Himachal Pradesh High Court
Ct Vikash Jamwal vs State Of H.P. In on 26 October, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 26th DAY OF OCTOBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.102 of 2019
Between:-
1. CT VIKASH JAMWAL, CT NO. 675,
S/O SH MAKAL KUMAR, 2ND INDIA
RESERVE BATALION, SAKOH,
DISTT. KANGRA-(HP).
2. CT VIKRANT, CT NO: 773, S/O SH
RAJ KUMAR, 3RD INDIA RESERVE
BATALION,
PANDOH, DISTT
MANDI-(HP).
3. CT ANIL KUMAR, CT NO:780, S/O
LATE SH PAWAN KUMAR, 3RD
INDIA RESERVE BATTALION,
PANDOH, DISTT MANDI-(HP).
4. CT. SAHIL MEHRA, CT No.: 481,
S/O SH YOGRAJ, 3RD INDIA
RESERVE BATTALION, PANDOH,
DISTTT MANDI-(HP).
5. CRT. SHYAM LAL, CT. NO. 740,
S/O SH. SOM KRISHAN, 3RD INDIA
RESERVE BATTALION, PANDOH,
DISTTT MANDI-(HP).
6. CT. ASHWANI KUMAR, CT. NO:
761, S/O SH KHOOB RAM, 3RD
INDIA RESERVE BATTALION,
PANDOH, DISTTT MANDI-(HP).
..........PETITIONERS
(BY MR. K.D. SHREEDHAR, SENIOR ADVOCATE
WITH MR. SOURABH AHLUWALIA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THOUUGH PRINCIPAL
SECRETARY (HOME) TO THE
GOVERNMENT OF HIMACHAL
::: Downloaded on - 31/01/2022 23:13:41 :::CIS
2
PRADESH, SHIMLA-171002, (H.P.)
ROAD TRANSPORT
2. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL
.
SECRETARY (FINANCE) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-171002, (H.P.)
3. THE DIRECTOR GENERAL OF
POLICE, HIMACHAL PRADESH,
NIGAM VIHAR, SHIMLA-171001,
(HP).
4. THE ADDITIONAL DIRECTOR
GENERAL OF POLICE, ARMED
POLICE & TRANING, H.P. SHIMLA-
171002.
5. THE COMMANDANT 2ND INDIA
RESERVE BATTALION, SAKOH,
DISTT KANGRA-(HP).
6.
THE COMMANDANT 2ND INDIA
RESERVE BATTALION, PANDOH,
DISTT MANDI-(HP).
..........RESPONDENTS
(BYM/S ADARSH SHARMA, SUMESH RAJ AND
SANJEEV SOOD, ADDITIONAL ADVOCATE
GENERALS WITH M/S J.S. GULERIA AND
KAMAL KANT CHANDEL, DEPUTY ADVOCATE
GENEALS)
___________________________________________________________
Reserved on : 11.08.2021
Whether approved for reporting: Yes
This petition coming on for pronouncement of
judgment this day, the Court passed the following:-
O R D E R
This petition was initially filed as an original
application before erstwhile learned Himachal Pradesh
Administrative Tribunal and after the abolition of the learned
Tribunal, the same has been transferred to this Court.
.
2. Brief facts necessary for the adjudication of this
petition are as under:-
The case of the petitioners is that respondent-State vide
recruitment notice dated 22.06.2012, invited applications from
eligible desirous candidates for recruitment against the posts of
constables (800 males) in the Himachal Pradesh Police Department
in the pay scales of Rs. 5910-20200+Grade Pay Rs. 1900. A copy
of the recruitment notice is appended with the petition as
Annexure A-1. The pay structure of the constables sought to be so
appointed was to be governed by Himachal Pradesh Civil Services
(category/Post wise Revised pay) Rules, 2012 ( hereinafter to be
referred as the '2012 Rules' for short), copy of which is appended
with the petition as Annexure A-2. Finance Department of the
Government of Himachal Pradesh vide notification dated
28.09.2012 added certain provisions in the Schedule governing the
pay structure of the employees of the Home Department in terms
of Rule 9 of the 2012 Rules. The addition in the Schedule made
with respect to the Constables in the Police Department was that
revised pay structure of `10300-34800+`3200 Grade Pay was
introduced post completion of two years of regular service w.e.f.
