Delhi High Court
Asi/Clerk C.P.Chakravarty vs Union Of India And Ors. on 15 March, 2018
$~9 to 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8135/2017
ASI/CLERK DEVI RAM TIRU ..... Petitioner
+ W.P.(C) 8138/2017
ASI/CLERK C.P.CHAKRAVARTY ..... Petitioner
+ W.P.(C) 8139/2017
ASI/CLERK VIKRAM SINGH MANRAL ..... Petitioner
+ W.P.(C) 8142/2017
ASI/CLERK ANIL YADAV ..... Petitioner
+ W.P.(C) 8149/2017
ASI/CLERK BITTO SINGH ..... Petitioner
+ W.P.(C) 8158/2017
ASI/CLERK YOGENDER KUMAR ..... Petitioner
+ W.P.(C) 8559/2017
ASI/CLERK SUNIL KUMAR SHARMA ..... Petitioner
+ W.P.(C) 8600/2017
ASI/CLERK CHHAMA NATH ..... Petitioner
+ W.P.(C) 8602/2017
ASI/CLERK RAJVIR SINGH ..... Petitioner
Through: Mr.Ankur Chhibber, Adv.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Dev P. Bhardwaj, CGSC for
UOI with Ms.Anubha
Bhardwaj, Adv.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
W.P.(C) 8135/2017 & Connected Matters Page 1 of 12
ORDER
% 15.03.2018
1. The petitioners herein joined CISF in the rank of Constable
(GD). In the year 2005, CISF published an advertisement for filling
up the post of Head Constable (Clerk) and ASI (Stenographer) in the
pay scale of `3200-85-4900, for which 70% vacancies were to be
filled up by way of direct recruitment and 30% vacancies were to be
filled by way of Limited Departmental Competitive Examination
(LDCE), for which the departmental candidates having rendered 3
years service were eligible.
2. The petitioners successfully qualified the LDCE along with the
direct recruits and received offers of appointment. The petitioners
completed the training as freshly recruited Head Constables along
with the Head Constables who were directly recruited and a seniority
list of the Head Constables (Clerks) who had qualified in the year
2005, was also published on 18.03.2008, depicting the respective
seniority number of the petitioners and the direct recruits.
3. The grievance of the petitioners is that as per clarification
issued by the Department of Personnel & Training, such candidates
who had appeared in the open competitive examinations would be
direct recruits consequent to their selection to the subject post. Hence,
the petitioners who have competed with the direct recruits by
participating in the LDCE, cannot be treated as promotees and their
pay cannot be less than `9,910/-, which is payable to the direct recruits
at the entry level.
4. As per the recommendations of the 6th Pay Commission, as
reflected in the CCS(Revised Pay) Rules, the entry pay in the revised
pay structure for direct recruits appointed to the subject post on or
after 01.01.2006, in Pay Band-I was fixed at `7,510/-, with Grade Pay
of `2,400/- totalling to a sum of `9,910/- and the pay of the petitioners
herein was also fixed in terms of the above recommendations.
5. The petitioners felt aggrieved when on 05.09.2013, respondent
issued a clarification that the pay of the Constables on appointment to
the rank of Head Constable (Clerk) against the vacancies of the
departmental candidates, will be fixed by one notional increment @
3% of the basic pay of the lower post.
6. Pursuant to the above clarification dated 05.09.2013, without
issuing any show cause notice, the respondents issued an order dated
20.01.2014, impugned herein, fixing the pay of the petitioners as
`6,490 + Grade Pay of `2,000/- w.e.f. 01.07.2006 and thereafter on
promotion to the post of Head Constable (Clerk) as `6,750/- + Grade
Pay of `2,400/-, w.e.f. 30.07.2006. As a result of the above
clarification and re-fixation, the petitioners' pay has been fixed as
`6750 - `2,400/-, totalling to a sum of `9,150/- w.e.f. 30.07.2006
whereas the entry pay for the directly recruited Head Constables in the
revised pay structure had been fixed at `9,910/-.
