Neutral Citation Number: 2022/DHC/005278
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: November 03, 2022
Pronounced on: December 02, 2022
+ W.P.(C) 923/2021
INSP /GD SANDEEP KUMAR DUBEY .... Petitioner
Through: Mr. Nand Lal Bareja, Advocate
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Umesh K. Burnwal, Senior Panel
Counsel with Mr. Rajesh Kumar
Singh, Legal Officer (CRPF/RAF)
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
SURESH KUMAR KAIT, J
1. By this petition, petitioner is seeking pay parity or notional fixation of his pay with his batch mates who have been appointed to the post of SI/GD through Limited Departmental Competitive Examination-2010 ("LDCE- 2010") in terms of the directions dated 01.09.2011 passed in WP(C) No. 5460/2011 and, thereafter, in the rank of Insp./GD w.e.f. 09.10.2019 i.e. the date of his promotion.
2. The petitioner claims to have appeared in LDCE- 2010 held by CRPF for filling up of 453 (230 UR, 120 OBC, 69 SC & 34 ST) posts and even though he was successful in the examination, he was not selected for the
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reason that 120 posts were reserved for OBC category though the post being a promotional post, no quota for OBC could be prescribed. Being aggrieved, petitioner along with other candidates preferred writ petition before this Court, wherein vide order dated 01.09.2001 respondents were directed to not notify the list of selected candidates to the post of SI/GD till the time the directions issued by the Court were not set out. However, thereafter petitioner preferred contempt proceedings before this Court, pursuant to which vide signal dated 29.12.2011, the respondents released list of 121 candidates appointed to the post of SI/GD; wherein the name of petitioner appeared at serial No.21. The selected candidates were allotted their respective zone/unit/GC/office. The petitioner claims to have been given appointment to the said post on 07.02.2012 and though the petitioner and other candidates were appointed in February/March, 2012 but they were given seniority w.e.f. 07.01.2011.
3. Further, the petitioner claims that since he was appointed on 07.02.2012, his basic pay was fixed as Rs. 9,300/- per month in pay scale of Rs.9,300/- Rs.38,000/- with grade pay Rs.4,200/- in terms of sixth pay commission i.e. one increment less than his batch mates and thereby, he was not granted the first increment as on 01.07.2012. Pursuant to implementation of recommendation of the Seventh Pay Commission, petitioner's basic was revised to Rs.42,300/- per month though his batch mates were given basic of Rs.43,600/-. Thereafter, petitioner claims to have been declared fit for promotion to the post of Inspector and was promoted the post of Insp/GD and his basic pay was fixed at Rs.44,900/- per month; though basic of his senior and junior was fixed at Rs.46,200/- per month.
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Petitioner's grievance is that there is differences of one increment between the petitioner and his other batch-mates, be it seniors or juniors.
4. During the course of hearing, learned counsel appearing on behalf of petitioner relied upon decision dated 02.05.2008 passed by this Court in WP(C) No. 1510/2007, titled as Barot Jignesh Kumar Versus U.O.I. & Others, wherein based upon the directions passed by this Court, vide order dated 28.10.2014 in WP(C) No. 960/2014, titled as Jignesh Kumar Vs. Union of India And Ors. and order dated 12.05.2016 in WP(C) No. 2108/2016, titled as INSP/GD Bidyadhar Behra & Ors. Vs. Union Of India & Anr. all the similarly situated candidates for the post of SI/GD through LDCE-2006, were granted benefits of fixation of pay, pay and allowances along with other consequential benefits. It was submitted by learned counsel that had pursuant to the order dated 01.09.2011 passed by this Court, petitioner been appointed to the post of SI/GD before 31.12.2011, he would have received his first increment from 01.07.2012 at par with other batch mates. Learned counsel submitted that petitioner cannot be made to suffer for the fault of respondents, especially when he has been granted seniority according to his merit position in the merit list of LDCE-2010. Learned counsel submitted that had there been no separate reservation for the OBC candidates for LDCE-2010, the name of petitioner would have appeared in the merit list and would not have suffered any disparity. Reliance was placed upon decision of this Court dated 23.11.2004 in W.P.(C) No. 6732/2002, titled as J.M. Dutta Vs. Union of India & Ors. wherein petitioners, who were earlier denied promotion in LDCE-2006, not only appointed in the year 2009 but were granted all consequential benefits to include fixation of inter- se-seniority in the rank of SI/GD.