01.10.2012. A copy of said notification is appended with the
petition as Annexure P-3.
.
3. It is further the case of the petitioners that in the year
2014, the Finance (Pay Revision) Department submitted a draft
Cabinet Memorandum for approval before the Council of Ministers
regarding grant of revised pay structure on completion of eight
years to the new 800 constables, which were yet to be advertised.
This was sought to be done by amending the 2012 Rules. The
intent behind the said proposal was to prospectively lessen the so
called recurring financial burden upon the State Government.
4. In the year 2015, the Finance (Pay Revision)
Department issued impugned notification dated 14.01.2015, vide
which, 2012 Rules were amended contrary to the opinion of the
Home Department and the revised pay structure of `10300-
34800+`3200 Grade Pay was now made available to Constables
after completion of eight years of regular service. The amendment
was made applicable w.e.f. 01.10.2013.
5. Thereafter, a fresh recruitment notice dated 15.03.2015
was issued for recruitment of 776 posts of Constables in the police
department in the pay scale of Rs. 5910-20200+Rs.1900 (Grade
Pay). It was mentioned in this recruitment notice (Annexure P-7)
that said pay scales would be drawn by the future recruits after
completion of eight years regular service from the date of initial
appointment in terms of notification dated 14.01.2015.
.
6. The petitioners being eligible participated in the
selection process so undertaken by the Department pursuant to
notice dated 15.03.2015 and they were offered appointment to the
said post in the month of September, 2015 as such. The
petitioners were offered the job on an initial pay scale of `7810,
which was to be revised to `10300-34800+3200 (Grade Pay) after
completion of long span of eight years as Constables.
7. According to the petitioners, they had no alternative
but to accept such offer from the department. They joined as such
under the 2nd India Reserve Battalion, Sakoh, District Kangra, H.P.
and 3rd India Reserve Battalion Pandoh, District Mandi, H.P.
8. It is further the case of the petitioners that the
Constables, who were appointed before 01.01.2015 in terms of
earlier advertisement, filed an Original Application No. 2076 of
2016, titled as Ct. Prashant Kumar and Others vs. State of H.P. in
May, 2016, assailing the date of applicability of impugned
notification dated 14.01.2015. Certain departmental
correspondence was also assailed before the Tribunal and prayer
was made for grant of revised pay structure upon completion of
two years of regular service instead of eight years.
9. During the pendency of this original application, the
Finance Department issued another notification dated 17.06.2016
.
(Annexure A-9), vide which, previous notification dated
14.01.2015, stood partially modified and the benefit of revised pay
band and grade pay post completion of eight years of regular
service was made applicable to the constables appointed on or
after 01.01.2015.
10. As per the petitioners, despite their discharing same
and similar duties, as were being discharged by Constables
appointed before 01.01.2015, they have been deprived benefit of
superior pay scale and grade pay on completion of two years of
regular service, and thus, they are being treated unequally and are
being discriminated against by the respondent-State, without any
lawful authority which is contrary to the principles of equal pay for
equal work.
11. It is further the case of the petitioners that Home
Department vide letter dated 24.06.2016 (Annexure A-10),
addressed to the Director General of Police endorsed the
amendment of the Finance Department, which action of the Police
Department was contrary to their own stand of proposing five
years regular service for getting revised pay structure . The
Director General of Police, vide letter dated 02.08.2016 (Annexure
A-11), requested the Home Department to grant revised pay benefit
after completion of five years regular service instead of eight years,
and according to the petitioners, this request was suo motu made
.
at the level of Director General of Police understanding their plight,
and in view of the anomaly in the pay of Clerks who get revised
pay scale of `10300-34800+3200 Grade Pay, on completion of two
years of regular service, whereas the petitioners had to wait for
similar benefit for eight years of regular service despite the fact
that they perform hazardous duties.
12. According to the petitioners, the Home Department vide
letter dated 17.03.2017 (Annexure A-12), in consultation with
Finance Department, rejected the request of the Director General
of Police without any reason whatsoever. Feeling aggrieved, the
petitioners made a representation to the worthy Chief Minister,
Himachal Pradesh, for the grant of revised pay scale. This
representation was forwarded to the Home Department for further
examination by the Chief Minister, however, the grievance of the
petitioners did not stand redressed. It is in this background that
this petition has been filed by the petitioners praying for the
following substantive reliefs:-
"I. That the application is for quashing notification of
the Government of Himachal Pradesh Finance (Pay
Revision) Department dated 14.01.2015 (Annexure A-6) &
partial modification of the said notification dated
17.06.2016 (Annexure A-9) whereby an arbitrary
amendment has been given effect to w.e.f. 01.01.2015
purportedly in exercise of the powers conferred by Rule 9
.
read with Rule 3 of the Himachal Pradesh Civil Services
(Category/Post wise Revised pay) Rules, 2012.
