Punjab-Haryana High Court
Punjab-Haryana High Court
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
CWP No. 11135 of 2007
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 11135 of 2007
Date of decision: 07.01.2010
Nem Chand and others
....Petitioners
Versus
Union of India and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: - Mr. Rajiv Anand, Advocate,
for the petitioners.
Mr. Naveen Chopra, Central Govt. Standing Counsel, for the respondents.
PERMOD KOHLI, J.
The petitioners are working as Pharmacists in the rank of
Assistant Sub Inspector in the Central Reserve Police Force. The present
writ petition has been filed seeking a direction for implementation of the
recommendations of the 5th Central Pay Commission regarding
restructuring of combatised pharmacist cadre and creation of
promotional avenues etc.
The cadre of the pharmacist was earlier non-combatised,
however, in the year 1989, the cadre of pharmacist was made combatised
with designation ASI/Pharmacist. They are in Group 'C' Combatised
Hospital Staff and are governed by Group 'C' and 'D' CRPF Combatised
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 1
Hospital Staff Recruitment Rules, 1995. Apart from possessing the
requisite qualifications, they are also required to conform to the physical
standards laid down for combatised person like height, weight, chest,
vision etc. and should in medical category SHAPE 1. They are also to CWP No. 11135 of 2007
-2-
undergo a basic combatised course of nine weeks' duration, which
includes physical and weapon training.
The grievance of the petitioners is non-availability of adequate
promotional avenues. Central Government established 5th Central Pay
Commission and the case of the petitioners and similarly situated
employees was also considered by the 5th Central Pay Commission,
which gave its recommendations. Insofar the petitioners are concerned,
relevant recommendations are contained in Annexure P-3 with the writ
petition. Para 52.90 containing recommendations concerning the
Pharmacists reads as under: -
"52.90 Upgradation of pay scale of Registered Pharmacists is sought from Rs.1350-2200 to Rs.1400- 2600 at
par with diploma holders of other disciplines like Engineering Nursing etc Pharmacy Council of India,
recommended in 1976 and 1994 that the pay scale and promotion avenues of Pharmacists should be at par
with other technical diploma holders in Engineering and Technology as the post of pharmacist is also
technical. We recommend that Pharmacists in view of the prescribed entry qualifications should be placed in
the scale of Rs.1400-2300 at entry qualifications should be placed in the scale of Rs.1400-2300 at entry. The
grade structure in existence at present should be modified as follows: -
Nomenclature Pay Scale Qualification Pharmacists Gr. I Rs.1640-2900 2nd ACP Pharmacists Gr. II
Rs.1600-2600 1st ACP Pharmacists Gr. III Rs.1400-2300 10+2+2 yrs. Diploma + 3
months training
and registration.
CWP No. 11135 of 2007
-3-
Wherever there is a post of Chief Pharmacists it should be placed in the pay scale of Rs.2000+3500. Posts of
Chief Pharmacists may also be created in the hospitals in the pay scale of Rs.2000+3500 based on functional
justification. In future no recruitment should be made in this cadre with qualifications of less than diploma.
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 2
All those incumbents who possess a diploma in Pharmacy and are in lower scales at present may also be
brought into the scale of Rs.1400+2300. Incumbents not possessing Diploma in Pharmacy may continue in the
replacement pay scale corresponding to their existing scales with ACP only."
These recommendations were principally accepted by the
Government. The recommendations were forwarded to respondent No.1
vide letter dated 8.9.2000. Respondent No.1 kept the matter pending for
four years and it was in the year 2004 the same were referred to
respondent No.2 Ministry of Finance.
It is stated that the recommendations are still pending there. It
is stated on behalf of the petitioners that no decision has been taken by
the respondents on the recommendations of the 5th Pay Commission. It
is further argued that the Pharmacists working in various other
departments of Government of India have got the benefit of financial
upgradation. The petitioners earlier filed civil writ petition No. 20248 of
2006 titled Nem Chand and others Vs. Union of India and others. The
said writ petition was disposed of by the Division Bench of this Court
with the following directions: -
"CWP No. 20248 of 2006
Present: Mr. Rajeev Anand, Advocate for the petitioners. This petition is disposed of with a direction to CWP
No. 11135 of 2007
-4-
Respondent No.1 to expeditiously decide the petitioners' legal notice dated August 22, 2006 Annexure P 7
within two months from the date of receipt of a copy of this order by passing a speaking order."
It is alleged that despite aforesaid directions, no decision was
taken forcing the petitioners to file a contempt petition. The said
contempt petition was dismissed as infructuous vide order dated
28.3.2007 in view of passing of a speaking order by the respondents
dated 28.3.2007 disposing of the legal notice of the petitioners. The
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 3
copy of the aforesaid order is placed on record as Annexure P-7. In the
aforesaid letter following has been communicated: -
"Yardsticks for the staffing of Composite Hospitals, providing for career progression of paramedic cadre
(including Pharmacists) have already been suggested by the Ministry in February 2007 and a proposal for
creation of requisite posts is being taken up for approval of Ministry of Finance. This proposal, if agreed to by
Ministry of Finance, will provide the career progression pleaded by the petitioners."
