Devender Pal Singh And Ors vs Union Of India And Ors
2022 Latest Caselaw 2343 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Reserved on:       July 12, 2022
                                  Pronounced on:       July 29, 2022
+     W.P.(C) 7792/2020
      DEVENDER PAL SINGH AND ORS.            ..... Petitioners
                   Through: Mr. Ankur Chhibber, Advocate

                         Versus

      UNION OF INDIA AND ORS.                 ..... Respondents
                    Through: Mr. Avnish Singh, Senior Central
                              Government Counsel

      CORAM:

      HON'BLE MR. JUSTICE SURESH KUMAR KAIT
      HON'BLE MR. JUSTICE SAURABH BANERJEE

                         JUDGMENT

SURESH KUMAR KAIT, J

1. The ninety one petitioners in the present petition, who are Assistant

Sub-Inspectors (ASI) in Central Industrial Security Force (CISF), are

seeking quashing of order dated 19.08.2020 or any other similar orders,

whereby their representations seeking correct fixation of pay w.e.f.

01.01.2006, has been rejected. Petitioners claim that w.e.f. 01.01.2006, they

were granted first financial upgradation to the pay scale of the ASI and,

therefore, while seeking parity with petitioners in Vinoj V.V. Vs. Union of

India & Ors. 2018 SCC OnLine Del 12714; W.P.(C) 4854/2020, titled as

Krishan Kumar & Ors. Vs. Union of India & ors. and W.P.(C) No.

4905/2020, titled as Malkhan Singh & Ors. Vs. Union of India & ors.

wherein by virtue of decisions dated 30.11.2018; 04.08.2020 and 05.08.2020

respectively, they are seeking a direction to the respondents to re-fix their

pay with basic pay of Rs.8,560/- plus Grade Pay of Rs.2,800/- i.e. Rs.11,360

w.e.f. 01.01.2006.

2. It is averred in the petition that the factual matrix of the case with

regard to all the petitioners is more or less similar, therefore, the facts

pertaining to petitioner No.1- Shri Devender Pal Singh be considered in the

present petition. Thus, the present petition is being heard and decided on the

facts contended on behalf of petitioner No.1- Devender Pal Singh.

3. According to petitioner, he had joined the services of CISF on the

post of HC- DCPO in the year 1993 in the pay band of Rs.975-25-1150-30-

1660. In the year 1999, by virtue of notification dated 01.08.1999, two

financial up-gradations on completion of 12 years and 24 years were

granted. In the year 2005, the petitioner was granted first financial

upgradation under Assured Career Progression (ACP) in the rank of ASI and

pay scale of Rs.4000-6000 was granted and with one notional increment and

his basic pay was fixed at Rs.4,200/-. For the purpose of implementation of

recommendations under the Sixth Pay Commission, petitioner's pay was

counted as Rs.4,300/- which after applying multiplier of 1.86 was fixed to

Rs.8,000/- plus Rs.2,800/- grade pay.

4. Petitioner has claimed that subsequent to implementation of

recommendations under the Sixth Pay Commission, the entry grade for the

rank of ASI was fixed at Rs.5200-20200 with grade pay Rs.2,800/- and was

fixed at Rs.8,560/-. It is submitted that the salary of new entrants recruited in

the force pursuant to recommendations of the Sixth Pay Commission was

fixed at Rs.8560/- plus grade pay of Rs.2,800/- i.e. Rs.11,360/-; whereas

after rendering service of 13 years, petitioner's salary was fixed with the

basic of Rs.8,000/-. The grievance raised by petitioner in the present petition

is that the entry pay for the rank of ASI is Rs.5,200-20200 with grade pay

Rs.2,800/- and the entry grade pay is Rs.8560/-, however, his basic pay has

been fixed at Rs.8000/- on the basis of entry grade pay, which is lower than

the prescribed limit for rank of ASI. It is claimed that as per CCS(RP) Rules,

2008, the revised pay band of ASI is Rs.5,200-20200 with grade pay

Rs.2,800 and therefore, the entry grade pay for the rank of ASI is Rs.8,560/-.

