IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER Date of decision: November 24, 2006 WP(C)1180/2003 Mrs.Uma Vincent Union of India & Ors. Coram : Hon'ble Mr.Justice Manmohan Sarin. Hon'ble Mr.Justice Vipin Sanghi. Manmohan Sarin, J Through Versus Through Petitioners Mr.Deepak Anand Mashi, Mr.Anish Shreshtha and Mr.Shakir Ali, Advs. Respondents Mr.Kumar Rajesh Singh, Adv. for respondent Nos.1 to 4 Ms. Manisha Singh, Adv for respondent no.5 1. By this petition, petitioner assails the order dated 30th October, 2000, passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal) in OA.No.788/2000, by which the Tribunal dismissed the original application, filed by the petitioner. Petitioner before the Tribunal had challenged, the order of the respondents dated 24th December, 1999, rejecting her representation. Petitioner sought directions for granting her the 7th upgraded post of Chief Matron in the pay scale of Rs.7450-11500 along with all consequential benefits and treat her as having been appointed on the said post from the date respondent No.5 had been promoted i.e. w.e.f., 2nd February, 1999. It may be noted that the petitioner has since retired on 30.9.2000. 2. The question arising for consideration in the Writ Petition is whether the seven posts of Chief Matrons introduced, were a result of upgradation upon restructuring of cadre or creation of new posts. Petitioner claims that it was a case of upgradation upon restructuring of the cadre. Therefore in terms of the Supreme Court decisions in All India Non-SC/ST Employees Association (Railway) Vs.V.K.Agarwal & Ors. - Contempt Petition (Civil) No.304/1999 in CA.No.1481/96 and Union of India Vs.V.K.Sirothia (Civil Appeal No.3622/95), (1999) SCC L&S 938, respondents could not have kept one
post in the reserved category. Consequently in the absence of reservation, she being eligible, was entitled to be appointed to the said seventh post. 3. Judgment was reserved after hearing the petitioner as well as counsel for Respondent No.1 to 4 for some time. Subsequently, it came to our notice that Respondent No.5 had not been issued notice. Accordingly the matter was listed for directions and was reheard after giving respondent no.5 due opportunity of being heard and considering the counter affidavit filed by her. 4. Seven posts of Chief Matrons had become available pursuant to the action taken on the recommendation of the fifth Pay Commission. We have to ascertain whether it is a case of restructuring and reclassification being affected in different scale and cadre, as applicable, without there being any increase in the cadre strength, or it is a case where pursuant to the recommendation of the 5th Pay Commission, the reclassification and restructuring had resulted in seven posts being created based on functional considerations and duties of higher importance, in different scales of pay. In case, it was only a case of reclassification, redistribution and restructuring dehors functional considerations and assignment of duties of higher importance then post need not have been reserved under the policy of reservation. However, if it was a case of creation of new posts based on functional considerations involving duties of higher importance then reservation of a post was in order, in terms of the judgment of the Supreme Court in the case of Union of India Vs.V.K.Sirothia (supra). 5. Let us notice the factual aspects in relation to the petitioner. Petitioner was appointed as a staff nurse in grade B on 3rd April, 1965. By January, 1984, she was promoted as Nursing Sister in the scale of Rs.450-700/-. She was further promoted to the Grade II Matron in the scale of Rs.2000-3200/- (Rs.6500-10500-revised) on ad hoc basis and thereafter on permanent basis w.e.f. 20th July, 1992. In the seniority list, of grade II Matron, as issued by the railways, the petitioner figured at S.No.7 (Seven). 6. At this stage, we may also take notice of the circular issued by the Railway Board dated 10.5.1998, regarding introduction of pay scales for various cadres based on the recommendations of the fifth pay commission. The said circular is reproduced for facility of reference: GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) S.NO.PC-V/75 R.B.E. No.100/98 NO.PC-V/98/I/II/18(A) New Delhi Dt.10.5.1998 The General Managers/OGDs/CAOs All Indian Railways and Production Units Sub: Introduction of additional pay scales recommendation of V CPC.
