Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4885 of 2008 ------- Gopal Prasad Choudhary, Chief Airport Security Officer and Deputy Commandant, C.I.S.F., presently posted at C.I.S.F. Aviation Security Group Unit, Birsa Munda Airport, Ranchi, son of Shri Jugal Kishore Choudhary, C/o Dr. P.K. Sahay, House No. 27/198, Kilburn Colony, Hinoo, P.O. & P.S.-Doranda, Ranchi -834002. ... Petitioner Versus 1.Union of India through the Secretary, Ministry of Home Affairs, North Block, New Delhi -110001. 2.Union of India through the Secretary, Deptt. of Personnel and Training, North Block, New Delhi-110001. 3.Director General, Central Industrial Security Force, Block No. 13, C.G.O Complex, Lodi Road, New Delhi -110003. 4.Accounts Officer, Central Industrial Security Force, Block No. 13, C.G.O Complex, Lodi Road, New Delhi -110003. … … Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. Vishal Kumar Tewary & Mr. Pravin Kumar, Advocates. For the Respondents : Mr. Prashant Kumar Singh & Mr. Madan Prasad, Advocates. ------ C.A.V on 20.07.2017 Delivered on 30/08/2017 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing order as contained in letter dated 01.08.2008 whereby representation of the petitioner for re-fixation of his pay-scale along with six additional increments for the services rendered under Armed Force has been denied and; further prayer has been made for direction upon the respondents to fix the petitioner's pay in the revised pay-scale and to pay all consequential benefits.
2. The factual matrix, as delineated in the writ application, in a nutshell, is that petitioner initially joined as Short Service 2 Commission Officer in Indian Army in May, 1988 and after completion of Short Service contractual period, the petitioner was released from service during extension of service on 29.05.1994. Thereafter, the petitioner applied for and joined as Assistant Commandant in C.I.S.F. on 12.09.1997. It has been averred that after joining, the petitioner in accordance with Rule 8 of Chapter II of Central Civil Service (Fixation of pay of re-employed Officers) Orders, 1986 circulated vide Deptt. Of Personnel & Training, O & M dated 31.07.1986, submitted an application for fixation of pay vide application dated 12.03.1998. Thereafter, the petitioner again submitted a representation before Director General, CISF to grant him similar benefits as provided under Rule 8 in compliance of judgment rendered by Hon'ble Delhi High Court vide its judgment dated 31.08.2007 in favour of one similarly situated personnel, Mr. P. Raman thereupon the petitioner was intimated that his matter has been taken up by the Ministry of Home Affairs and decision thereupon shall be communicated, but, when it did not evoke any response, the petitioner represented the department vide letter dated 17.01.2008, but, he was shocked to receive communication dated 01.08.2008 whereby his request was turned down with the observations that “Since the judgment of the High Court was implemented as an exception specifically to the petitioner, there is no base for its general application”. Aggrieved thereof, the petitioner has approached this Court for redressal of his grievances.
3. Learned counsel for the petitioner submitted that the petitioner is entitled to get the benefit of six additional increments 3 in terms of Rule 8 of the Central Civil Services Orders, 1986 for having served under the Indian Army for six years before he joined the present service under C.I.S.F. Learned counsel for the petitioner further submitted that the petitioner deserves to be treated at par with the case of Shri P. Raman, who has been granted the said benefit by the C.I.S.F. Headquarters on the direction of Ministry of Home Affairs, Govt. of India in January, 2008 pursuant to judgment dated 31.08.2007 passed in W.P. (C) No. 14301 of 2004 by a Division Bench of Hon'ble Delhi High Court and the petitioner is being discriminated in a wholly arbitrary manner contrary to settled principles of law as laid down by Hon'ble Court whereby differential treatment cannot be made in respect of similarly placed persons in service jurisprudence only because the other person has approached the Court and an order has been passed in his favour.
