Himachal Pradesh High Court
Baldev Krishan Harish vs Union Of India And Another on 2 January, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 7083 of 2011
Decided on January 2, 2017
Baldev Krishan Harish ................Petitioner
Versus
.
Union of India and another ..........Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?
of
For the petitioner : Mr. Radhey ShyamGautam, Advocate.
For the respondents : Mr. Ashok Sharma, Assistant Solicitor General
of India with Mr. Angrez Kapoor, Advocate.
rt
Sandeep Sharma, Judge (Oral):
By way of instant petition under Article 226 of the Constitution of India, petitioner has sought following main relief(s):
"i) That the impugned order dated 31.06.2011 (Annexure P-10) may be quashed and set aside while issuing writ of certiorari.
ii) That the respondents may be directed to upgrade the post of the petitioner to the level of Assistant Commandant(Office) w.e.f. 12.12.2001 as per letter/notification dated 12.12.2001 (Annexure P-2) while issuing writ of mandamus.
iii) That the respondents may be directed to pay arrears of upgraded post of Assistant Commandant to the petitioner alongwith interest @ 9% after allowing upgradation of his post of Joint Assistant Commandant to the level of Assistant Commandant w.e.f. 12.12.2001 and allow all consequential benefits including fixation of pension on the basis of the pay scale of Assistant Commandant i.e. Rs.8000-13,500."::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 2
2. Briefly stated the facts of the case as emerge from the record are that the petitioner was appointed as Sub Inspector (Accounts) on 14.3.1996 at Basic Training Centre, Karera (Madhya Pradesh). Petitioner .
was allotted regimental No. 669970018 in the Indo-Tibetan Border Police (for short, 'ITBP'). Subsequent to aforesaid appointment, petitioner served at different places in the country prior to his superannuation on 30.4.2002, after putting in thirty six years one month and seventeen days of service with the ITBP. Petitioner, though was promoted as Inspector on 3.3.1979 but was kept in the separate cadre of Combatised Ministerial rt Cadre. Petitioner was further promoted to the post of Joint Assistant Commandant(Office) on 5.11.1990, which was in the pay scale of Rs.6500-10500. Vide a communication dated 12.12.2001 (Annexure P-
2), Ministry of Home Affairs, Government of India, conveyed sanction of the President for creation of 562 posts and abolition of 720 posts in ITBP.
Vide aforesaid order, 12 posts of Joint Assistant Commandant(Office) in the pay scale of Rs.6500-10500 were upgraded/created as Assistant Commandant(Office), in the higher pay scale of Rs.8000-13500. Since, after abolition of aforesaid posts of Joint Assistant Commandant(Office), against which petitioner was working, respondents were supposed to implement the decision as contained in the aforesaid order and grant all consequential benefits of the post of Assistant Commandant(Office) to the petitioner with effect from 12.12.2001, petitioner submitted a detailed ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 3 representation through proper channel, on 1.2.2002 (Annexure P-3), to the Director-General, ITBP, requesting therein to issue order regarding elevation to the rank of Assistant Commandant(Office) with effect from .
12.12.2001. Since no response whatsoever was received by the petitioner, he was compelled to send a legal notice dated 17.11.2008 (Annexure P-
4), calling upon the authorities concerned to pay arrears of upgraded post of Assistant Commandant(Office), to the petitioner after giving of upgradation with effect from 12.12.2001, with all consequential benefits in terms of decision taken by the Government of India vide letter dated rt 12.12.2001. Perusal of annexure P-5 i.e. communication sent by the All India Central Para-Military Forces Ex-servicemen Welfare Association, (in short, 'Association'), also suggests that the case of the petitioner for upgradation of the post of Joint Assistant Commandant(Office) to that of Assistant Commandant(Office) was also recommended by the Association. Office of the Directorate General, ITBP New Delhi, vide communication dated 15.6.2010 (Annexure P-6), sent reply to the aforesaid Association, intimating therein that the case of the petitioner for grant of 2nd financial upgradation under ACP Scheme in terms of DoP&T instructions on the subject was considered alongwith others by the Screening Committee of ITBP on 16.8.2000 but he did not fulfill eligibility conditions prescribed in the R&P Rules, which were mandatory for promotion/grant of ACP. Vide aforesaid communication, authorities ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 4 informed that petitioner was not recommended for grant of financial upgradation in the pay scale of Rs.8000-13500, by the Screening Committee, duly approved by the competent authority in Ministry of .
