Nabi Ahmed vs Union Of India & Anr.
2017 Latest Caselaw 847 Del

$~5.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       WRIT PETITION (CIVIL) No. 4681/2015


                                        Date of decision: 14th February, 2017
       NABI AHMED                                          ..... Petitioner
                             Through Mr. Ashish Niscal & Mr. Arun Nischal,
                             Advocates.

                             versus

       UNION OF INDIA & ANR.                     ..... Respondents
                     Through Ms. Abha Malhotra, Advocate
                     alongwith Mr. S.S. Sejwal, Law Officer, CRPF.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MR. JUSTICE CHANDER SHEKHAR

SANJIV KHANNA, J. (ORAL):

       The petitioner-Nabi Ahmed impugns the order dated 30th September,
2014 passed by the Principal Bench of the Central Administrative Tribunal
(Tribunal, for short) whereby OA No. 3601/2012 filed by the petitioner has
been dismissed. The petitioner had filed the said OA praying for grant of
replacement pay scale of Rs.5000-8000 as he was in the pay scale of
Rs.1350-2200 prior to implementation of the Fifth Pay Commission.
2.     The petitioner had joined the Central Reserve Police Force (CRPF)
as a Radiographer in 1979, which was a non-combatised post. By the order
dated 19th September, 1989, Group C and D posts in Central Reserve
Police Force Hospital were combatised. The petitioner, however, along
with six others of the Central Reserve Police Force Hospital Service,
exercised his option to remain non-combatised.
3.     As on 31st December, 2005, the petitioner was holding the rank of

W.P (C) No. 4681/2015                                              Page 1 of 6
 Assistant Sub-Inspector (Radiographer) and was drawing pay in the scale
of Rs.1350-2000.
4.      The dispute raised in the present writ petition is with regard to the
replacement or the fitment scale which the petitioner was entitled to in
terms of the Central Civil Services (Revised Pay) Rules, 1997, pursuant to
the implementation of the Fifth Pay Commission.
5.      The petitioner has placed reliance on Part II, Section 3 (i) of the
afore-stated Rules, which read as under:-
"XXI.          RADIOGRAPHER/X-RAY TECHNICIANS


(a) Radiographer        1350-30-1440-    5000-150-8000      52.107
                        40-1800-EB-50-
                        2200
(b)Radiographer                          4000-100-6000      52.107
requiring         a
minimum of 2
years       diploma
/certificate after
10+2
                                                                            "
        The aforesaid table classified the post of the Radiographer under two
heads; Radiographer (a) and Radiographer (b) with stipualtion that
Radiographer (b) required a minimum of two years' diploma/certificate
after 10+2.
6.      It is an accepted position that the petitioner does not have two years
diploma/certificate after 10+2/higher secondary. He has undertaken a five
months diploma/certificate course.
7.      The respondents have submitted that the heading XXI relates to
combatised posts. Assistant Sub-Inspectors (Radiographer) were granted
the pay scale of Rs.4000-7000, and Sub-Inspectors (Radiographer) were
given fitment pay scale of Rs. 5000-8000.
8.      The respondents have submitted that the petitioner an Assistant Sub-
W.P (C) No. 4681/2015                                              Page 2 of 6
 Inspector (Radiographer) in the scale of Rs.1350-2200 was treated at par
with Pharmacists at serial No. XVIII of the Central Civil Services (Revised
Pay) Rules, 1997. The relevant portion of which reads as under:-
"XVIII.        PHARMACISTS
(a) Pharmacists                          4500-125-7000       52.90
possessing entry
qualification of
diploma       in
Pharmacy
                                                                                   "
9.     We had noticed that Radiographers (b) and Assistant Sub-Inspectors
with two year diploma were granted replacement pay scale of Rs.4000-
6000, and the petitioner, also an Assistant Sub-Inspector with five months
certificate/diploma, was given the replacement pay scale of Rs.4500-7000.
10.    Further, the petitioner had made reference to the 1995 Recruitment
Rules for the post of Assistant Sub-Inspector (Radiographer) in the Central
Reserve Police Force service, which had stipulated as under:-
         "Assistant Sub-Inspector (Radiographer)
         The Non-combatised personnel already working in the post
         shall be designated as Radiographer and will draw their
         pay in the scale of pay of Rs.1350-2200."

