Sh. Tejbir Singh Dagar And Ors vs Union Of India And Ors
2014 Latest Caselaw 40 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 7840/2012

%                   Judgement Reserved on: 27th November, 2013.

                    Judgement pronounced on: 3rd January, 2014.

+     W.P.(C) 7840/2012

      SH. TEJBIR SINGH DAGAR AND ORS        ..... Petitioners
                      Through : Ms. Jyoti Singh, Sr. Adv.
                                with Mr. Sanjeev Chaswal
                                and Ms Saahila Lamba,
                                Advs.
                      versus

      UNION OF INDIA AND ORS                         ..... Respondents
                     Through :          Mr. J.P. Sharma, Adv.



CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA


DEEPA SHARMA, J.

1. Vide this writ petition, the petitioners are seeking stepping up of

their pay to that of their immediate juniors.

2. The facts relevant for the purpose of the present writ petition are

that the petitioners had joined the Railway Protection Force (RPF),

Northern Railway as Constables and were subsequently promoted to the

posts of Head Constable, Assistant Sub Inspector and Sub Inspector on

different dates.

3. As per RPF Rules, 1987, there was a post of Naik RPF which

was subsequently abolished after 4th December, 1997.

4. Besides the usual time bound promotions for the next post,

constables/naiks who had completed 8 and 10 years of service or more

were eligible for competing to the posts of Head Constable as well as

Assistant Sub Inspector (ASI) respectively through a Limited

Departmental Competitive Examination under Rule 72 of RPF Rules

1987.

5. The progression of petitioners upto the position of SI and ASI is

tabulated as under:-

TABLE 1

S.N. Name Date of Date of Date of Date of Date of Rate of Birth Appointment Promotion as Promotion Promotio Pay Head as Asst. n as Sub Constable S.I. Insp.

1. T.S. Dagar 26.9.54 23.9.76 Sep. 89 28.9.92 2.6.2002 Rs.5500/-

2. Raj Pal 12.2.54 8.2.75 Sep 89 14.5.97 Still ASI Rs.4600/-

Singh

3. Onkar 10.11.55 22.10.77 16.11.96 14.5.97 Still ASI Rs.4600/-

Singh

6. The progression upto the post of SI and ASI of two juniors to

petitioners reads as under:-

Table 2

S.no Name Date of Date of Date of Date of Date of Rate of Birth Appointment Promotion Promotion Promotio Pay as Head as Asst. n as Sub Constable S.I. Insp.

1.     Ram            10.6.55 19.5.77     Not                    28.9.92      2.6.2002 Rs.6025/
       Chamder                            promoted
2.     Ramphal        5.2.58 9.7.78       Not                    14.5.97      Still ASI    Rs.5500/-
       Vasisht,                           promoted
       ASI

7. Pursuant to 5th Central Pay Commission, Government introduced

'Assured Career Progression' Scheme (hereinafter referred to as "ACP"

Scheme) to grant financial benefits to those individuals who were

stagnating and could not be promoted to next rank for lack of vacancies

or failure to clear Limited Departmental Examinations. The Scheme

was adopted for Railway Employees w.e.f. 1st October, 1999. Under the

scheme, the salary of the petitioners was fixed lower than the salary of

their juniors. While the pay of petitioner No. 1 was fixed at Rs.5500/-

in pay scale of Rs.5500/- 9000/- in the rank of Assistant Sub Inspector,

that of his junior Sh. Ram Chander was fixed at Rs.6025/-

8. Aggrieved by the said action, the petitioners and others filed

W.P.(C) No. 5867/2003 in this Court which was decided in their favour

vide order dated 7th December, 2009, with following directions :-

"14 We accordingly dispose of the writ petition issuing a mandamus to the respondents to upgrade the pay of the petitioners from the date persons junior to them were given a higher pay. This would mean that the petitioners would be placed in the same grade in which the person immediate junior to the petitioner was placed. Needful would be done within 12 weeks from today and arrears which have accrued be paid within further 4 weeks thereafter, failing which the arrears shall be paid with simple interest @ 8% per annum reckoned with effect from 16 weeks after the date of the present order."

