Puran Singh vs Union Of India
2009 Latest Caselaw 4206 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P. (C.) No. 1759/2008 & CM No. 3396/2008

%                          Date of Decision: 20.10.2009


PURAN SINGH                                                     .... Petitioner

                          Through: Mr. U. Srivastava, Advocate.

                                    Versus


UNION OF INDIA                                            .... Respondent

                          Through: Mr. Rohit Madan, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI


1.     Whether reporters of Local papers may be                    Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                       No
3.     Whether the judgment should be reported in                   No
       the Digest?



ANIL KUMAR, J.

*

The petitioner has impugned the order dated 27.09.2007 passed

in O.A. No. 224/2007 in case titled as Puran Singh Vs. Union of India

holding that the pay of the petitioner has been fixed as per the

provisions of FR 22(I)(A)(I) and that the pay of the juniors of the

petitioner has been re-fixed which is not more than the pay of the

petitioner.

The petitioner Puran Singh was inducted in BSF on 11.12.1974

and thereafter he came on deputation to Delhi Police on 13.04.1988

and was absorbed on 09.10.1992. The petitioner sought re-fixation of

his basic salary from the date of his promotion and he also sought

payment of arrears on account of difference. The respondents did not

re-fix his basic salary and therefore the petitioner filed a petition under

Section 19 of the Administrative Tribunals Act 1985 seeking re-fixation

of his basic salary from the date of his promotion and also prayed for

arrears on account of difference in his salary.

The petitioner grievance was that on promotion to the post of

Head Constable he was being paid salary less than his juniors. He also

contended that he had submitted an application for stepping up his pay

at par with his juniors namely Head Constable Hem Chand, PIS No.

28750843 149/SW and Om Prakash, No. 3558/PCR/359/N and to re-

fix the pay in accordance with relevant rules.

The petition was contested by the respondent contending, inter

alia, that the petitioner had been granted financial up-gradation to the

next higher pay scale of Rs. 4000-100-6000 under assured career

progression scheme w.e.f. 9th August, 1999 in the light of DOP&Ts

memorandum being O.M. No. 35034/01/97/Estt.-I dated 9th August,

1999. The respondents also disclosed the details of fixation of the pay

of the petitioner during different period. It was contended that before

the petitioner came on deputation to Delhi Police he was drawing pay in

the pay scale of Rs. 210-4-250-EB-5-270, which was revised w.e.f.

01.01.1986 to 825-15-900-EB-20-1200. While on deputation, the

petitioner had elected to draw pay of his parent scale i.e. Rs. 825-15-

900-EB-20-1200 with deputation allowance at 10%. The respondents

also gave the details of the pay fixed in Delhi Police on his permanent

absorption w.e.f. 9th October, 1992 in accordance with the instructions

laid down in Government of India's order no. 11 i.e. FR.22 and thus

contended that the pay of the petitioner has been fixed keeping in view

the fact that he had elected to draw pay in the scale of Delhi Police i.e.

Rs. 950-1400/- from the initial date of his deputation by giving

protection of deputation allowance as his personal pay. The respondent

also disclosed that the petitioner was promoted to the rank of officiating

Head Constable (Ex.) w.e.f. 24th September, 1999 in the pay scale of

975-25-1150-EB- 30-1660 and was granted pro-forma promotion for

the period 24th September, 1994 to 12th March 2001. The details of the

pay fixed as Head Constable from the substantive date of increment in

the rank of the Constable under provisional FR 22 (I) was also detailed

and the details of financial up-gradation granted to the petitioner was

also disclosed by the respondent.

Regarding stepping up of the pay at par with his juniors, it was

asserted that though the petitioner was senior to Sh. Hem Chand but

he was junior to Head Constable Om Prakash. It was also asserted that

the pay fixation of the said junior Head Constable Hem Chand was not

correct and not based on rules and consequentially a decision was

taken to refix his pay.

The Tribunal after hearing the pleas and contentions of the

parties held that the plea of the petitioner for stepping up the pay at par

with his juniors cannot be accepted, as the fixation of pay in case of

persons junior to applicant was wrongly done and a decision to re-fix

the pay has already been taken. In any case, on account of a mistake

committed by the respondent in fixation of pay of other Heat

Constables, the petitioner cannot claim parity and claim the same pay.

The pay of others fixed contrary to rules cannot be the ground to re-fix

the pay of the petitioner also contrary to rules. Consequentially, the

decision of the Tribunal on this ground cannot be faulted, nor the

petitioner shall be entitled for re-fixation of his pay on the ground that

his juniors pay is more than his pay and he should be paid salary at

par with his juniors.

Regarding the other contention of the petitioner that his pay has

not been fixed as per the provisions of FR 22 (1) (a) (1), the Tribunal has

held that the pay of the petitioner has been fixed as per the said

provision without giving any reasons and dealing with the pleas and

contentions of the parties. The petitioner has contended that as to how

his pay is not in consonance with the said rule and has given details in

the petition before the Tribunal as well as in the petition filed before

this court which have been extensively replied by the respondents.

However, none of these pleas and contentions has been considered by

the Tribunal.

Therefore, the order of the Tribunal dated 27.09.2007 holding

that the pay of the petitioner has been fixed in accordance with the

provision of FR 22 is set aside and the matter is remanded to the

Tribunal to re-consider the matter in view of the pleas and contentions

of the parties and decide the same by giving reasons. With these

directions the writ petition is disposed off.

The parties are directed to appear before the Tribunal on

09.11.2009. In the meantime the interim order passed in favor of the

petitioner staying recovery from the petitioner shall continue till the

matter is finally decided by the Tribunal. The Tribunal shall also

consider the plea of the petitioner that, in any event, no recovery could

have been made by the respondent from the petitioner without giving

reasonable opportunity to him.

Writ petition is disposed of accordingly and parties are left to bear

their own costs.

ANIL KUMAR, J.

OCTOBER 20th, 2009                                       VIPIN SANGHI, J.
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