7. The details of the order by which the benefit of stepping up was
given to the petitioners and the orders by which the said benefits have
been withdrawn and the orders impugned in each of these petitions
have been compiled below in a tabulated form :-
Sr.No. Name of the Date of Date of Orders
petitioner order vide order vide impugned
which the which the in the writ
benefit of benefit was petitions
stepping up withdrawn
was given to
the
petitioners.
1. ASI/Clerk Devi 26.03.2010 05.09.2013, 05.09.2013,
Ram Tiru 20.01.2014 20.01.2014,
(Petitioner in & 21.04.2017
W.P.(C) 21.04.2017
No.8135/2017)
2. ASI/Clerk C.P 23.11.2009 05.09.2013, 05.09.2013,
Chakravarty 20.01.2014 20.01.2014,
(Petitioner in W.P & 21.04.2017
(C) No. 21.04.2017
8138/2017)
3. ASI/Clerk 15.12.2009 05.09.2013, 05.09.2013,
Vikram Singh 20.01.2014 20.01.2014,
Manral & 21.04.2017
(Petitioner in W.P 21.04.2017
(C) No.
8139/2017)
4. ASI/Clerk Anil 20.01.2009 21.04.2017, 05.09.2013,
Yadav (Petitioner 05.09.2013 28.05.2014,
in W.P (C) No. & 21.04.2017
8142/2017) 28.05.2014
5. ASI/Clerk Bitto 19.09.2011 05.09.2013, 05.09.2013,
Singh (Petitioner 21.04.2017 20.01.2014,
in W.P (C) No. & 21.04.2017
8149/2017) 20.01.2014
6. ASI/Clerk 07.04.2009 20.01.2014, 05.09.2013,
Yogender Kumar 21.04.2017 20.01.2014,
(Petitioner in W.P & 21.04.2017
(C) No. 05.09.2013
8158/2017)
7. ASI/Clerk Sunil 26.03.2010 20.05.2014, 05.09.2013,
Kumar Sharma 21.04.2017 20.05.2014,
(Petitioner in W.P & 21.04.2017
(C) No. 05.09.2013
8559/2017)
8. ASI/Clerk 02.06.2010 20.01.2014, 05.09.2013,
Chhama Nath 21.04.2017 20.01.2014,
(Petitioner in W.P & 21.04.2017
(C) No. 05.09.2013
8600/2017)
9. ASI/Clerk Rajvir 23.09.2008 21.04.2014, 05.09.2013,
Singh ((Petitioner 17.09.2014 17.09.2014,
in W.P (C) No. & 21.04.2017
8602/2017) 05.09.2013
8. Mr.Ankur Chhibber, learned counsel for the petitioners has
submitted that the respondent had fixed the pay of the petitioners by
giving an increment @3% of the basic pay of the lower post i.e. by
treating their case as a promotion from the post of Constable (GD) to
Head Constable (Clerk), whereas the post of Head Constable (Clerk)
is not a promotional post, but an entry post in the ministerial cadre, for
which the same method of recruitment is applicable as is applicable to
direct candidates. It has been further contended that there is no
provision in the Recruitment Rules for filling the post of Head
Constable (Clerk) through promotion from Constable (GD) as both are
different cadre posts. Despite the Department of Personnel & Training
having made it clear that such candidates who had appeared in the
open competitive examinations would be direct recruits consequent to
their selection, post the examination, the respondents have treated the
petitioners differently than the direct recruits and that their pay can in
any event, not be less than `9,910/-.
9. Learned counsel for the petitioners has drawn the attention of
this court to the seniority list for the year 2005, to show that the
petitioners who are senior in the seniority list as compared to the Head
Constables recruited directly, are getting lesser pay due to the above
anomaly despite the fact that in various decisions of this Court,
involving an identical question, the situation has been repeatedly
clarified.
10. Mr.Ankur Chhibber, learned counsel for the petitioners has
submitted that assuming without admitting the stand taken by the
respondents that the petitioners cannot be treated as direct recruits but
as promotees, even then the said issue is no more res integra and has
been decided by Co-ordinate Benches of this Hon'ble Court in
W.P.(C) No.2654/2014 entitled H.C./RO S.S.Suhag & Ors. vs. Union
of India & Ors. decided on 20.05.2014, W.P.(C) No.1853/2015
entitled Lalit Kumar Choudhary vs. Union of India & Ors. decided on
02.03.2015, W.P.(C) No.8058/2015 entitled Union of India & Ors. vs.