(Emphasis supplied)

9. It is submitted that although four weeks were given to the

respondents to do the needful, the respondents failed to execute the said

directions. Representations dated 07.12.2009, 16.08.2011 and

02.10.2011, 22.3.2012, 16.06.2012 to concerned authorities fell on the

deaf ears.

10. In the meantime, the Sixth Central Pay Commission had made its

recommendations. Pursuant thereto, the pay rules of 2008 were notified

by the Government. The pay scales were now replaced with pay bands

with different grade pay in respective bands.

11. Based on earlier anomaly, the respondents fixed the petitioners'

pay, once again lower than that of their juniors. The present pay of the

petitioner No. 1 has been fixed in the pay band of Rs.9300/- 34800 with

grade pay of Rs.4200/-. As against this Sh. Ram Chander, (who is

junior to petitioner No. 1), has been given the same pay scale with a

grade pay of Rs.4600/-.

12. The pay scale of petitioner No. 2 has been fixed at Rs. 18980/-

with a grade pay of Rs.4200/- and that of petitioner No. 3 has been

fixed at Rs. 18890/- with a grade pay of Rs.4200/- while their junior

ASI Ram Pal Vashisht was granted higher pay.

13. It is submitted on behalf of the petitioners that the directions

given in W.P.(C). No. 5867/2003 vide order dated 07.12.2009 passed

by the Hon'ble High Court were upheld by the Hon'ble Supreme Court

in SLP filed by respondent. As such, the matter has attained finality. It

is submitted that the principle laid down by this Court in W.P.(C) No.

5867/2003 ought to have been followed by the respondents while fixing

the pay scale of the petitioners pursuant to the recommendation of 6th

Central Pay Commission. It is prayed by the petitioners that the

respondents be directed to step up the pay of petitioners w.e.f. 1st

September, 2008 to bring it at par with the pay of their juniors.

14. It is contended by the respondents that order passed in W.P.(C)

No. 5867/2003 is not applicable to the present circumstances of the case

and the order is 'per incuriam' as it is made without taking into

consideration Clause 18 of the RBE No. 87/2000 and that provisions of

ACP Scheme were not challenged and were not struck off. It is argued

that the difference in pay is not a criteria to step up the pay of the senior

to the same pay scale as that of junior as this is by virtue of a benefit

given as per scheme which was to be observed in letter and spirit. It

is submitted that para 9 of the Modified Assured Career Progression

Scheme (hereinafter referred to as "MACP" Scheme) reads that "No

stepping up of pay in the pay based or grade pay would be admissible

on account of pay fixation in MACP Scheme''. It is contended that

stepping up of pay is therefore prohibited.

15. Needless to say, the question in issue before this court is the same

as was before the court in W.P.(C) No. 5867/2003. The result of

implementation of the ACP Scheme was the same as is the result of the

implementation of the MACP Scheme. There is not much difference in

the two schemes except that under the ACP Scheme, there were two

upgradations allowed on account of stagnation in the same grade after

completion of the 12 years and 24 years of continuous service while

under the MACP Scheme, the upgradation on account of stagnation in

the same post has been allowed at three intervals of 10, 20 and 30 years

of continuous regular service.

16. The reproduction of the relevant para of Counter Affidavit of

respondent in W.P.(C) No. 5867/2003 reads as under:-

"1. That the Fifth Central Pay Commission in its report had made certain recommendations relating to the Assured Career Progression Scheme (hereinafter called ACP Scheme) for the Central Government Civilian Employees in all Ministries/Departments. The scheme has been viewed as a safety net for those having the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Accordingly, the Railway Ministry decided to grant financial up-gradations (as recommended by the Vth Central Pay Commission and also in accordance with the agreed settlement dated 11th September, 1997 entered into with the staff side of the National Council (JCM) under the ACP Scheme to Group- B, C & D employees on completion of 12 & 24 years of regular service respectively. The scheme was introduced by the Government of India vide Ministry of Railway Board letter No.PC- V/99/1/1/1 dated 1.10.99. Copy of the said letter is annexed as Annexure R-1.

