Central Administrative Tribunal - Delhi
P A Rosha vs M/O Home Affairs on 18 July, 2016
Central Administrative Tribunal
Principal Bench, New Delhi
O.A No.1093/2013
Reserved on: 30.05.2016
Pronounced on:18.07.2016
Hon'ble Dr. B.K. Sinha, Member (A)
P.A. Rosha s/o late Dr. J.P. Rosha
R/o A-1/167, Safardjung Enclave
New Delhi-110029. .. Applicant
(By: Shri Yatendra Singh)
Versus
1. Union of India through the Secretary
Ministry of Home Affairs
North Block, New Delhi-110001.
2. State of Haryana through its Chief Secretary
4th Floor, Haryana Civil Secretariat
Sector-1, Chandigarh. ..Respondents
(By Advocate: Shri Rajesh Katyal)
ORDER
The applicant in the instant case is aggrieved with the decision of Govt. of India in not fixing his pension at Rs.8,000/- (fixed) w.e.f. 01.01.1986 and AT Rs.26000 (fixed) w.e.f. 01.01.1996 and w.e.f. 01.01.2006 at Rs.40,000/- (fixed). The applicant by means of this OA, prays for the following reliefs:-
"1. Call for the records of the case.
2. Direct respondents to fix the notional pay of the applicant at Rs.8000/-(fixed) w.e.f. 01/01/1986 and at Rs.26000/-(fixed) w.e.f. 01/01/1996.2
3. Direct that, according to the concordance table, serial No.34, Annexure I, Govt. of India letter No.38/37/08-P&PW(A) dated 14/10/2008, the applicant's notional pay shall be Rs.80000/- (fixed) instead of Rs.75500/- w.e.f. 01./01/2006.
4. Direct the respondents to pay to the applicant the arrears of pension w.e.f. 01/01/1986.
5. Direct the respondents to pay interest @ 18% per annum on the applicant's pension arrears w.e.f. 01/01/1986.
6. Pass any other order or direction, which the Hon'ble Tribunal thinks fit and proper in the facts and circumstances of the case."
2. The case of the applicant in very brief is that he was an IPS Officer of 1948 batch and allocated to the undivided Punjab cadre. He was allocated Haryana cadre consequent to the bifurcation of the State of undivided Punjab and was in 1976 promoted to the rank of Inspector General Police when the post of head of the police was still in the rank of IGP. The applicant served as IGP from 01.03.1974 to 23.06.1977 and on his reversion to the State of Haryana, he served there as IGP from 03.07.1977 to 02.02.1979. From 03.02.1979 till 24.09.1979 the applicant served as Director, National Police Academy, Hyderabad in the rank of Director General. His pay however was fixed at Rs.3250 in the scale of Rs.3000-3250, in view of his seniority, vide Govt. of India notification No.1021021/27/78-Pers.IV dated 24.08.1979. On 25.09.1979, the applicant was appointed as Director General Security in the State of J&K where he served till 3 30.06.1981 which was an ex cadre post created particularly to accommodate him in view of his seniority. At that point of time, the post of Director General did not exist in the State cadre. His pay was fixed at Rs.3250. The applicant has also submitted a certificate to the effect that he would have continued to draw a salary of Rs.3250 as he continued on deputation to the Govt. of India. For the sake of clarity, the extract from the order are as under:-
"It is certified that Shri P.A. Rosha, IPS (Haryana: 1948), at present posted as Director-General Security, Government of Jammu & Kashmir, would have continued to draw a salary of Rs.3250/- p.m. had he continued on deputation to the Government of India and had not been sent on deputation to the Government of Jammu & Kashmir."
