rd Placement

5.

Chief Pharmacist

Promotion against Identified Post

6. However, as the GNCTD did not implement the aforesaid recommendations, the Pharmacists

working in Hospitals under them approached this Tribunal vide OA No.3233/2011 � Pharmacy

Graduates Welfare Association and Another Vs. Govt. of NCT of Delhi and Others. Their grievance

was also that even after several years of service, they have not been given any promotion as there

was no cadre structuring and promotional avenue for them. The said OA was allowed by this

Tribunal vide order dated 24.04.2011 with its operative part as under:-

�12. We have considered the matter carefully. As submitted by the learned counsel for the

applicants supported by various judgments, in the absence of clear cut cadre structure, the right of

consideration for promotion will remain only an empty principle. Therefore, it is necessary that the

respondents should create a proper cadre in different grades for the Pharmacists working in various

hospitals under the Govt. of NCT of Delhi. We also note that the respondents are already seized of

the matter and they are taking necessary steps in the said direction but we observe that the speed

with which it is moving is not very satisfactory. In view of the circumstances, we direct that the

respondents shall take expeditious steps to finalize the creation of a proper cadre structure for the

Pharmacists working under them within a maximum period of six months from the date of receipt of

a copy of this order. Accordingly, this O.A. is disposed of. There shall be no order as to costs�.

7. The Applicants have also submitted that the Respondent-ESIC is treating them in a

discriminatory manner as they have considered even the request of the Stenographers working with

them and in its 158th meeting held on 10.11.2012 has approved the restructuring Stenographic

hierarchy in ESIC as below:-

S.No.

Name of post

Pay scale

Existing strength

Revised sanctioned strength

1.

Principal Private Secretary

15600-39100 + G.Pay-6600 (PB-3)

01

18

2.

Private Secretary

9300-34800 + GP 4800 (PB-2)

91

141

3.

Personal Assistant

9300-34800 + GP 4600 (PB-2)

201

182

4.

Stenographer

5200-20200 + GP 2400 (PB-1)

231

183

Total

524

524

8. Further according to the learned counsel for the Applicants, right of consideration for

promotion is a fundamental right and in the absence of any promotional avenue, the said right is

worthless. In this regard he has relied upon the judgment of the Apex Court in the case of O.Z.

Hussain Vs. Union of India AIR 1980 SC 311. The relevant part of the said judgment reads as under:

�7. This Court, has on more than one occasion, pointed out that provision for promotion increases

efficiency of the public service while stagnation reduces efficiency and makes the service ineffective.

Promotion is thus a normal incidence of service. There too is no justification why. while similarly

placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group

scientists in the establishment of Director General of Health Services would be deprived of such

advantage, In a welfare State, it is necessary that there should be an efficient public service and,

therefore, it should have been the obligation of the Ministry of Health to attend to the

representations of the Council and its members and provide promotional avenue for this category of

officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and

Technology with such alterations as may be necessary, appropriate rules should be framed within

four months from now providing promotional avenue for the 'A' category scientists in the non-

medical wing of the Directorate.

8. This Writ Petition is allowed and the following directions are issued:

1. Within four months from today, the Ministry of Health and Family Welfare of the Union of India

shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A'

Group scientists in the non-medical wing of the establishment of Director General of Health Services;

2. These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk

allowance and conveyance allowance at the same rate as is admissible to doctors in the medical

wing in the Directorate w.e.f. 1-4-1989; and

3. Government shall examine the tenability of the within four months from today.�

9. The Respondents have filed their reply and submitted that the Applicants have no right to

claim that the cadre structure in ESIC should be same as in AIIMS or any other State. They have also

stated that ACP and MACP Schemes have been provided to cater such situations where because of

the nature of job, there may not be any promotional avenues and the Applicants are also

beneficiaries of those Schemes.

10. The learned counsel for the Respondents has also relied upon the judgment of the Hon�ble

High Court of Delhi in W.P. ( C) No.6233/2011 � Anil Kumar Sharma Vs. U.O.I. & Others decided on

17.10.2011. The petitioners therein were Water Carriers, Barbers, Carpenters, Cooks, Painters etc.

called 'Followers' in BSF. They were tradesmen and used to render service commensurate with their

skills. Barbers were engaged in the trade of hair cutting and shaving. Carpenters were engaged in the

trade of carpentry, etc. etc. Their grievance was also that they do not have any promotional

avenues. The High Court dismissed their case observing what promotion can be made available to

Barbers and others. The relevant part of the said judgment reads as under:-

�14. It is true that modern management and career planning lays emphasis on a system having

promotions for the reason, an organization recruits a person not for a job but a career, and

opportunity to advance one's career acts as an incentive for personal development which ultimately

benefits an organization. But instances of a single cadre post having no promotional avenue was

recognized by the Supreme Court in the decision reported as 2004 (9) SCC 65 State of Tripura & Ors.

vs. K.K.Roy, wherein the Supreme Court directed the State of Tripura to introduce the 'Scheme of

Assured Career Promotion' for the incumbent of the single cadre post, requiring the person to be

placed in the next higher grade after 12 years service and further in the next higher scale of pay on

completing 24 years service.