2. That according to Condition No.5.1, two financial upgradation under ACP Scheme in the

entire Railway service career of an employee shall be counted against regular promotion (including in-situ promotion and or any other promotion including fast track promotion availed through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up-gradation under the ACP scheme shall be available only if no regular, promotions during the prescribed period (12 to 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial up-gradation only on completion of 24 years of regular service under the ACP scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP scheme shall accrue to him.

3. That according to Condition No.8 the financial up-gradation under ACP Scheme shall be purely personal to the employee and shall have no relevance to his/her seniority position. As such there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay scale under the ACP scheme.

4. That vide Government of India, Ministry of Railways, Railway Board's letter No.99/SEC (E)/PM-1/2 dated 23.7.2001, it was clarified that in case of those who have jumped intermediate grade due to passing of Limited Departmental Competitive Examination, the post they have actually worked, can only be taken into account for the purpose of ACP Scheme. Copy of the letter dated 23.7.2001 is annexed as Annexure R-

2."

17. The above reproduction clearly shows that the respondent in the

said writ tried to justify their actions based on Condition 8 of the ACP

Scheme.

The Condition 8 of the ACP Scheme reads as under:-

"8 The financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay-scale under the ACP Scheme;"

18. Before us in order to justify its action, the respondents have relied

on Condition 20 of the MACP Scheme which reads as under :-

"20 Financial upgradation under the MACPS shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employees on the ground that the junior employee in the grade has got higher pay/Grade Pay under the MACPS."

19. The language of both the conditions i.e. Condition 8 of ACP

Scheme and Condition 20 of MACP Scheme is same. This court in

W.P.(C) No. 5867/2003 between the same parties had dealt with the

said issue, which has given rise to an anomaly. Seniors in service are

getting lesser salary than their juniors in service in the same rank. The

respondents were also well aware of the said issue in the Scheme. This

fact is clear from the letter written by the then Chief Security

Commissioner, Railway Protection Force to his Director General dated

03.06.2002. The said letter (reproduced by this court in the judgment in

W.P.(C) No. 5867/2003) reads as under:-

"The Director General/RPF, Railway Board, Rail Bhawan, New Delhi.

Sub: Financial up gradation under ACP scheme to those who jumped intermediary grade as a result of competitive examination.

Ref: Dy. Director/Security/Rly. Board's letter No. 99/Sec(E) PM-1/2 Dated 23.7.2001.

1. Vide Boards letter under reference, advice of the Pay Commission Directorate was conveyed which postulated that those staff who jumped intermediary grade due to passing of Limited Departmental Competitive Exam. The post they have actually worked, can duly be taken into account for the purpose of ACP scheme. This advice was

given on a reference from security Directorate that whether such constables who have become ASI (U/R-72) without working as Head Constable can be allowed financial up gradation in the pay scale of Sub Inspectors without taking into consideration the post of Head Constable with they jumped due to Competitive Examination.

2. In the light of the said decision of Railway Board, such staff are being given financial up gradation under ACP Scheme in the pay scale of Sub Inspector over this Railway.

3. However some of the staff who were first promoted from constable to erstwhile rank of Naik and later on promoted directly as ASI(R/R 72) [without actually being promoted and working as Head Constable ] have requested to consider them for the benefit under the ACP scheme, as they too have got only one promotion in the rank of Naik now re-designated as Head Constable w.e.f. 4.12.97.