3. It is the case of the applicant that both as Director National Police Academy and as Director General of Security J&K, he had held the highest rank and pay then available to the officers of the IPS with the sole exception of Director, Intelligence Bureau. On 30.06.1981, the applicant retired at the age of 58 and his pension was fixed at Rs.1425/- vide PPO dated 01.07.1981 (Annexure 4, page 17 of the paper book). The applicant further submits that his pension was revised w.e.f.01.01.1986 notionally at Rs.7600/-. As per the recommendations of the 5th Pay Commission, his had been equated with the scale of Rs.24050-600-26000 which w.e.f. 01.06.1996. The applicant's notional pay has been accordingly fixed at Rs.24050/-. Came the 6th pay 4 commission, the applicant was in a replacement scale in HAG + scale of Rs.75500-80000 and his notional pay was fixed at Rs.75500/-. Consequent to the recommendations of the 6th Pay commission, the IPS (Pay) Rules were amended. The post of IG and the Director CBI Director General and CRPF were placed in the pay scale of Rs.80,000/- w.e.f.01.01.2006 vide notification dated 27.09.2008 and pay vide existing post of DGP in each State in the scale of Rs.75500-80000 was also converted in the apex pay scale of Rs.80000 fixed. On 20.10.2010, the applicant submitted a representation to the respondents seeking refixation of his pension at Rs.40000/- under the revised IPS(Pay) Rules as admissible to retirees from the posts of Director Generals heading the CPO's and the State Police Forces. The applicant inter alia drew attention of the respondents to the effect that when he was appointed as IGP and had served in the BSF as well as in the State of J&K and Haryana in the scale of Rs.25000-27500 and has been drawing Rs.2750 + Rs.250/- special pay and there were no post of DG. This post has been upgraded during his tenure as Director, NPA. The respondents replied vide their communication dated 11.07.2011 that the apex scale of Rs.80000 had been introduced as a new pay scale after 6th CPC and as such the applicant was not entitled to the same. For the sake of 5 developing greater clarity, the communication of the respondents is being extracted here:-
"1. I am directed to refer to your letter No.'nil' dated 20.10.2010 on the subject mentioned above and to say that the matter has been considered in consultation with Department of Personnel & Training. DoP&T has informed that Apex Scale of Rs.80000 (Fixed) has been introduced as a new pay scale after 6th CPC by upgradation of one existing post of DGP as Head of Police Force in each State Cadre. It is effective from date of notification of the IPS (Pay) Amendment Rules, 2008, i.e., 27.09.2008. It is clear, in terms of the notification dated 27.09.2008, only those officers would be eligible for pension at Rs.40000 pm who retired after 27.09.2008 from the post of DGP (HoPF) in the Apex Scale.
2. Since you have retired on 30.06.1981 from the post of DG Security, J&K the replacement scale of which is HAG+ scale, you are not eligible for pension of Rs.40000 based on the Apex Scale given to the DGP(HoPF)."
4. In the meantime, it came to the knowledge of the applicant that two IPS officers, junior to him, namely, one Nirmal Singh who had retired as DGP (HoPF) in Haryana Cadre in 31.10.2006 and O.P. Bhutani, UP cadre who had retired as DG ITBP on 28.02.1987, had been granted a pension of Rs.40000 in the fixed scale of Rs.80000. Subsequently, the applicant also obtained the file and things in the case of O.P. Bhutani using the mechanism of RTI. It could be seen from the reply that the said O.P. Bhutani had taken over as DG ITBP in 1987 in the scale of Rs.3000- 3250/- and his pay had been fixed at Rs. 3250 as he was senior to DG CPO's who are in the scale of Rs.24050-26000. During his tenure the said O P Bhutani as DG, ITBP, the pay 6 scales of DG heading the CPO were revised as the post of Director General of BSF, CRPF and CISF has been authorized a scale of Rs.80000 fixed whereas the post of DG, ITBP continued to be in the scale of Rs.7600 fixed. Thus, the said OP Bhutani was still drawing the scale of Rs. 7600 (fixed) on 28.02.1987. The corresponding scale in the 5th Pay Commission period being Rs.24050-26000 w.e.f. 01.01.1996 his pension was accordingly fixed at Rs.12250/-. The applicant had also learnt that some other IPS officers who had served as Director General, ITBP had also been granted pay scale of Rs.26000 on personal basis including one Gautam Kaul and S C Chaubey because all other officers of their batch who had been serving in the Govt. of India holding the post of Director General were in the scale of Rs.26000 (fixed). One DVLN Ramakrishna Rao, Director