II. That the application is for setting aside the stand
taken by the Government of H.P. (Home Department) in
letter dated 24.06.2016 & 17.03.2017 (Annexure A-10 &
A-12) as it is arbitrary and discriminatory.
III. That the application is for granting the applicants
revised pay structure of Rs. 10,300-34800+3200 grade
pay after putting in 2 years regular service as is being
granted to constables appointed before 2015 and clerks
even now, along with interest @ 10% from the date when
it became first due on 01.09.2017 till its realization.
IV. That in the alternative the respondents may be
directed under Rule 10 of the HPCS Rules, 2012 to relax
the provision in column 5 of the amended schedule
(Annexure A-6) suitably in order to release the benefit of
revised pay structure of Rs. 10300-34800+Rs 3200 grade
pay in favour of the applicants."
13. The petition is resisted by the respondents inter alia on
the ground that the Government of Himachal Pradesh vide
notification dated 28.09.2012 notified the pay scales of Constables
in H.P. Police Department at the rate of `5910-20200+1900 (G.P.)
at entry level and at the rate of `10300-34800+3200 (G.P.) after
two years of regular service. Subsequently, the Department of
.
Finance vide notifications dated 14.01.2015 and 17.06.2015
substituted/amended serial No. 3 vide abovementioned
notifications and ordered that Constables are to be granted higher
pay band with `3200/- Grade Pay after completion of eight years
of regular service w.e.f. 01.01.2015. It was clarified vide
government letter dated 12.06.2015 that on or after 01.01.2015,
the Constables would be entitled for pay structure of `10300-
34800+3200 (GP) only after completion of eight years of regular
service. According to the Department, the issue regarding grant of
higher pay structure to the Constables who were appointed before
01.01.2015 but were completing two years of service after
01.01.2015, was re-considered by the government, and vide
notification dated 17.06.2016, provisions contained in Notification
14.01.2015 were made applicable only to the Constables appointed
on or after 01.01.2015. As per the Department, the petitioners
having been appointed in Police Department as Constables on
01.09.2015 were not eligible for grant of higher pay band and
Grade Pay after completion of two years of regular service in terms
of government Notifications dated 14.01.2015 and 17.06.2015.
This act of the government was not arbitrary, as provisions
contained in Notification dated 14.01.2015 were made applicable
to the Constables appointed on or after 01.01.2015, and as all the
petitioners herein were appointed after 01.01.2015, therefore, they
.
were eligible for grant of higher pay band and grade pay only after
completion of eight years of regular service. The action of the State
has been justified to be legally fair on the said basis.
14. By way of rejoinder, the petitioners have reiterated the
averments made in the petition and denied the stand taken in the
reply filed by the respondents.
15. Mr. K.D. Shreedhar, learned Senior Counsel appearing
for the petitioners, has argued that as the petitioners are similarly
situated to the Constables who were recruited vide recruitment
process initiated by the Government dated 22.06.2012, because
the nature of duties being performed by one and all are the same
and similar, therefore, there is no justification in the act of the
respondent-Department of delaying the grant of revised pay scale
and grade pay to the petitioners as compared to the Constables
recruited earlier. According to him, the ground of financial burden
cannot be allowed to be taken by the respondent-State to deny the
higher/revised pay band+grade pay to the petitioners. According to
him, this act of the respondent-State is highly arbitrary as
similarly situated persons are being treated with a different
yardstick. He has argued that need of grant of revised pay scale in
favour of the petitioners has also been highlighted by the Director
General of Police to the State, yet the cause of the petitioners is
being defeated on account of the indifferent attitude, which has
.
been adopted by the Finance Department by taking the plea of
financial implications. He has argued that taking into
consideration the nature of duties, which are to be performed by
the petitioners, which as per office of Director General of Police,
are hazardous as also risky and round the clock, the petitioners
are entitled for parity as far as the revised pay band and grade pay
is concerned vis-a-vis the Constables recruited in the year 2012.
