Delhi High Court
J.P. Dubey vs Uoi & Ors. on 10 November, 2016
$~R-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10.11.2016
+ W.P. (C) 216/2000
J.P. DUBEY ..... Petitioner
Through Mr. Atul Sharma, Advocate.
versus
UOI & ORS. ..... Respondents
Through None
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE ANIL KUMAR CHAWLA
JUDGMENT
INDIRA BANERJEE, J (ORAL)
1. No one has appeared to oppose the writ petition.
2. This writ petition is directed against the failure and or refusal of the
respondent authorities to pay to the petitioner, an officer of the Central
Reserve Police Force (CRPF) arrears of salary claimed to be due and
payable to the petitioner for the period from 17.08.1987 to 06.07.1990 when
he was on deputation in the Intelligence Bureau as an Assistant Director.
3. The facts giving rise to this writ petition are stated very briefly herein
below.
4. The petitioner was directly recruited as a Deputy Superintendent of
Police in the Central Reserve Police Force on 08.02.1967. In the same year
i.e. 1967, some Emergency Commissioned Officers who had retired from
the Army were also given jobs in the Central Reserve Police Force.
5. In 1983, the petitioner was promoted as Commandant and in 1985, he
was given the Selection Grade. Similarly, other batch mates of the petitioner
were also promoted as Commandant and later given the selection grade.
6. The retired Emergency Commissioned Officers of the Army who had
also been appointed in the Central Reserve Police Force filed a writ petition
in this Court challenging the promotion of the petitioner and his batch mates.
It is stated that the petitioner and his batch mates were not impleaded as
parties to the writ petition.
7. The writ petition filed by the retired Emergency Commissioned
Officers recruited in the Central Reserve Police Force was allowed by an
order dated 2nd September 1985. This Court directed upgradation of 88
posts of Commandants to accommodate the retired Emergency
Commissioned Officers and further directed reversion of the petitioner and
his batch mates.
8. Being aggrieved, the petitioner and his batch mates filed Special
Leave Petitions in the Supreme Court being SLP (C) No. 5626-5627/1987
and 11550/1987. On 17.08.1987, the petitioner was sent on deputation as
Assistant Director in the Intelligence Bureau of the Government of India.
The petitioner took charge of the post of Assistant Director in the
Intelligence Bureau in the forenoon of 17.08.1987.
9. A Notification No. 7/C-III/87 (144)-3009 was issued by the
Intelligence Bureau, Ministry of Home Affairs and Government of India
notifying that the president had been pleased to appoint the petitioner as an
Assistant Director of the Intelligence Bureau, Headquarter of Delhi for a
period of five years on deputation basis with effect from the forenoon of
17.08.1987. As per the said notification, while on deputation, the petitioner
was to be governed by the terms and conditions laid down in the Ministry of
Finance Om No. F-1(11)-E. III (B)/75 dated 07.11.1975 as amended from
time to time.
10. It appears that at the time of appointment as an Assistant Director in
the Intelligence Bureau Headquarter, the basic pay of the petitioner was
fixed at Rs.4225 in the pay scale of Rs.4100-125-4850-150-5300. The
petitioner was entitled to some other allowances such as Deputation
Allowance of Rs.423/-, Dearness Allowance of Rs.280/- and City
Compensatory Allowance of Rs.100/-. This Special Leave Petition filed by
the petitioner and his batch-mates in the Supreme Court against the order of
this Court dated 2nd October 1985, was disposed of by consent, by a
Judgment and order dated 14.03.1989, the operative part whereof is set out
herein below for the convenience.
"In the circumstances, in order to establish peace and amity
between the contending parties and for ends of justice, we
direct that, in modification of the impugned judgment of the
High Court, the appeals be disposed of in accordance with
the terms of settlement, as agreed to by the direct results and
the ECOs, as follows:-
1. The Union of India shall withdraw the order viz.
order No.F.2/10/86-Estt (CRPF) PP IV dated 18.06.1986
with immediate effect. The order providing for upgradation
of 88 posts of Assistant Commandant (2 nd in command) to
the post of Commandants (Non Selection Grade) shall thus
stand rescinded. The D.P.C. of 1996 and all consequential
orders regarding promotion against upgraded posts shall
also stand revoked.
2. To protect the 37 direct recruits who were holding
post of Commandants, the Union of India shall create 37
supernumerary posts of Commandants (22 as Commandant
Selection Grade) and 15 as Commandant Non-Selection
Grade), which shall be held by the 37 direct recruits who
were holding the said posts on the date of judgment dated
2.9.1985 passed by the High Court of Delhi.