Home Affairs.
3. It also emerges from the record that subsequent to passing of aforesaid order, Directorate General, ITBP, vide order dated 6.10.2010 (Annexure P-7), upgraded the post of Joint Assistant of Commandant(Office) to the level of Assistant Commandant(Office) in the pay scale of Rs.8000-275-13500, with effect from 12.12.2001, in terms of rt decision taken by Ministry of Home Affairs vide letter dated 12.12.2001.
Accordingly, in view of aforesaid order, petitioner, who had retired from the service on 30.4.2002, was also granted notional benefit of upgradation to the level of Assistant Commandant(Office) from 12.12.2001 in the pay scale of Rs.8000-275-13500. Contents of Annexure P-7 are reproduced herein below:
"Consequent upon up gradation of the post of Joint Assistant Commandant(Office) to the level of Assistant Commandant(Office) in the pay scale of Rs.800-275-13,500/- w.e.f. 12-12-2001, vide MHA letter No.II_27011/24/99/PF-II dated 12-12-2001 circulated vide Directorate General Office Order No. K-11015/3/96-Org(Vol- III)-53 dated 22-1-2002, Shri B.K. Harish, Ex. JAC(O) who has since retired from service on superannuation w.e.f. 30-4-2002, stand notionally upgraded to the level of AC(Office) w.e.f. 12-12-
2001 in the pay scale of Rs.8000-275-13,500/-"
4. ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 5
5. Vide order dated 24.5.2011 (Annexure P-9), ITBP re-fixed pay of the present petitioner, on his notional upgradation to the level of Assistant Commandant(Office). The contents of Annexure P-9, are .
reproduced as under:
"Consequent upon notional upgradation to the level of Assistant Commandant(Office) in the pay scale of Rs.8000-275-13500/- p.m. w.e.f. 12.12.2001 in respect of No.669970018 Shri B.K. Harish, then then Jt. AC(O), SHQ(KMN) (retired on superannuation w.e.f. 30.04.2002/AN) vide SAO(Pers) Directorate General ITBP Order No. I-53013/1/90-Pers-I-2041 dtd 06-10-2010, the pay of the of officer is re-fixed (Notionally) as under on notional upgradation to the level of AC(Office): -
Regtl.
No./Rank/Name
rt Revised Pay fixation
Old Pay w.e.f. 01.03.2001 = Rs.9700/-
No. 669970018 Shri in the pay scale of Rs. 6500-200- B.k. Harish, Jt. AC(O), 10500/- SHQ (KMN) Upgraded (Notionally) as AC(O) w.e.f.
Upgraded to the level 12.12.2001 of AC(O) notionally w.e.f. 12.12.2001 Pay fixed Notionally as Rs.9925/- wef 12.12.2001 to 28.02.2002 in the pay scale of Rs.8000-275-13500/- and Pay Superannuation re-fixed (Notionally) on option basis retirement w.e.f. from date of AGI i.e. 01-03-2002 as 30.04.2002 (AN) Rs.10475/- in the pay scale of Rs.8000-
275-13500/-
Superannuation retirement w.e.f.
30.04.2002 (AN)
2. The office will continue to draw the pay as he Is drawing uptil 30.04.2002 (AN) i.e. the date of his retirement and on upgradation to the level of AC(Office), his pay is fixed notionally."
::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 66. However, vide order dated 13.6.2011 (Annexure P-10), respondents cancelled order dated 6.10.2010, regarding upgradation of petitioner, Ex. Joint Assistant Commandant(Office) to the post of .
Assistant Commandant(Office), in the pay scale of Rs.8000-275-13500.