He has further argued that the cut of date which has been fixed by
the government vide Notification dated 17.06.2016 is arbitrary as
the same is not based on any reasonableness. He also submitted
that as said notification was issued on 17.06.2016, at least those
Constables, who stood appointed on or before 17.06.2016, should
have been given similar treatment. On these grounds, he has
prayed that the writ petition be allowed and the petitioners be
granted revised pay band and grade pay, as prayed for. He has
also relied upon the following judgments in support of his
contentions:-
(i) Randhir Singh Versus Union of India and Others (1982)
1 SCC 618;
(ii) Mewa Ram Kanojia Versus All India Institute of Medical
Sciences and Others (1989) 2 SCC 235;
(iii) South Malabar Gramin Bank Versus Coordination
Committee of South Malabar Gramin Bank Employees'
Union and South Malbbar Gramin Bank Officers'
Federation and Others (2001) 4 Supreme Court Cases
101;
(iv) State Bank of India and Another Versus M.R. Ganesh
.
Babu and Others (2002) 4 SCC 556;
(v) Union of India and Another Versus International
Trading Co. and Another (2003) 5 SCC 437;
(vi) Chairman and MD, NTPC LTD. Versus Reshmi
Constructions, Builders & Contractors (2004) 2 SCC
663;
(vii) Haryana State Minor Irrigation Tubewells Corporation
and Others Versus G.S. Uppal and Others and other
connected matters (2008) 7 SCC 375;
(viii) Union of India and Others Versus Atul Shukla and
Others (2014) 10 SCC 432;
16. On the other hand, Mr. Adarsh Sharma, learned
Additional Advocate General has argued that there is no merit in
the writ petition for the reasons that the advertisement to which
the petitioners responded clearly and categorically contained the
conditions on which the appointment was being offered to them.
He argued that the advertisement in very unambiguous terms
spelled out that posts of Constables were being advertised in the
pay scale of `5910-20200+1900 (GP) upto eight years in terms of
the notification of the government dated 14.01.2015. The
petitioners, knowing full well the contents of this recruitment
notice, participated in the process without any challenge to the
same. He argued that as the petitioners participated in the
recruitment process without any objection, they are stopped from
assailing the condition of grant of revised pay scale after eight
years of service because the petitioners acquiescenced to the terms
.
of the recruitment notice. He further submitted that the petitioners
cannot equate themselves with the Constables who stood recruited
before issuance of Notification dated 14.01.2015. According to
him, the Constables, who were recruited earlier, were rightly given
protection because in the recruitment notice to which they
responded, it was mentioned that they would get revised pay scale
after two years regular service. As per him, the petitioners are not
being discriminated as alleged because in terms of the terms and
conditions of the recruitment notice to which they responded, no
alteration to their deterrent has been made by the State. He has
also relied upon the following judgments in support of his
contentions:-
Municipal Corporation of Delhi versus Surender Singh and
Others, (2019) 8 Supreme Court Cases 67;
Air Commodore Naveen Jain versus Union of India, (2019)
10, Supreme Court Cases 34;
Bhagwat Sharan (Dead Through Legal Representatives) vs.
Purushottam and Others, (2020) 6 Supreme Court Cases
387;
State of H.P. & Ors. versus Rajesh Chander Sood etc. etc.
2016 (10 SCC 77;
17. I have heard learned Counsel for the parties and also
gone through the pleadings as well as record of the case.
.
18. The petitioners in the present case were appointed as
Police Constables w.e.f. 01.09.2015. They participated in the
recruitment process, which was initiated by the respondent-State
by way of issuance of recruitment notice dated 05.03.2015
(Annexure P-7). A perusal of this notification demonstrates that it
was mentioned therein that applications stood invited from eligible
candidates for recruitment to the post of Constables in the
Himachal Pradesh Police Department in the pay scale of `5910-
20200+Grade Pay @ `1900/- upto eight years of service as per
H.P. Government's Notification No. Fin(PR)-B(7)-64/2010, dated
14.01.2015.
