* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.3439/1999
% Date of Decision: 16.02.2012
Shri Kanta Prasad .... Petitioner
Through Nemo.
Versus
Union of India & Ors. .... Respondents
Through Mr.D.S.Mahendru, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ANIL KUMAR, J.
*
1. The petitioner has sought directions to the respondents to pay to the petitioner the scale of Rs.1320-2040/- which was the revised scale for Head Constables (RM) and to maintain parity with the ASI (RM) up to 5th Pay Commission as after the 5th Pay Commission, the scale of the petitioner was brought at par with that of the ASI (RM).
2. The petitioner challenged the communication dated 1st August, 1988 sent by the office of the respondent no 3 to all the offices of the Border Security Force whereby it was advised to pay the three categories of the Head Constables in the scale of Rs.1200-1800/- W.P(C) No.3439/1999 Page 1 of 7 (pre-revised scale of Rs.330-480) pursuant to which the scale of the petitioner was reduced to Rs.1200-1800/- from Rs.1320-2040/-.
3. The petitioner disclosed that the reduction in the pay scale to Rs.1200-1800/- had affected as many as 350 Head Constables (Radio Mechanics) as well as a large number of Head Constables in the categories of Vehicle Mechanics and Armored Mechanics.
4. According to the petitioner, in different departments/services of the Central Govt., the Head Constables have been given the revised scale of Rs.1320-2040/-, therefore, the revised pay scale of the Head Constables in BSF only to the scale of Rs.1200-1800/- is illegal and unreasonable. The petitioner disclosed that he had filed a writ petition in February, 1988 in the Supreme Court. On 7th January, 1999 at the time of hearing of the petition, it was held that since the petitioner had failed to make an application under Order I Rule 8, therefore, the writ petition in the representative capacity was held to be not maintainable and the writ petition was thereby dismissed on technical ground.
5. Thereafter, the petitioner filed the present writ petition by contending that the present writ petition has been filed by the W.P(C) No.3439/1999 Page 2 of 7 petitioner in individual capacity since the High Court has concurrent jurisdiction.
6. The petitioner has challenged the decision of the respondents to re-fix the pay scale as Rs.1200-1800/- w.e.f. 1st January, 1986, and consequently, to recover the difference in the two pay scales for two years on the ground that the decision had been taken despite there being no specific recommendation made by the Pay Commission. According to the petitioner, rather the 4th Pay Commission had made the clear recommendation of revising the pay scale of Rs.330-480/- (pre-revised pay scale of the petitioner) to that of Rs.1320-2040/-, and, in the circumstances, it was not open to the respondents to apply selectively the recommendation and to deny the Head Constables (RM) of the Border Security Force the said benefit. Reliance has also been placed on the fact that after the recommendation of the 5th Pay Commission, the Head Constables (RM) are getting the pay in the scale of Rs.4000-100-6000/- with is equivalent to that of an ASI. In the circumstances, the petitioner has asserted that he is entitled to the pay scale of Rs.1320-2040/- from July, 1987 to October, 1989 from the date he was appointed as Head Constable to the date he was promoted as ASI.
W.P(C) No.3439/1999 Page 3 of 7
7. The writ petition is contested by the respondents contending, inter-alia, that the Head Constables (RM) and the Assistant Sub Inspector (RM) form part of Communication Branch in BSF. The educational qualifications and technical expertise required to become a Head Constable (RM) or an Assistant Sub Inspector (RM) are completely different. It was further emphasized that a Head Constable is simply a Radio Mechanic of Grade-III course qualified Radio Mechanic whereas an Assistant Sub Inspector (RM) is Grade-II course which is a better grade qualified Radio Mechanic.
8. Learned counsel for the respondents have contended that the very fact that on promotion, a Head Constable (RM) gets the rank of an Assistant Sub Inspector (RM) makes it apparent and clear that both the posts are not equal in status and merely because after the 5th Pay Commission the rank of the Head Constable (RM) has been re-designated as ASI (RM) does not mean that prior to 5th Pay Commission, the petitioner is entitled for the same pay as the Head Constable which was payable to the Assistant Sub Inspector. Learned counsel contended that the 2nd Pay Commission recommended different pay scales for the Head Constable (RM) and ASI (RM), however, the 3rd Pay Commission placed them in the same pay scale with a special pay being awarded to the Assistant Sub Inspector (RM) because of which the Assistant Sub Inspector (RM) W.P(C) No.3439/1999 Page 4 of 7 was given Rs.45 towards the special pay in addition to the basic pay and therefore, the total pay of a Head Constable and an Assistant Sub Inspector even pursuant to 3rd Pay Commission was different.
9. Regarding the 4th Pay Commission, it has been contended that it had awarded the pay scale of Rs.1320-2040/- for the Assistant Sub Inspector (RM) but it did not recommend specially any scale to the Head Constables (RM), therefore, it was later clarified by the Govt. of India that the Head Constables (RM) be given a general replacement scale of Rs.1200-1800/-. As rank, nature of duties and educational qualifications of the Head Constable and Assistant Sub Inspector differ to a great extent, the respondents categorically refuted the alleged comparison made by the petitioner with the rank of the Assistant Sub Inspectors and Head Constables in the other Branches.
10. The respondents also asserted that as pursuant to the 4th Pay Commission, the Head Constable and Assistant Sub Inspector were placed in the same scale of Rs.330-480/-. The matter was thereafter under consideration in the Ministry of Home Affairs, and therefore, provisionally, the pay scale of Rs.1320-2040/- was also given to Head Constables (RM). However, as it was clarified later on that the 4th Pay Commission had not recommended any pay scale for the W.P(C) No.3439/1999 Page 5 of 7 Head Constables (RM), therefore, they were placed in the general replacement scale of Rs.1200-1800/-, and therefore, the claim of the petitioner that he is entitled for the pay scale of Rs.1320-2040/- in place of Rs.1200-1800/- even during the period 1987 to 1989 is not sustainable.
11. No one had appeared on behalf of the petitioner on 2nd November, 2011. However, in the interest of justice, no adverse orders were passed and the court notice was also issued to the petitioner and her counsel.
12. The matter was taken up again on 6th January, 2012, again no one appeared on behalf of the petitioner nor had the petitioner himself appeared before this Court. Fresh court notice was issued to the petitioner and her counsel returnable for today.
13. The report indicates that the notice has been served on the petitioner's counsel, Ms. Shubhangi Tuli, Advocate. Neither the petitioner nor her counsel is present today. In the circumstances, this Court is left with no option but to dismiss the writ petition in default of appearance of the petitioner or her counsel. W.P(C) No.3439/1999 Page 6 of 7
The writ petition is, therefore, dismissed in default.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
February 16, 2012 vk W.P(C) No.3439/1999 Page 7 of 7