Delhi High Court
Sh.Hari Singh Arya vs Union Of India & Ors. on 30 November, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.4638/1999
% Date of Decision: 30.11.2011
Sh.Hari Singh Arya .... Petitioner
Through Mr.Partap Singh, Advocate.
Versus
Union of India & Ors. .... Respondents
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ANIL KUMAR, J.
*
1. The petitioner has sought directions against the respondent Nos.1
to 3 praying that he should be shown senior to respondent No.4,
Sh.S.C.Pandey and that the seniority list showing him junior to
Sh.S.C.Pandey be set aside and also that he be granted arrears of pay,
and other allowances on the basis of his salary @ Rs.4475/- per month
instead of Rs.4000/- per month, with an interest at the rate of 18% per
annum on such arrears.
2. The petitioner contended that he joined the training course after
his selection in the Railway Protection Force on 28th December, 1960.
He was promoted to the higher post and grade of Inspector/Company
Commander from August, 1969. He was posted at Loco Workshop,
Charbagh, Lucknow and thereafter at various other places and his work
was well appreciated.
3. According to the petitioner an All India Selection was held in 1978
and the result of the said selection was declared on 13th December,
1978. The petitioner alleged that he was declared outstanding in the
said selection and was promoted to the post, grade and pay of Assistant
Security Commissioner in the Northern Railway, Delhi Division on 9th
January, 1979. He was further promoted to the senior scale post and
grade as Security Officer/Commandant in July, 1984.
4. In 1981, the Railway Protection Force (Group A and Group B
posts) Recruitment Rules, 1981 were framed and the rules prior to 1981
were superseded. Under the new rules a Junior Scale Group `A‟ post
was introduced between the Junior Scale Group B post and the Senior
Scale post. The appointment to Junior Scale Group A post was by direct
recruitment as well as by promotion.
5. According to the petitioner he was promoted to Senior Scale on
July, 1984 when the Railway Protection Force (Group A and Group B
posts) Recruitment Rules, 1981 were applicable. The petitioner
contended that there had been litigation in respect of the said rules and
that a decision was given by the Supreme Court on 28th August, 1997
in the matter of Sh.H.S.Grewal & Ors v. Union of India.
6. The plea of the petitioner is that on 28th July, 1989 a seniority list
of Group „B‟ of Assistant Security Commissioner (RPF/RPSF) was issued
in which the petitioner was placed at serial No.91 whereas
Sh.S.C.Pandey, respondent No.4 was placed at serial No.116. The said
seniority list was subject to the decision in the various writ petitions
filed in various High Courts by Sh.Baldev Raj, Sh.R.K.Sharma,
Sh.Y.Hossain, Sh.Dharamveer Singh and others.
7. The petitioner retired from the service on 31st October, 1993 from
the post of Joint Director (RPF) though, according to him he was
discharging the work and duties of Junior Administrative Grade since
1988. But he was shown to have retired from the lower grade of Senior
Scale of Rs.3000-4500/-. At the time of his retirement his pay was
shown to be Rs.4000/- per month though it should have been
Rs.4475/- per month in the JA Grade of Rs.4100-5300/-. The
contention of the petitioner is that since he was promoted though on
adhoc basis and after selection he was not reverted and was
subsequently regularized and he therefore continued on the higher post
and was even promoted thereafter. His, his regular promotion should
have been from the date of his original promotion.
8. The grievance of the petitioner is that on his retirement his pay
was wrongly fixed and has not been corrected despite the repeated
undertakings by the respondents to do so and despite the observations
made by the Supreme Court in the case of H.S.Grewal (Supra).
9. The petitioner contended that the relevant grades in 1986-95
were as under:-
(i) Junior Scale Group „B‟ : Rs.2,000-3,500
(ii) Junior Scale Group „A‟ : Rs.2,200-4,000
(iii) Senior Scale : Rs.3,000-4,500
(iv) Junior Administrative Grade : Rs.4,100-125-4,850-
5,300.
