Jharkhand High Court

Manga Kachhap vs Union Of India on 7 October, 2021

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P.(S). No. 878 of 2019
                                  ----------

1. Manga Kachhap

2. Brijesh Kumar Yadav

3. Manoj Kumar ......... Petitioners.

Versus

1. Union of India, Department of Home, through Principal Secretary, having its office at Block No. 10, CGO Complex, P.O. + P.S. Lodhi Road, Union Territory, New Delhi.

2. The Border Security Force through DGP, BSF, having its office at CGO Complex, P.O. + P.S. Lodhi Road, Union Territory, New Delhi.

3. The State of Jharkhand, through Home Department, through Principal Secretary, having its office at Nepal House, P.O. + P.S. Doranda, District Ranchi.

4. The Director General of Police, Govt. of Jharkhand, having its office at Police Headquarters, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi.

5. The Inspector General of Police, Govt. of Jharkhand, having its office at Police Headquarters, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi.

6. State of Jharkhand, through the Finance Department, through the Principal Secretary, having its office at Nepal House, P.O. + P.S. Doranda, District Ranchi.

7. The Principal Account General, having its office at Project Bhawan, P.O. + P.S. Sadar, District Ranchi.

                                                ..........         Respondents.
                                     With
                          W.P.(S). No. 5867 of 2019
                                  ----------
1.   Dubraj Hembram
2.   Mritunjay Kumar
3.   Dhananjay Kumar Sahu
4.   Kumar Gyanendra
5.   Samir Mahto
6.   Ramakant Upadhyay
                                                .........          Petitioners.
                                  Versus
1. The State of Jharkhand.

2. The Secretary, State of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.

3. The Home Secretary, Govt. of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.

4. The Director General of Police, Jharkhand, Police House, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand.

                                                ..........          Respondents.




                                             ----------
                   CORAM:             THE HON'BLE MR. JUSTICE DR. S.N.PATHAK


                   For the Petitioners:       Mr. R.S. Mazumdar, Sr. Advocate
                                              (in W.P.S. No. 878 of 2019)
                                              Mr. Rajeev Kumar, Advocate
                                              (in W.P.S. No. 5867 of 2019)
                   For the State      :       Mr. Sachin Kumar, AAG
                   For the UoI        :       Mr. Prabhat Kumar Sinha, Advocate
                   For the A.G.       :       Mr. Sudarshan Shrivastava, Advocate
                                                    -----------
12/ 07.10.2021 Heard the parties.

2. Since identical issues are involved in both these writ applications, they are being heard together and disposed of by this common order. Prayer:

3. Petitioners, who are working in STF, a separate wing of the Jharkhand Police, are claiming STF Allowances to the tune of 50% of their Basic Pay as per 7th PRC, on the basis of policy decision of the State Government and terms and conditions mentioned in the advertisement for appointment of STF Personnel, which the petitioners were getting earlier, but after sometime the same was stopped on the ground that matter has been referred to a Committee for taking a fresh policy decision regarding payment of STF Allowances. Factual Matrix:

4. The facts of the case lies in a narrow compass. The petitioners in W.P.(S). No. 878 of 2019 were working in Border Security Force as Deputy Commandants and Assistant Commandants. It is the case of the petitioners that Jharkhand Police had invited applications from Assistant Commandants and Deputy Commandants to join the Jharkhand Jagaur Assault Group on deputation. One of the most important features of the said post was that the appointees of the said post will get STF Allowance to the extent of 50% of the basic pay and it was further stated that the Govt. of Jharkhand shall be responsible for providing them with all facilities and allowances which was available to all AC's. The petitioners accordingly submitted their willingness to join Jharkhand Jaguar Assault Group (STF) and were accordingly appointed vide office order dated 10.07.2017 on deputation basis.

5. Similarly, petitioners of W.P.S. No. 5867 of 2019 have also joined Jharkhand Jaguar Assault Group (STF) with the condition that they will get additional 50% of their basic pay as STF Allowances.

6. It is the further case of the petitioners of both the writ petitions that after their joining, they were getting the said allowances till the implementation of 7th PRC, however, after implementation of the 7th PRC a meager amount under the head of STF allowances is being paid to the petitioners. Aggrieved by the same, the petitioners represented before the Director General of Police, Jharkhand, Ranchi through proper channel on 16.05.2018 and requested for personal hearing to express their grievances relating to non-payment of STF Allowance @ 50% of their basic pay. In response to their application, on 29.05.2018, the petitioners were called by the Director General of Police to listen to their grievances and they were assured that their problems will be sorted out at the earliest. However, inspite of assurance, when the grievances of the petitioners were not redressed, they represented before the Home Secretary, Govt. of Jharkhand on 31.08.2018 requesting therein to extend the benefits of STF Allowances as per the applicable rules. However, till date the respondents have not acted on the representations and requests of the petitioner and the grievances of the petitioner with respect to non- payment of STF allowance @ 50% of their basic pay in 7th PRC still remained unresolved.

