A.V. Pavithran , & Ors. vs Uoi & Ors.
2010 Latest Caselaw 5483 Del

3
*IN THE HIGH COURT OF DELHI AT NEW DELHI


+     W.P.(C)No.10868/2009 and CM No.5875/2010


                                Date of Decision : 2nd December, 2010
%


      A.V. PAVITHRAN , & ORS.        ..... Petitioners
                     Through : Mr. P.S. Mishra, Adv.

                       versus

      UOI & ORS.                      ..... Respondents
                            Through : Mr. Ankur Chhibber, Adv.


CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                   NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                  NO

3.      Whether the judgment should be                          NO
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. The writ petitioners were appointed to the post of

Assistant Sub Inspector/Pharmacist (unqualified) into the

Border Security Force on different dates in 1991-92. The

recruitment rules which govern the rights of the petitioners as

well as the claims made in the present writ petition are

undisputed. The petitioners have claimed entitlement to the

pay scale which was admissible for the post of Assistant Sub

Inspector/Pharmacist (qualified) with effect from the date on

which they were recruited.

2. In view of the claim of the petitioner, it is necessary to

consider the relevant provisions contained in Border Security

Force (Group „C‟ Combatised Para Medical Staff), Recruitment

Rules-1991 admittedly applicable in the instant case which

provides as follows:-

"The post of Pharmacist (Unqualified) (ASI) will be operated against the sanctioned posts of Pharmacist (Qualified) (ASI). The post of Pharmacist (Qualified) (ASI) cannot be filled up by direct recruitment by persons possessing the prescribed qualification."

"Pharmacist (Unqualified) (ASI) shall be eligible for grant of the scale of pay of the post of Pharmacist (Qualified) (ASI) after rendering 10 years of service in the grade."

2. So far as the post of Assistant Sub Inspector/Pharmacist

(qualified) is concerned, the recruitment thereof is prescribed

by the direct mode as well as by way of appointment from

Assistant Sub Inspector/Pharmacist (unqualified) who have

rendered 10 years of service in the Force. This has been

appended by way of a note in the recruitment rules.

3. The respondents have placed before us the clear

intimation in the advertisement for direct recruitment of

Assistant Sub Inspector/Pharmacist published through the

DAVP wherein it was mentioned that so far as the pay scale of

Assistant Sub Inspector/Pharmacist (unqualified) is concerned,

they would draw pay in the scale of `1200-1800/-. The

petitioners were fully aware about this stipulation and have

submitted accordingly their applications for appointment to the

post of Assistant Sub Inspector/Pharmacist (unqualified). Upon

selection, they had undergone 12 years basic training at the

TC&S School, BSF Hazaribagh. So far as pay scale which the

petitioners were drawing at the time of the appointment is

concerned, no legally tenable ground for challenge of the same

is made out.

4. The other plea on which the petitioners rest their claim on

the appointments of certain persons stated to be junior to the

petitioners who according to the petitioner, have been

appointed as Assistant Sub Inspector/Pharmacist (qualified) and

given the higher pay scale at `1,350-2,200, with effect from 7th

January, 1994.

5. So far as the persons whose names have been cited by

the petitioners are concerned, the respondents have explained

that such persons were initially appointed in the Border

Security Force as Assistant Sub Inspector/Pharmacist

(unqualified). Subsequent to their appointment, they separately

applied for participating in the open competition for direct

recruitment to the post of Assistant Sub Inspector/Pharmacist

(qualified). After undergoing this process, these persons were

selected by direct recruitment for the post of Assistant Sub

Inspector/Pharmacist (qualified) in the year 1994 and

consequently were appointed at the said post in the prescribed

pay scale of `1,350-2,200. The petitioners did not apply or

participate in the open competition held in 1994 when the

other personnel who have been named in by the petitioners

were selected and appointed. There is thus no connection

between the earlier appointments of these persons to the post

of ASI/Pharmacist (unqualified) and their appointments in 1994

to the post of ASI/Pharmacist (qualified). For this reason, there

is no merit in the submission that the persons junior to the

petitioners in the post of Assistant Sub Inspector/Pharmacist

(unqualified) have been appointed and given the scale of

Assistant Sub Inspector/Pharmacist (qualified).

6. Another specific instance has been separately cited by

the petitioner in support of the plea of discrimination. It has

been urged by the petitioners that one Assistant Sub Inspector,

Shiv Ram Singh had filed WP(C)No.6162/1995 in the High Court

of Madhya Pradesh (Gwalior Bench). In these proceedings, it

was directed that Assistant Sub Inspector Shiv Ram Singh

would be granted the scale of Assistant Sub

Inspector/Pharmacist (qualified) with effect from the date of his

appointment. The petitioners have stated that on the same

analogy, they would be entitled to the scale of Assistant Sub

Inspector/Pharmacist (qualified) with effect from the date on

which they were appointed inasmuch as they possess the

requisite prescribed qualification for the post.

7. The respondents have explained the circumstances in

which ASI Shiv Ram Singh was granted the scale of

ASI/Pharmacist (qualified). We find that ASI Shiv Ram Singh

was appointed in the Border Security Force as ASI/Pharmacist

(qualified) prior to the publication of the recruitment rules,

Border Security Force (Group „C‟ Combatised Para Medical

Staff), Recruitment Rules-1991. The respondents have

explained that the said recruitment was on the basis of the

guidelines issued during 1974 in accordance with the

provisions of Sections 31 and 32 of the Pharmacist Act, 1948.

The petitioners were admittedly appointed after the said

Recruitment Rules of 1991 (extracted above) came into force

and the appointment of the petitioners would be governed by

the provisions thereof. For this reason, the petitioners can

claim no parity in the manner in which ASI Shiv Ram Singh was

appointed and treated.

8. In view of the above, the petitioners who admittedly had

applied and had been appointed as Assistant Sub

Inspector/Pharmacist (qualified) cannot assert or claim the

entitlement to the benefits which were admissible against the

post of Assistant Sub Inspector/Pharmacist (qualified). The

plea of discrimination urged by the petitioner is arbitrary and

the same is not sustainable in the instant case. So long as the

recruitment rules prescribe different eligibility conditions and

scale of pay, the petitioners cannot claim entitlement to the

pay scale which has been prescribed for a different post on the

plea that petitioners possess the requisite qualification for

both. The petitioners have admittedly received the pay in the

scale for the post in which they had been appointed.

In this view of the matter, we find no merit in the present

writ petition which is hereby dismissed.

CM No.5875/2010

In view of the order passed in WP(C)No.10868/2009, this

application is also dismissed.

GITA MITTAL, J

J.R. MIDHA, J DECEMBER 02, 2010 HL