10. According to the petitioner the Recruitment Rules of 1981 also
prescribed as under:-
"(i) That after selection as Assistant Security Officer Group „B‟,
a service of three years is required for the promotion to the
Junior Scale Group „A‟ and for that post there was a direct
recruitment as well, available.
(ii) That from the post of Junior Scale Group „A‟ to the post in
Senior Scale, a service of 5 years after appointment on regular
basis was prescribed.
(iii) That from the post of Senior Scale to that of in Junior
Administrative Grade a period of five years in Senior Scale
service was prescribed after such appointment on regular basis."
11. According to the petitioner while implementing the Rules in 1981
though he was entitled for regular promotion, however, he was given
ad-hoc promotion with assurance that the matter shall be settled and
that the petitioner and the other employees will get the benefit of
promotions even from the period the petitioner was given ad-hoc
promotion.
12. The other grievance of the petitioner is that though he was always
senior to Sh.S.C.Pandey, respondent No.4, however, in the seniority list
issued pursuant to Railway Board‟s letter No.E(O) I-97/SR-6/56 dated
28th August, 1998 the petitioner was shown at serial No.28 and the
respondent No.4, Sh.S.C.Pandey was shown at serial No.15. In another
list showing the names of RPF officers and their dates of regular
promotion to the rank of Security Commissioner in the senior scale
dated 22nd October, 1998 the petitioner was shown at serial No.26
whereas the respondent No.4 being his junior was still shown at serial
No.14.
13. In the submissions made by the petitioner, he has stated that
after his retirement on 31st October, 1993, showing his juniors as his
seniors had not persuaded the petitioner to work under his junior. The
allegation made by the petitioner in para 6.8 of the writ petition is as
under:-
"6.8 That as framing of any seniority list after 31.10.93
when the petitioner had retired and showing some one
junior to the petitioner as senior to the petitioner shall not
persuade the petitioner to work under his such junior, the
whole effort of the respondents in authority to grant some
benefit to the respondent No.4 on one principle, i.e. of
counting his service on adhoc and followed by regular
promotion in the total service for eligibility for
further/higher promotion/grade (Annexure-1 dated
16.7.98) and not giving of the same benefit of same
principle in case of the petitioner, is most arbitrary,
discriminatory. Annexure-1 shows that not only Shri
S.C.Pandey but several others were granted the said
benefit. Further, there is one Civil Writ Petition No. of
1999 filed by one Shri Ranjit Singh Raghav „vs. UOI & Ors.)
on the same principle as shown in Annexure-1 is pending
determination. That the law is clear that even without a
representation, the authorities must treat all its employees
here the respondents are openly acting capriciously,
arbitrarily, discriminately and in most unfair manner and
after retirement from service."
14. The grievance of the petitioner under the circumstances is that
though work from him had been taken for the higher post and that he
had been performing the work assigned to him on the higher post, but
still he has not been paid the pay and allowances for the entire period.
The petitioner also sought notional benefits relying on the decision of
the Supreme Court in AIR 1991 SC 2010, Union of India v. Janki Ram.
According to the petitioner there is a patent discrimination and violation
of Articles 14 & 16 of the Constitution of India. The petitioner has
contended that despite the repeated representation, the grievance of the
petitioner has not been addressed and rectified.
15. The writ petition had come up for hearing on 4th August, 1999
after it was filed on 31st July, 1999 and show cause notice was issued
to the respondents. Costs on different dates were also imposed on the
petitioner for not taking steps for service of notice to the respondents.
16. The respondent Nos.1 to 3 were served on 18th January, 2006,
however, respondent No.4, Sh.S.C.Pandey remained unserved. On 18th
April, 2006 the counsel for the petitioner had stated that the petitioner
does not wish to proceed against respondent No.4, Sh.S.C.Pandey.
17. Despite the service of notice to respondent Nos.1 to 3, no reply to
show cause notice or counter affidavit was filed on behalf of respondent
Nos.1 to 3 leading to closure of the right of the respondents Nos.1 to 3
to file the counter affidavit. The respondent No.5 Union Public Service
Commission was not served. Rule D.B was issued on 28th August, 2006.