General, ITBP was placed in the higher pay scale of Rs.8000/- as two officers, junior to him had been appointed to the posts carrying pay scales of Rs.8000/-. The claim of the said O P Bhutani for fixing his pension at Rs.40000/- had been accepted by the Respondent No.1 on the ground that officers junior to him and holding the post of Director IB, and DG, CRPF were drawing the same scale as the said OP Bhutani and had been placed in the higher scale of Rs.8000/-. This principle has also been applied to the cases of H P Barari and S D Pandey who were junior to the said O 7 P Bhutani and had been granted a higher pay scale of Rs.8000/- (fixed). The applicant contends that when he had been the Director NPA, all his juniors, namely, Shri S N Mathur (Punjab, 1948) and T V Rajeshwar (Andhra Pradesh, 1949) had been posted as Director IB in the scale of Rs.8000/- (fixed) w.e.f. 01.01.1986, while the applicant's pay was notionally fixed at Rs.7600. The said O P Bhutani, Nirmal Singh (1952 batch), M S Malik (1952 batch) and Vikas (1953 batch) had been granted pension of Rs.40000 though like the applicant, they had retired prior to 27.09.2008. The applicant has also relied upon the case of one J S Bawa, IPS appointed in 1949 who had become Director NPA in the scale of Rs.3250 (fixed) in the rank of Director General in August 1979 and Director CBI in 1980 in an equal rank and pay, has been admittedly junior to the applicant. The applicant seeks parity with all the above mentioned officers.
5. The respondents have filed their counter affidavit rebutting the averments made by the applicant in his OA. While admitting the facts which fall in the factual matrix, the principal argument which has been used by the respondents is that the 6th Pay Commission had recommended a number of significant changes including doing away with the linkage of full pension with 33 years of qualifying service and 8 providing that an employee who has rendered a minimum pensionable service of 20 years would be paid 50% of the average emoluments received during the past 10 months or the pay last drawn, whichever is more beneficial to the retiring employee. The 6th Pay Commission has also drawn a distinction between the pre and post 01.01.2006 pensioners. It has been provided that all past pensioners should be allowed fitment benefits equal to 40% of the pension excluding the effect of merger of 50% dearness allowance/dearness relief as pension in respect of pensioners retiring on or after 01.04.2004 and dearness pension (for other pensioners) respectively. The increase would be allowed by subsuming the effect of conversion of 50% of dearness relief/dearness allowances as dearness pension/dearness pay. Consequently, dearness relief at the rate of 74% on the pension excluding the effect of merger has been reckoned for the purpose of computing revised pension as on 01.01.2006. The respondents contend that this fitment formula is consistent with the fitment benefit being allowed in the case of existing employees subject to the provision that the revised pension, in no case, shall be lower than 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre- revised pay scale from which the pensioner had retired. The above formulation has been accepted by the Govt. with the 9 modification that fixation of pension shall be based on multiplication factor of 1.86, i.e., basic pension + dearness pension (whichever applicable) + dearness relief of 24% as on 01.01.2006.
6. The respondents contend that based upon 2 separate memoranda issued by the Department of Pension and PW, one regarding revision of pension of the past pensioners and the other laying down the manner in which the pension of the Govt. servants retiring post 01.01.2006 period making a reference to 01.09.2008. The respondents have referred to the paragraph 4.1 which is being reproduced in full for a clear understanding of the subject:-
"4.1 The pension/family pension of existing pre-2006 pensioners/family pensioners will be consolidated with effect from 01.01.2006 by adding together:-
"i) The existing pension/family pension
ii) Dearness Pension, where applicable
iii) Dearness relief upto AICPI (IW) average index 536 (Base year 1982=100) i.e. @ 24% of Basic Pension/Basic family pension plus dearness pensions as admissible vide this Department's OM No.42/2/2006-P&PW(G) dated 05.04.2006.
iv) Fitment weightage @ 40% of the existing pension/family pension. Where the existing pension in (i) above includes the effect of merger of 50% of dearness relief w.e.f. 01.04.2004 the existing pension for the purpose of fitment weightage will be re-
calculated after excluding the merged dearness relief of 50% from the pension.