19. The impugned Notification (Annexure A-6) is dated
14.01.2015. A perusal thereof demonstrates that it stands
mentioned in it that in exercise of powers conferred under Rule 9
read with Rule 3 of the Himachal Pradesh Civil Services
(Category/Post wise Revised Pay Rules, 2012), Governor of
Himachal Pradesh was pleased to henceforth substitute the words
and figures appearing against Sr. No. 3 under Heading 15 Home
Department of the Schedule appended to Rules ibid, notified vide
Department's Notification of even number dated 28th September,
2012 as mentioned therein.
20. Now, by way of this notification, an incumbent, who
was appointed to the post of Constable, was to get the pay band of
.
`5910-20200+1900 (GP) with initial start of `7810 as entry level
scale and the pay band of `10300-34800+ Grade Pay of `3200
after eight years of regular service. The date of applicability of this
notification was mentioned as 01.01.2015.
21. This notification was subsequently clarified vide
Notification dated 17.06.2016 (Annexure A-9), in which, it was
mentioned that in partial modification of the department's
notification of even number dated 14th January, 2015, the
Governor of Himachal Pradesh was pleased to order that the
provisions contained in this notification would be applicable on or
after 01.01.2015.
22. There is on record a communication dated 02.08.2016
addressed from the office of Director General of Police, Police
Headquarters, Himachal Pradesh, to the Principal Secretary to the
Government of Himachal Pradesh on the subject of revision of pay
band and grade pay of Constables after completion of five years
regular service instead of eight years. A perusal of this
communication demonstrates that it was recommended in the
same that the category of Constables are entitled for pay structure
of `10300-34800+3200 (GP) on completion of eight years of regular
service as per H.P. Government Notification dated 14.01.2015,
whereas the category of Clerks enjoy the revised Grade pay after
completion of two years of service. It was further mentioned in this
.
communication that in terms of policies of the government, the
services of the contractual appointees were being regularized after
completion of 5 years of service as on 31.05.2015 in the pay scale
of `5910-20200+1900 (GP) with initial start of `7810. Clerks after
completion of two years of regular service were being given pay
band of `10300-34800+3200 (GP). The clerks were getting Grade
Pay of `3200/- after completion of total seven years of service,
including the services on contractual basis. Therefore, there was
gap of one year as far as the Constables getting the revised Grade
Pay of `3200/- was concerned. It was further mentioned in this
communication that Constabulary comes under the category of
trained manpower, whose nature of duties is hazardous, risky and
round the clock, therefore, the disparity in pay scale was
irrational. A request was made to re-examine the matter with the
competent authority to reduce the condition of eight years to five
years for the grant of revised pay band of `10300-34800+3200(GP)
as the same would boost the morale of the Constables and result
in more efficiency and effectiveness in discharging their duties.
23. In response thereto, the Director General of Police was
intimated vide communication dated 17.03.2017 (Annexure A-12),
that the matter was examined in consultation with the Finance
Department, which did not accede to the request of the Police
Department. It was further mentioned in the communication that
.
in view of the nature of duties performed by the Police Constables,
they were being appointed on regular basis whereas all other
categories of employees are appointed on contractual basis.
24. There is also on record another communication
addressed by the office of Director General of Police, Himachal
Pradesh, to the Additional Secretary to the Chief Minister,
Himachal Pradesh, dated 16.01.2019, on the subject 'request for
reducing the time of grant of revised pay scale to Police Constables
from eight years to three years'. In this communication, the
Director General of Police has highlighted the need for grant of pay
band of `10300-34800+3200(GP) after completion of three years
regular service of Police Constables taking into consideration the
emergent nature of their service conditions.
25. Now this Court will refer to the judgments relied upon
by learned Counsel for the parties in support of their respective
case.
26. In Randhir Singh Versus Union of India and Others
(1982) 1 SCC 618, Hon'ble Supreme Court of India was dealing
with an issue wherein the petitioner therein who was working as a
Driver Constable in the Delhi Police Force under Delhi
Administration demanded that his pay scale be at least same as
the pay scale of other drivers in the service of Delhi
Administration. Hon'ble Supreme Court in the facts of the case
.
held that construing Articles 14 and 16 in the light of the Preamble
and Article 39(d) of the Constitution of India, the principle of 'equal
pay for equal work' is deducible from those Articles and may be
properly applied to cases of unequal scales of pay based on no
classification or irrational classification though those drawing the
different scales of pay do identical work under the same employer.