3. The vacancies of 13 posts occurring in the year 1986
of Commandant (Non-Selection Grade) shall be filled afresh
by means of a D.P.C. The D.P.C. shall make promotions in
accordance with rules and shall operate upon the revised
seniority list prepared by the Department pursuant to the
judgment of the High Court dated 2.9.1985 affirmed by this
Court on 21.1.1986.
4. The subsequent vacancies in the year 1987 and 1988
for the posts of Commandants (Non- Selection Grade) shall
be filled in accordance with rules and the promotions shall
be made through D.P.C in accordance with law/Rules.
5. The Union of India shall review the D.P.C of 1985 for
the posts of Commandants and such review shall be
completed as early as possible.
6. Further, 35 ECOs who have already been promoted
as Commandant (Non-Selection Grade) till today will hold
the posts of Commandant (Selection Grade) till today will
hold the posts of Commandant (Selection Grade), from the
date they were promoted as Commandant (Non-Selection
Grade) with the condition that they will not be paid any
salary for the post of Commandant (Selection Grade) till
their turn promotion to Commandant (Selection Grade)
against regular vacancies, as per the seniority list.
Each party to bear his/its own costs."
11. It is not in dispute that the Union of India was a party to the Special
Leave Petition and is bound by the Judgment and order of the Supreme
Court. The Supreme Court specifically directed the Union of India to create
37 Supernumerary Posts of Commandants (22 of Commandant Selection
Grade and 15 of Commandants Non Selection Grade) which could be filled
up by 37 direct recruits, including the petitioner, who had been holding the
said posts on the date of judgment dated 02.09.1985 of this Court.
12. The vacancies were duly filled up in accordance with the directions of
the Supreme Court. It is the case of the petitioner that the petitioner was
granted the benefit of the Supreme Court Order inasmuch as he was given
promotion. However, he was denied consequential benefits. It appears that
the petitioner made several representations and also approached the High
Court at Allahabad which disposed of his writ petition with directions on the
respondents to consider his claim in accordance with law. The respondents
did not grant the petitioner the arrears whereupon the petitioner again
approached the High Court at Allahabad seeking directions for
implementation of its order and for grant of arrears. Be it noted that the
petitioner approached the Allahabad High Court since the petitioner was at
the material time posted at Allahabad.
13. It appears that the writ proceedings in the High Court at Allahabad
were disposed of with the direction on the petitioner to approach this Court
since the respondents were located within the jurisdiction of this Court.
14. The short question involved in this writ petition is whether the
petitioner could have been singled out from amongst 37 officers and denied
arrears of pay and allowances only by reason of his deputation as Assistant
Director in the Intelligence Bureau, more so, when admittedly, he agreed to
the deputation on the specific condition that he would be governed by his
pay and other emoluments in the parent cadre, to which the respondent
authorities acceded.
15. In the proceedings before the Allahabad High Court, the respondents
contended that the petitioner could not be granted the consequential benefits
of arrears of pay since the rules did not permit the payment of such arrears.
16. Having created posts in compliance with the orders of the Supreme
Court having appointed the petitioner, the respondent authorities have
patently erred in denying the petitioner the consequential benefits of his
promotion which includes arrears which have been granted to the other
officers similarly circumstanced as the petitioner except that, they were not
required to serve on deputation in a different department.
17. In our view, the matter has assumed finality with the final judgment
and order of the Supreme Court in terms whereof all the petitioners before
the Supreme Court were required to be granted the consequential benefits of
promotion to the post of Commandants (Non-Selection Grade). After
passing of the aforesaid order, it is not open to the respondents to deny
arrears of salary to the petitioner on the purported ground that the petitioner
was governed by a Memorandum in course of his deputation in the
Intelligence Bureau as a result of which, the scale of the petitioner became
higher than the upper limit in terms of the said Memorandum, upon
implementation of the order of the Supreme Court.
18. The writ petition is, therefore, allowed. The respondent shall within
three months from the date of communication of this order calculate all the
arrears of salary and emoluments due and payable to the petitioner and
release the same to the petitioner with interest @ 6% p.a. from the date on
which the emoluments were released to the other batch-mates of the
petitioner who served in the parent cadre.
INDIRA BANERJEE, J
ANIL KUMAR CHAWLA, J
NOVEMBER 10, 2016
rs
