Delhi High Court
Si/Gd Ashok Kumar vs Union Of India & Ors. on 30 August, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: August 22, 2022
Pronounced on: August 30, 2022
+ W.P.(C) 4580/2021 & CM APPL.43010/2021
SI/GD ASHOK KUMAR .... Petitioner
Through: Mr. N.L. Bareja, Advocate
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Akshay Amritanshu and Mr. Ashutosh
Jain, Advocates
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
SAURABH BANERJEE, J
1. The petitioner appeared for appointment to the post of SI/GD through
LDCE-2013 against the unreserved vacancies available for year 2013/2014.
Despite successfully qualifying the written examination, his candidature for
appointment was rejected on account of endorsement of Non-Qualifying
Service (NQS) of 29 days over stay leave, which period was duly
regularized as 29 days Leave Half Pay with No Leave Salary (LHF-WNLS),
during the scrutiny of testimonials/ documents as part of Stage IV of SO no.
01/2010.
2. This led to the first round of litigation when the petitioner filed writ
petition entitled CT/GD Ashok Kumar Ors. vs Union of India and Ors.
W.P.(C) 9973/2016, wherein this Court vide order dated 09.08.2017 held
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that mere absence which has been regularized by half pay leave or even
warning may not be sufficient to declare the petitioner as disqualified and
that the petitioner would be considered for promotion to the post of Sub-
Inspector in accordance with law and he would not be treated as disqualified
for want of clean or unblemished records for the "act of absence".
3. Pursuant to his appointment as SI/GD on 26.04.2018, the petitioner
vide GC-1 CRPF, Ajmer Office Order No R-II-I/2018-EC6(SI/LDCE-2013)
dated 26.04.2018, was placed in the pay matrix, Level 6 of Rs. 35,400/- and
his seniority was fixed with effect from 28.03.2014 in terms of his position
in the overall merit list drawn on conclusion of LDCE-2013.
4. Despite that, as per the gradation list SI/GD (Male/Female) as on
01.12.2017 (corrected up to 30.04.2018) by the Dte. Gen. CRPF, the
petitioner was not entitled to draw pay and allowances at par with his
similarly situated batch-mates, who were so appointed to the post of SI/GD
with effect from 28.03.2014 and was given discriminatory treatment.
5. Thus, the petitioner vide legal notice dated 24.07.2019 called upon the
respondents to extend the benefits of the pay parity viz. fixation of pay and
allowances along with the increments and the link in the rank of SI/GD,
through LDCE-2013 with effect from 28.03.2014 as was done in the case of
similarly situated persons. The respondent no.3 vide reponse dated
15.09.2020 apprised the petitioner that though the petitioner has been given
seniority with effect from 28.04.2014 at par with his batch-mates, but he is
not entitled to draw pay and allowances at par with his batch-mates. Receipt
of the above non-satisfactory response led to the second round of litigation
before us in the form of the present writ petition wherein the petitioner
claims the following reliefs:-
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"a) Call for the records of the case
b) Issue appropriate writ, order(s) or direction(s) in nature
of mandamus, directing the respondents to extend the
benefits of the pay parity viz Notional fixation of pay and
allowances along with increments and like in the post of
SI/GD at par with his batchmates, so appointed to the post
SI/GD through LDCE-2013, w.e.f. 29.03.2017 passed in
WP(C) No. 7591/2016
c) Issue appropriate writ, order(s) or direction to the
respondents to pay costs of this petition to the petitioner for
compelling him to approach this Hon'ble Court for
indulgence to seek justice"
6. This being the second round of litigation filed by the petitioner
against the respondents before us, the issue is very limited.
7. Learned counsel for petitioner submits that being similarly situated
with his batch-mates and after the order passed in the first round of litigation
in his favour, the petitioner is entitled to be considered for and granted
notional fixation of pay and other consequential benefits at par with his
batch-mates of LDCE-2013 in accordance with law laid down by this court
and other high courts that similarly situated personal should be treated alike.
8. Learned counsel for petitioner further submits that the respondents
have given fixation of seniority and all other consequential benefits to
similarly situated personal in accordance with the judgment passed by this
court in Jignesh Kumar vs. Union of India & Ors. W.P.(C) 960/2014 dated
28.10.2014, Insp/GD Bidyadhar Behra & Ors. vs. Union of India & Ors.
W.P.(C) 2108/2016 and CT/GD Girish Kumar vs. Union of India & Ors.
W.P.(C) 7563/2015 dated 11.08.2015. Relying upon the aforesaid
judgments, learned counsel for petitioner contended that similarly situated
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personnel in all the above cases were granted all consequential benefits from
the date of seniority at par with the batch-mates and the petitioner should be
extended similar benefits.