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5. Learned counsel submitted being aggrieved of fixation of his pay, petitioner made several representations to the respondents through proper channel and also sent a legal notice through his Advocate, however, since no relief was granted, petitioner has approached this Court seeking a direction to the respondents to re-fix his pay at par with his batch mates of LDCE- 2010 with all consequential benefits.
6. On the other hand, learned Senior Panel Counsel, appearing on behalf of respondents denied the allegations that petitioner has been discriminatorily treated, as his pay has been fixed from the date of his appointment i.e. 07.02.2012.
7. According to respondents, the petitioner was enlisted on the post of CT/GD on 21.04.2001 and had appeared in the LDCE -2010 for the post of SI/GD as a General Category candidate, but could not be selected due to non-availability of General Category seats. The respondents have pleaded that the selection list was declared on 07.01.2011, whereunder Sh. Balwant Singh Chauhan was appointed on 28.02.2011 and Sh. Ram Singh Meena on 13-2-2011; whereas the said select list was challenged on 01.08.2011. However, pursuant to directions passed by this Court vide order dated 01.09.2011 in Writ Petition No. 5460 of 2011 (lead matter W.P.(C) No. 6371/2011); the DIG (Rectt) Dte, CRPF vide Signal no. R.11-25/2010-Rectt (SI/LDCE) dated 29.12.2011 selected 121 personnel, including the petitioner. However, the said Signal categorically mentioned that they were appointed against the vacancies released for conducting the LDCE for the year 2011 vide Signal No. R II -25/2011-RECTT (SI/GD LDCE) dated 11.07.2011, which was not challenged and has thus, attained finality. Further respondents have contended that after tendering his technical resignation, W.P.(C) 923/2021 Page 4 of 15
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petitioner had accepted the post of SI/GD on 21.01.2012 and after completion of his training, petitioner joined on 06.02.2011 and was immediately appointed on 07.02.2011.
8. Appearing on behalf of respondents, learned Senior Panel Counsel submitted that after receipt of legal notice dated 01.07.2018 sent by the petitioner, seeking stepping up of his pay on parity with Sh. Balwant Singh Chauhan and Sh. Ram Singh Meena, the respondents examined petitioner's case and it was found that the date of appointment of petitioner is different than the above mentioned two candidates; and since he had not completed six months' period in the scale given, as per Rule 26(3) of Fundamental Rule & Supplementary Rule (FR & SR) Part 1, he could not be given annual increment. Moreover, it was submitted that the petitioner has raised this claim after nine years and so, his claim is highly belated and this petition deserves to be dismissed.
9. Learned Senior Panel Counsel next submitted that the contention of petitioner that since he has been placed in the list pertaining to the year LDCE-2010 according to his merit position, so he is entitled to get parity in pay fixation; cannot be accepted as fixation of petitioner's pay depends upon his date of appointment and so, his pay cannot be fixed at par with other candidates.
10. In rebuttal, learned counsel appearing on behalf of petitioner submitted that respondents have not been able to give plausible explanation to the fact that this Court vide order dated 01.09.2011 had directed the respondents to do the needful within 08 weeks i.e. prior to 31.10.2011 or by 05.11.2011. However, respondents failed to comply with the directions of this Court and it is only when petitioner preferred contempt proceedings, the W.P.(C) 923/2021 Page 5 of 15
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respondents vide Signal dated 29.12.2021 indicated promotion of 121 officers. Learned counsel sturdily submitted that had the respondents taken decision on time and complied the directions of this within stipulated period of 08 weeks, petitioner would have joined in December, 2011 and thereby, would have completed 06 months and received first increment.
11. Learned Counsel for petitioner next submitted in rebuttal that the plea of respondents that petitioner was appointed later than Sh. Balwant Singh Chauhan and Sh. Ram Singh Meena; and hence, cannot be given pay parity with them; is itself refuted by the respondents as the petitioner has been granted seniority as per merit list, despite having been appointed on a later date. It was further submitted that the order dated 01.09.2011, clearly observed that the separate reservation of the vacancies for OBC was wrong and accordingly directed the respondents to consider the said 120 vacancies as unreserved along with 230 vacancies already notified as reserved and promote the petitioner if his name falls within the merit list, and so, the averment of the respondents that the effect of 120 vacancies as reserved for OBC candidates, would be considered along with 230 unreserved vacancies. It was submitted the Signal dated 29.12.2011 was not required to be challenged, as the same was issued complying the order of this Court dated 01.09.2011. Further submitted that since the petitioner is getting less pay every month, the cause of action to challenge the arbitrary action of respondents accrues every month and so, there is no limitation or delay in preferring this petition. Lastly, it was submitted that since petitioner has been appointed against the vacancies pertaining to the LDCE-2010 and has also been given seniority as per his merit, he deserves parity of pay with other batchmates and, accordingly respondents be directed to re-fix W.P.(C) 923/2021 Page 6 of 15
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petitioner's pay with all consequential benefits.
