Satyawir Singh & Ors. vs Union Of India & Ors.
2012 Latest Caselaw 4561 Del

7
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   W.P.(C)No.7768/2011

%                              Date of decision: 1st August, 2012

      SATYAWIR SINGH & ORS.          ..... Petitioners
                    Through : Mr. Yashpal Rangi, Adv.
               versus

      UNION OF INDIA & ORS.         ..... Respondents
                     Through : Mr. Sunil Kumar and
                               Mr. Rajiv Ranjan Mishra, Advs.
                               for UOI.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

1. The instant writ petition has been filed by the 44 Sub-

Inspectors/Radio Operators and two Head Constables of the

Indo Tibetan Border Police Force (ITBP). Learned counsel for

the petitioners submits that in the year 1999, on the

recommendation of the 5th Central Pay Commission, the

Government of India had formulated the Assured Career

Progression Scheme granting employees a next higher scale of

pay on completion of 12 and 24 years of regular satisfactory

service in one force. In terms of this scheme, the petitioners

were conferred the first financial upgradation consequent upon

their completing 12 years of regular satisfactory service in the

period. They continued to enjoy the benefits of this financial

upgradation between the period 2002 to 2008.

2. The grievance of the petitioners is that the respondents

were considering introduction of the rank of the Additional Sub-

Inspector in the combatised cadre in the Central Para Military

Force. In this background, an order was passed on 10 th May,

2005 to allow the financial upgradation only to Head

Constables in the rank of ASI (Rs.4,000 - Rs.6,000) in place of

Sub Inspectors (Rs.5,500 - Rs.9,000). The respondents were

under the impression that the force personnel had been given

the financial upgradation from the scale of Head Constable to

Sub-Inspector mistakenly. As a result of the order dated 10th of

May, 2005, the ACP benefits given to Head Constables

conferred earlier in the scale of Rs.5,500 - Rs.9,000 had been

withdrawn/readjusted and they had been given ACP benefits in

the pay scale of Rs.4,000 - Rs.6,000 and their emoluments

were readjusted.

3. Aggrieved by this action, the ITBP personnel approached

various courts including this court by way of writ petitions.

4. The respondents have made the following disclosure of

the previous litigation in this court in this regard in their

counter affidavit:-

(i) WP(C)No.12258/2009 titled Prem Singh & Others v.

UOI & Others, decided on 9th October, 2009.

(ii) WP(C)No.7231/2011 titled Parmal Singh & Others v.

UOI & Others which was decided on 29th September,

2011.

5. The order of the court dated 29th September, 2011 in

Parmal Singh (supra), which was filed in similar

circumstances as the petitioners deserves to be considered in

extenso and reads as follows:-

"WP(C) 7231/2011

1. As far back as on 9.8.2005, allege the writ petitioners, that benefit of ACP granted to them was withdrawn. The result was salary being released to the petitioners in a lower pay-scale and threat of recovery of the stated excess amount paid.

2. Admittedly, the administrative decision taken by the respondents to withdraw the financial benefit was without putting the persons to a notice, much less granting them an opportunity of making a representation.

3. Way back on 9.10.2009, WP(C) No.12258/2009 Insp.Prem Singh and Ors. vs. UOI and Ors., raising same issue as is raised in the instant writ petition was decided by us requiring respondents to issue a memorandum and serve the same upon the petitioners intimating the reasons on which the ACP granted had been withdrawn. The writ petitioners therein were required to submit a response and the respondents were cast with a duty to pass a reasoned speaking order and communicate the same to the petitioners therein.

4. In para 7 of the decision it was hoped and expected that the respondents would do likewise for all such officers qua whom ACP benefit granted had been withdrawn. It was so observed in para 7 of the order dated 9.10.2009, for the reason, the facts of

the said petition made it clear to this Court that a large number of ITBP officers were affected by the action taken.

