H.C./Ro S.S. Suhag & Ors. vs Union Of India & Ors.
2014 Latest Caselaw 2575 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              WP(C) No.2654/2014 and CM No.5521/2014

H.C./RO S.S. SUHAG & ORS.                       ..... Petitioners
                     Through:         Mr.Ankur Chhibber, Advocate.

                          Versus

UNION OF INDIA & ORS.                  ..... Respondents
                   Through: Mr. Himanshu Bajaj, CGSC.
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

                          O R D E R (ORAL)

: REVA KHETRAPAL, J.

WP(C) No.2654/2014

1. The present writ petition has been filed challenging the signal

dated April 2, 2014 and the un-communicated signal dated 7th April,

2014 whereby the respondents have illegally and erroneously re-fixed

the pay of the petitioners to their detriment as per fitment table

pursuant to the recommendations of the 6th Central Pay Commission;

as well as the action of the respondents in seeking to recover amounts

from their salary pursuant to the pay re-fixed vide the aforesaid

signals.

2. The relevant facts are that pursuant to the recruitment drive

held in the year 2003, the petitioners were directly recruited in the

CRPF to the ranks of Head Constable (R.O.), Grade-III. Upon

joining the force, the petitioners were given a pay scale of Rs. 3200-

85-4900. However, pursuant to the recommendations of the 6 th

Central Pay Commission, notified vide Gazette Notification No.

F.1/1/2008-IC dated July 21, 2009, Pay Band-I in the pay scale S-6 of

Rs. 3200-85-4900 (i.e. petitioner‟s pay scale) was revised to Rs.

5200-20200 with Grade Pay of Rs. 2000/-. Resultantly, the pay in the

post pertaining to the petitioners, (i.e. the post of H.C. in CPMFs) was

revised to Rs.4000-6000/- with Grade Pay of Rs. 2400/-. The afore-

mentioned revised pay structure is set out in Part „C‟ of the First

Schedule of the CCS (Revised Pay) Rules, 2008.

3. Pertinently, the Director General, CRPF, New Delhi got issued

an order dated August 25, 2009 on the subject of notification of rank-

wise revised pay structure in respect of CRPF personnel, wherein the

pay scales of all the Head Constables of CRPF irrespective of any

trade, including HC (RO) who were earlier placed in the existing pay

scale of Rs. 3200-85-4900 were upgraded to the pay scale of Rs.

4000-6000 in PB-I along with grade pay of Rs. 2400/-.

4. Thereafter vide an order of even date, i.e. 25th August, 2009,

the pay of the Head Constables in CRPF was fixed by the DTE Office

at Rs. 7510/- with Grade Pay of Rs. 2400/- thereby amounting to a

sum of Rs. 9910/- with effect from January 01, 2006 and accordingly

all Head Constable including the petitioners were paid arrears in

respect thereto. The pay of the petitioners, as well as the pay of Head

Constables (Min.), was accordingly re-fixed by the concerned Signal

Units and audited by IAP-III as Rs. 7510/-, with grade pay of Rs.

2400/- thereby amounting to a sum of Rs. 9910/- (total 7510-2400)

w.e.f. January 01, 2006 vide signal dated September 18, 2008 issued

by the Dy. Financial Advisor, CRPF.

5. Subsequently, however, the respondents got issued two signals

dated May 20, 2011 and May 31, 2011 fixing the pay of Head

Constable (Min.) as per Section - II, Part „A‟ of the CCS (Revised

Pay) Rules, 2008, but the same was denied to the petitioners on the

ground that there was no direct entry in the grade after January 01,

2006. Pursuant to the aforesaid Signals, the recoveries were also got

effected.

6. Aggrieved by the aforesaid signals, the Petitioners filed Writ

Petition No. 4295/2011 titled as B.D. Dubey and Ors. Vs. Union of

India and Ors. wherein a Division Bench of this Court vide order

dated July 14, 2011 observed that if any action was intended to place

the petitioner in a lower Pay Band, a show cause notice was required

to be issued containing the reasons for the tentative decision taken.

The relevant paragraphs of the said judgment read as under:-

"4. Be that as it may, the fact of the matter remains that having placed petitioners in a particular pay scale and having paid salary each month to the petitioners as per the pay scale, without any show cause notice being issued not only is the scale of pay in which the petitioners were placed downgraded but recoveries are sought to be made.

5. Two issues need to be adjudicated. Firstly, whether the petitioners' pay scale can be downgraded and secondly, if it is held that the pay scale can be downgraded, whether recoveries can be made.

6. The first requires an adjudication, post issuance of a show cause notice to the petitioners. The second issue requires a debate on the point: Having paid salary to the petitioners at a pay scale higher than what was due to them and the petitioners not playing any fraud or making misrepresentation

when the pay scale was fixed and having received salary on the assurance that it belongs to them and thus having spent the same, whether estoppel would bar the respondents from urging to the contrary and effect recoveries.

7. Noting that the respondents have not issued any show cause notice to the petitioners and also further noting that the Director General CRPF, the Highest Executive Authority of the CRPF is prima facie of a view which is being projected by the petitioner, we dispose of the writ petition quashing the impugned signals dated 20.5.2011 and 31.5.2011. We direct that petitioners would continue to draw pay and allowances in the Pay Band-I i.e. Rs.5,200-20,200/-with grade pay Rs.2,400/-.

8. If respondents intend to take any action to place the petitioners in a lower pay band, show cause notice would be issued containing the reasons for the tentative decision taken by the respondents. Petitioner would be given an opportunity of being heard. Decision would be taken. Needless to state no recoveries shall be effected till then."