7. Hence, the petitioners have been constrained to knock the door of this Court for redressal of their grievances.

Arguments Advanced by learned counsel for the petitioners:

8. Mr. R.S. Mazumdar, learned senior counsel and Mr. Rajeev Kumar, learned counsel appearing for the petitioners jointly submits that the action on the part of the concerned-respondents is illegal, arbitrary and violative of fundamental rights of the petitioners. Learned counsel further argues that the respondents have denied to pay 50% of basic pay as STF Allowances (Jharkhand Jaguar Allowance) as per the conditions of appointment due to which, the petitioners are suffering huge financial loss. Learned counsel further argues that the conduct of the concerned respondents whereby they have not released STF Allowances to the extent of 50% of Basic Pay is sans probity in administration and good governance. Learned counsel accordingly submits that a direction be given to the respondents to extend the benefits of STF Allowance as per the conditions of appointment.

9. Mr. Rajeev Kumar, learned counsel appearing for the petitioners in W.P.S. No. 5867 of 2019, further argues that upto 01.05.2019 petitioners were getting STF allowance as per 7th PRC and thereafter, it has been stopped on the ground

that the matter is pending before the Cabinet and whatever decision is taken by the Cabinet, the same will be extended to the petitioners.

Arguments advanced by learned counsel for the respondents:

10. Per contra counter-affidavit has been filed.

11. Mr. Sachin Kumar, learned Additional Advocate General learned counsel appearing for the respondent-State vehemently opposes the contention of learned counsel for the petitioners and argues that since the State of Jharkhand has been facing problems of naxalism and in order to eradicate naxal activities Jharkhand Jaguar (STF) was constituted and as many as 1989 posts were sanctioned vide order dated 19.02.2008, whereby STF allowance @ 50% of basic pay and other allowances were sanctioned to be paid to the officers/ personnel deputed in STF. Thereafter, again 2025 posts were created vide order dated 22.10.2009. Learned counsel further argues that the officers and personnel deputed in STF were getting their salary plus 50% of basic pay towards STF Allowance and other allowances as applicable by virtue of order dated 19.02.2008 on the basis of 6th PRC. However, after implementation of 7th PRC, there has been an unexpected hike in basic pay and pay level has been changed and increased upto level 17 from level 01 in comparison to that of the basic pay recommended in the 6th PRC and as such, it has become necessary to determine afresh the quantum of STF allowance that will be admissible after introduction of new pay-scale. Learned counsel further argues that in this regard, a six members committee has been constituted vide order dated 01.03.2019 to determine afresh the quantum of STF allowance admissible after implementation of 7th PRC. Learned counsel further argues that till any decision is taken in this regard, all the personnel and officers of the STF who were eligible to draw the STF allowance, have been permitted to draw it at the rates applicable in 6th PRC which they are getting continuously. Learned counsel very fairly submits that now the committee has submitted its report and the matter is pending before the Cabinet and whatever decision is taken by the Cabinet, the same shall be extended to the Officers and Personnel of the STF.

12. To strengthen his arguments, learned counsel for the respondent-State places heavy reliance on the following judgments:

(I) Union of India & Anr. Vs. Manu Dev Arya [(2004) 5 SCC 232]; (II) Kishan Prakash Sharma & Ors. Vs. Union of India & Ors. [(2001) 5 SCC 212]; & (III) Process Technicians and Analysts' Union Vs. Union of India & Ors.

[(1997) 10 SCC 142].

13. Mr. Sudarshan Shrivastava, learned counsel appearing for the Accountant General submits that claims pertaining to payment of STF allowances to the extent of 50% of basic pay as per 7th PRC is concerned, the same has to be decided by the State Government and the office of the Accountant General has no role in this respect. Learned counsel further argues that at present, the petitioners are getting the STF allowance @ 50% of Basic Pay as per the 6th PRC and not as per the 7th PRC.

Findings of the Court:

14. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that cases of the petitioners need consideration. Admittedly, the petitioners were appointed in STF with certain terms and conditions. It was specifically stipulated in the terms and conditions of the appointment that the appointees of the said post will get STF allowance to the extent of 50% of the basic pay and it was clarified that the Govt. of Jharkhand shall be responsible for providing them with all facilities and allowances, which was available to all the ACs. Accepting the said terms and conditions, the petitioners showed their willingness and accordingly, they were appointed by the respondent-authorities on deputation basis. After their joining, they were getting the STF allowances till coming into force of 7th PRC.

15. Before coming to a finding as to whether petitioners are entitled for 50% of the basic pay as STF allowance which they were getting as per the terms and conditions of the appointment and whether the State is empowered to reduce the same to maintain pay parity with the other wings of the Police Department and other Employees of the State, the terms and conditions mentioned in the appointment of STF has to be looked into.