15. Recognizing that stagnation in the same pay-scale gives birth to discontent, after the Fifth

Central Pay Commission's recommendations were recommended, in the year 1999 an 'Assured

Career Progression' scheme was introduced by the Central Government as per which all those who

had no promotional avenues, or due to insufficient promotional posts, being otherwise competent

and fit, could not earn a promotion, it was put into place that upon completion of 12 years service

they would be placed in the next higher pay-scale and upon completion of 24 years service would be

placed in the next above pay-scale.

16. With the implementation of the recommendations of the Sixth Central Pay Commission, the

'Assured Career Progression Scheme' has been replaced by the 'Modified Assured Career

Progression Scheme' which grants benefit of 3 higher pay- scale placement to those who are

otherwise fit, but cannot earn a promotion; first after 10 years service, second after 20 years service

and third after 30 years service. These persons are placed in the next above higher pay-band or are

granted the grade-pay in the next above grade pay scale.

17. It is not in dispute that Followers upon upgradation to Group 'C' posts as Constable (Cook),

Constable (Waterman), Constable (Tradesman), Constable (Barber) are entitled to and are being

granted the benefit of the 'Modified Assured Career Progression Scheme and thus we see no scope

to interfere on a matter of policy and issue the mandamus sought for.

18. The writ petition is dismissed but without any order as to costs�.

11. We have heard the learned counsel for the Applicants Shri Sagar Saxena and the learned

counsel for the Respondents Ms. Rekha Palli. In our considered view, the response of the

Respondents to the grievance of the Applicants is not appropriate. They are not justified in taking

the stand that the Applicants have no right to claim for a cadre structure and promotional avenues

as they are not bound to follow the cadre structures prevailing in AIIMS or in any other State. The

question is having a cadre structure suitable to the ESIC and not following the cadre structure of any

other Hospital or State Government. The Pharmacy Council of India has framed a model structure

and the ESIC is to adopt it with suitable changes, if necessary. They are also not justified in stating

that since the Applicants are entitled for ACP/MACP benefits, they cannot claim for any promotions.

The Government of India, DoP&T vide their OM No.35034/1/97-Estt.(D) dated 09.08.1999

introduced the ACP Scheme on the recommendation of the Vth CPC as a �Safety Net� to deal with

the problem of genuine stagnation and hardship faced by the employees due to lack of adequate

promotional avenues. It merely envisages �placement in the higher pay-scale/grant of financial

benefits (through financial upgradation) only to the employee concerned on personal basis and shall,

therefore, neither amount to functional/regular promotion nor would require creation of new posts

for the purpose�. MACP is only a modified version of ACP.

12. As rightly argued by the Applicants� counsel, the right of consideration for promotion is a

fundamental right of an employee. Exceptions to the said right are very rare. Such a right can be

availed of only when there are avenues of promotion. Therefore, as far as possible, all organizations

should have well defined cadre structures thereby creating the avenues of promotion to their

employees. From the averments of the Applicants, it is seen that various State Governments and

other medical institutions like AIIMS have a well defined cadre structure for the Pharmacists and

they get their promotions timely. Moreover, Pharmacy Council of India, the Apex Statutory Body to

regulate the Pharmacy in the country has itself recommended that every health delivery agencies

should have a well defined cadre structure for their Pharmacists. They have recommended a 7 level

cadre structure. An employee who joins initially as a Pharmacist can have 6 more promotions and

reach the level of Director (Pharmacy). Various other medical institutions have their own cadre

structure depending upon the number of employees and other requirements specific to them. The

ESIC is stated to have a strength of more than 500 Pharmacists working under them. Therefore, the

ESIC alone cannot claim immunity from creating a proper cadre structure to create the promotional

avenues for their existing employees working in the same post for several years.

13. In view of the above position, we allow this OA and direct the Respondent-ESIC to formulate

a proper cadre structure for the Pharmacists working under them and thereafter consider the

Applicants and other similarly placed persons for promotions to the higher grades so created. They

shall also suitably amend the existing Recruitment Rules for the post of Pharmacists. While doing so,

they may be guided by the recommendations of the Pharmacy Council of India and their own

specific requirement. They shall also set in motion of the cadre structure as early as possible but in

any case within a period of 4 months from the date of receipt of a copy of this order. There shall be

no order as to costs.

(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)

MEMBER (A) MEMBER (J)

Rakesh

pharmacist judgement central administrative tribunal

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