Meghalaya High Court
S/358907 Rfn/Efs vs . Union Of India & Ors. on 14 September, 2018
Author: S.R. Sen
Bench: S.R. Sen
1
Serial No. 49
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 300 of 2015
With WP(C) No. 351 of 2015
WP(C) No. 158 of 2016
Date of Decision: 14.09.2018
S/358907 Rfn/Efs Vs. Union of India & Ors.
Deepak Kumar VV & Ors.
S/5016270 Rfn/Efs Vs. Union of India & Ors.
Manish Kumar & Ors
358688 F Rfn/Efs Vs. Union of India & Ors.
Ravichandran R & Ors
Coram:
Hon'ble Mr. Justice S.R. Sen, Judge (Oral)
Appearance:
For the Petitioner(s) : Mr. S. Saraogi, Adv.
Mr. R. Jha, Adv.
Mr. B.K. Deb Roy, Adv.
For the Respondent(s) : Mr. N. Mozika, CGC
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication in press: Yes/No
1. Heard Mr. S. Saraogi, Mr. R. Jha and Mr. B.K. Deb Roy, learned counsels appearing on behalf of the petitioners as well as Mr. N. Mozika, learned CGC appearing on behalf of the respondents/Union of India.
2. Both the learned counsels for the parties submit that the WP(C) No. 300 of 2015, WP(C) No. 351 of 2015 and WP(C) No. 158 of 2016 are similarly situated cases and they are covered by the judgment dated 14.08.2018 passed by this Court in WP(C) No. 146 of 2017 and judgment dated 30.08.2018 passed by this Court in WP(C) No. 98 of 2016 (With WP(C) No. 13 of 2017).
3. In WP(C) No. 300 of 2015 the brief fact of the petitioner's case in a nutshell is that:
2"Assailing the validity and legality of the order dated the 25th day of June, 2010 passed in WP(C) No. 32(SH) of 2008, and claiming pay scale and rank structure as recommended by the 5th Central Pay Commission and as per Office Memorandum dated 22nd day of January, 1998 one 358916Y Rfn/ORL Savendra Singh Chauhan approached the Hon'ble Gauhati High Court, Shillong Bench by way of Writ Appeal No. 50 (SH) of 2010 and the Division Bench of the Hon'ble Gauhati High Court, Shillong Bench by the Judgment and Order dated the 22nd day of September, 2011, allowed the said Writ Appeal.
The operative portion of the Judgment and Order dated the 22nd day of September, 2011 passed in Writ Appeal No. 50 (SH) 2010 is reproduced below:
"22. On a totality of the consideration of the above facts, reasons and discussions as well as taking into account the decision rendered by the Hon'ble Apex Court in Dineshan KK (Supra), we are inclined to set aside and quashed the Judgment and Order dated 25/06/2010, passed by the Learned Single Judge in W.P.(C) No. 32 (SH) of 2008. Consequently, the writ appeal is allowed.
23. The Union of India is directed to give appropriate rank and pay scale to the petitioner as per recommendation of the 5th Pay Commission and Office Memorundum dated 22/01/1998."
Thereafter, claiming pay scale and rank structure as recommended by the 5th Central Pay Commission and as per Office Memorundum dated the 22nd day of January, 1998, the similarly situated employees of Assam Rifles approached Hon'ble High Court, by way of Writ Petition (Civil) No. 56 of 2013 [357918 RFN/ORL Madhuvendra Singh and 2268 others.
3The Hon'ble High Court of Meghalaya after hearing submissions of both sides by the Judgment and Order dated the 8th day of May, 2014 disposed the Writ Petition (Civil) No. 56 of 2013 and the operative portion of the said Judgment and Order is reproduced below:
"7. In the above factual backdrop, it is clear that the Judgment and Order dated 22.09.2011 passed by the Division Bench of the Gauhati High Court in Writ Appeal No. 50 (SH) 2010 shall squarely cover the case of the present writ petitioners and accordingly, the respondents are directed to give the benefit of the Judgment and Order of the Division Bench of the Gauhati High Court dated 22.09.2011 to the writ petitioners and in other words, the respondents shall provide/give appropriate rank and pay scale to the petitioners as per the recommendation of the 5th Pay Commission and Office Memorundum dated 22.01.1998 within a period of 8(eight) months from the date of receipt of a certified copy of this Judgment and Order.