16. The petitioners who are members of the Police Force in STF Organization, were assured of getting 50% of the basic pay as per the terms and conditions which they gladly accepted. At this juncture, whether it is permissible to change the terms and conditions of the appointment which includes 50% of the basic pay as STF Allowance. The Special Task Force (in short 'STF') which has been constituted parallel to Green Hunt of Andhra Pradesh to combat Naxal activities in the State of Jharkhand, cannot be equated with the other wings of the Police Force and other Employees of the State. The question of pay parity and equity does not arise. The petitioners have joined the Special Task Force on the basis of

legitimate expectation on being assured for payment of 50% of the basic pay as STF Allowance as per the terms and conditions of their appointment which they gladly accepted. The instant case is not only a case of legitimate expectation rather it is a case of protectable interest.

The Hon'ble Patna High Court in case of Tritiya Snatak Astar Pratiyogita Chainit Sangh Vs. State of Bihar, reported in [1997 (2) PLJR 539], has held that:

27. This doctrine of legitimate expectation is actually a facet of the principle of legal certainty and predictability in the matters of governmental dealing with the public. This doctrine is founded upon the basic principle of fairness which prevents that an expectation which is legitimate in a dealing between the members of the public and the governmental institution, should not be thwarted. The instant case is not one of legitimate expectation only. The petitioner is entitled to contend that they have a protectable interest arising out of the final publication of result. This is much stronger than mere legitimate expectation. When a candidate appears in an examination for his employment, there is much at stake. His/her future career is largely dependent on the result. Here in this case the candidates had appeared in the preliminary test and succeeded in it. Thereafter they appeared in the final examination and cleared it and their results have been published. Therefore, they have a protectable interest which is virtually in the nature of a right to have their names recommended on the basis of final result. They cannot be deprived of the said right unless the authority depriving them of the said right can point out clearly some legal authority in its favour which permits it to deprive the petitioners of their right which flows from the publication of the result. In the instant case no such authority in law has been pointed out by the learned counsel for the Commission nor any such right exists in law. On the other hand the said gazette notification points to the contrary."

17. Normally in case of legitimate expectation, the Court will not interfere on ground of procedural fairness and natural justice but since the report has already been implemented without approval of the Cabinet, the act of the respondents in not making the payment of STF Allowance as per the terms and conditions of appointment is dehors the rules.

18. On a query made by this Court, the Principle Secretary of the Home Department, Govt. of Jharkhand appeared and apprise this Court that already a report has been prepared regarding the entitlement of the STF Allowance and the same is pending for final approval before the Cabinet.

19. This Court is of the view that since the report of the Committee has not yet been approved by the Cabinet, the same cannot be given a force of law. It can only be implemented and executed after its approval by the Cabinet.

20. The reliance of the respondents on the judgment of Union of India & Anr. Vs. Manu Dev Arya [(2004) 5 SCC 232] and that of Punjab Communications Ltd. Vs. Union of India & Ors. [(1999) 4 SCC 727] does not come to their rescue.

In case of Union of India & Anr. Vs. Manu Dev Arya (supra), where Homeopathy Doctors claimed non-practicing allowance as a matter of right, the Hon'ble Apex Court held that they cannot be equated with Allopathic Physicians as they form distinct and separate class from Research Assistance of Homeopathy.

In the instant case also, the petitioners are appointed on the basis of certain terms and conditions and as such, they were fully entitled to get emoluments as per the specific stipulation in the appointment letters and the terms and conditions of the appointment.

There is no quarrel to the ratio laid down in the case of Punjab Communications Ltd. Vs. Union of India & Ors. [(1999) 4 SCC 727], wherein the Hon'ble Apex Court has held that:

"27. The basic principles in this branch relating to `legitimate expectation' were enunciated by Lord Diplock in Council of Civil Service Unions vs. Minister of the Civil Service 1985 AC 374 (408-409). It was observed in that case that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either

(i) he had in the past been permitted by the decision- maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or

(ii) he has received assurance from the decision- maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same could be enforced. In the above case, Lord Fraser accepted that the civil servants had a legitimate expectation that they would be consulted before their trade

union membership was withdrawn because prior consultation in the past was the standard practice whenever conditions of service were significantly altered. Lord Diplock went a little further, when he said that they had a legitimate expectation that they would continue to enjoy the benefits of the trade union membership. The interest in regard to which a legitimate expectation could be had must be one which was protectable. An expectation could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambigious. It could be a representation to the individual or generally to a class of persons."

However, the decision maker can normally be compelled to give effect to their representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way.

21. The petitioners are entitled for the STF Allowance as per the terms and conditions of their appointment with arrears of salary, if not paid till date, with all consequential benefits. The same cannot be stopped on the ground that a report has been prepared and sent for approval, inasmuch as the said report has the force of law only after its approval by the Cabinet. However, the State is at liberty to take decision, in accordance with law, after approval of the report by the Cabinet.