The amount so arrived at will be regarded as consolidated pension/family pension with effect from 01.01.2006."
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7. As regards parity with the said O P Bhutani, the respondents have in their counter affidavit have dismissed the claim of the applicant by stating that the pay/pension of O P Bhutani has been revised as a measure personal to him prior to 2006. His pay was fixed retrospectively at Rs.26000(fixed) (pre-revised) and accordingly his pension was fixed w.e.f. 01.01.2006.
8. The applicant has filed a rejoinder application stating that his application does not dispute the fixation of pension in the HAG scale of Rs.75000-80000. He on the other hand, seeks parity with the said OP Bhutani with whom he is identically placed. As any situation otherwise would be interrogation of Article 14 and 16 of the Constitution. The applicant in his rejoinder application further accuses the respondents of trying to obfuscate the situation by diverting the attention of the Tribunal as if the issue involved is one of fixation. During the course of arguments of oral submissions which have by and large followed the pleadings on the part of both the parties, simply submitted that what holds in the case of said O P Bhutani is also applicable to the applicant who is identically placed with him.
9. I have carefully examined the pleadings of parties along with such documents as have been submitted by them and have also listened to their oral submissions. To simplify the 11 matter, I am also of the opinion that it is not a case of wrong fixation of pension rather it is a case of giving parity to the applicant at par with OP Bhutani, JS Bawa and Nirmal Bawa and many others.
10. In order to adjudicate the matter, I take note of the case of one O.P. Bhutani for parity and give a close look to the noting submitted by the rival parties. I find from the notings that there has been a good deal of seesaw battle amongst the respondents over the case of OP Bhutani. In this regard, I find the noting of the concerned Joint Secretary dated 09.09.2004 summing up the entire issue which is as follows:-
"This file relates to the case of Shri O P Bhutani, former DG, ITBP. During his tenure as DG, ITBP, the scale of pay of the DGs posts were revised and the posts of DG, BSF, CRPF and CISF were authorized scale of Rs.8000/- fixed whereas post of DG, ITBP was kept in the scale of Rs.7600/- fixed. Prior to this, the post of DG, ITBP was in flexible scale of Rs.3000 or Rs. 3250/- and Shri Bhutani was given higher sale of Rs.3250/-. However, on revision, he was given scale of Rs.7600/- as applicable to the post.
At that time, officers junior to Shri Bhutani worked as DG, BSF and CRPF, who were drawing same scale as Shri Bhutani prior to revision of scale but were fixed in higher scale merely because those posts were allowed higher scale in revision and this flexible scales were not allowed in ITBP. This has resulted in a permanent loss in pension to Shri Bhutani.
In my opinion, the case of Shri Bhutani is a fit case to allow him higher pension. Prior to pay revision the posts of BSF, CRPF were carrying scale of Rs.3250/- and the ITBP flexible scale of Rs.3000/- or Rs.3250/-. Shri Bhutani was given higher scale amongst the flexible scale because he was senior and otherwise fit for BSF and CRPF jobs. It was perhaps to avoid dislocation and have continuity in the post in the organizational interest that Shri Bhutani was not changed. Unfortunately, on revision of pay scale he was fixed at a lower scale which appears to be quite 12 unfair to him. Persons drawing equal substantive pay show have been fixed in similar pay scale.
Subsequently, we have allowed officers scale of Rs.26,000/- fixed as personal to them when their juniors are posted in a post carrying scale of Rs.26000/- fixed. Shri Bhutani has prayed that on the same logic, he may be granted scale of Rs.8000/- fixed and subsequently Rs.26000/- fixed for pension purpose as personal to him.
The proposal has merit only on the ground that Shri Bhutani was originally posted against a post of Rs.3250/- in the flexible scale and hence this revision of pay should have been done accordingly, even though the same was on personal basis to him.
It may be admitted that so far we have not given such benefit after retirement to any officer. Perhaps there was no such case. However, natural justice demands that Shri Bhutani may be allowed this benefit of fixing his pay notionally at Rs.8000/- fixed and then at Rs.26000/- fixed for the purpose of fixation of his pension.