4. Reiterating the averments made in the counter affidavit, learned counsel for the respondents submitted that as per provisions of Rule 8 of Swamy's Compilation of pay fixation of re- employed pensioners the SSCOs on their re-employment against unreserved vacancies are granted one increment for each completed year of service rendered in Army subject to the condition that the pay so fixed at no stage exceed last pay drawn in army. In the case at hand, no advance increments were allowed to the petitioner since the last pay drawn of Rs. 3000/- was less than the minimum of the re-employed post i.e. Rs. 8000/-. So far claim of the petitioner for parity with said P. Raman is concerned, the case of the petitioner was examined in consultation with legal 4 branch of FHQ and accordingly the matter was referred to the Ministry for extending the benefit of six increments to the petitioner in the light of judgment rendered by Hon'ble Court, in turn, the Ministry returned the file vide letter dated 01.08.2008 with the remarks that the case of said P. Raman is an exception and there is no base for its general application.
5. There is no shadow of doubt or it is not a question of debate that the petitioner is entitled to get pay in accordance with Rule 8 of Chapter 2 of Central Civil Services (Fixation of Pay of Re- employed Prisoners) Orders, 1986 circulated vie DoPT O&M dated 31.07.1986, which cannot and does not refer to any Pay Commission. For ready reference, the above-referred Rule is quoted herein below: “Rule 8.Emergency Commissioned Officers and Short Service Commissioned Officers. – Emergency Commissioned Officers and Short Service Commissioned Officers who joined pre- commissioned training or were commissioned after 10th January, 1968, may, on their appointment in Government service to unreserved vacancies, be granted advance increments equal to the completed years of service rendered by them in Armed Forces on a basic pay (inclusive of deferred pay but excluding other emoluments) equal to or higher than the minimum of the scale attached to the civil post in which they are employed. The pay so arrived at should not, however, exceed the basis pay (including the deferred pay but excluding other emoluments) last drawn by them in the Armed Forces.”
6. In this regard, the Division Bench of Hon'ble Delhi High Court in W.P (C) No. 14301 of 2004 dated 31.08.2007, at paragraph 4 has elaborately dealt with the object and purport of aforesaid Rule, which is quoted herein below:
5. “4.The rationale upon which Rule 8 rests is not difficult to comprehend and then compliment. The Armed Forces require to augment their strength from time to time, albeit not on a permanent basis. A person who dedicates his youth and best years to such service ought not to be discarded in a manner where his subsequent career is jeopardised. No citizen would be interested in the commission if after ten years he is to start his career anew, and that too at the junior-most stage. It is for this salutary reason that the ten (10) increments, which are substance of this petition, are bestowed on persons such as the petitioner. Once given, the benefit cannot and should not be withdrawn or negated. The benefit has no linkage or connection with any Pay Commission. A pay revision can be implemented in at least two manners. Firstly, ten (10) increments can be given effect to in the new pay dispensation. Secondly, the erstwhile pay and other emoluments will have to be calculated in the new scale of pay.”
7. Equating the case of the petitioner with said P. Raman, a chart has been shown at Annexure 11, from perusal of which, it appears that the case of the petitioner is squarely covered by the case of said P. Raman and the ground for rejection of claim of the petitioner is the opinion made by Legal Cell of CISF Headquarters that the judgment of the High Court was implemented as an exception specifically to the petitioner, there is no base for its general application. But, from perusal of the judgment delivered in W.P (C) No. 14301 of 2004 dated 31.08.2007, there is no whisper that the case be taken as exception, in that circumstance, how such conclusion has been derived by the respondents is beyond comprehension.