18. The matter came up for hearing on 8th August, 2011 on which
date no one appeared on behalf of the parties and, therefore, the notices
were issued pursuant to which Sh.Partap Singh, Advocate had
appeared on 17th November, 2011 on which date the matter was listed
for hearing at the end of "After Notice Misc.Matters".
19. Hence the matter was heard on 17th November, 2011. Since the
petitioner had given up respondent No.4 on 18th April, 2006 the issue of
showing the petitioner junior to respondent No.4 in the seniority list
dated 28th August, 1998 and 22nd October, 1998 cannot be adjudicated.
If the petitioner was aggrieved by respondent No.4 being shown as
senior to him, the petitioner should not have given up his claim against
respondent No.4 after filing the writ petition against him in the year
1999.
20. The learned counsel for the petitioner is also unable to show as to
how the right of the petitioner will be impacted after his retirement on
31st October, 1993, by making the respondent No.4 Sh.S.C.Pandey
senior to him in 1998. If the petitioner had retired on 31st October,
1993 then why his name was shown in the seniority list of subsequent
years has not been explained by the petitioner. No one is present on
behalf of respondent Nos.1 to 3 nor has any reply or counter affidavit
been filed by the respondents.
21. In any case in the facts and circumstances the petitioner is not
entitled to claim that even after his retirement he shall continue to be
senior to respondent No.4. How the name of the petitioner continued to
be shown in the seniority list issued in 1998 when the petitioner had
already retired in 1993 has not been explained by the petitioner‟s
counsel. In the circumstances, the relief prayed by the petitioner that
he should be shown as senior to respondent No.4 even after retirement
does not make any sense nor can it be granted in the present facts and
circumstances. In any case even the petitioner had given up respondent
no.4 as party to the present writ petition.
22. The next relief prayed by the petitioner is that he should be
granted retiral benefits taking into consideration his last drawn pay as
Rs.4475/- per month instead of Rs.4000/- per month. Though the
petitioner contended in the writ petition that he made a number of
representations to the respondents Nos.1 to 3 regarding his entitlement
of pay of Rs.4475/- per month at the time of his retirement instead of
Rs.4000/- per month, however, no copy of any representation has been
filed by the petitioner. The petitioner retired on 31st October, 1993
whereas the writ petition was filed on 31st July, 1999.
23. The petitioner has not averred as to why the writ petition was
filed almost after five years of his retirement. It appears that the
petitioner continued to get the retiral benefits on the basis of his last
drawn pay of Rs.4000/- per month on 31st October, 1993. The learned
counsel for the petitioner is unable to show either on facts or in law
that the petitioner would be entitled for the last drawn pay of Rs.4475/-
per month. Though it appears that the case of the petitioner is that he
was first appointed on ad-hoc basis to the post of Junior Scale Group
„A‟ pursuant to the Railway Protection Force (Group A and Group B
posts) Recruitment Rules, 1981 and later he was regularized, however,
no details or particulars have been given. The petitioner has not
disclosed as to how much arrear he is entitled for and what is the basis
of claiming the said arrears on the pay scale of Rs. 4475/-. In the
circumstances, the petitioner is not entitled for directions to the
respondent to pay the retiral benefits to the petitioner including the
commutation amount, leave salary, etc. on the basis that the last drawn
pay of the petitioner was Rs.4475/- per month and not Rs.4000/- per
month. The petition lacks in material particulars and no basis has been
established for the relief prayed by the petitioner. The learned counsel
for the petitioner is also unable to make out a case which would entitle
the petitioner for the relief prayed by him.
24. In the circumstances, the writ petition is without any merit and
the relief prayed by the petitioner cannot be granted to him. The
petition also suffers from delay and latches as the petitioner
superannuated on 31st October, 1993 and the petition was filed on 31st
July, 1999 and the petitioner has not given any cogent explanation for
the same. The writ petition, therefore, is without any merit and it is
dismissed.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
NOVEMBER 30, 2011.
„k‟