IFD may consider and agree.
AS & FACH IFD"
11. Again I find that in the office note of one Shri R K Gupta, Desk Officer dated 03.05.005, the case of the said OP Bhutani has been further buttressed.
12. However, what matters is the final culmination of the order dated 08.11.2005 which is reproduced hereunder in full:-
"To The Secretary Govt. of Uttar Pradesh, Home (Police) Department, Lucknow.
Sub: Fixation of pension in r/o Shri O.P. Bhutani, IPS (UP:52:Rtd.) on the basis of the pay scale of Rs.26000/- (fixed) - regarding.
I am directed to refer to the subject mentioned above and to say that Shri O.P. Bhutani, IPS (UP:52:Rtd.) had submitted a letter dated 31.10.2003 addressed to the 13 Union Home Secretary (copy enclosed) for refixation of his pension. He further represented to the Cabinet Secretary on 26.7.2004 for the same.
2. Shri Bhutani retired as DG, ITBP on 28th February, 1987 and his pension was fixed at Rs.12025/- w.e.f.1.1.1996. His contention is that his pension should be fixed at Rs.13000/- on the basis of the pay scale of Rs.26000/- (fixed) w.e.f. 1.1.96, and not on the basis of pay scale of Rs.24050-650-26000/-.
3. The matter has been considered in consultation with the Department of Personnel & Training and Department of Pensions & Pensioners Welfare. It has been decided that Shri Bhutani may be allowed, as a special case, pension on the basis of pay of Rs.8000/- (fixed) from 1.3.1987 and on the basis of pay of Rs.26000/- (fixed) from 1.1.1996. He would also thus be eligible for higher pay of Rs.8000/- (fixed) from 1.1.1986 till he retired from service on 28.2.1987. Arrears of pay and pension would also be admissible to him on this account. This is being allowed as some of his juniors were drawing pay in the pay scale of Rs.8000/- (fixed) during the relevant point of time.
4. Government of Uttar Pradesh are requested to take further necessary action accordingly for re-fixation of pay and pension of Shri O.P. Bhutani, IPS (Rtd.), under intimation to us.
Yours faithfully, (Y.P. Dhingra) Under Secretary to the Govt. of India."
13. This principle has been well upheld by the Hon'ble Supreme Court and this Tribunal in a series of decisions that what has been provided in terms of succession to junior cannot be denied to a senior officer similarly placed. In Tarsen Singh and Ors. Vs. UOI and Others in OA No. 60/326/2014 decided by order dated 28.01.2015, Manu/CA/0065/2015, the CAT has upheld this principle in the following terms:-
"3. Pursuant to notice the respondents contested the claim of the applicant by filing a detailed reply wherein they 14 have taken two preliminary objections. Firstly, that since the applicants have not approached this Tribunal with clean hands and twisted the facts in a way to prejudice the mind of the court, therefore, the O.A is to be dismissed. Reliance in support of plea has been placed upon the judgment passed by the Hon ble Apex Court in case of Dalip Singh Vs. State of U.P. & Ors. , 2010(2) SCC 114. Secondly, O.A is barred by limitation and may be dismissed on the ground of delay and latches. By way of present O.A, the applicants have challenged the order dated 14.11.2009 by filing the same in year 2014, that is almost after the 5 years, which is not permissible under Section 21 of the Administrative Tribunals Act, 1985, therefore, petition deserves to be dismissed being hopelessly barred by limitation. Reliance in support of the plea is placed upon the judgment passed the Hon ble Apex Court in case of Union of India & Ors. Versus M.K.Sarkar (2010 (2) S.C.C. Page 58). It is also submitted that the applicants tried to confuse the issue by placing reliance upon the part of ACP Scheme and Part of MACP Scheme ignoring the other relevant elements. It is also submitted that as per the MACP Scheme, effective from 01.09.2008, the applicants were granted the 1st Financial Upgradation vide order dated 14.11.2009. As earlier, they were granted the promotion, therefore, they are not entitled for benefit under ACP Scheme as the same was replaced by MACP Scheme w.e.f. 01.09.2008. It is also submitted that since the applicants were getting the G.P of Rs. 1800/- and Rs. 1900/- respectively, therefore, they were granted the next higher grade pay of Rs. 1900 & Rs. 2000/- respectively as per their entitlement. It is also submitted that the order dated 07.10.2004 (Annexure A-
5), upon which the applicants are placing reliance is entirely different as in that case those persons did not get the promotion due to which they got financial upgradation which is not their case. In the present case, since the applicants have got promotion under ACP Scheme, which was in force at that time, and subsequent, on completion of minimum tenure they were granted the first financial upgradation under the MACP Scheme, therefore, the O.A be dismissed.