In the aforesaid background, petitioner being aggrieved with the cancellation of order dated 6.10.2010, whereby post of Joint Assistant Commandant(Office) was ordered to be upgraded to that of Assistant of Commandant(Office), in the pay scale of Rs.8000-275-13500/- with effect from 12.12.2001, preferred instant petition seeking reliefs as have rt been reproduced above.
7. Mr. Radhey Shyam Gautam, learned counsel representing the petitioner, vehemently argued that order dated 13.6.2011 passed by the respondents is not sustainable because no reason whatsoever has been assigned in the same, while canceling order of upgradation issued in favour of the petitioner on 6.10.2010 and as such same can not be allowed to sustain. Mr. Gautam while inviting attention of this Court to annexure P-2 dated 12.12.2001, vehemently argued that posts of Joint Assistant Commandant(Office) were abolished and same were upgraded to the posts of Assistant Commandant(Office) in the higher pay scale of Rs.8000-13500/-. He further contended that as per clause 5 of the letter dated 12.12.2001, decision of creation/abolition of the posts was with immediate effect, meaning thereby that petitioner automatically stood ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 7 upgraded to the post of Assistant Commandant(Office) on 12.12.2001 and as such became entitled for the benefit of upgraded post with effect from 12.12.2001 itself. Mr. Gautam further contended that benefit, which was .
extended to the petitioner vide order dated 6.10.2010, was in fact to be allowed w.e.f. 12.12.2001 on which date, post of Joint Assistant Commandant(Office) was upgraded to the post of Assistant Commandant(Office). Mr. Gautam, further contended that even the of decision as contained in order dated 6.10.2010 (annexure P-7) whereby petitioner was granted benefit of upgradation on notional basis, was not rt sustainable because, for all intents and purposes, petitioner stood upgraded to the post of Assistant Commandant(Office) with effect from 12.12.2001 and as such he was entitled to the benefits of post of Assistant Commandant(Office) with effect from 12.12.2001. While inviting attention of this Court to annexure P-10 dated 13.6.2011, Mr. Gautam contended that since no reasons, whatsoever, have been assigned by the authorities concerned while canceling benefit of upgradation granted in favour of the petitioner, and as such, same is not sustainable in the eyes of law and deserves to be set aside.
8. Mr. Ashok Sharma, learned Assistant Solicitor General of India duly assisted by Mr. Angrez Kapoor, supported the decision of the respondents. Mr. Sharma contended that no injustice has been caused to the petitioner in the matter of upgradation to the rank of Assistant ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 8 Commandant(Office) during his service because R&P Rules for the post of Assistant Commandant(Office) were notified only on 8.7.2002, whereas, petitioner stood retired from service on 30.4.2002 and as such .
no benefit could be granted to the petitioner in terms of decision taken by the Government vide order dated 12.12.2001. Mr. Sharma, further contended that Ministry of Home Affairs conveyed sanction of the President for abolition of 12 posts of Joint Assistant Commandant(Office) of (Group B Gazetted) and upgradation to Assistant Commandant(Office) (Group A in the pay scale of Rs.8000-13500) vide letter dated rt 12.12.2001, but Recruitment and Promotion Rules for the post of Assistant Commandant(Office) were notified only on 8.7.2002. Mr. Sharma, further contended that prior to 12.12.2001, no post of Assistant Commandant(Office) was existing/sanctioned in ITBP and as such decision of Ministry of Home Affairs, could not be implemented on the date of its issuance i.e. 12.12.2001, rather, aforesaid decision of Ministry of Home Affairs could only be implemented after notification of Recruitment and Promotion Rules for the post of Assistant Commandant(Office), which were notified only on 8.7.2002. While concluding his arguments, Mr. Sharma, contended that since on 30.4.2002, petitioner stood superannuated from service, and at that time, no Recruitment and Promotion Rules for the post of Assistant Commandant(Office) were in existence, relief as prayed for by him, could ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 9 not be extended to him. While referring to Annexure P-9, Mr. Sharma, contended that there is no illegality or infirmity in the same because earlier order dated 6.10.2010 was issued by Directorate General .
upgrading petitioner to the level of Assistant Commandant(Office) with effect from 12.12.2001 in the pay scale of Rs.8000-13500, in anticipation of permission from Ministry of Home Affairs but consequently, Ministry of Home Affairs did not agree to the proposal and accordingly, order of dated 6.10.2010 was cancelled vide order dated 13.6.2011.