In the reply filed by the respondents, it is stated in para 19 that
the proposal submitted to MHA is pending with the Finance Ministry. It
will be implemented after cadre re-structuring as opined by the 5th Pay
Commission in its report. Reference is made to para 52.90 of the 5th Pay
Commission recommendations. It is further stated that to implement the
recommendations various conditions are required to be satisfied like
changes in recruitment rules, restructuring of cadres, redistribution of
posts into higher grades etc. It is, however, stated in the reply that the
petitioners are being given benefit of ACP under the scheme of the CWP No. 11135 of 2007
-5-
Government of India.
From the averments made in the reply, it is clear that the 5th
Pay Commission recommendations concerning the petitioners i.e.
ASI/Pharmacists have not been implemented till date, even though steps
were initiated in the year 2000. 5th Pay Commission recommendations
were made applicable in respect to the Central Government employees
w.e.f. 1.1.1996. It is more than nine years now that the report submitted
by the Cadre Review Committee to the Government of India has not
been finally considered. In the meantime, 6th Pay Commission
recommendations have also been received and implemented. It is
admitted on behalf of the respondents that the petitioners do not have
adequate promotional avenues. Promotion is an important and relevant
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 4
incidence of service. The Hon'ble Supreme Court has time and again
held that the promotion to any employee is an inseparable incidence of
service and it brings efficiency in the service. In Dr. Ms. O.Z. Hussain
Vs. Union of India, 1990 (Supp) Supreme Court Cases 688, the Hon'ble
Supreme Court held as under: -
"7. This Court, has on more than one occasion, pointed out that provision of 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 CWP No. 11135 of 2007
-6-
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."
In view of the above, this petition is disposed of with a
direction to the respondents to consider and decide the question of
implementation of 5th Pay Commission recommendations as indicated in
para 52.90 referred to above in respect to the Pharmacists in the light of
similar benefit granted to similarly situated persons in other
organisations. Let final decision be taken within a period of four months
from today. It is, however, pertinent to mention that in case, the
petitioners have already been provided the promotional avenues in view
of the recommendations of the 6th Pay Commission, it may not be
necessary for the respondents to implement the recommendations of the
5th Central Pay Commission. In any case, the respondents are under
obligation to pass a reasoned and speaking order in this regard and
communicate to the petitioners.
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 5
(Permod Kohli)
Judge
January 07, 2010
R.S.
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 6
Punjab-Haryana High Court
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
CWP No. 11135 of 2007
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 11135 of 2007
Date of decision: 07.01.2010
Nem Chand and others
....Petitioners
Versus
Union of India and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: - Mr. Rajiv Anand, Advocate,
for the petitioners.
Mr. Naveen Chopra, Central Govt. Standing Counsel, for the respondents.
PERMOD KOHLI, J.
The petitioners are working as Pharmacists in the rank of
Assistant Sub Inspector in the Central Reserve Police Force. The present
writ petition has been filed seeking a direction for implementation of the
recommendations of the 5th Central Pay Commission regarding
restructuring of combatised pharmacist cadre and creation of
promotional avenues etc.
The cadre of the pharmacist was earlier non-combatised,
however, in the year 1989, the cadre of pharmacist was made combatised
with designation ASI/Pharmacist. They are in Group 'C' Combatised
Hospital Staff and are governed by Group 'C' and 'D' CRPF Combatised
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 1
Hospital Staff Recruitment Rules, 1995. Apart from possessing the
requisite qualifications, they are also required to conform to the physical
standards laid down for combatised person like height, weight, chest,
vision etc. and should in medical category SHAPE 1. They are also to CWP No. 11135 of 2007
-2-
undergo a basic combatised course of nine weeks' duration, which
includes physical and weapon training.
The grievance of the petitioners is non-availability of adequate
promotional avenues. Central Government established 5th Central Pay
Commission and the case of the petitioners and similarly situated
employees was also considered by the 5th Central Pay Commission,
which gave its recommendations. Insofar the petitioners are concerned,
relevant recommendations are contained in Annexure P-3 with the writ
petition. Para 52.90 containing recommendations concerning the
Pharmacists reads as under: -
"52.90 Upgradation of pay scale of Registered Pharmacists is sought from Rs.1350-2200 to Rs.1400- 2600 at
par with diploma holders of other disciplines like Engineering Nursing etc Pharmacy Council of India,
recommended in 1976 and 1994 that the pay scale and promotion avenues of Pharmacists should be at par
with other technical diploma holders in Engineering and Technology as the post of pharmacist is also
technical. We recommend that Pharmacists in view of the prescribed entry qualifications should be placed in
the scale of Rs.1400-2300 at entry qualifications should be placed in the scale of Rs.1400-2300 at entry. The
grade structure in existence at present should be modified as follows: -
Nomenclature Pay Scale Qualification Pharmacists Gr. I Rs.1640-2900 2nd ACP Pharmacists Gr. II
Rs.1600-2600 1st ACP Pharmacists Gr. III Rs.1400-2300 10+2+2 yrs. Diploma + 3
months training
and registration.