xxxx xxxx xxxx
6. Sh. Karnail Singh, learned counsel for the applicants vehemently argued that the impugned order dated
14.11.2009 granting the first ACP in the G.P of Rs. 1800/- and of Rs. 1900/- is totally illegal, arbitrary and contrary to the ACP Scheme. Therefore, same is liable to be set aside. To elaborate his arguments, he submitted that the applicants are entitled to be granted the financial upgradation in the grade pay of hierarchy as granted to the similarly situated persons as reflected in Annexure A-
5. He also submitted that this court has already granted similar benefit of financial upgradation in hierarchical grade pay in the case of Raj Pal Vs. U.O.I (O.A No. 1038/CH/2010) as upheld by the Hon ble Supreme Court.
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9. A conjective perusal of the pleadings of parties makes it clear that the applicants were initially appointed as Khalasi/technician and subsequently, were promoted to the posts of technicians grade III in the pay band of Rs. 5200-20200 with grade pay of Rs. 1900/- . Reason behind ACP Scheme, which was made applicable w.e.f. 01.10.1999, was that the persons who were not promoted and were facing stagnation on a particular post were to be granted the financial upgradations. The said scheme was superseded by MACP Scheme which was made applicable from 01.09.2008. It was also clarified by the Railway Board vide its circular dated 28.10.2010 that financial upgradation under the MACP scheme shall be allowed in the immediate next higher pay grade in the hierarchy of recommended revised pay bands as given in Railway Services (Revised Pay) Rules, 2008. The perusal of the MACP Scheme makes it clear that on enforcement of new/modified Scheme, the earlier ACP lost its relevance and the benefits available under the new MACP Scheme were to be extended. The respondents have categorically stated in their reply that the applicants were granted the benefit of 1st MACP vide letter dated 14.11.2009 by placing them in another Grade Pay as per the revised pay structure, since they did not get any promotion. Since, the ACP scheme stood superseded, therefore, the submission of the learned counsels for the applicants that they are to be granted the 2nd financial upgradation that too in the grade of hierarchy, does not arise. After grant of 1st promotion, the applicants became entitled for grant of financial upgradations under MACP on completion of 10, 20 & 30 years of service, therefore, the applicants were granted the 1st Financial upgradation w.e.f. 01.09.2008 that too in next grade pay only, therefore, they cannot lodge a claim which is contrary to the MACP Scheme and Railway Service (Revised pay) Rules, 2008. Accordingly, we do not find any fault with the impugned order. Even the case of the persons, annexed as Annexure A-5 by the applicants, does not help the applicants as in that case, the employees were granted the financial upgradation under ACP Scheme. And the reliance placed by the applicants on case of Raj Pal (supra) is also not applicable to the present case as, there, are specific findings recorded by the court that the post of the applicant, therein, was an isolated post for which reason, he was given the benefit and subsequently, instructions were also issued by the DoPT regarding that judgment that same will not be treated as a precedent and now in connected matters for grant of similar benefit of judgment has been stayed by the higher court."
16This is supported by the decision dated 07.09.2015 in the matter of Sanjay Kumar Vs. GNCTD and Others decided on 07.09.2015.
14. Hon'ble Supreme Court has supported the same in the matter of Union of India and Others Vs. N K Sarkar, Manu/SC/1874/2009 decided on 08.12.2009. The relevant part of the said judgment reads as under:-
"13. Having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could not seek switch over to pension scheme which would result in respondent getting in addition to the PF amount already received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If his request for such belated exercise of option is accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which is unjust and impermissible. The validity period of the option to switch over to pension scheme expired on 31.12.1978 and there was no recurring or continuing cause of action. The respondent's representation dated 8.10.1998 seeking an option to shift to pension scheme with effect from 1976 ought to have been straight away rejected as barred by limitation/delay and laches."