12. The arguments advanced by both the sides were carefully heard and the material placed before this Court has also been perused by us.
13. In our considered opinion, the first and foremost issue which requires to be determined by us is the interpretation of the directions issued by this Court vide order dated 01.09.2011 in W.P.(C) 5460/2011, which are as under:-
"12. In view of the fact that the persons affected have not been impleaded as respondents and certain legC;l1 issues which need to be settled have not been even considered by the Department, rather than charter the tedious route of impleading the affected persons as· a party and then deciding the writ petitions; highlighting that in view of the past stand taken by the Central Para Military Forces pertaining to appointments on the strength of Limited Departmental Competitive Examination, which may probably entail interim orders to be passed, thereby affecting the ongoing selection process, it .would be advisable to let the Department reconsider the matter after hearing the grievances of the unreserved candidates as also those who are members a OBC, SC or ST, requiring the writ petitions to be disposed of issuing the following directions:-
i) After notifying the OBC, SC and ST candidates, who have been adjusted against unreserved vacancies and the petitioners, such persons be heard on the first question:
Whether at all the appointment of Sub Inspectors on the basis of a Limited Departmental Competitive Examination is a direct recruitment? Or it is a promotion?
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While so doing, it would be kept in view that the Central Paramilitary Forces have been taking a stand with respect to a MACP benefit that such appointment is by way of promotion and not a direct appointment;
ii) If the decision taken is that it is a case of promotion, the second question to be decided would be:
Whether for a promotional post reservation can be effected for OBC candidate? We clarify that law is clear. SC and ST candidates can have the benefit of reservations in promotions.
iii) If it is held that the mode of Limited Departmental Competitive Examination is a promotion, another question would be decided: Whether those who took the benefit of reservation at the time of entry in the force can avail the benefit of reservation for a second time?
iv) If the answer would be that there could not be a reservation for OBC candidates, the effect of reserving 120 posts as reserved for OBC candidates would be taken and it would be decided whether the unreserved posts could be treated as 230 + 120.
13. The exercise would be completed after issuing a circular and notifying the same as 'per procedure prescribed so that the affected candidates would know that the Department has to reconsider the matter and have an opportunity to put forth their views.
14. Needful would be done within a period of 8 weeks from today and needless to state till decision is taken the impugned lists would not be given effect to."
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14. A perusal of afore-noted order dated 01.09.2011 in W.P.(C) 5460/2011 passed by this Court shows that the Court had observed that for a promotional post, reservation can be effected for SC and ST Candidates and had raised a query if there can be no reservation for OBC candidates; whether the 120 posts reserved for OBC candidates can be merged in vacancies belonging to the General Category and thereby, General Category will be increased by 120 posts. Accordingly, the Court had directed respondents to answer these queries within eight weeks. In compliance of directions of this Court by order dated 01.09.2011, the respondents vide Signal dated 29.12.2011 notified as under as under:-
"PARA (.) NO 045001672 CT/GD CT/GD NEMA RAM OF 33 BN CRPF ALSO FILED WP(C) NO 2947/2011 V/S UOI AND OTHERS BEFORE HIGH COURT OF DELHI AGAINST HIS MEDICAL UNFITNESS IN SI/GD LDCE 2010 (.) AS PER COURT ORDER DTD 26/05/2011, HIS REVIEW MEDICAL EXAMINATION WAS CONDUCTED BY A BOARD OF MEDICAL OFFICERS AT ARMY (R&R) HOSP NEW DELHI ON 9/08/2011 AND DECLARED HIM FIR (.) ACCORDINGLY COMPETENT AUTHORITY HAS ALSO APPROVED HIS SELECTION/APPOINTMENT TO THE POST OF SI/GD LDCE 2010(.)