8. Furthermore, the Hon'ble Division Bench also elaborately dealt with the pay-fixation of petitioner in IV th Pay Revision and 6 and Vth Pay Revision and only thereafter came to the conclusion that petitioner is entitled to receive 10 (ten) advance increments, as previously he rendered ten years as Short Service Commission Officer, in the scale of 8000-275-13500, as per V th Pay Commission. For better appreciation, the relevant paragraphs of said judgment is reproduced herein below: “5.As has already been noted above, the Petitioner's pay on his re-employment with the CISF was fixed at Rs.3,000/-, i.e., in the pay scale of Rs.2200-75-2800-100-4000 together with ten (10) increments [75x8 and 100x2] equal to Rs.800. As also noted above, the last pay drawn by the Petitioner in the Army was in the pay scale of Rs.2300-100—100-3900- EB-150-5100 and was Rs.3900. It is manifestly clear that the Petitioner's pay in the CISF, after receiving the benefits of 10 increments, did not exceed the basic pay last drawn by him in the Armed Forces. It is important to record, and keep in mind, that these scales were prescribed by the IVth Pay Commission. The problem that has arisen before us is a consequence of the implementation of the Vth Pay Commission. We also record that it is not in dispute that the Petitioner has served in the CISF for a period of 11 years. If his 10 years service in the Army is taken into account, his total service is 21 years. 6.As noted above, the Petitioner's grievances have arisen consequent upon the implementation of the Vth Pay Commission. It seems to us that it is unexceptional that pay fixation must be carried out as per the Vth Pay Commission only and that it is illogical to refer back to salaries payable under the IVth Pay Commission. The Petitioner is entitled to ten (10) advance increments as per Rule 8, reproduced above, which continues to be in force even after the Vth Pay Commission. The basic pay as per the Vth Pay Commission commences at Rs.8000/- and when ten (10) increments are added thereto the Petitioner becomes entitled to a monthly pay of Rs.10750/-. As 7 per the Respondent's computation the Petitioner's salary has been increased from Rs.3000 to Rs.8000 only by virtue of the implementation of the Vth Pay Commission. It is wholly incongruent for the Respondents to take into reckoning the Petitioner's last drawn salary of Rs.3900/- as per the IVth Pay Commission. Rule 8 prescribes that ECOs and SSCOs (Emergency Commissioned Officers and Short Service Commissioned Officers), on their appointment in Government service would be entitled to advance increments equal to the completed years of service rendered by them in the Armed Forces on basic pay (which in the Petitioner's case is 10 years) provided it does not exceed the last drawn pay, would have to be seen in the context of salaries payable under the Vth Pay Commission itself. In other words, apples cannot be compared with pears. Accordingly, what has now to be determined is what the Petitioner's last drawn pay would have been while he was serving in the Indian Army had the Vth Pay Commission come into operation. The basic pay payable in the Army is presently Rs.11,600, plus rank pay of Rs.1200, plus 10 increments (300x6 and 325x4) = Rs.3100, aggregating Rs.15900. It is this figure of Rs.15900/- which presently corresponds to the figure of Rs.3900/- in the IVth Pay Commission. In other words, when pay fixation is to be carried out in the Vth Pay Commission, the last drawn pay, so far as the Petitioner is concerned, is not Rs.3900/- but Rs.15900/-. It is manifestly evident, therefore, that the Respondents have committed a calculation error in pegging the basic pay of the Petitioner at Rs.8000/- only. If the argument of the Respondents is to be accepted, the Petitioner would not be entitled to receive even in the Vth Pay Commission regime a salary beyond Rs.3900, which is the last salary drawn by him in the Army.”
9. Furthermore, it is not the case where the petitioner waited for the judgment to be delivered in favour of any personnel and then he approached the authorities for extending the benefit of 8 advance increment rather, the petitioner, just after joining the services in C.I.S.F., submitted an application for fixation of pay vide application dated 12.03.1998 in accordance with Rule 8 of Chapter II of Central Civil Service (Fixation of pay of re-employed Officers) Orders, 1986 circulated vide Deptt. Of Personnel & Training, O & M dated 31.07.1986. Hence, the ground for denial of advance increment is not sustainable.
10. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements made in W.P (C) No. 14301 of 2004 dated 31.08.2007, I am of the considered view that petitioner is also entitled to get six advance increments, equal to years of service rendered by him as Short Service Commission Officer, as per Rule 8 of Chapter 2 of Central Civil Services (Fixation of Pay of Re-employed Prisoners) Orders, 1986.
11. Resultantly, letter dated 01.08.2008 whereby representation of the petitioner for re-fixation of his pay-scale along with six additional increments for the services rendered under Armed Force has been denied, is hereby quashed and set aside and respondents are directed to extend the benefit of advance increment, as aforesaid, to the petitioner within a period of three months from the date of receipt/production of copy of this order.
12. With the aforesaid observations and directions, the writ petition stands allowed. (Pramath Patnaik, J.) Alankar/-