Shri Kanta Prasad vs Union Of India & Ors.
2012 Latest Caselaw 1084 Del

*              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/-

(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

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.

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)

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

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.

The writ petition is, therefore, dismissed in default.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

February 16, 2012 vk