5. Painfully would we note that the decision on the file taken by the Cadre Controlling Ministry records as under:-

"The case pertaining to grant of 1st upgradation to head constables (`3200-85- 4900) and 2nd ACP to constables (`3050-75- 3950-80-4590) in the pay scale of `5500- 9000 in accordance with the then existing rank hierarchy and the provisions of original ACP scheme has been examined in MOF. MOF vide their ID No.50402-C/E-III(A) dated 11.04.2011 has agreed to extend the implementation of the courts judgment to only the applicants of the various court cases filed by ITBP personnel as well as other CAPF‟s where the intermediary rank of ASI in the pay scale of `4000-6000 (pre- revised) did not exist.

2. ITBP and BSF/CRPF/SSB/AR may please see for information and necessary action. File is returned to ITBP."

6. The note has been signed by Sh.Pritam Lal, Under Secretary (Pr-V).

7. We are pained to note the bureaucratic stand taken by Sh.Pritam Lal, Under Secretary (Pr-V).

8. If a general issue of law affecting large number of persons is decided by a Court and a specific reference is made that the department should consider extending the principle of law declared across the board to all so that others are not forced in litigation, it is expected that the bureaucrat applies himself properly and does not foist litigation on the others.

9. The note extracted herein above says that the Ministry of Finance has agreed to extend the

implementation of the Court judgment to only those applicants who approach the Court and not the others.

10. The decision creates an artificial distinction not recognized by law for the reason it would be arbitrary to say that law means „A‟ for those who go to the Court, and it means „B‟ for those who do not.

11. While disposing of the writ petition and directing the respondents to treat the mandamus issued vide order dated 9.10.2009 passed in WP(C) No.12258/2009 as the mandamus issued in the instant writ petition, we censure Sh.Pritam Lal, Under Secretary, (Pr-V), Government of India, Ministry of Home Affairs and direct that a copy of this decision would be placed in his service book and as and when his case is placed before a Departmental Promotion Committee, it be highlighted that this Court has censured Sh.Pritam Lal, Under Secretary (Pr-V)."

6. We are informed that pursuant to the orders passed by

this court in Parmal Singh (supra), the Ministry of Home

Affairs has passed the order dated 22nd November, 2011

withdrawing its earlier order and is examining the cases

afresh.

7. It appears that in the meantime, two other writ petitions

bearing WP(C)No.7393/2011 titled Naresh Kumar &

Others v. UOI & Others and WP(C)No.7478/2011 titled

T.L. Pyli & Others v. UOI & Others on the same issue have

been filed by the ITBP personnel which were also disposed of

on 10th October, 2011 and 14th October, 2011 in terms of the

judgment in Parmal Singh (surpa).

8. The instant writ petition has been necessitated as the

petitioner complains that the respondents are taking a view

that the benefit of the withdrawal of the order and the

judgments of several courts would be granted only to such

persons who have filed the writ petitions. Such a stand is

contrary to law and is violative of the directions made by this

court on 29th September, 2011 in Parmal Singh (surpa). In

our view, unnecessary litigation, including the present writ

petition, is being generated by the completely untenable stand

of the respondents who are required to take a considered view

of the matter as directed in Parmal Singh (surpa). In case

the respondents had proceeded in accordance with law, and

having failed to do so, complied with the directions of this

court in the previous writ petitions, this writ petition would not

have been required to be filed. Valuable judicial time has been

caused to be expended in this matter without any justification.

9. We were inclined to impose heavy costs in the matter,

recoverable from the officials concerned. However, learned

counsel appearing for the respondents have urged that the

respondents are taking urgent steps to comply with the

directions and prayed that therefore a lenient view be taken.

We accept this submission.

10. This writ petition is disposed of with direction to the

respondents to treat the mandamus issued by the order dated

9th October, 2009 passed in W.P.(C)No.12258/2009 as the

mandamus in the instant writ petition as well. The

respondents shall ensure that the action in terms of the above

is positively taken within four weeks from today.

Dasti to parties.

GITA MITTAL, J

J.R. MIDHA, J AUGUST 01, 2012 aj