9. In response thereto, the respondents in their counter affidavit, without
denying any of the averments/ allegations made in the writ petition, submit
that in compliance of order dated 09.08.2017 of this court in the first round
of litigation, vide order No. R-Il-1/2018-EC-VI (SI/GD-LDCE-2013) dated
26.04.2018, respondent no. 2 had duly appointed the petitioner as SI/GD
with effect from 26.04.2018. Since then the petitioner has been getting all
the benefits and promotion from the actual date of appointment in
accordance with law and has been given the original seniority from
28.03.2014 at par with his batch-mates. Also submitted the petitioner has
been allowed the pay and allowances attached with the post of SI/GD only
from 26.04.2018 (date of assumption of charge of SI/GD) as he cannot be
granted pay fixation from a date anterior to his actual appointment i.e.,
28.03.2014. Thus the contention of the petitioner that he had been deprived
of his rights/entitlements are wholly incorrect.
10. Learned counsel for respondents has not disagreed with the question
of facts involved in the present writ petition and has merely argued that the
petitioner is not and indeed cannot be entitled to fixation of pay and other
benefits from his date of appointment, i.e., 28.03.2014 because he could be
allowed such benefits with effect from his actual date of assumption of
charge of SI/GD, i.e., 26.04.2018 and not from before.
11. It is indeed a strange fallacy that the respondents, on one hand in
compliance of order dated 09.08.2017 of this court in the first round of
litigation, have recognized the date of joining of the petitioner as 28.03.2014
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for the purposes of seniority but strangely on the other hand, for reasons
beyond comprehension, have chosen not to extend him the benefits of pay
and allowances along with increments and the like to the post of SI/GD at
par with his batch-mates, appointed as SI/GD through LDCE-2013 with
effect from the same date, i.e. 28.03.2014 by wrongly withholding them.
12. Once it has been affirmed vide order dated 09.08.2017 of this court in
the first round of litigation and thence recognized by the respondents that the
petitioner was born in the organization on 28.03.2014 along with his other
batch-mates, there is no gain saying that the petitioner shall be eligible for
all the benefits, emoluments, pay, allowances, perks, seniority and like with
effect from the said date with retrospective effect. All these are natural
corollary and consequence of the date of his joining, i.e., 28.03.2014 of the
petitioner with the Central Reserve Police Force
13. The aforesaid are a matter of right of the petitioner and non-grant
thereof tantatmounts to gross discrimination and denial of right to equality
enshrined under Article 14 and Article 16 of the Constitution of India. Such
an act, if permitted to stand, shall result in causing grave miscarriage of
justice, financial loss, harm and thus should not be permissible. We
denounce this kind of practice followed by the respondents. Once the rights
of the personnel like the petitioner before us are established and recognized,
then the respondents are duty bound to extend all consequential benefits to
all such personnel like the petitioner.
14. To note, in the present case the respondents have neither pleaded nor
argued that this is a case of normal rule of "no work no pay", which even
otherwise does not have a straight-jacket formula and depends on the facts
and circumstances of each case. More so, there is no fault on the part of the
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petitioner in the present case. Thus the petitioner cannot be made to suffer
for no wrong attributable to him, as such, he cannot be denied extension of
his rightful dues/ benefits.
15. We agree with the position of law in the judgments cited by the
learned counsel for petitioner before us. The ratio laid down in the aforesaid
judgements is squarely applicable for the facts of the present case as they are
judgements in rem and are not judgments in personam. The respondents
cannot seek to distinguish the petitioner with the similarly situated
personnel, i.e. his batch-mates and instead should rather grant him similar
benefits and reliefs on the ground of parity. At the same time, we do not
agree with the case and arguments put forth by the learned counsel for
respondents.
16. In view thereof and in view of the settled law noted hereinabove, we
have no hesitation in holding that the petitioner is entitled to fixation of
notional pay and allowances along with increments and the like to the post
of SI/GD at par with his batch-mates, appointed as SI/GD through LDCE-
2013 with effect from the same date, i.e., 28.03.2014. We further direct that
the respondents shall comply with the aforesaid and release the backlog
amount within a period of four weeks from today along with interest @ 6%
per annum from the date of its accrual to the petitioner till the date of
payment. Should the respondents fail to release the same within the
aforesaid time period then the petitioner shall be entitled to an interest @ 9%
per annum on delayed payment.
17. A copy of the present order be sent to all the Armed Forces and
Central Armed Police Forces i.e., Indian Army, Indian Navy and Indian Air
Force, Assam Rifles, Border Security Force, Central Industrial Security
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Force, Central Reserve Police Force, Indo Tibetan Border Police, National
Security Guard and Sashastra Seema Bal for necessary compliance.
Needless to say, the benefits of the present order shall be given effect by all
the abovesaid forces to all similarly situated personnel. The present writ
petition is allowed and pending application is disposed of. Parties to bear
their own costs.
(SAURABH BANERJEE)
(JUDGE)
(SURESH KUMAR KAIT)
(JUDGE)
AUGUST 30, 2022/rr
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By:BABLOO SHAH
Signing Date:30.08.2022
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