15. This issue was again subjected to screening by the Hon'ble Supreme Court in State of UP Vs. Arvind Kumar Srivastava Manu/SC/0948/2014. The relevant paras are extracted herein below:-
11. First case, in the line of these cases, referred to by the learned counsel for the respondents is the judgment in Inder Pal Yadav & Ors. v. Union of India & Ors.[(1985) 2 SCC 648] That was a case where the services of casual labour employed on railway projects continuously for more than a year were terminated on the ground that the projects where these casual labour were working had been wound up. Challenging their termination, writ 17 petitions under Article 32 of the Constitution of India were filed in this Court. During the pendency of these petitions, Railway Administration framed scheme for their absorption as temporary workmen on completion of 360 days of continuous employment. This scheme was made applicable to those who were in service as on January 01, 1984.
In view of this development, writ petitions were set out for hearing to examine the fairness and justness of the Scheme, particularly, on the issue as to whether choice of date of January 01, 1984 was arbitrary or discriminatory.
11.1. The Court was not enthused by fixation of January 01, 1984 as the cut off date on the ground that it was likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous Court's order. It was noticed that in some matters, the Court had granted interim stay before the workmen could be retrenched while in some other cases no such interim orders had been passed. Thus, as a result of grant of interim relief by stay/ suspension of the order of retrenchment, persons benefitted by the said interim order and were treated in service as on January 01, 1984. Those who failed to obtain the interim relief, their services were terminated in the meantime and, therefore, they were not in service as on January 01, 1984. The Court pointed out that though both the groups belong to the same category, one category could get the benefit of the scheme with cut off date of January 01, 1984, whereas the other category would fail to get the benefit/advance of the scheme. The Court also noted that there may be some other persons, similarly situated, who could not afford to rush to the Court and they would also be left out. Giving these reasons, the date of January 01, 1984 fixed in the scheme was struck down and the Court while accepting the scheme framed by the Railway Administration, modified the date from January 01, 1984 to January 01, 1981. While doing so, following reasons were given:
"5...There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to know at the door of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with 18 uncertain outcome and hunger from day to day. It is a Hobson's choice. Therefore, those who could not come to the Court need not be at comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court."
11.2. We would like to point out at this stage itself that the writ petitions were filed by the concerned affected persons which were already pending before the Court and it was the step taken by the Railway Administration itself which framed the Scheme for their absorption. In such circumstances, the question of fixing the rationality of cut off date in the said Scheme arose for consideration and the Court was of the view that while implementing the Scheme, those whose services were terminated before January 01, 1984, they would be discriminated against. Thus, while giving the direction to implement the scheme which was framed by the Railway Administration itself, the Court gave the direction to start absorbing those with longest service, which is clear from the reading of para 6 of the said judgment, and we reproduce the same hereunder:
"6. To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for the Railway Administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Section 25-G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly."
This case, therefore, may not be of direct relevance.
13. In State of Karnataka & Ors. v. C. Lalitha [(2006) 2 SCC 747], which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not 19 mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
13.1. We have to understand the context in which the aforesaid observations came to be made. That was a case where the order passed in the first round of litigation between the same parties came up for construction and its effect. The background in which the issue arose was that an amendment made in the reservation policy of the State was challenged in N.T. Devin Katti v. Karnataka Public Service Commission[(1990) 3 SCC 157]. In that judgment, this Court had declared that the revised reservation policy was not applicable to the selections initiated prior thereto. It resulted in the consequential direction to the State Government to appoint N.T. Devin Katti (appellant in that case) on the post of Tehsildar with retrospective effect. At the same time, it was also made clear that for the purposes of seniority such persons would have to be placed below the last candidates appointed in the year 1976 and they would also be not entitled to any back wages. Insofar as, respondent C. Lalitha is concerned, on the basis of revised reservation policy, she was appointed as Tehsildar.