9. I have heard the learned counsel for the parties and gone through the record.
rt
10. Perusal of Annexure P-2 clearly suggests that vide order dated 12.12.2001, Ministry of Home Affairs decided to create 562 posts and abolished 720 posts in ITBP, as per detail given in annexure I annexed to letter dated 12.12.2001. Detail given in annexure further depicts that posts of Joint Assistant Commandant(Office) were abolished.
Clause 5 of the letter further suggests that creation/abolition of posts, as referred to above, was to be with immediate effect, meaning thereby that persons who were working as Joint Assistant Commandant(Office) at the relevant time, were to be upgraded to the next higher level of Assistant Commandant(Office) immediately after issuance of letter dated 12.12.2001. Annexure enclosed with the aforesaid letter dated 12.12.2001 also suggests that while taking decision of creation/abolition of posts in ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 10 ITBP, respondents also decided to create 27 posts of Assistant Commandant(Office). Moreover, perusal of order dated 6.10.2010 (Annexure P-7) clearly suggests that posts of Joint Assistant .
Commandant(Office) after issuance of order dated 12.12.2001 were to be upgraded to the level of Assistant Commandant(Office) in the pay scale of Rs.8000-275-13500/-, because, vide aforesaid order, respondents upgraded present petitioner to the post of Assistant Commandant(Office), of and he was notionally upgraded to the level of Assistant Commandant(Office) with effect from 12.12.2001 in the pay scale of rt Rs.8000-275-13500. Apart from above, respondents vide order dated 24.5.2011 (Annexure P-9) re-fixed pay of the petitioner notionally on upgradation to the level of Assistant Commandant(Office) in terms of order dated 12.12.2001. Hence, in view of above, it can be safely concluded that, after abolition of posts of Joint Assistant Commandant(Office), petitioner alongwith other similarly situate persons, was to be upgraded to the post of Assistant Commandant(Office) and was accordingly upgraded to the post of Assistant Commandant(Office) in the pay scale of Rs.8000-275-13500 vide letter dated 6.10.2010 with effect from 12.12.2001.
11. This Court, after carefully perusing annexure P-2 dated 12.12.2001, sees substantial force in the arguments having been advanced by the counsel representing the petitioner that petitioner was to be ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 11 upgraded to the post of Assistant Commandant(Office) in the pay scale of Rs.8000-275-13500/- with effect from 12.12.2001 because it has been specifically stipulated in order dated 12.12.2001 that creation/abolition .
of posts will be with immediate effect, meaning thereby that upgradation, if any, in terms of aforesaid order, was to be granted from the date of issuance of aforesaid letter, when such decision was taken. Though, perusal of annexure P-7 and annexure P-9 suggests that in terms of order of dated 12.12.2001, decision to upgrade posts of Joint Assistant Commandant(Office) to the level of Assistant Commandant(Office) in the rt pay scale of Rs.8000-275-13500 with effect from 12.12.2001 was taken by the authorities but no actual benefits were released to the petitioner, rather he was upgraded notionally to the level of Assistant Commandant(Office) with effect from 12.12.2001 in the aforesaid pay scale, which action of the respondents is not accordance with the decision taken by the Government vide letter dated 12.12.2001, wherein it was resolved that creation/abolition of posts will be with immediate effect.
When posts of Joint Assistant Commandant(Office) ceased to exist in ITBP, after issuance of order dated 12.12.2001, it is not understood that why petitioner was not given actual benefits of post of Assistant Commandant(Office) with effect from 12.12.2001. At the cost of repetition, it may be noted that factum with regard to entitlement of petitioner to the post of Assistant Commandant(Office), after issuance of ::: Downloaded on - 15/04/2017 21:51:07 :::HCHP 12 letter dated 12.12.2001 stood duly established on record with the issuance of letter dated 6.10.2010, when authorities concerned upgraded the petitioner to the post of Assistant Commandant(Office), in the pay scale .
of Rs.8000-275-13500/- with effect from 12.12.2001, notionally, meaning thereby, after abolition of post of Joint Assistant Commandant(Office), petitioner was to be upgraded to the post of Assistant Commandant(Office) and as such this Court sees no reason for denying of actual benefits attached to the post of Assistant Commandant(Office) at the time of issuance of letter dated 12.12.2001, pursuant to which, rt petitioner was upgraded to the post of Assistant Commandant(Office).