PARA (.) ON THEIR SELECTION AS SI/GD THEY ARE ALLOTTED TO THEIR RESPECTIVE ZONE WHERE PRESENTLY THEY ARE POSTED (.) IF ANY CANDIDATE IS NOW TRANSFERRED OUT FROM THE UNIT MENTIONED AGAINST EACH TO ANOTHER UNIT/SECTION/ZONE, HIS PRESENT UNIT/SECTION/ZONE WILL TAKE POST
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SELECTION FORMALITITES OF SUCH CANDIDATES TRATING THEM ALLOTTED TO THEIR UNIT (.) THEY MAY BE APPOINTED AS SI/GD ACCORDINGLY AND EQUIPPED THEM FOR DISPATCHING FOR DESO TRAINING ON HEARING FROM TRG DTE (.) PARA (.) THE ABOVE 122 CANDIDATES ARE SELECTED AGAINST THE VACANCIES EARMARKED/ RELEASED FOR SI/GD LDCE 2011. HENCE 122 VACANCIES OF SI/GD LDCE UNDER GENERAL CATEGORY ARE HEREBY DEDUCTED FROM THE VACANCIES RELEASED FOR CONDUCTING SI/GD LDCE 2011 VIDE THIS DTE SIGNAL NO R.II-25/2011- RECTT (SI/GD LDCE) DATED 11/07/2011 (.) PARA (.) ALL ZONE HQR WILL SUBMITTED A CONSOLIDATED REPORT SHOWING DETAILS OF CANDIDATES JOINED/APPOINTED TO THE POST OF SI/GD BY 31/01/2012 TO THIS DTE WITHOUT AWAITING REMINDERS (.) PARA (.) SUCH CASES FOR APPOINTMENT TO THE POST OF SI/GD PERTAINING PRIOR TO LDCE 2010 WILL NOT BE REOPENED/ CONSIDERED (.) PARA (.) CORRESPONDENCE MADE WITH LOWER FORMATION VICEVERSA NEED NOT BE ENDORSED TO THIS DTE PLEASE///"
15. Apparently, vide aforesaid Signal dated 29.12.2011, the respondents have though appointed the petitioner in the list of 121 candidates, but it is noted that they have been appointed against the vacancies falling for LDCE- 2011. This Court is conscious that filling up of vacancies over and above the vacancies notified is impermissible, however, in the present case it is not disputed by both the sides that the aforesaid signal dated 29.12.2011 was never challenged and has thus, attained finality. It is also not disputed that
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the petitioner has already been placed in said list at serial No.21 according to his merit position. So now, the limited question for determination by this Court is as to whether claim of petitioner seeking parity of pay with other batch mates of LDCE-2010 can be granted?
16. The factual position is clear. The petitioner had challenged the selection list dated 07.01.2011 for the LDCE-2010 for the post of SI/GD by filing W.P.(C) 5460/2011 before this Court, wherein pursuant to directions passed by this Court vide order dated 01.09.2011, the petitioner along with other 121 candidates were offered appointment and petitioner was appointed on 07.02.2011. It is admitted by respondents vide Signal dated 29.12.2011, the respondents had notified appointment of petitioner along with others under the subject head "AS PER DIRECTIONS OF HON'BLE HIGH COURT OF DELHI COMPETENT AUTHORITY HAS DECIDED TO SELECT/APPOINT FOLLOWING CANDIDATES WHO QUALIFIED AND SECURED PLACE IN MERIT LIST ABOVE THE LAST OBC/UNRESERVED SELECTED CANDIDATE IN SI/LDCE 2010 FOR THE POST OF SI/GD (.)". Even though petitioner has been appointed under the LDCE-2010 but against the vacancy pertaining to the LDCE-2011, however, his pay has not been fixed on parity with others who have been selected to the post of SI/GD for the LDCE-2010. The plea put-forth by the respondent is that the other two candidates, namely, Sh. Balwant Singh Chauhan and Sh. Ram Singh Meena, had joined much prior to joining of petitioner and since petitioner did not hold the subject post for six months, he is not entitled to annual increment.
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period is required to be completed in a pay scale for securing annual increment, however, we cannot lose sight of the fact that despite directions of this Court vide order dated 01.09.2011, petitioner had to initiate contempt proceedings against the respondents to seek appointment. In fact, in compliance of order dated 01.09.2011 passed by this Court, petitioner ought to have been appointed within eight weeks as directed by this Court and for the lapse on the part of respondents, he cannot be made to suffer. Also, it is the settled legal position that a candidate can claim service benefits from the date of joining in service.