27. In Mewa Ram Kanojia Versus All India Institute of
Medical Sciences and Others (1989) 2 SCC 235, Hon'ble
Supreme Court was dealing with the issue of the petitioners
therein who had raised the grievance that Hearing Therapist
though was performing similar duties as that of Speech
Therapists, Senior Physiotherapist etc. yet respondents therein
were practicing discrimination in paying salary to the petitioner in
a lower scale of pay. In the said judgment Hon'ble Supreme Court
again reiterated that though the doctrine of 'Equal pay for equal
work" is not expressly declared a fundamental right under the
Constitution yet the same was applicable when employees holding
the same rank perform similar functions and discharge similar
duties and responsibilities are treated differently. Hon'ble Court
further held that the application of the doctrine would arise where
employees are equal in every respect but they are denied equality
in matters relating to the scale of pay. It held that it was open to
the State to classify employees on the basis of qualifications,
.
duties and responsibilities of the posts concerned and if the
classification had reasonable nexus with the objective sought to be
achieved, efficiency in the administration, the State would be
justified in prescribing different pay scale but if the classification
does not stand the rest of reasonable nexus and the classification
was founded on unreal, and unreasonable basis it would be
violative of Articles 14 and 16 of the Constitution. Hon'ble Court
held that equality must be among the equals and unequal cannot
claim equality.
28. In South Malabar Gramin Bank Versus Coordination
Committee of South Malabar Gramin Bank Employees' Union
and South Malbbar Gramin Bank Officers' Federation and
Others (2001) 4 Supreme Court Cases 101, Hon'ble Supreme
Court has been pleased to hold that as the award passed by the
Justice S. Obul Reddy's Tribunal had become final and award in
question not having been assailed and on the other hand having
been implemented, it was futile attempt on the part of the
employer as well as the Union of India to re-agitate the dispute,
which has already been resolved and has been given effect to and
it would no longer be open, either for the Bank or the Union of
India to raise a contention that in determining the wage structure
for the employees of the Regional Rural Bank, the financial
condition would be a relevant factor.
.
29. In State Bank of India and Another Versus M.R.
Ganesh Babu and Others (2002) 4 SCC 556, Hon'ble Supreme
Court has been pleased to hold that equal pay must depend on the
nature of work done and though functions may be same but the
responsibilities make a difference.
30. In Union of India and Another Versus International
Trading Co. and Another (2003) 5 SCC 437, Hon'ble Supreme
Court has been pleased to hold that Article 14 of the Constitution
applies also to matters of government policy and if policy or any
action of government, fails to satisfy the test of reasonableness, it
would be unconstitutional.
31. In Chairman and MD, NTPC LTD. Versus Reshmi
Constructions, Builders & Contractors (2004) 2 SCC 663,
Hon'ble Supreme Court has been pleaded to hold that necessitas
non habet legem is an age-old maxim which means necessity
knows no law. Hon'ble Court held that a person sometimes have to
succumb to the pressure of the other party to the bargain who is
in a stronger position.
32. In Haryana State Minor Irrigation Tubewells
Corporation and Others Versus G.S. Uppal and Others and
other connected matters (2008) 7 SCC 375, Hon'ble Supreme
Court has been pleaded to hold as under:-
.
"33. The plea of the appellants that the Corporation is
running under losses and it cannot meet the financial
burden on account of revision of scales of pay has been
rejected by the High Court and, in our view, rightly so.
Whatever may be the factual position, there appears to be
no basis for the action of the appellants in denying the
claim of revision of pay scales to the respondents. If the
Government feels that the Corporation is running into
losses, measures of economy, avoidance of frequent
writing off of dues, reduction of posts or repatriating
deputationists may provide the possible solution to the
problem. Be that as it may, such a contention may not be
available to the appellants in the light of the principle
enunciated by this Court in M.M.R. Khan v. Union of India
and Indian Overseas Bank v. Staff Canteen Workers'
Union. However, so long as the posts do exist and are
manned, there appears to be no justification for granting
the respondents a scale of pay lower than that sanctioned
for those employees who are brought on deputation. In
fact, the sequence of events, discussed above, clearly
shows that the employees of the Corporation have been
treated at par with those in Government at the time of
revision of scales of pay on every occasion."
33. In Union of India and Others Versus Atul Shukla and
Others (2014) 10 SCC 432, Hon'ble Supreme Court has been
pleased to hold that when officers are a part of the cadre, their
birthmarks, based on how they joined the cadre is not relevant.