Malbika Deb Gupta decided on 04.11.2016, W.P.(C) No.5215/2016
entitled Xavier P.J.& Ors. vs. Union of India & Ors. decided on
01.05.2017 and W.P.(C) No.2634/2017 entitled Government of NCT
of Delhi & Anr. vs. Somvir Rana & Ors decided on 23.03.2017. He
has also submitted that the decision on the question involved in the
above petitions, has attained finality in view of the judgment dated
01.09.2017 of the Supreme Court in Government of NCT of Delhi &
Anr. vs. Somvir Rana (TGT ENG) & Ors. and Director General, ESIC
& Ors. Vs. Sheeja Santosh & Ors. where the appeals preferred by the
Government have not only been dismissed, directions have been
issued to the Government of India to look into the matter and issue
appropriate orders for granting the pay scale so that people are not
made to approach the Tribunals or the High Courts or the Supreme
Court, time and again.
11. The fact situation in these petitions though not disputed by
learned counsel for the Union of India, it has been submitted that since
the petitioners were not direct recruits, they being promotees
appointed as Head Constable through LDCE, their pay has been
rightly directed to be re-fixed by allowing one increment @3% of the
Basic Pay + Grade Pay of the Head Constable. The manner of
fixation of pay on promotion from one grade pay to another in the
revised pay structure was clarified in Rule-13 of CCS(RP) Rules, 2008
i.e. pay on promotion to a higher grade pay was fixed by adding one
increment equal to 3% of the sum of the pay in the pay band and the
existing grade pay and rounding it to the next multiple of ten + Grade
Pay of the promoted post. But the manner of fixation of pay of the
Government servants appointed to a higher post was not mentioned.
12. It was admitted on behalf of the respondents that the Entry Pay
in the revised pay structure for direct recruits appointed on or after
01.01.2006, in the rank of HC/Clerk was fixed in PB-I `5200-20200 +
Grade Pay of `2400/- at `7510/- + Grade Pay of `2400/-. Since the
basic pay of Constables in the revised pay scale of `5200-20200 +
Grade Pay of `2000/- was fixed by multiplying the existing basic pay
with the factor of 1.86 and the same was less than the Entry Pay of
`7510/- + Grade Pay of `2400/- admissible to direct recruits appointed
on or after 01.01.2006, a proposal was taken up with the Ministry of
Home Affairs which was examined in consultation with the Ministry
of Finance and finally, the manner of fixation of pay by increasing the
Basic Pay + Grade Pay of lower post by 3% was confirmed by the
Ministry of Finance, Department of Expenditure vide UO
No.16628/2013/E-II-A, dated 25.04.2013. Accordingly, the pay of the
petitioners was re-fixed as above.
13. The issue agitated in these batch matters has already been
considered in two rounds of litigations wherein the petitioners, Lalit
Kumar Choudhary and Abhishek Yadav, in the first round of litigation
had filed W.P.(C) Nos.2494/2014 and 2488/2014 claiming their pay
had been re-fixed pursuant to the recommendations made by the 6 th
Central Pay Commission, to their detriment without even issuance of a
show cause notice. Both the above writ petitions were allowed and the
impugned order dated 09.01.2014 was quashed with a direction to the
respondents that the petitioners would continue to draw pay and
allowances in Pay Band-I in the pay scale of `5200-20200/- with
Grade Pay of `2400/-, amounting to a sum of `9,910/-, with effect
from 01.01.2006. It was also directed that if the respondents intend to
take any action to re-fix the pay of the petitioners to their detriment, a
show cause notice would be issued containing the reasons therefor and
a decision would be taken thereon after giving an opportunity to the
petitioners to be heard and till then, no recoveries shall be effected
from them.
14. Both the petitioners, Lalit Kumar Choudhary and Abhishek
Yadav (in W.P.(C) Nos.2494/2014 and 2488/2014) were issued show
cause notices and after considering and rejecting their replies, vide
order dated 20.01.2015 yet again, directions were issued to re-fix their
pay as per schedule specified in the order and to also effect recoveries
of the excess amount already paid to them.