CWP No. 11135 of 2007
-3-
Wherever there is a post of Chief Pharmacists it should be placed in the pay scale of Rs.2000+3500. Posts of
Chief Pharmacists may also be created in the hospitals in the pay scale of Rs.2000+3500 based on functional
justification. In future no recruitment should be made in this cadre with qualifications of less than diploma.
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 2
All those incumbents who possess a diploma in Pharmacy and are in lower scales at present may also be
brought into the scale of Rs.1400+2300. Incumbents not possessing Diploma in Pharmacy may continue in the
replacement pay scale corresponding to their existing scales with ACP only."
These recommendations were principally accepted by the
Government. The recommendations were forwarded to respondent No.1
vide letter dated 8.9.2000. Respondent No.1 kept the matter pending for
four years and it was in the year 2004 the same were referred to
respondent No.2 Ministry of Finance.
It is stated that the recommendations are still pending there. It
is stated on behalf of the petitioners that no decision has been taken by
the respondents on the recommendations of the 5th Pay Commission. It
is further argued that the Pharmacists working in various other
departments of Government of India have got the benefit of financial
upgradation. The petitioners earlier filed civil writ petition No. 20248 of
2006 titled Nem Chand and others Vs. Union of India and others. The
said writ petition was disposed of by the Division Bench of this Court
with the following directions: -
"CWP No. 20248 of 2006
Present: Mr. Rajeev Anand, Advocate for the petitioners. This petition is disposed of with a direction to CWP
No. 11135 of 2007
-4-
Respondent No.1 to expeditiously decide the petitioners' legal notice dated August 22, 2006 Annexure P 7
within two months from the date of receipt of a copy of this order by passing a speaking order."
It is alleged that despite aforesaid directions, no decision was
taken forcing the petitioners to file a contempt petition. The said
contempt petition was dismissed as infructuous vide order dated
28.3.2007 in view of passing of a speaking order by the respondents
dated 28.3.2007 disposing of the legal notice of the petitioners. The
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 3
copy of the aforesaid order is placed on record as Annexure P-7. In the
aforesaid letter following has been communicated: -
"Yardsticks for the staffing of Composite Hospitals, providing for career progression of paramedic cadre
(including Pharmacists) have already been suggested by the Ministry in February 2007 and a proposal for
creation of requisite posts is being taken up for approval of Ministry of Finance. This proposal, if agreed to by
Ministry of Finance, will provide the career progression pleaded by the petitioners."
In the reply filed by the respondents, it is stated in para 19 that
the proposal submitted to MHA is pending with the Finance Ministry. It
will be implemented after cadre re-structuring as opined by the 5th Pay
Commission in its report. Reference is made to para 52.90 of the 5th Pay
Commission recommendations. It is further stated that to implement the
recommendations various conditions are required to be satisfied like
changes in recruitment rules, restructuring of cadres, redistribution of
posts into higher grades etc. It is, however, stated in the reply that the
petitioners are being given benefit of ACP under the scheme of the CWP No. 11135 of 2007
-5-
Government of India.
From the averments made in the reply, it is clear that the 5th
Pay Commission recommendations concerning the petitioners i.e.
ASI/Pharmacists have not been implemented till date, even though steps
were initiated in the year 2000. 5th Pay Commission recommendations
were made applicable in respect to the Central Government employees
w.e.f. 1.1.1996. It is more than nine years now that the report submitted
by the Cadre Review Committee to the Government of India has not
been finally considered. In the meantime, 6th Pay Commission
recommendations have also been received and implemented. It is
admitted on behalf of the respondents that the petitioners do not have
adequate promotional avenues. Promotion is an important and relevant
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 4
incidence of service. The Hon'ble Supreme Court has time and again
held that the promotion to any employee is an inseparable incidence of
service and it brings efficiency in the service. In Dr. Ms. O.Z. Hussain
Vs. Union of India, 1990 (Supp) Supreme Court Cases 688, the Hon'ble
Supreme Court held as under: -
"7. This Court, has on more than one occasion, pointed out that provision of 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 CWP No. 11135 of 2007
-6-
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."
In view of the above, this petition is disposed of with a
direction to the respondents to consider and decide the question of
implementation of 5th Pay Commission recommendations as indicated in
para 52.90 referred to above in respect to the Pharmacists in the light of
similar benefit granted to similarly situated persons in other
organisations. Let final decision be taken within a period of four months
from today. It is, however, pertinent to mention that in case, the
petitioners have already been provided the promotional avenues in view
of the recommendations of the 6th Pay Commission, it may not be
necessary for the respondents to implement the recommendations of the
5th Central Pay Commission. In any case, the respondents are under
obligation to pass a reasoned and speaking order in this regard and
communicate to the petitioners.
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 5
(Permod Kohli)
Judge
January 07, 2010
R.S.
Nem Chand And Others vs Union Of India And Others on 7 January, 2010
Indian Kanoon - http://indiankanoon.org/doc/1306485/
Page 6
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