They must be treated equal in all respects including salary and
other benefits.
.
34. Hon'ble Supreme Court in Municipal Corporation of
Delhi versus Surender Singh and Others, (2019) 8 Supreme
Court Cases 67, has been pleased to hold that when a candidate
responds to an advertisement, then if at all if he has any grievance
with regard to a clause contained therein, which according to the
candidate is arbitrary and might affect his right, then, the same is
required to be assailed at the said stage itself. As per the Hon'ble
Supreme Court, otherwise the principle of aprobate and reprobate
would apply and a candidate who participated in the process
cannot be heard to complaint in that regard.
35. Hon'ble Supreme Court in Air Commodore Naveen
Jain versus Union of India, (2019) 10, Supreme Court Cases 34,
has been pleased to hold that a party is stopped to challenge the
policy after participating in the selection process on the basis of
such policy. While holding so, Hon'ble Supreme Court has been
pleased to rely upon its earlier judgment passed in Madan Lal vs.
State of J & K, (1995) 3 SCC 486 and subsequent judgments in
which this principle of estoppel has been followed.
36. In Bhagwat Sharan (Dead Through Legal
Representatives) vs Purushottam and Others, (2020) 6 Supreme
Court Cases 387, Hon'ble Supreme Court, has been pleased to
hold that doctrine of of election is a facet of law of estoppel. A party
cannot blow hot and blow cold at the same time. Any party, which
.
takes advantage of any instrument, must accept all that is
mentioned in the said document. While arriving at the said
conclusion, Hon'ble Supreme Court has referred to treatise
'Equity-A course of lectures' by F.W. Maitland, Cambridge
University, 1947, wherein the learned author described principle of
election in the following terms:-
"The doctrine of Election may be thus stated: That he
who accepts a benefit under a deed or will or other
instrument must adopt the whole contents of that
instrument, must conform to all its provisions and
renounce all rights that are inconsistent with it....''
37. Hon'ble Supreme Court in State of H.P. & Ors. versus
Rajesh Chander Sood etc. etc. 2016 (10 SCC 77, has been
pleased to hold that it is not possible for the Hon'ble Supreme
Court to accept that any Court has the jurisdiction to fasten a
monetary liability on the State Government, unless it emerges from
the rights and liabilities canvassed in the lis itself. Hon'ble
Supreme Court has been further pleased to hold that Budgetary
allocations, are a matter of policy decisions, and in the facts of
that case, as the State Government while promoting '1999
Scheme', felt that the same would be self-financing, as the State
Government never intended to allocate financial resources out of
State funds, to run the pension scheme, therefore, the State
.
Government could not be burdened by the High Court for the
liability, which it never contemplated.
38. Coming to the case in hand, this Court is of the
considered view that as the petitioners participated in the process
of recruitment knowing fully well that they were to serve in the pay
band of `5910-20200+1900 (GP) up to eight years of regular
service in terms of recruitment notice dated 14.01.2015, they
cannot be now permitted to assail the same. Whether or not
Notification dated 14.01.2015, as amended subsequently, is
sustainable in law, cannot be questioned by the petitioners for the
reasons that by participating in the recruitment process, without
any caveat qua the condition of serving in the pay scale of `5910-
20200+1900 (GP) upto eight years of service, they impliedly
consented to this condition, and thus of pay scale acquiescensed
to the same by their act of participation. It is settled law of the
land that if a person participates in a process without
protest/prejudice, then such incumbent cannot assail the process
thereafter. In this case, the condition of serving in the pay scale of
`5910-20200+1900 (GP) up to eight years of service as a condition
of recruitment notice to which the petitioners responded and
participated. It is not in dispute that the petitioners did not lay
challenge to this condition at the time of participating in the
process of recruitment nor they participated in the process subject
.
to their right to assail this condition. This Court is alive to the fact
that bargaining power of the petitioners cannot be equated with
that of mighty State but still the fact remains that it is not as if the
conditions, as were contained in the recruitment notice, to which
the petitioners responded, were subsequently altered to their
disadvantage. Here is a case where the government in its wisdom
issued a Notification vide which, it revised the period of grant of
revised pay band and grade pay to the Constables from two years
service to eight years regular service. This Court has no doubt that
those Constables who stood recruited before issuance of said
Notification and whose right of grant of revised pay band+grade
pay was adversely affected by the Notification, had a right to assail
the same. However, incumbents like the petitioners, who were not
borne in the cadre as on the date when the Notification was
issued, do have any locus to assail it. It is reiterated that pursuant
to the issuance of recruitment notice dated 06.09.2015, it was
open for the petitioners not to respond to the same, in case, they
were not satisfied with the terms and conditions of the
appointment, including the pay scale.