15. In the second round of litigation, the petitioners, Lalit Kumar
Choudhary and Abhishek Yadav filed W.P.(C) Nos.1853/2015 &
1854/2015 challenging the order dated 20.01.2015, which were
allowed for the following reasons:-
"20. We note that the anomalous situation has resulted
because in the First Schedule, Section II of the CCS Revised
Pay Rules, 2008, „Entry Pay in the Revised Pay Structure
for Direct Recruits appointed on or after 1.1.2006‟ has been
specified for various posts in various pay bands and grade
pays. For the posts in PB-1 having scale `5200-20200 with
grade pay `2,400/- the entry level pay in the pay band is
`7,510/- and with the grade pay of `2,400/- the pay would
be `9,910/-.
21. As per the revised pay rules, the salary of Head
Constables directly recruited in PB-1 would thus be
`9,910/-. But as regards promotees, the Rule envisages the
pay to be fixed with reference to the previous basic pay
multiplied by 1.8 and rounded off to the nearest 10. It
results in an anomaly because the basic pay of direct
recruits who joined later, and hence would be junior, to the
promotees is more.
22. Taking analogy from the principle of stepping up of
pay of a senior if the junior receives more pay, in the
decision in Dashrath‟s case supra it was decided by this
Court that wherever such anomalous situation exists, the
basic pay of the promotees with effect from January 01,
2006 has to be at the minimum prescribed for direct
recruitment to the post in question.
23. The writ petitions are accordingly allowed.
Impugned orders are quashed. Recoveries if any made are
directed to be restored. Pay of the petitioners as of January
01, 2006 when the petitioners were holding the rank of a
Head Constable (Min.) would be fixed at the minimum
prescribed in the CCS Revised Pay Rules i.e. basic pay
`7,510/- and grade pay `2,400/-."
16. The issue raised in these batch petitions is no longer res integra.
In the decision of the Supreme Court dated 01.09.2017 in the case
Government of NCT of Delhi & Anr. vs. Somvir Rana (TGT ENG) &
Ors. (vide Diary No.23663/2017) and in the case Director General,
ESIC & Ors. vs. Sheeja Santosh & Ors. (vide Diary No.23440/2017),
the issue has been finally set at rest by the Supreme Court and it was
held as under:
"Delay condoned.
We find that there are several matters in which the
aggrieved employees have been going to the Tribunal, then
to the High Court and thereafter those matters are brought
before this Court at the instance of the Union of India/NCT
of Delhi.
Once the question, in principle, has been settled, it is only
appropriate on the part of the Government of India to issue
a Circular so that it will save the time of the Court and the
Administrative Departments apart from avoiding
unnecessary and avoidable expenditure.
The present situation is that the stepping up is available
only to those who have approached the Court. But since the
issue has otherwise become final, we direct the Government
of India to immediately look into the matter and issue
appropriate orders for granting the pay-scale so that people
need not unnecessarily travel either to the Tribunal or the
High Court or this Court.
With the above observation and directions, the special leave
petitions are dismissed."
17. In view of the decision of Co-ordinate Benches of this Court
referred to above as well the issue being finally settled by the Supreme
Court vide judgment dated 01.09.2017 in Government of NCT of Delhi
& Anr. vs. Somvir Rana (TGT ENG) & Ors. (vide Diary
No.23663/2017) and in the case Director General, ESIC & Ors. vs.
Sheeja Santosh & Ors. (vide Diary No.23440/2017), the orders
impugned in these writ petitions are quashed and set aside. The pay of
the petitioners in the rank of Head Constable (Clerk) shall be fixed at
the minimum prescribed in the CCS Revised Pay Rules i.e. Basic Pay
`7,510/- and Grade Pay `2,400/-. Recoveries, if any, effected from
the salaries of the petitioners pursuant to the impugned orders, shall be
restored within eight weeks from the date of passing of this order.
18. The petitions are accordingly allowed, with no order as to costs.
PRATIBHA RANI, J.
HIMA KOHLI, J.
MARCH 15, 2018
„hkaur/st‟