7. Allegedly, pursuant to the order passed in the Writ Petition No.

4295/2011, the respondents got issued a pre-determined show cause

notice dated 23rd August, 2011 to the petitioners. A bare perusal of

the aforesaid show cause notice would show that the same was a

mechanical reiteration of what was already stated in the impugned

signals dated May 20, 2011 and May 31, 2011 with a simple addition

that the same was being issued pursuant to the Court‟s order dated

14th July, 2011. The Petitioners submitted their representation dated

8th September, 2011 to the said show cause notice stating, inter alia,

that the initial pay of all Head Constables in all paramilitary forces

(including CRPF) was fixed at Rs. 7510 plus Rs. 2400 Grade Pay and

during fixation it was necessary to give the same basic pay to an

officer of a particular rank irrespective of whether he was a promote

or a direct recruit. To do otherwise would result in an anomaly as the

pay of Constables recruited post 2003 would be resultantly higher,

being junior in rank as well as being in a lower pay scale; and the pay

of Head Constable (Min) was fixed at Rs. 7510 plus Rs. 2400 Grade

Pay but still artificial discrimination was being carried out against the

petitioners.

8. Pursuant to the representation, the respondents once again

acted in a mechanical manner and issued the impugned signal dated

April 02, 2014 as well as the uncommunicated Signal dated April 07,

2014 once again reiterating their earlier stand and refixing the pay of

the petitioners.

9. Learned counsel for the petitioners vehemently contended that

the pay of the petitioners could not be fixed at less than Rs. 9910/- on

account of the fact that pursuant to the recommendations of the 6 th

Central Pay Commission and as reflected in the CCS (Revised Pay)

Rules, 2008, the entry pay in the revised pay structure for direct

recruits appointed on or after January 01, 2006 in Pay Band-1 (Rs.

5200-20200/-) was fixed at Rs. 7510/- with Grade Pay of Rs. 2400/-

totaling to a sum of Rs. 9910/-.

10. Learned counsel for the petitioners highlighted the fact that no

request was ever made by the petitioners seeking re-fixation of pay

nor was there any mis-representation on their part and as such the

respondents were bound to serve a notice upon the petitioners before

again re-fixing the pay to the petitioners‟ detriment. Even otherwise,

once pay has been fixed by the respondents, no recovery could have

been made except in accordance with law, which necessitates serving

a show cause notice before effecting any recovery.

11. Reliance was placed by learned counsel for the petitioners in

the aforesaid context upon the decisions of the Apex Court reported

as (2009) 3 SCC 475 Syed Abdul Qadir & Others vs. State of Bihar

& Others; and (2006) 11 SCC 709 Col. B.J.Akkara (Retd.) vs.

Government of India & Others.

12. The counsel for the petitioners state that the respondents have

acted in arbitrary manner and also not adhered to the directions

passed by this Court in B.D. Dubey's case (supra).

13. The primal question for consideration in the present case is:

Whether the pay of the petitioners having been re-fixed pursuant to

the recommendations made by the 6th Central Pay Commission could

have been revised by the respondents to the detriment of the

petitioners without even issuance of show cause notice in terms of the

judgment dated July 14, 2011 passed in W.P(C) No.4295/2011

"containing the reasons for the tentative decision taken by the

respondents." The other question which requires consideration is:

Whether the excess amount (if any) paid to the petitioners, not having

been paid on account of any mis-representation or fraud on the part of

the petitioners, but on account of mis-calculation of the pay of the

petitioners, which was subsequently found to be erroneous, whether

the respondents can recover the said amount unilaterally and even

without issuance of a proper show cause notice to the petitioners.

14. The answers to the aforesaid questions, in our considered

opinion must be in the negative on both counts. The action of the

respondents impugned in the present writ petition, in our view, cannot

stand scrutiny and smacks of arbitrariness.

15. Needless to state that if the respondents intend to take any

action to re-fix the pay of the petitioners to the detriment of the

petitioner, a show cause notice containing the reasons for the tentative

decision ought to have been issued to the petitioners and a decision

taken thereon after giving an opportunity to the petitioners to be

heard. Despite specific directions, the respondents, contrary to the

judgment given by this Court in B.D. Dubey's case (supra), issued a

show cause notice on 23.8.2011 wherein they in the show cause

notice did not give any reasons for the tentative decision for

withdrawal of the Grade Pay and Pay Band paid to the petitioners.

Rather, in the show cause notice it was stated by the Competent

Authority that it has been decided that the petitioners‟ salary is to be

fixed as per fitment table by applying multiple of 1.86. The said show

cause notice was itself bad apart from being contrary to the judgment

dated 14.7.2011, which categorically ruled that if the respondents

intended to take any action to place the petitioners in lower pay band

then the show cause notice issued to the petitioners would contain

reasons for tentative decision. Then again, despite detailed replies

dated 19.09.2001 and 8.9.2001 submitted by the petitioner, the

respondents without considering the same had issued the impugned

letter dated 2nd April, 2014 directing fixation of pay of the petitioners

as per fitment table and ordering for excessive recoveries without

giving any reason or dealing with any of the submissions submitted

by the petitioners in their reply. Since, the impugned order is a non-

speaking order and does not deal with the submissions submitted by

the petitioners, the same is contrary to the law laid down by the Apex

Court and needs to be set aside on this ground alone.

16. In the result, we allow the writ petition quashing the impugned

order dated 2nd April, 2014 and the uncommunicated order dated 7th

April, 2014 with a direction that the petitioners would continue to

draw pay and allowance in Pay Band-I in the pay scale of Rs. 5200-

20200/- with Grade Pay of Rs. 2400/- thereby amounting to a sum of

Rs. 9910/- with effect from January 01, 2006.

17. No costs.

CM No.5521/2014 (for stay)

The application is dismissed being infructuous.

REVA KHETRAPAL JUDGE

PRATIBHA RANI JUDGE May 20, 2014 sk