39. The plea of cut-off-date being arbitrary raised by
learned Senior Counsel appearing for the petitioners also does not
comes to their assistance for the following reasons. The
notification vide which the conferment of the higher pay band +
.
grade pay was revised from two years to eight years payable to
Constables, was issued by the Finance Department on
14.01.2015. The recruitment notice to which the petitioners
responded is dated 05.03.2015. Notification dated 14.01.2015 was
modified as being applicable to Constables appointed on or before
01.01.2015 vide Notification dated 17.06.2016. However, fact of
the matter remains that this notification stood issued so as to
protect the interests of Constables upon whom, right of grant of
revised pay band and grade pay had accrued after two years
service in terms of earlier Notification dated 28.09.2012. As far as
the petitioners are concerned, as already mentioned hereinabove,
when the advertisement to which they responded to, was issued,
Notification dated 14.01.2015, in terms whereof revised pay band
and grade pay was payable to the Constables after eight years of
regular service, was already in force. Not only this, in
advertisement dated 05.03.2015 also it was clearly mentioned that
the posts of Constables were in the pay scale of 5910-20200 +
Grade Pay of Rs. 1900/- up to eight years of service in terms of
notification dated 14.01.2015. Therefore, the cut-off-date, as has
been fixed subsequently vide notification dated 17.06.2016, is not
arbitrary, as has been argued by learned Senior Counsel appearing
for the petitioners, for the reason that the classification which has
been made by the department between the Constables appointed
.
before 01.01.2015 and after 01.01.2015 is based on intelligible
differentia because the right of grant of revised pay scale had
already accrued upon the appointees who stood appointed before
01.01.2015 when the same was taken away from them vide
notification dated 14.01.2015.
40. In view of above discussion, the judgments which have
been relied upon by learned Senior Counsel appearing for the
petitioners are also of no assistance to them for the reason that it
is not as if a right, which stood accrued in favour of the
petitioners, has been subsequently arbitrarily taken away. Had
that been the case, then obviously, the judgments relied upon by
learned Senior Counsel appearing for the petitioners, would have
had come to their assistance as this Court is of the considered
view that even on the ground of financial implications, vested
rights cannot be taken away. However, in this case, no vested right
of the petitioners has been taken away. Even as far as the
bargaining power of the parties is concerned, this Court is of the
considered view that as the terms on which the appointment was
being offered to which the petitioners responded were expressly
mentioned in the advertisement itself, therefore, it cannot be said
that the terms contained in the advertisement were dotted lined or
that the petitioners have been forced to accept the conditions of
service against their wish or will because of their diminishing
.
bargaining power as compared to the State.
41. Coming to the communications, which have been
addressed by the Director General of Police, to the State
Government, all that this Court can observe is this that in case the
government, taking into consideration the nature of duties, which
are being performed by the Constables, takes a decision to reduce
the period of regular service entitling the Constables for the revised
pay scale and grade pay, then with regard to decision of the
government, this Court can have no objection. However, this Court
has serious doubt as to whether it can issue a writ of mandamus
directing the State Government to alter this policy decision of
changing the period of regular service to be rendered by a
Constable, for being eligible to receive the revised pay band and
grade pay of `10300-34800+3200 (Grade Pay).
42. Accordingly, in view of the discussion held herein above
as well as law discussed, as the Court does not finds any merit in
this petition, the same is accordingly dismissed.
43. However, it is clarified that though this Court is not
concurring with the prayers of the petitioners, as they stand
spelled out in the writ petition, however, this writ petition is being
closed with the observation that non-grant of the relief to the
petitioners by the Court shall not come in the way of the State
Government, in case, it does intend to revisit the number of years
.
of regular service, which a Constable has to put in after his
appointment for the grant of revised pay scale and grade pay. With
these observations, the petition is ordered to be closed.
The petition stands disposed of in above terms, so also
pending miscellaneous application(s), if any.
October 26, 2021
(narender
r to (Ajay Mohan Goel)
Judge