8. With the above observation and directions this writ petition is disposed of."
By the Order No. A/Pers/11-
rd
04/ORL/2015/1157, dated the 23 day of October, 2015 the Directorate General Assam Rifles upgraded and re-designated the post of Rfn/ORL in Assam Rifles in the pre-revised scale of Rs. 3200-85-4900 wef 10/10/1997 and from the date of passing ORL Class-iii in pursuance of the Judgment and Order passed in WP(C) No. 59 (SH) 2013 and WP(C) No. 218 (SH) of 2013 limiling the benefits to the petitioners only.
All the petitioners was enrolled in Assam Rifles as Rifleman/Operator Radio and Line and all of them passed ORL Class -II and thereafter on fulfilling the eligibility criteria mentioned in the RoI the petitioners were remustered to Riflmen (Electrical Fitter Signal) after 2003. The post of Riflmen (Electrical 4 Fitter Signal) falls within the communication wing/signal category (Technical Staff) which is a non gazetted Cadre and they are working in different units under the Director General Assam Rifles. In fact, the petitioners were remustered form one the communication wing/signal category (Technical Staff). The Operator Radio and Line/Radio Operator, Radio Technician/Radio Mechanic, Cipher, Rifleman (Clerk), Rifleman (Clark), and Rifleman (Electrical Fitter Signal) is the technical combatant staff of Assam Rifles. They are also legally entitled to the revised/upgraded pay scale, allowances and appropriate rank structure as recommended by the 5th Central Pay Commission and as per Office Memorundum dated 2nd day of January, 1998. The basic principle is that once the recommendation of the pay commission is accepted, same should be extended to all other similarly situated personnel.
In the case of Purshottam Lal - Vs -
Union of India (AIR 1973 SC 1088], the Hon'ble apex Court settled it that incomplete implementation of the recommendation of the pay, commission is violative of fundamental right.
The Hon'ble Apex Court in Ashwani Kumar and Others-Vs-State of Bihar and Others [(1997) 2 SCC 1] held that cases of affected persons who failed to approach the court cannot be ignored and the benefit of the judgment-in-rem should also be granted to them.
It was held by the Hon'ble Apex Court in Inder Pal Yadav-Vs-Union of India [1985(2) SCC 648] held that the relief granted by court is to be given to other similarly situated employees without forcing them to go to court for similar benefits. The same view was expressed by the Hon'ble Apex Court in the case of Lal Berry-Vs-CEE [1975 (4) SCC 14].
5The 5th Central Pay Commission also expressed the same view to extend judicial decision in matters of a general nature to all similarly placed persons. The similarly situated persons can not be treated differently and if treated differently, same is violative of Article 14, 16 and 21 of the Constitution of India.
In the case of State of Karnataka-Vs-C Lalitha [2006 (2) SCC 745] it was held by the Hon'ble Apex Court that similarly situated should be treated similarly and not differently."
In WP(C) No. 351 of 2015 the brief fact of the petitioner's case in a nutshell is that:
"Assailing the validity and legality of the order dated the 25th day of June, 2010 passed in WP(C) No. 32(SH) of 2008, and claiming pay scale and rank structure as recommended by the 5th Central Pay Commission and as per Office Memorandum dated 22nd day of January, 1998 one 358916Y Rfn/ORL Savendra Singh Chauhan approached the Hon'ble Gauhati High Court, Shillong Bench by way of Writ Appeal No. 50 (SH) of 2010 and the Division Bench of the Hon'ble Gauhati High Court, Shillong Bench by the Judgment and Order dated the 22nd day of September, 2011, allowed the said Writ Appeal.
The operative portion of the Judgment and Order dated the 22nd day of September, 2011 passed in Writ Appeal No. 50 (SH) 2010 is reproduced below:
"22. On a totality of the consideration of the above facts, reasons and discussions as well as taking into account the decision rendered by the Hon'ble Apex Court in Dineshan KK (Supra), we are inclined to set aside and quashed the Judgment and Order dated 25/06/2010, passed by the Learned Single Judge in W.P.(C) No. 32 (SH) of 2008. Consequently, the writ appeal is allowed.6
23. The Union of India is directed to give appropriate rank and pay scale to the petitioner as per recommendation of the 5 th Pay Commission and Office Memorundum dated 22/01/1998."
Thereafter, claiming pay scale and rank structure as recommended by the 5th Central Pay Commission and as per Office Memorundum dated the 22nd day of January, 1998, the similarly situated employees of Assam Rifles approached Hon'ble High Court, by way of Writ Petition (Civil) No. 56 of 2013 [357918 RFN/ORL Madhuvendra Singh and 2268 others.