5. Petitioner has further averred that even pursuant to grant of 2nd MACP

in the year 2014 in the pay band of Rs.35,400-1,12,400 for the post of SI, his

fixation was incorrectly done and he was granted basic pay of Rs.50,500/-

whereas the direct recruits were granted the pay band with basic pay of

Rs.52,000/-. The petitioner claims to have raised the aforesaid grievance

before the competent authority by filing a representation, which was rejected

by the respondents vide order dated 19.08.2020 primarily stating that the

petitioner was not directly recruited to the rank of ASI after 01.01.2006, so

he is not entitled to entry level pay as per the provisions of OM No. 8-

23/2017-E.III dated 28.09.2018.

6. During the course of hearing, learned counsel appearing on behalf of

petitioners submitted that due to incorrect fixation of pay, petitioner No.1 as

well as other petitioners, have suffered grave loss and by rejecting the

representation of the petitioner due to which, they have been deprived of

their legitimate right of getting their pay correctly fixed under the CCS

Rules. Attention of this Court was drawn to decision of another Division

Bench of this Court in Vinoj V.V. (Supra), which has further been relied

upon in decisions in Krishan Kumar (Supra) and Malkhan Singh (Supra)

in support of this case.

7. Reliance is also placed upon decision of Hon'ble Supreme Court in

State of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava and

Others (2015) 1 SCC 347 to submit that all similarly situated should be

treated similarly and the benefits granted vide aforesaid judgments of this

Court, ought to be granted to the petitioners. Reliance is also placed upon

decision of this Court in Shashi Ranjan Kumar Vs. Union of India 2019

SCC OnLine Del 7323 wherein while relying upon decision in State of

Uttar Pradesh, this Court fixed the notional seniority with reference to the

merit position as per the list in their respective examinations. Lastly, it was

prayed that the impugned order dated 19.08.2020 rejecting petitioners'

representation be quashed and his correct fixation of pay be done with basic

pay of Rs.8,560 + Rs.2,800 i.e. Rs.11,360/- w.e.f. 01.01.2006, which is entry

grade for the rank of ASI.

8. On the other hand, the stand of respondents in the counter affidavit is

that petitioner had initially joined in the rank of Head Constable on

09.01.1993 in the pay scale of RS.975-25-1150-EB-30-1660 and his pay was

fixed at Rs.3,285/- from the date of his appointment. Consequent upon

implementation of CCS (RP) Rules, 1997, his salary was fixed in the

corresponding pay scale of Rs.3200-85-4900. Further, he was granted pay

scale of Rs.4000-100-6000 to the promoted post of ASI/Fire under ACP

Scheme w.e.f. 09.01.2005 and his pay was fixed at Rs.4200/-, with date of

01.01.2006 for the next increment. Consequent upon implementation of the

CCS (RP) Rules, 2008, the corresponding pay scale of PB-15200-20200 +

GP Rs.2800/- was extended by up-grading the existing pay scale of Rs.4000-

100-6000 to Rs.4500-125-7000 and accordingly, the pay of the petitioner

was fixed at Rs.8000/- by multiplying the existing basic pay of Rs.4300/-

with the factor of 1.86, rounding off the resultant figure to the next multiple

of ten, was also granted grade pay of Rs.2800/- of the up-graded pay scale of

Rs.4500-125-7000 as per the provisions.

9. It is further contended in the counter affidavit that in terms of

provisions of Section-II of Part-A of CCS (Rules), 2008, the direct recruits

appointed on or after 01.01.2006 in PB-1 were granted entry pay in the

revised pay scale of Rs.5200-20200 + GP Rs.2800 and their entry pay were

fixed as Rs.8560/- + GP Rs.2800/- from the date of appointment, whereas

the Government servants who are in service prior to 01.01.2006 in the pay

scale of Rs.4000- 100-6000/ 4500-125-7000 and drawing basic pay of less

than Rs.4600/-, drew pay of Rs.8560/- w.e.f. 01.01.2006 in the revised pay

scale. It is contended that though Govt. of India, Ministry of Finance (Dept.