Consequent upon the implementation of V CPC's recommendations the issue of introduction of new scales for certain categories as recommended by the V CPC has been under consideration of the Board. 2. Introduction of the new pay scales in accordance with the recommendations of the Pay Commission for certain categories of staff was to be effected on functional considerations. The matter has been considered and the Ministry of Railways, with the approval of the President, have decided to introduce new scales in certain categories as indicated in the Annexure to this letter. With a view to simplify the procedure in this regard, it has also been decided to introduce the new scales of pay in accordance with the percentages/numbers indicated in the Annexure. While implementing these orders the following detailed instructions should be strictly and carefully adhered to:- Date of effect (a) The number of posts to be operated in these scales will be with reference to the sanctioned cadre strength as on the date of issue of these orders. Staff who are placed in the higher grades as a result of implementation of these orders will draw pay in the respective higher grade with effect from the date of issue of these orders. Applicability to various Cadres (b)(i) These orders will be applicable to regular cadres on Open Line Establishment including Workshops and Production Units and will include posts of rest givers and leave reserves. (ii) These orders will not be applicable to ex-cadre and work charged posts which will continue to be based on worth of charge. (iii) These instructions will also not be applicable to Construction Units and Projects. Pay Fixation: (c )... Classification and filling up of the vacancies: (d)... Minimum years of service for promotion to new grade: (e)... Basic Functions duties and responsibilities: (f) Since the posts are being created on functional considerations such posts should be pin pointed and should include duties of higher importance. The benefit will become admissible only to the duly selected staff, and that too after they move to the pin pointed posts. Specific instructions given in the foot note of the Annexure: (g)... Provision of reservation:
(h) The existing instructions with regard to reservation of SC/ST will continue to apply while filling up posts in the new grades. Kindly acknowledge receipt. Hindi version will follow. Sd/- Director Pay Commision Railway Board The above circular was followed by an agreement entered into between the Director General Health Services, Ministry of Health and Family Welfare, Delhi Nurses Union, further followed by an order dated 28.7.1998 for upgradation of 1200 posts of nurses in central government hospitals. 7. Learned counsel for the petitioner submitted that there was no increase in cadre strength. By corresponding reduction in the post of Matrons, seven posts of Chief Matrons were introduced. He placed reliance on the judgment of the Supreme Court in All India Non-SC/ST Employees Association (Railway) Vs.V.K.Agarwal & Ors. (supra) and Union of India Vs.V.K.Sirothia (supra) to urge that no reservation could have been applied in cases of reclassification, readjustment and restructuring of posts without there being creation of new posts. Relevant extracts from the Supreme Court judgments are reproduced below:- In the order dated 31st January, 2001, it was clarified that the principle of reservation does not apply if as a result of reclassification or re-adjustment there is no additional post which is created. It was clarified that if as a result of reclassification and re-adjustment having been effected any post is created, then the principle of reservation would be applicable. It was noticed that the present case was restricted only to existing employees who were re-distributed into different scales of pay as a result of this upgradation. The Union of India took time to re-work the seniority in the light of the clarification which was so issued. [All India Non-SC/ST Employees Association (Railway) Vs.V.K.Agarwal & Ors. (supra)] The finding of the Tribunal that the so-called promotion as a result of redistribution of posts is not promotion attracting reservation on the facts of the case, appears to be based on good reasoning. On facts, it is seen that it is a case of upgradation on account of restructuring of the cadres, therefore, the question of reservation will not arise. We do not find any ground to interfere with the order of the Tribunal. [Union of India Vs.V.K.Sirothia (supra)] 8. Learned counsel for the petitioner has submitted that the instant was a case simpliciter of redistribution and re-adjustment within the same cadre. There has been no increase in the strength of cadre. Learned counsel submits that respondent No.5, Ms.Satwant Kaur was promoted as a Chief Matron on the basis of reservation and was made incharge of the tools and plant Division in the hospital. Prior to this, Ms.Ujwal Bhandari, who was far junior at S.No.25 of the seniority list was holding the said charge. Petitioner urges this, in support of his contention that there was no functional