The Hon'ble High Court of Meghalaya after hearing submissions of both sides by the Judgment and Order dated the 8th day of May, 2014 disposed of the Writ Petition (Civil) No. 56 of 2013 and the operative portion of the said Judgment and Order is reproduced below:
"7. In the above factual backdrop, it is clear that the Judgment and Order dated 22.09.2011 passed by the Division Bench of the Gauhati High Court in Writ Appeal No. 50 (SH) 2010 shall squarely cover the case of the present writ petitioners and accordingly, the respondents are directed to give the benefit of the Judgment and Order of the Division Bench of the Gauhati High Court dated 22.09.2011 to the writ petitioners and in other words, the respondents shall provide/give appropriate rank and pay scale to the petitioners as per the recommendation of the 5th Pay Commission and Office Memorundum dated 22.01.1998 within a period of 8(eight) months from the date of receipt of a certified copy of this Judgment and Order.
8. With the above observation and directions this writ petition is disposed of."
By the Order No. A/Pers/11-
rd
04/ORL/2015/1157, dated the 23 day of October, 2015 the Directorate General Assam 7 Rifles upgraded and re-designated the post of Rfn/ORL in Assam Rifles in the pre-revised scale of Rs. 3200-85-4900 wef 10/10/1997 and from the date of passing ORL Class-iii in pursuance of the Judgment and Order passed in WP(C) No. 59 (SH) 2013 and WP(C) No. 218 (SH) of 2013 limiling the benefits to the petitioners only.
All the petitioners was working as Rfn/Orl and they are also legally entitled to the revised/upgraded pay scale, allowances and appropriate rank structure as recommended by the 5th Central Pay Commission and as per Office Memorundum dated 2nd day of January, 1998. The basic principle is that once the recommendation of the pay commission is accepted, same should be extended to all other similarly situated personnel.
In the case of Purshottam Lal - Vs -
Union of India (AIR 1973 SC 1088], the Hon'ble Apex Court settled it that incomplete implementation of the recommendation of the pay commission is violative of fundamental right.
The Hon'ble Apex Court in Ashwani Kumar and Others-Vs-State of Bihar and Others [(1997) 2 SCC 1] held that cases of affected persons who failed to approach the court cannot be ignored and the benefit of the judgment-in-rem should also be granted to them.
It was held by the Hon'ble Apex Court in Inder Pal Yadav-Vs-Union of India [1985(2) SCC 648] held that the relief granted by court is to be given to other similarly situated employees without forcing them to go to court for similar benefits. The same view was expressed by the Hon'ble Apex Court in the case of Lal Berry-Vs-CEE [1975 (4) SCC 14].
The 5th Central Pay Commission also expressed the same view to extend judicial decision in matters of a general nature to all 8 similarly placed persons. The similarly situated persons can not be treated differently and if treated differently, same is violative of Article 14, 16 and 21 of the Constitution of India.
In the case of State of Karnataka-Vs-C Lalitha [2006 (2) SCC 745] it was held by the Hon'ble Apex Court that similarly situated should be treated similarly and not differently."
In WP(C) No. 158 of 2016 the brief fact of the petitioner's case in a nutshell is that:
"Assailing the validity and legality of the order dated the 25th day of June, 2010 passed in WP(C) No. 32(SH) of 2008, and claiming pay scale and rank structure as recommended by the 5th Central Pay Commission and as per Office Memorandum dated 22nd day of January, 1998 one 358916Y Rfn/ORL Savendra Singh Chauhan approached the Hon'ble Gauhati High Court, Shillong Bench by way of Writ Appeal No. 50 (SH) of 2010 and the Division Bench of the Hon'ble Gauhati High Court, Shillong Bench by the Judgment and Order dated the 22nd day of September, 2011, allowed the said Writ Appeal.
The operative portion of the Judgment and Order dated the 22nd day of September, 2011 passed in Writ Appeal No. 50 (SH) 2010 is reproduced below:
"22. On a totality of the consideration of the above facts, reasons and discussions as well as taking into account the decision rendered by the Hon'ble Apex Court in Dineshan KK (Supra), we are inclined to set aside and quashed the Judgment and Order dated 25/06/2010, passed by the Learned Single Judge in W.P.(C) No. 32 (SH) of 2008. Consequently, the writ appeal is allowed.
23. The Union of India is directed to give appropriate rank and pay scale to the petitioner as per recommendation of the 5th Pay 9 Commission and Office Memorundum dated 22/01/1998."
Thereafter, claiming pay scale and rank structure as recommended by the 5th Central Pay Commission and as per Office Memorundum dated the 22nd day of January, 1998, the similarly situated employees of Assam Rifles approached Hon'ble High Court, by way of Writ Petition (Civil) No. 56 of 2013 [357918 RFN/ORL Madhuvendra Singh and 2268 others.