of Exp.) vide their Office Memorandum (OM) No.8-23/2017-E.III A, dated

28.09.2018 decided to step up the pay of senior at the entry level pay stating

that if the pay of Central Government employees who were appointed prior

to 01.01.2006, their pay shall not be less than the prescribed entry pay as per

the provisions of Section-II of Part-A of First Schedule of COS (RP) Rules,

2008, subject to the condition that there is provision of the element of direct

recruitment in the recruitment rules. Since petitioner was not directly

recruited the post of ASI and has been promoted under the Assured Carrier

Progression Scheme w.e.f. 09.08.1999, therefore, petitioner cannot be given

benefit of OM dated 28.09.2008. It is further averred that Department of

Personnel and Training, vide OM No.35034/3/2015-Estt(D) dated

08.09.2020 and OM dated 28.09.2008, on the aspect whether its benefit

could be extended to cases where financial upgradation has been granted

under ACP scheme till 31.08.2008 or MACP scheme on or after 01.09.2008

in the same grade pay, which is applicable for promotion post and has an

element of direct recruitment and whether the employee has been

subsequently promoted on or after 01.01.2006; the pay fixed under the

ACP/MACP is final; has clarified the benefit of entry level pay prescribed

for direct recruits, cannot be allowed at the time of financial up-gradation

under the ACP scheme between 01.01.2006 to 31.08.2008 or MACP scheme

from 01.09.2008 to 31.12.2015. Thereby, where promotion is between

01.01.2006 to 31.12.2015 with an element of direct recruitment, the benefit

of re-fixation under OM dated 28.09.2018 shall be extended to the

employees from the date of their regular promotion at the stage minimum

equivalent to the minimum entry level pay.

10. Learned Senior Panel Counsel appearing on behalf of respondents

submitted that the petitioner was granted financial upgradation in the pay

scale of Rs.4000-100-6000 (Upgraded to Rs.4500-125-7000) w.e.f.

09.01.2005 and was promoted to the rank of Asstt. Sub Inspector/Fire w.e.f.

14.11.2014 (F.N.) and his basic pay was fixed at Rs. 11810 + GP Rs.4200/-

w.e.f. 01.07.2014; and after the second financial upgradation under the

MACP scheme i.e. on completion of 20 years, his salary was fixed in PB-2

Rs.9300-34800 + Grade Pay Rs.4,200/-and since the petitioner was drawing

basic pay over and above the entry pay of Rs.8,560/- on the date of his

promotion, the petitioner is not entitled to any benefit under the OM dated

08.09.2020.

11. Learned Senior Central Government Counsel also submitted that since

the petitioner was already drawing basic pay over and above the entry pay of

Rs.8560/, the decisions in Vinoj V.V. (Supra) is of no assistance to the case

of petitioner, as the petitioner was drawing the pay scale of ASI/Fire under

the ACP Scheme and he is only entitled for entry pay of Rs.8,560/- plus

Grade Pay of Rs.2,800 from the date of his promotion in November, 2014,

so he is not entitled to benefit of OM dated 08.09.2020. Thus, dismissal of

the present petition is sought.

12. In rebuttal, learned counsel for petitioner submitted that the

petitioners pay ought to have been fixed at the entry level basic pay for the

rank of ASI as per recommendation of the Sixth Pay Commission i.e.

Rs.11,360/- in the pay scale Rs.5200-20200+ Grade Pay of Rs.2800/- since

the entry grade for the said pay scale is Rs.8560/-. However, the pay of the

petitioner was fixed by wrongfully applying the 1.86 multiplier, which led to

fixation of his basic pay at Rs.4300 x 1.86= Rs.10,800/- which was less

beneficial than it would have been fixed at Rs.11,360/- w.e.f. 01.01.2006 for

all future intents and purposes/consequential benefits.

13. Learned counsel for petitioner submitted that in terms of Para-8 of

OM dated 28.09.2018, even those Central Government employees who were

appointed to the post in question on or after 01.01.2006 and whose pay was

fixed under Rule 13 is lower than the entry pay for the post in question, shall

also not be less than the said entry pay and shall be brought at par with such

entry pay which has not been done in the present case. It is contended

pursuant to decision of this Court dated 23.03.2017, in W.P.(C) No.

2634/2017, titled as "Government of NCT of Delhi Vs. Somvir Rana", the

aforesaid Para-8 of OM dated 28.09.2018 was included to deal with the

anomaly that has arisen in the present writ petition. With regard to

contention of respondents that the relief sought in the present petition is not

tenable since the post in question i.e Assistant Sub Inspector is not a direct

entry post, is wholly misconceived, as it is the question which has already

been determined by this Court in Somvir Rana (Supra) as well as Vinoj

V.V. (Supra).