13.2. After the rendition of the aforesaid judgment in N.T. Devin Katti's case (supra), she approached the Karnataka Administrative Tribunal by filing an OA claiming appointment as Assistant Commissioner. The Tribunal dismissed the OA. However, her appeal against the order of the Tribunal was allowed by this Court vide orders dated March 15, 1994, taking note of the fact that she was selected and shown in the first list, which was upheld by the Court in the case of N.T. Devin Katti (supra). Since she had already been promoted to Class I Post of Assistant Commissioner by then, for her appointment the Court directed that if no vacancies are available, the State Government will create a supernumerary post and for the purpose of seniority, she had to be placed below the last candidate appointed in the year 1976 and was not entitled to any back wages. It is clear from these directions that her appeal was allowed giving same directions as given in N.T. Devin Katti (supra). It so happened that though her name was in the first list, which was upheld in N.T. Devin Katti's case (supra), her rank was little below and there were few persons above her. As per her rank in the general merit Category I posts, after taking the opinion of the Public Service Commission, it was 20 decided by the Government to consider her for the post of Assistant Controller of Accounts, a Category I Post, as the marks secured by her were below the marks secured by the candidates selected as Assistant Controller of Accounts. She refused to accept the said post and approached the Tribunal again. The Tribunal dismissed the OA filed by her. Against that order of the Tribunal she approached the Karnataka High Court, which allowed the writ petition directing the State to implement order dated March 15, 1994 which was passed by this Court in the earlier round.
13.3. Against this order of the High Court, the State preferred appeal and it is in this backdrop that effect of the earlier order dated March 15, 1994 came up for consideration. It was argued by the State that effect of the order dated March 15, 1994 was to relegate the parties to the same position as if the reservation policy was not amended and if so construed, the respondent having been placed in the supplementary list could not have been laid any claim for any post in the administrative service. It is this contention which was accepted by this Court noticing another crucial fact that there were many persons who were higher in the merit than the respondent and the effect of the earlier order passed by this Court could not have been to ignore the said merit list and give something to the respondent which was not admissible in law. The Court held that merit should be the sole criteria for selection of candidates and the earlier judgment was to be construed as if it had been rendered in accordance with law. While holding so, the Court also sited many case law to demonstrate that the judgments are not to be read as a statute. It is in the aforesaid context that observations are made in para 29, on which heavy reliance has been placed by the respondent."
16. In view of the above decision, there is nothing left for me except to conclude that since the applicant had claimed for grant of pension of Rs.40000/- fixed w.e.f. 01.01.2006 and fixation of notional pay at par with his juniors and other similarly placed persons, namely, O P Bhutani, J S Bawa and Nirmal Singh, the reply of the respondents in the instant case is misleading as after going through all the material placed on record, I have found that this is not a case of fixation but seeking parity with identical persons. I have 21 gone into the depth of the matter to highlight the method in which the case of Shri O P Bhutani has been processed within the respondent-Ministry and found that the entitlement of the applicant is equally true if not more. As the applicant was senior to the said OP Bhutani, I would also like to mention that the applicant is one of the senior most police officers alike and carries eminence attached to his name. Therefore, the OA is disposed of in the following terms:-
1. Respondents shall re-fix the notional pay of the applicant at Rs.8000/-(fixed) w.e.f. 01.01.1986, at Rs.26000/-(fixed) w.e.f. 01.01.1996 and at Rs.80000/- (fixed) instead of Rs.75500/- w.e.f.
01.01.2006 as per serial No.34 of the Concordance Table annexed as Annexure I to the Govt. of India's letter No.38/37/08-P&PW(A) dated 14.10.2008.
2. Consequently, the respondents shall re-fix the pension of the applicant and make the payment of arrears of pension only to the applicant with a simple interest of 6% per annum thereon. I believe that imposition of interest is also a wake-up call to the authorities to be alike to their responsibilities and not a Shylock like mechanism for exactions from the State.22
3. The exercise, as ordained above, shall be completed by the respondents within a period of three months from the date of receipt of certified copy of this order.
4. There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) Member(A) /vb/