Yudhister Mudgal & Ors. vs Union Of India & Ors.
2015 Latest Caselaw 2688 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Date of Decision: April 06, 2015
+                           W.P.(C) 8826/2014

       YUDHISTER MUDGAL & ORS                              ..... Petitioner
                       Represented by:   Ms.Saahila Lamba, Advocate

                                         versus

       UNION OF INDIA & ORS                                ..... Respondent

Represented by: Mr.Hasmat Nabib, Advocate with Mr.Vipin Pillai, Advocate

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, (J.) (Oral)

CM No.5959/2015 Allowed as prayed for. Amended memo of parties is taken on record. W.P.(C) 8826/2014

1. Advance copy of the writ petition was served upon the respondents, as per the rules of this Court, on December 11, 2014. The writ petition was listed for preliminary hearing on December 15, 2014, on which date learned counsel appeared for the respondents because the rules of this Court require that where an advance copy of a writ petition is served upon the Union of India counsel appearance should be made when the writ petition is listed for preliminary hearing. On December 15, 2014 learned counsel for the respondents accepted notice in the writ petition and was granted 6 weeks time to file a counter affidavit. None has been filed.

2. Learned counsel for the respondents states that the reason why the counter affidavit was not filed is that on finding that the facts stated in the writ petition are correct, nobody in the department was prepared to take a stand in writing in view of the fact that the writ petitioners claim that they are entitled to relief in view of two decisions of this Court. The first is dated December 07, 2009 in W.P.(C) No.5867/2013 T.S.Dagar Vs. UOI & Ors. The second is dated January 03, 2014 in W.P.(C) No.7840/2012 Tej Bir Singh Dagar & Ors. Vs. UOI & Ors. The second decision follows the law declared in the former.

3. The only issue therefore which we need to decide is : whether on the admitted facts, the writ petitioners would be entitled to relief in view of the law declared by two Division Benches of this Court in the two decisions referred to in the previous paragraph.

4. The petitioners were initially appointed as Rakshaks in the Railway Protection Force which was re-designated as Constable. The petitioners earned promotions as a Head Constable, Assistant Sub-Inspector and a Sub- Inspector on the various dates disclosed in paragraph 3 of the writ petition. In respect of which we need to note that the first petitioner earned promotion to the post of Inspector as well.

5. As per the RPF Rules, promotion to the rank of Assistant Sub- Inspector is either through a Limited Departmental Competitive Examination or on basis of seniority subject to fitness. The ratio is 40:60. The petitioners earned promotion to the post of Assistant Sub-Inspector in the quota of the Limited Departmental Competitive Examination firstly to the post of Head Constable and then the Assistant Sub-Inspector. Persons junior to them earned promotion as Assistant Sub-Inspectors directly through Constables in the Limited Departmental Competitive Examination,

having earlier on failed to earn promotion through the Limited Departmental Competitive Examination to the post of a Head Constable. As per the Rules a Constable having rendered 10 years' service is eligible to appear for the post of Assistant Sub-Inspector and those who have rendered 3 years service as a Head Constable are also entitled to appear at the exam. In other words a Constable may fail to earn promotion as a Head Constable through the Limited Departmental Competitive Examination but may earn a promotion directly to the post of Assistant Sub-Inspector.

6. The petitioners are receiving salary less than their juniors.

7. Under the Assured Career Progression Scheme adopted by the Indian Railways on October 01, 1999, the first and the second financial upgradation was to be given if a person did not earn the first promotion after serving for 12 years and a second after serving for 24 years.

8. Those who earned promotion through the Limited Departmental Competitive Examination as a Head Constable and then as an Assistant Sub- Inspector were denied the two financial upgradations, but those who were directly promoted from Constable to an Assistant Sub-Inspector were granted a financial upgradation. The result is obvious. These Assistant Sub- Inspectors started drawing higher salary.

9. The said issue squarely arose for consideration in the writ petition filed by T.S.Dagar and others. In paragraph 1 of the decision, the Court noted that the problem had been pithily summarized in a letter dated June 03, 2002 addressed by the Chief Security Commissioner, Railway Protection Force, to his Director General. The letter 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 on 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 which 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(U/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 of 24 years of service or otherwise, (ii) whether such staff who qualified in the competition from Constable to Head Constable and then selected as ASI in the subsequent competitive exam are also eligible for ACP as they are placed at 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."

10. The decision gave a graphic representation of the problem by comparing the case of the first petitioner, Sh.T.S.Dagar with that of one Ram Chander. In paragraphs 3 to 8 of the decision, it was noted as under:-

3. T.S.Dagar was born on 26.9.1954 and was appointed as a Rakshak (Constable) under the Railway Protection Force on 23.9.1976. Ram Chander was born on 10.6.1955 and was appointed as a Rakshak (Constable) under the Railway Protection Force on 19.5.1977.