18. This Court in Naveen Kumar Jha Vs. Union of India & Ors. 2012 SCC OnLine Del 5606 , while dealing with a case where the petitioner had appeared in selection process for the post of SI in the Central Para-Military Organisation for the year 2000 and had qualified written examination and physical efficiency test , but was declared unfit in the medical examination held in the year 2002. However, pursuant to filing of a appeal, he was examined by the Review Medical Board in the year 2003 and was found medically fit and given appointment in 2004; whereas the other batch-mates had joined in the year 2003 only. In the said case, the Coordinate Bench held as under:-
"15. On parity of reasoning and application of law the petitioner is held entitled to his seniority being refixed as a Sub-Inspector in CRPF with reference to his merit position at the SSC Combined Graduate Level 2000 Examination i.e. those who joined CRPF pursuant to the said examination in March 2003. The petitioner has already earned promotion to the post of Inspector and accordingly we direct that he would be entitled to seniority refixed in said rank with W.P.(C) 923/2021 Page 12 of 15
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reference to his revised seniority position in the rank of Sub-Inspector, and this would mean that the petitioner would be considered for promotion to the post of Assistant Commandant as per the revised seniority list.
16. The respondents are therefore directed to revise the seniority position of the petitioner in the two ranks within a period of four weeks from today and thereafter consider the petitioner along with other eligible persons for promotion to the post of Assistant Commandant.
17. As regards wages, on the principle of not having shouldered responsibility for the higher post, we do not direct backwages to be paid."
19. Pertinently, the decision in Naveen Kumar Jha (Supra) attained finality vide order of 12th August, 2013 passed in CC No. 3827/2012, passed by the Supreme Court. Further the decision in Naveen Kumar Jha (Supra) has been followed by another Coordinate Bench of this Court in Shashi Ranjan Kumar Vs. Union of India and Others 2019 SCC OnLine Del 7323, the petitioner wherein had challenged the rejection of his prayer to grant seniority from the date on which his batch-mates were appointed and further to grant all consequential benefits applicable as per Rules. The Coordinate Bench while relying upon Naveen Kumar Jha (Supra) had held as under:-
"7. This Court has heard the submissions of learned counsel for the parties. The matter of fixation of seniority of those candidates who were declared fit later than others in the same batch for reasons attributable to the Respondents is no longer res integra. This principle has been settled in Naveen Kumar Jha (supra) which has been
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affirmed by the Supreme Court. In the present case although in the initial medical examination the Petitioner was declared unfit, the review medical examination declared him fit. The Petitioner had submitted his appeal for being examined by the RMB within the time stipulated. The delay in six months in calling him for the review medical examination was entirely attributable to the Respondents.
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23. In view of the aforesaid decision, since the Petitioners are claiming parity with Naveen Kumar Jha (supra), we would not like to deny them the relief on account of delay in approaching the Court. A writ of mandamus is issued to the Respondents directing them to notionally refix Petitioners' seniority with reference to his merit position in the select list in their respective examinations, that is, with those who have joined the CRPF pursuant to the said examinations. Petitioners shall also be entitled to all consequential benefits, except for back wages."
20. Applying the ratio of law already laid down by this Court in various judgments to the facts of the present case, we find that though petitioner had to undertake two rounds of litigation but he was finally appointed to the post of SI/GD on 07.02.2011 and he has been given seniority at Serial No.21 in the list according to his merit position for the LDCW-2010. Further, the fixation of his pay to the post of SI/GD shall reckon from the day he assumed charge of the said post i.e. 07.02.2011. Though petitioner in the present petition has pleaded that pay of his juniors has been fixed higher
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than him, however, we find that the two officials named by him, namely, Balwant Singh Chauhan and Ram Singh Meena, with whom petitioner is seeking parity, had joined much prior to his joining and therefore, differential in fixation of pay, by adding increments is consequential; whereas the petitioner could not earn increment as he had not completed six months which is a condition precedent to get an increment under Rule 26(3) of Fundamental Rule & Supplementary Rule (FR & SR) Part 1. This Court is informed that petitioner has now been promoted to the post of Inspector. We have also been informed that petitioner has been given seniority as per his rank in merit list of Constable/GD as well as Inspector.
21. In the light of aforesaid observations, finding no merit in the present petition, it is dismissed while making it clear that petitioner shall continue to hold merit position as already determined by the respondents and shall be entitled to fixation of pay according to his date of appointment in the post concerned.
22. With aforesaid directions, the present petition is disposed of.
(SURESH KUMAR KAIT) JUDGE
(SAURABH BANERJEE) JUDGE
DECEMBER 02, 2022 r
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