4. Another anomaly has cropped up in view of the implementation of letter under reference. As per RPF rules, 1987, there was a post of Naik/RPF which has been abolished after 4.12.97. Those Constables/Naiks having 10 years service or more service used to compete in the selection for the post of both Head Constables as well as ASI U/R 72 of the RPF Rules. Some of the Constables who failed in the earlier selection for the post of Head Constable competed in the subsequent selection for the

post of ASI and succeeded. They have now become eligible for ACP for the grade of SI/RPF. Whereas those Constables, who succeeded in both the competitive examinations from Constable to Head Constable and then Head Constable to ASI are not eligible for the financial up gradation to the grade of SI/RPF under ACP Scheme as per the letter under reference. This has created an anomaly which requires clarification.

5. It is therefore, requested to clarify (i) whether such staff who were promoted as ASI (U/R 72) from the post of Naik are also entitled to benefit under ACP Scheme in the pay scale of Sub Inspectors (5500-9000) on completion to 24 years of service or otherwise, (ii) whether such staff who qualified in the completion from Constable to Head Constable and then selected as ASI in the subsequent competitive exam are also eligible for ACP as they are placed as disadvantageous position when compared with those who failed in the selection for promotion to Head Constable but qualified as ASI and now getting ACP for the grade of SI/RPF.

6. An early clarification on the above subject is solicited please."

(Emphasis Supplied)

20. No clarification was forthcoming even at that time and it was the

court, which had intervened in order to remove the said anomaly and

directed the respondents to upgrade the pay of the petitioners from the

date persons junior to them were getting a higher pay.

21. Despite the facts that the respondents were fully aware of such an

anomaly in ACP Scheme, no efforts were made to remove it while

promulgating the Modified Assured Career Progression Scheme. This

has again resulted into juniors getting more salary than the seniors in

service in the same rank.

22. It does not appeal to the common sense of a reasonable man that

Scheme which has been envisaged/formulated to benefit those

employees who are stagnating in the same rank, either due to lack of

promotion or failure to clear the departmental examination, by granting

them financial up gradation to such stagnant employees, would

prejudice meritorious and hardworking employees, who had qualified

the Limited Departmental Competitive Examination and climbed the

ladder of success. They cannot be penalised for their efficiency in

securing a promotion to next rank instead of stagnating in same rank.

The scheme is a welfare scheme for those employees who stagnate. It is

certainly not intended to prejudice senior personnel by compelling them

to draw lesser salary than those junior and less meritorious than them.

The Scheme certainly did not envisaged the disadvantage it was causing

to its bright employees. Such working of the Scheme would result in

rewarding those who did not succeed in the competitive examination.

23. Despite the fact that this anomaly in ACP Scheme was

recognised, no efforts were made to remove it while promulgating the

MACP Scheme on coming into force of the Sixth Pay Commission.

24. It is cardinal principle of law, as held by the Hon'ble Supreme

Court in number of cases, that no junior in the same post can be granted

more salary than his seniors.

25. In Civil Appeal Nos. 65-67(Arising out of S.L.P.(C) Nos 12522-

12514 of 2007 decided on 09.01.2009 titled as Er. Gurcharan Singh

Grewal and Anr. V. Punjab State Electricity Board and Ors. 2009 (2)

SLJ 271 (SC), the Apex court in para 13 has observed:-

" 13 Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in

the scales which the appellant No. 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No. 1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No. 1 was also stepped to that of Shri Shori, as appears to have been done in the case of the appellant No. 2."

26. In another case titled as Commissioner and Secretary to

Government of Haryana and Ors. v. Ram Sarup Ganda and Ors. 2006

(12) SCALE 440, the Apex Court has observed in its para No. 15:-

"15 In the result, all the appeals are partly allowed. The appellants shall revise the pay scales of the respondents. In case of any anomaly, if the employees who, on fixation of ACP scales, are in receipt of lesser salary than their juniors in the same cadre/posts, then their salary shall be stepped up accordingly........"