considerations or responsibilities of higher importance attached to the post of Chief Matron. It was simply a case of redistribution and re-adjustment within the cadre. Accordingly, petitioner urges that reserving one seat on the basis of reservation was clearly contrary to the dictum of the Supreme Court as well as the policy. The said seventh post, accordingly, had to be de-reserved and petitioner, who was eligible for the same, appointed thereto. (i)the Staff Nurse, Ward Sister, ANS will continue to discharge the duties and responsibilities as assigned to them by the competent authority prior to the agreement and performed by them at present. This would not imply upgradation in duties and functional responsibilities and no changes in such duties including night duty etc., would be claimed on this account. 10. Mr. Kumar Rajesh Singh, Counsel for respondent no.1 to 4, sought to urge that the upgradation is based on functional considerations i.e. assignment of functions of higher importance. This submission was supported by Ms.Manisha Singh counsel appearing for Respondent No.5. It is not denied that seven posts of Matron were abolished and seven posts of Chief Matrons were introduced. But that alone would not suffice to render the arrangement as a mere restructuring. The creation of the post of Chief Matron is based on functional considerations. The duties of higher importance have been assigned to Chief Matrons. Reliance was placed upon letter dated 10.2.1999 of the Administrative Officer regarding the duties of Chief Matrons attaching the duty chart. Relevant portion of the said letter is quoted below: Consequent to the upgradation granted by the Vth Pay Commission to comply with the condition of fixing higher responsibility to upgraded posts, the duty list is attached herewith for compliance. In line with the spirit of allocation of higher responsibility, you should ensure that better levels of supervision are achieved and quality enhancement ensured. At the same time the responsibility for conduct of staff working under your control should also be shouldered by as you as per laid down conduct rules. The duty list is not a limit but an indication of areas expected to be supervised by you and may be modified from time to time. The changes should be complied with immediate effect. 9. Learned counsel also places reliance on letter dated 28th July, 1998, issued by the Director General of Health Services, pursuant to the agreement dated 16th May, 1998 with the Nurses Union, relevant extract from which is reproduced as under:- 2. The appointment of the Nurses against the upgraded posts will be subject to the following conditions:- Sd/- Administrative Officer.
11. Tribunal had proceeded on the basis of the circular dated 10.5.1998 alone to hold that the post of Chief Matron was one with higher functional responsibilities. We had permitted the parties to address us on this issue and respondent no.5 had produced on record the various duties of the Chief Matron. 12. In this connection it was urged that the seven Chief Matrons were give varied duties of higher importance ranging from one Mrs. L. Dua becoming overall Incharge of Nursing Staff to Respondent No.5 becoming incharge of 2nd and 3rd floor. Duties of respondent no.5 included supervision of work of all para medical staff working on 2nd and 3rd floor, and ensuring punctuality of the staff working on these floors. She was reporting to the Chief Matron (Administration). 13. Petitioner's plea is that Chief Matrons are not performing duties of any higher importance since these very duties were being performed by Matrons earlier. He submits that terming the very same duties as responsibilities of the Chief Matrons would not convert them into duties of higher importance. This plea ignores that the nature of restructuring and re-assessment of responsibilities and duties may result in the duties, which are of higher importance being confined to the higher post. Apart from this, duties entailing additional responsibilities can be assigned to the higher post. Going through the affidavit of respondent no.5, which is duly adopted by counsel for respondents 1 to 4, seven Chief Matrons were made in-charge inter alia to Nursing Staff and/or various floors in the hospital. This was not the responsibility which was being discharged by other Matrons. Accordingly, based on the circulars and the record produced before us, we are of the view that respondents have established that the Chief Matrons were assigned duties of higher importance thereby falling within the ambit and satisfying the criteria for being treated as creation of seven new posts to which the policy of reservation would apply. It is not the case of some re-distribution to which the reservation policy could not apply. We accordingly do not see any reason to interfere with the judgment of the Tribunal. November 24, 2006. Writ petition is dismissed. SD./- Manmohan Sarin,J. SD./- Vipin Sanghi,J.