The Hon'ble High Court of Meghalaya after hearing submissions of both sides by the Judgment and Order dated the 8th day of May, 2014 disposed of the Writ Petition (Civil) No. 56 of 2013 and the operative portion of the said Judgment and Order is reproduced below:
"7. In the above factual backdrop, it is clear that the Judgment and Order dated 22.09.2011 passed by the Division Bench of the Gauhati High Court in Writ Appeal No. 50 (SH) 2010 shall squarely cover the case of the present writ petitioners and accordingly, the respondents are directed to give the benefit of the Judgment and Order of the Division Bench of the Gauhati High Court dated 22.09.2011 to the writ petitioners and in other words, the respondents shall provide/give appropriate rank and pay scale to the petitioners as per the recommendation of the 5th Pay Commission and Office Memorundum dated 22.01.1998 within a period of 8(eight) months from the date of receipt of a certified copy of this Judgment and Order.
8. With the above observation and directions this writ petition is disposed of."
By the Order No. A/Pers/11-
rd
04/ORL/2015/1157, dated the 23 day of October, 2015 the Directorate General Assam Rifles upgraded and re-designated the post of Rfn/ORL in Assam Rifles in the pre-revised scale of Rs. 3200-85-4900 wef 10/10/1997 and 10 from the date of passing ORL Class-iii in pursuance of the Judgment and Order passed in WP(C) No. 59 (SH) 2013 and WP(C) No. 218 (SH) of 2013 limiling the benefits to the petitioners only.
All the petitioners was working as Rfn/Orl and they are also legally entitled to the revised/upgraded pay scale, allowances and appropriate rank structure as recommended by the 5th Central Pay Commission and as per Office Memorundum dated 2nd day of January, 1998. The basic principle is that once the recommendation of the pay commission is accepted, same should be extended to all other similarly situated personnel.
In the case of Purshottam Lal - Vs -
Union of India (AIR 1973 SC 1088], the Hon'ble Apex Court settled it that incomplete implementation of the recommendation of the pay commission is violative of fundamental right.
The Hon'ble Apex Court in Ashwani Kumar and Others-Vs-State of Bihar and Others [(1997) 2 SCC 1] held that cases of affected persons who failed to approach the court cannot be ignored and the benefit of the judgment-in-rem should also be granted to them.
It was held by the Hon'ble Apex Court in Inder Pal Yadav-Vs-Union of India [1985(2) SCC 648] held that the relief granted by court is to be given to other similarly situated employees without forcing them to go to court for similar benefits. The same view was expressed by the Hon'ble Apex Court in the case of Lal Berry-Vs-CEE [1975 (4) SCC 14].
The 5th Central Pay Commission also expressed the same view to extend judicial decision in matters of a general nature to all similarly placed persons. The similarly situated persons can not be treated differently and if 11 treated differently, same is violative of Article 14, 16 and 21 of the Constitution of India.
In the case of State of Karnataka-Vs-C Lalitha [2006 (2) SCC 745] it was held by the Hon'ble Apex Court that similarly situated should be treated similarly and not differently."
4. Learned counsel for the petitioners submits that some of the parties approached this Court by way of a writ petition bearing W.P.(C) No. 56 (SH)/2013. After hearing the parties, this Court passed an elaborate order dated 08.05.2014. The contention of the learned counsel for the petitioners is that the petitioners in these present writ petitions also falls under the combatised category of the Assam Rifles, so they are entitled to the benefits as directed in the judgment and order dated 08.05.2014 passed by this Court referred above.
The learned counsel for the petitioners also further submits that these petitioners though working in different trades, but they fall under the combatised category of the Assam Rifles. So, their places covers by the judgment and order dated 08.05.2014 passed in W.P.(C) No. 56 (SH)/2013. The learned counsel also further contended that the matter has travelled upto the Hon'ble Supreme Court who dismissed the plea of the Union of India and affirmed the judgment passed by this Court.
5. In contra, the learned CGC appearing on behalf of the respondents submits that this judgment is not applicable to the petitioners as they were not parties in the W.P.(C) No. 56 (SH)/2013 and they are working in different trades though they are Riflemen. He also contended that the entry level qualification is different.