14. The learned counsel representing both the sides were extensively

heard and the material placed on record as well as decisions cited have been

carefully perused.

15. It is settled position of law that the personnel holding the similar posts

and responsibilities, cannot be discriminated and are entitled to get similar

pay and allowances. However, at the same time it has to be ensured that

sufficient material is placed on record to establish that all other relevant

facts are fulfilled. Pertinently, the grounds urged in the present petition are

identical to the one raised in Vinoj V.V. (Supra).

16. In Vinoj V.V. (Supra), due to restructuring of posts in CISF, post of

Constable being an entry level post, the post of Head Constable became a

promotional post and the Head Constables were granted basic pay of

Rs.7,510/- with grade pay Rs.2,400/- across all the branches w.e.f.

01.01.2006. The petitioners therein had raised grievance that the directly

recruited constables, who were granted MACP were getting basic pay of

Rs.7,510/-, whereas the petitioners who were senior were getting the basic

pay of Rs.6,750/- instead of basic of Rs.7,510/- and thus, there were two

classes of employees. In the said case, the stand of respondents was very

much similar, which is noted as under:-

"8. Learned counsel for the Union of India, on the other hand, refers to the Office Memorandum dated 28 th September, 2018 issued by the Department of Expenditure, Ministry of Finance, Government of India with regard to a similar issue arising in the context of the Revised Pay Rules where it is clarified that the stepping up of a pay would not be available where there is no element of direct recruitment in the post is concerned. Reference is also made to a corresponding circular dated 5th November, 2018 issued by the Director General, CISF where again, with the approval of the Ministry of Home Affairs („MHA‟), a similar rider was added. He submitted that since in the present case, the post of HC was a promotional post and no longer had an element of direct recruitment. Further, after 1st January 2006, no HC was directly recruited. Therefore, according to him, the benefit of stepping up of pay scales would not be available."

17. The court in Vinoj V.V. (Supra), in answer to the above, had referred

to Paras-2, 3 & 8 of the OM dated 28.09.2018 and held that by the said OM,

the decision in Somvir Rana (Supra) was accepted and so, "the pay of

Central Government employees, who were appointed to their posts by way

of promotion on or after 01.01.2006 and those, whose pay as fixed by the

revised pay rules happens to be lower than the entry pay, shall also not be

less than such entry pay from the date of their promotion taking place on or

after 01.01.2006."

18. Moreover, it is not disputed by either side that the decision in Vinoj

V.V. (Supra) has already attained finality, as the Special Leave Petition filed

against it stands dismissed by the Hon'ble Supreme Court.

19. In the case in hand, the petitioner had initially joined in the rank of

Head Constable and was granted pay scale of Rs.4000-100-6000 to the

promoted post of ASI/Fire under AGP Scheme w.e.f. 09.01.2005. In the year

2006, subsequent upon recommendations of Sixth Pay Commission, the pre-

revised basic pay of petitioner was taken as Rs.4,300/- which was multiplied

with 1.86 i.e. Rs.7,998/- and hence, his pay was fixed at Rs.10,800/-.

According to CCS (RP) Rules, 2008, the revised pay band of ASI in CPMFs

is Rs.5200-20200 with grade pay being Rs.2,800/-, for which entry pay is

Rs.8,560/-, however, petitioner's basic pay was fixed at Rs.8,000.

Consequentially, pursuant to grant of 2nd MACP in the year 2014 in the pay

band of Rs.35,400-1,12,400 for the post of SI, his fixation was incorrectly

done and he was granted basic pay of Rs.50,500/- whereas the direct recruits

were granted the pay band with basic pay of Rs.52,000/-.

20. For the afore-going reasons, the present petition is allowed. The

respondents are directed to fix the basic pay of petitioners at par with direct

recruits w.e.f. 1.01.2006 within six weeks and further to pay the arrears with

interest @6% p.a. within four weeks, failing which the respondents shall be

liable to pay interest @9% p.a. on the delayed payment.

21. The writ petition is allowed with aforesaid directions and is accordingly disposed of.

(SURESH KUMAR KAIT) JUDGE

(SAURABH BANERJEE) JUDGE

JULY 29, 2022 r