The contention of the petitioner was that Assistant Sub-Inspector
(Radiographer) in the pay scale of Rs.1350-2200 should be treated similar
as Radiographer (a), who were in the pay scale of Rs.1350-2200 and were
given the replacement pay scale of Rs.5000-8000 vide Central Civil
Service (Revised Pay) Rules, 1997.
11.    In these circumstances and noticing the aforesaid ambiguities, we
had passed a detailed order dated 8th February, 2016, which reads:-
            "Our attention is drawn to the gazette notification dated
            06.05.1995 wherein non-combatized personnel
            working in the post of Assistant sub-Inspector (ASI)
            (Radiographer) were to draw pay in the scale of

W.P (C) No. 4681/2015                                                Page 3 of 6
             Rs.1350-2200/- whereas Assistant sub-Inspector,
            (Radiographer) i.e. combatized officers were to draw
            their pay in the pay-scale of Rs.1320-2040/-. Normal
            (sic. normally) combatized officers would draw a
            higher pay scale. Thus, there must be some reason,
            where the pay-scale of non-combatised officer was
            made higher. Possibly, the combatized staff was getting
            additional allowances and perks. Even after the
            implementation of the Fifth Pay Commission, there
            was disparity between the pay scale paid to the
            combatized and non-combatized staff (Radiographer)
            with the non-combatized getting a higher pay scale.

               Learned counsel for the petitioner has relied upon
            the extracts from the gazette notification dated
            30.09.1997,    wherein     under     heading     (XXI)
            Radiographer, two classifications are made.
            Radiographer with the pay-scale of Rs.1350-2020/-
            have been given replacement scale of Rs.5,000/- to
            Rs.8,000/-, whereas Radiographer with a minimum of
            two years diploma or certificate after 10+2 have been
            given replacement pay-scale of Rs.4,000/- to Rs.6,000/-
            .

Learned counsel for the respondents has pointed out that there were 383 different categories of Radiographers.

Question will rise whether paragraph (XXI) (a) refers to any specific category of Radiographer's or 383 different categories of Radiographers'. This will require examination of gazette notification dated 30.09.1997 and this aspect which has not been examined by counsel for the parties. Sub-paragraph (6) may be relevant in this context.

Learned counsel for the respondents has drawn our attention to the first schedule (page 103 of the paper book) wherein replacement scale of Rs.1350-2200 is Rs.4500-7000, which was the pay scale being paid to the petitioner.

Petitioner has stated that the said scale was the

normal (sic) normally replacement pay scale, but the petitioner is entitled to a higher pay-scale in terms of paragraph (XXI) (a).

Our attention was drawn to page 122 of the paper book which records the stand of petitioner and it appears from the file notings that this is initially acceptable.

Re-list on 23rd March, 2016."

12. Counsel for the respondent-CRPF has explained the aforesaid queries and questions. It is pointed out that the post of Radiographer (a) is in the cadre of Sub-Inspector, a promotional post, which is higher in hierarchy to Assistant Sub-Inspector. Radiographers (b) are Assistant Sub- Inspectors and require a minimum of two years' diploma/certificate in Radiography. Assistant Sub-Inspectors in the combatised force are entitled to various additional allowances and perks in form of free accommodation, travel and ration allowance, etc. This is the reason why Radiographers (b) have been given pay scale of Rs.4000-6000, which is lower than the pay scale given to the petitioner of Rs.4500-7000, though the petitioner does not have a two years' diploma/certificate and has undertaken five months certification course.

13. With regard to the Recruitment Rules of 1995, it is submitted that the petitioner was granted pay scale of Rs.1350-2200, but was never promoted as Sub-Inspector. He would, therefore, not be entitled to the pay scale applicable to the post of Sub-Inspector in the combatised post and the fitment scale applicable to the promotional post of Sub-Inspector (Radiographer).

14. In view of the aforesaid explanation and clarification, we agree with the respondent that the petitioner would not be entitled to the pay scale applicable to Sub-Inspector (Radiographer) (a) of Rs.5000-8000 even when

he was earlier drawing pay as Assistant Sub-Inspector in the scale of Rs.1350-2200. The pay scale of Sub-Inspector (Radiographer) or Assistant Sub-Inspector (Radiographer) in the combatised force is different and distinct, and cannot be equated with the post of Assistant Sub-Inspector (Radiographer) in a non-combatised post. The question of equation ex facie does not arise and accordingly the plea of fitment or replacement pay scale in Rs.5000-8000 would fail.

15. In view of the above, we do not find any merit in the present writ petition and the same is dismissed. There will be no order as to costs.

SANJIV KHANNA, J.

CHANDER SHEKHAR, J.

FEBRUARY 14, 2017 VKR