12. Similarly, perusal of order dated 13.6.2011, passed by the Deputy Inspector General (Pers.), office of Directorate General, ITBP, nowhere discloses reason, if any, for withdrawing benefit of upgradation of post granted to the petitioner vide order dated 6.10.2010. Vide order dated 13.6.2011, respondents have cancelled earlier order dated 6.10.2010 without assigning any reason for doing so. Perusal of order dated 13.6.2011 clearly suggests that same is without application of mind and petitioner has been deprived of legitimate benefit, which accrued to him with the passing of order dated 12.12.2001. Only explanation rendered by the respondents in their reply that order dated 6.10.2010 was issued by Directorate, upgrading petitioner to the post of Assistant Commandant(Office) with effect from 12.12.2001, in the pay scale of ::: Downloaded on - 15/04/2017 21:51:08 :::HCHP 13 Rs.8000-275-13500 in anticipation of concurrence of Ministry of Home Affairs, is not tenable in light of specific decision having been taken by Ministry of Home Affairs in communication dated 12.12.2001 i.e. .
Annexure P-2. Once Ministry of Home Affairs, vide communication dated 12.12.2001, had decided to create and abolish certain posts in ITBP, with immediate effect, it is not understood how benefit of upgradation granted to the petitioner in light of same could be withdrawn by the of authorities vide subsequent letter dated 13.6.2011, that too, without assigning any reason. Moreover, this Court was unable to lay its hand on rt any document placed on record by respondents suggestive of the fact that that order dated 12.12.2001 (Annexure P-2) issued by Ministry of Home Affairs was ever cancelled/withdrawn by the authorities.
13. Hence, this Court has no hesitation to conclude that petitioner, who, at the time of issuance of order dated 12.12.2001 was working as Joint Assistant Commandant(Office), was upgraded to the post of Assistant Commandant(Office) in the pay scale of Rs.8000-275- 13500 with immediate effect i.e. 12.12.2001, for all intents and purposes, and, by no stretch of imagination, he could only be granted notional benefit, as has been done in the present case. Another contention having been raised by the respondents regarding notification of Recruitment and Promotion Rules of the post of Assistant Commandant(Office) also deserves to be rejected because, as has been observed above, that Joint ::: Downloaded on - 15/04/2017 21:51:08 :::HCHP 14 Assistant Commandant(Office) working in the ITBP on 12.12.2001 were to be upgraded to the level of Assistant Commandant(Office) with immediate effect and as such benefit legitimately accrued to them in .
terms of aforesaid letter, can not be allowed to be defeated on the pretext of notification of Recruitment and Promotion Rules for the post of Assistant Commandant(Office), which came be to be notified on 8.7.2002. Once post of Joint Assistant Commandant(Office) stood of abolished with the issuance of order dated 12.12.2001, persons working on the post of Joint Assistant Commandant(Office) were to be upgraded rt to the post of Assistant Commandant(Office) and their fate could not be allowed to hang in air till the time of finalization of Recruitment and Promotion Rules for the post of Assistant Commandant(Office).
14. Consequently, in view of aforesaid discussion, present petition is allowed. Annexure P-10 dated 13.6.2011 is quashed and set aside. Respondents are further directed to grant actual benefit of upgraded post of Assistant Commandant(Office) to the petitioner with effect from 12.12.2001 and petitioner be paid due and admissible benefits from the date of issuance of annexure P-2 i.e. 12.12.2001.
15. Pending applications, if any, are also disposed of.
(Sandeep Sharma) Judge January 2, 2017 (vikrant) ::: Downloaded on - 15/04/2017 21:51:08 :::HCHP