27. In another decision dated 25th October, 2010 rendered in W.P.(C)

No. 2884/2010 titled as UOI and Anr. v. Chandra Veer Jeriya, the

Delhi High Court while dealing with the same issue has observed in

para 8 as follows :-

"8 We agree with the findings arrived at by the Tribunal in view of the law laid down by the Supreme court in the decision reported as 1997 (3) SCC 176 UOI and Ors vs. P. Jagdish and Ors. It may be highlighted

that the respondents did not claim any pay parity with officers junior to them but in the combatized cadre till as long the officers remained in their respective streams. They claimed parity when the two streams merged in the same reservoir i.e. when they reached the post of Administrative Officer/Section Officer and that too from the date persons junior to them, but from the combatized cadre, became Administrative Officer/Section Officer. The anomaly which then arose was that persons junior in the combined seniority list of Administrative Officer/Section Officer started receiving a higher wage. With reference to FR-22, in P. Jagdish's case (supra) the Supreme Court held that Article 39(d) of the Constitution was the guiding factor in interpreting FR-22, The principle of stepping up contained in the fundamental rules comes into play when a junior person in the same posts starts receiving salary more than his senior on the same post........."

28. The above case was concerned with the cadre of Ministerial staff

in the CRPF wherein an anomaly cropped up regarding the juniors in

the Administrative Officer, Section Officers posts were getting high

salary than their senior ones. The court relied on the decision of the

Apex Court reported in 1997 (3) SCC 176 UOI and Others v. P.

Jagdish and others, wherein it was held that Article 39 (d) of the

Constitution was the guiding factor in interpreting FR-22 and the

Principle of stepping up contained in the fundamental rules, comes into

play when a junior person in the same post starts receiving salary more

than his senior on the same post.

29. In P. Jagdish case (supra), the Apex Court has observed that the

principle of Stepping up prevents violation of the principle of "equal

pay for equal work". Applying the same principle of law here, a junior

in the same posts cannot be allowed to draw salary higher than the

seniors because that would be against the ethos of Article 39 (d) of the

Constitution which envisages the principle of "equal pay for equal

work". Hence granting of stepping up is the only way out to remove the

said anomaly, which permits juniors to draw higher salary in the same

rank then their seniors. The only way to remove is the stepping up of

salary of seniors.

The rules and provisions which allow the said anomaly to exist

and prohibit the stepping up are violative of the principles of natural

justice and equity; are contrary to Article 39(d) of the Constitution

which envisages "equal pay for equal work" and contrary to the

principles of law laid down by the Apex court in its pronouncements.

30. The next question is whether the findings of the court in W.P.(C)

No. 5867/2003 acts as 'per incuriam' as contended by the respondents.

Reliance is placed by them on A.R. Auntlay v. R.S. Nayak and another

(1988) 2 SCC 602, Narmada Bachoo Andolan v. State of Madhya

Pradesh AIR 2011 SC 1989 and State of U.P. and another v.

Synthetics Chemical Pvt. Ltd. (1991) 4 SCC 139. As per these

judgements relied upon by the respondents, a judgment is 'per

incuriam' only when it was given in ignorance or forgetfulness of some

inconsistent statutory provision or some authority binding on the court

concerned, so that in such cases some part of the decision or some step

in reasoning on which it is based found to be wrong.

31. While issuing directions of stepping up the salary of seniors in

order to bring it at par with that of juniors, this Court had duly

considered all the contentions of respondents; the relevant conditions of

the ACP Scheme and relied on the principles enunciated by the Apex

Court in P. Jagdish case (supra) for recording its findings. It therefore,

cannot be said that the judgment in W.P.(C) No. 5867/2003 is 'per

incuriam'.

32. In view of above, the respondents are hereby directed to upgrade

the pay of the petitioners from the date their juniors were given the

higher pay in the same rank. The directions be complied with within 12

weeks from today and arrears shall also be paid within 4 weeks, failing

which petitioners be entitled to simple interest @ 9% per annum after

16 weeks from today. The respondents are also directed to pay a sum of

Rs.20,000/- towards costs to each of the petitioners.

(DEEPA SHARMA) JUDGE

(GITA MITTAL) JUDGE

JANUARY 3rd, 2014 j