4. It is apparent that Shri T.S.Dagar was inducted in service 8 months prior to Ram Chander.

5. As per the Service Rules applicable Rakshaks could compete at a limited departmental examination for promotion to the post of Head Constable. Whereas Ram Chander could not successfully clear the limited departmental examination, T.S.Dagar successfully cleared the limited departmental

promotion examination and in September 1989 was promoted as a Head Constable. Ram Chander continued to work as a Constable.

6. The post above that of a Head Constable is that of an Assistant Sub-Inspector. As per Rule 70, 60% posts of Assistant Sub Inspectors are filled up through Head Constables as per 3X formula and under Rule 72, Constable/Head Constables with 10 years' service fill up the remaining 40% posts on clearing a limited departmental examination.

7. In the year 1992, T.S.Dagar and Ram Chander cleared the limited departmental examination and on 28.9.1992 were promoted as Assistant Sub Inspectors. Both earned further promotion to the post of Sub Inspector on 2.6.2002. But, with an anomaly. Pay of T.S.Dagar was fixed at Rs.5500/- and that of Ram Chander was fixed at Rs.6025/-.

8. We have extracted herein above the service route travelled by T.S.Dagar and Ram Chander to highlight the anomaly which has resulted. In para 3 and para 7 of the writ petition, the petitioners have, in a tabular form set out the service profile of the nine writ petitioners and have compared the same with the service profile of seven other colleagues who joined later in point of time vis-à-vis petitioners No.1 to 9 and notwithstanding their induction in the cadre on a date later than petitioner No.1 to 9, are drawing a higher salary notwithstanding the same post held by all of them.

11. The Division Bench noted that the anomaly had resulted on account of the Assured Career Progression Scheme notified on August 09, 1999, making eligible employees who have not earned a promotion for 12 years to be placed in the next higher grade i.e. the grade of the post just above the one held by them and to earn a similar higher scale after 24 years service.

12. The Division Bench thereafter noted the justification by the respondent for its action as pleaded in paras 1 to 4 of the preliminary

submissions in the counter affidavit filed in the writ petition, which read 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."

13. Thereafter, in paragraphs 11 to 14 of its opinion, the Division Bench reasoned as under:-

11. One need not pen down much, for the reason, an anomaly, recognized by the respondents as per its letter dated 3.6.2002 has certainly arisen. The said anomaly has been pithily brought out in para 4 of the said letter. We need not reiterate the anomaly save and except to record that the anomaly brought out in para 4 of the letter dated 3.6.2004 has been correctly illustrated.

12. If this be so, one need hardly give reasons for the sequitur to follow. Remedial action has to be taken at the administrative level. Suffice it would be to state that it would indeed be arbitrary that persons who join the cadre earlier and are senior should be given less salary vis-à-vis their juniors on account of the seniors having passed a limited departmental examination within the first 12 years of their service and earned a promotion. Their juniors could not clear the examination resulting in the juniors being placed in the step up scale after 12 years. Further, while earning further promotions, the second promotion earned by the seniors being treated as disbarring them from being placed in the step up scale but the juniors who had earned only one promotion being granted the ACP benefit. The problem has arisen on account of the fact that the writ petitioners firstly on promotion to the post of Head Constable and thereafter to the post of Assistant Sub

Inspector. Their counterpart juniors failed in the examination to fill up the post of Head Constable but cleared the examination for the post of Assistant Sub Inspector, in which examination their senior counterparts were also successful. The result is that seniors are getting a lesser pay whereas juniors are drawing a higher pay. It is apparent that the result is an absurdity entitling itself to be classified as discriminatory.

13. We are pained to note that in spite of recognizing an anomaly as having come into in existence in the year 2002 itself, evidenced by the letter dated 3.6.2002 noted herein above, till date, no remedial action has been taken by the respondents.

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.

14. Petition seeking Special Leave to Appeal against the decision dated December 07, 2009 was dismissed by the Supreme Court on May 12, 2010.

15. In Tej Bir Singh Dagar's case same issue cropped up, but with the only difference that it concerned even the post of a Naik in the Railway Protection Force, which was abolished on December 04, 1997. The post of a Naik was in between that of a Constable and a Head Constable. Another additional issue which was decided related to the Modified Assured Career Progression Scheme which envisaged financial upgradation on the 10th, 20th and 30th year of service being completed if first, second or third promotion was not earned.

16. Adopting the principle of law declared in T.S.Dagar's case, comparing Tej Bir Singh Dagar with his junior Ram Chander, an anomaly similar to the kind which was brought out by the Division Bench in its decision dated December 07, 2009 vis-à-vis T.S.Dagar, the first writ petitioner of said writ petition and one Sh.Ram Chander was illustratively brought out.

17. Learned counsel for the respondents fairly concedes that the law declared by the Division Bench in the decision dated February 07, 2009 followed by the Division Bench on January 03, 2014 is squarely applicable to the case of the petitioners.

18. Accordingly, we dispose of the writ petition granting relief to the petitioners as per prayer (i) made in the writ petition, requiring arrears to be computed and paid within 12 weeks from today failing which interest shall accrue at the simple rate of 8% per annum reckoned from 12 weeks from today.

19. No costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE APRIL 06, 2015 mamta