6. After hearing the submissions advanced by the learned counsel for the parties and after perusal of the para 5 of the judgment and order dated 08.05.2014 passed by this Court in W.P.(C) No. 56 (SH)/2013, it is clear that in the said judgment, this Court nowhere distinguish the differences in the category and it is an admitted fact that the petitioners in the W.P.(C) No. 56 (SH)/2013 belong to the combatised category of the 12 Assam Rifles. Here also in this present petition, it is an admitted fact that the entry level qualification may be different and they are working in different trades like Blacksmith, Carpenter, etc but they are all Riflemen. If it is so, I do not find any reason that why in the present cases, the judgment passed in the W.P.(C) No. 56 (SH)/2013 cannot be applied.
7. Para 5 of the said judgment referred above is reproduced herein below for ready reference:
"5. The Court, in order to satisfy itself, asked the questions i.e. (i) as to whether the present petitioners belong to the combatised category; and (ii) also as to whether the petitioners belong to the members of the Central Para Military Forces? to the learned counsel appearing for the parties. Learned counsel for the petitioners Mr. HG Baruah and Mr. SC Shyam, learned senior counsel for the respondents, unanimously replied that the petitioners belong to the combatised category and they are also the members of the Central Para Military Forces. Further, the Ministry of Home Affairs, Govt. of India issued another Office Memorandum dated 03.03.1998 wherein, it is stated that the said Office Memorandum dated 22.01.1998 is quite clear and the pre- revised pay scales of the members of the Assam Rifles who belong to the combatised category should also be revised to the pay scales identical to the revised pay scales of HC(RM) in BSF and CRPF. The Office Memorandum dated 03.03.1998 (Annexure-V to the writ petition) is quoted hereunder:-
"No.27011/103/97-PF Government of India Ministry of Home Affairs New Delhi-110001 Dated:03.03.1998 OFFICE MEMORANDUM Subject: Fixation of pay on rationalization of pay-scales with effect from 10.10.1997 in the Central Para Military Forces.
The undersigned is directed to refer to DGAR's letter No.A/Para/5th CPC /Vol.III/98 dated 19/8.02.1998 on the subject 13 cited above.
2. In this connection it may be stated that the orders dated 22.01.1998 are quite clear. If the pre-revised pay scale of HC(RM) in AR and revised pay-scales are identical to the pay scales of HC(RM) in BSF and CRPF etc. HC(RM) in AR can be re- designated as ASI or equivalent in AR.
Sd/- xxxx (Gopinathan) Desk Officer."
8. The Office Memorandum dated 22.01.1998 at Page 13 of the said judgment dated 08.05.2014 is also reproduced herein below for ready reference:
"No.27011/103/97-PF.I/56 Government of India/Bharat Sarkar, Ministry of Home Affair/Grih Mantralaya, North Block New Delhi, the 22nd Jan 98.
OFFICE MEMORANDUM Subject: FIXATION OF PAY ON RATIONALISATION OF PAY SCALE WITH EFFECT FROM 10.10.97 IN THE CENTRAL PARA MILITARY FORCES.
In the context of certain doubts expressed by the Central Para Military Forces in fixation of pay of certain non-gazetted personnel of the CMPFs with effect from 10.10.97, vide order No.27011/97-PC Cell/PF.I dated 10.10.97, it is hereby clarified that the orders are equally applicable to all combatised categories. For example, the HC(RM) will be given the replacement pay scale of Rs.3200-4900, as provided by the Government, in the said orders for HCs and will continue to be known as HC(RM).
2. In the case of HC(RM) Gr.I and Gr.II and HC (Draughtsman), since the Pay Commission has given the replacement pay scale of Rs.4000-6000/- in respect of these three categories of posts in CPMFs, these three categories may be re- designated as ASI in the scale pay of Rs.4000-6000/-. As regards other categories of HC, in any of CMPFs, such as HC (RO, Cry) etc., these posts will continue to be known as HC in the relevant scale of pay approved by the Government.
3. This issue with the concurrence of Integrated Finance 14 Division of this vide their Dy.No.305/97-Fin.II dated 22nd January, 1998.
Sd/- xxxx (Gopinathan) Desk Officer."
9. After considering the argument advanced by the learned counsels for the parties and after reading the judgment dated 08.05.2014 passed by this Court in W.P.(C) No. 56 (SH)/2013, I am satisfied that the said judgment is equally applicable to the petitioners and others who are holding the same category (combatised category).
The respondent is directed to give the benefits to the petitioners and others as observed above within 4(four) months from the date of receipt of a copy of this judgment and order.
10. With this observation and direction the WP(C) No. 300 of 2015, WP(C) No. 351 of 2015 and WP(C) No. 158 of 2016 are allowed to that extent and stands disposed of by this common judgment and order.
(S.R. Sen) Judge Meghalaya 14.09.2018 "D. Nary, PS"