Asi/Clerk Devi Ram Tiru vs.union of India and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1213572
CourtDelhi High Court
Decided OnMar-15-2018
AppellantAsi/Clerk Devi Ram Tiru
RespondentUnion of India and Ors.
Excerpt:
$~9 to 17 * + w.p.(c) 8135/2017 + w.p.(c) 8138/2017 + w.p.(c) 8139/2017 + w.p.(c) 8142/2017 + w.p.(c) 8149/2017 + w.p.(c) 8158/2017 + w.p.(c) 8559/2017 + w.p.(c) 8600/2017 + w.p.(c) 8602/2017 asi/clerk devi ram tiru asi/clerk c.p.chakravarty asi/clerk vikram singh manral asi/clerk anil yadav asi/clerk bitto singh asi/clerk yogender kumar asi/clerk sunil kumar sharma ........ petitioner ........ petitioner ........ petitioner ........ petitioner ........ petitioner ........ petitioner ........ petitioner ........ petitioner ........ petitioner in the high court of delhi at new delhi asi/clerk chhama nath asi/clerk rajvir singh through: mr.ankur chhibber, adv. versus union of india and ors. ........ respondents through: mr.dev p. bhardwaj, cgsc for uoi with ms.anubha bhardwaj, adv. coram: hon’ble ms. justice hima kohli hon’ble ms. justice pratibha rani w.p.(c) 8135/2017 & connected matters page 1 of 12 % 1. order1503.2018 the petitioners herein joined cisf in the rank of constable (gd). in the year 2005, cisf published an advertisement for filling up the post of head constable (clerk) and asi (stenographer) in the pay scale of `3200-85-4900, for which 70% vacancies were to be filled up by way of direct recruitment and 30% vacancies were to be filled by way of limited departmental competitive examination (ldce), for which the departmental candidates having rendered 3 years service were eligible.2. the petitioners successfully qualified the ldce along with the direct recruits and received offers of appointment. the petitioners completed the training as freshly recruited head constables along with the head constables who were directly recruited and a seniority list of the head constables (clerks) who had qualified in the year 2005, was also published on 18.03.2008, depicting the respective seniority number of the petitioners and the direct recruits.3. the grievance of the petitioners is that as per clarification issued by the department of personnel & training, such candidates who had appeared in the open competitive examinations would be direct recruits consequent to their selection to the subject post. hence, the petitioners who have competed with the direct recruits by participating in the ldce, cannot be treated as promotees and their pay cannot be less than `9,910/-, which is payable to the direct recruits at the entry level. w.p.(c) 8135/2017 & connected matters page 2 of 12 4. as per the recommendations of the 6th pay commission, as reflected in the ccs(revised pay) rules, the entry pay in the revised pay structure for direct recruits appointed to the subject post on or after 01.01.2006, in pay band-i was fixed at `7,510/-, with grade pay of `2,400/- totalling to a sum of `9,910/- and the pay of the petitioners herein was also fixed in terms of the above recommendations.5. the petitioners felt aggrieved when on 05.09.2013, respondent issued a clarification that the pay of the constables on appointment to the rank of head constable (clerk) against the vacancies of the departmental candidates, will be fixed by one notional increment @ 3% of the basic pay of the lower post.6. pursuant to the above clarification dated 05.09.2013, without issuing any show cause notice, the respondents issued an order dated 20.01.2014, impugned herein, fixing the pay of the petitioners as `6,490 + grade pay of `2,000/- w.e.f. 01.07.2006 and thereafter on promotion to the post of head constable (clerk) as `6,750/- + grade pay of `2,400/-, w.e.f. 30.07.2006. as a result of the above clarification and re-fixation, the petitioners’ pay has been fixed as `6750 - `2,400/-, totalling to a sum of `9,150/- w.e.f. 30.07.2006 whereas the entry pay for the directly recruited head constables in the revised pay structure had been fixed at `9,910/-.7. the details of the order by which the benefit of stepping up was given to the petitioners and the orders by which the said benefits have been withdrawn and the orders impugned in each of these petitions have been compiled below in a tabulated form :-"w.p.(c) 8135/2017 & connected matters page 3 of 12 sr.no.name of the petitioner 1.2.3. 4.5. asi/clerk devi ram tiru (petitioner w.p.(c) no.8135/2017) in c.p asi/clerk chakravarty (petitioner in w.p (c) no.8138/2017) singh asi/clerk vikram manral (petitioner in w.p (c) no.8139/2017) asi/clerk anil yadav (petitioner in w.p (c) no.8142/2017) asi/clerk bitto singh (petitioner of date vide order the which of benefit stepping up was given to the petitioners. 26.03.2010 23.11.2009 15.12.2009 20.01.2009 of date vide order which the benefit was withdrawn orders impugned in the writ petitions 05.09.2013, 20.01.2014 & 21.04.2017 05.09.2013, 20.01.2014 & 21.04.2017 05.09.2013, 20.01.2014 & 21.04.2017 21.04.2017, 05.09.2013 & 28.05.2014 05.09.2013, 20.01.2014, 21.04.2017 05.09.2013, 20.01.2014, 21.04.2017 05.09.2013, 20.01.2014, 21.04.2017 05.09.2013, 28.05.2014, 21.04.2017 19.09.2011 05.09.2013, 21.04.2017 05.09.2013, 20.01.2014, w.p.(c) 8135/2017 & connected matters page 4 of 12 6.7. 8.9. in w.p (c) no.8149/2017) asi/clerk yogender kumar (petitioner in w.p (c) no.8158/2017) asi/clerk sunil kumar sharma (petitioner in w.p (c) no.8559/2017) asi/clerk chhama nath (petitioner in w.p (c) no.8600/2017) asi/clerk rajvir singh ((petitioner in w.p (c) no.8602/2017) & 20.01.2014 21.04.2017 07.04.2009 20.01.2014, 21.04.2017 & 05.09.2013 05.09.2013, 20.01.2014, 21.04.2017 26.03.2010 20.05.2014, 21.04.2017 & 05.09.2013 05.09.2013, 20.05.2014, 21.04.2017 02.06.2010 20.01.2014, 21.04.2017 & 05.09.2013 05.09.2013, 20.01.2014, 21.04.2017 23.09.2008 21.04.2014, 17.09.2014 & 05.09.2013 05.09.2013, 17.09.2014, 21.04.2017 8. mr.ankur chhibber, learned counsel for the petitioners has submitted that the respondent had fixed the pay of the petitioners by giving an increment @3% of the basic pay of the lower post i.e. by treating their case as a promotion from the post of constable (gd) to head constable (clerk), whereas the post of head constable (clerk) w.p.(c) 8135/2017 & connected matters page 5 of 12 is not a promotional post, but an entry post in the ministerial cadre, for which the same method of recruitment is applicable as is applicable to direct candidates. it has been further contended that there is no provision in the recruitment rules for filling the post of head constable (clerk) through promotion from constable (gd) as both are different cadre posts. despite the department of personnel & training having made it clear that such candidates who had appeared in the open competitive examinations would be direct recruits consequent to their selection, post the examination, the respondents have treated the petitioners differently than the direct recruits and that their pay can in any event, not be less than `9,910/-.9. learned counsel for the petitioners has drawn the attention of this court to the seniority list for the year 2005, to show that the petitioners who are senior in the seniority list as compared to the head constables recruited directly, are getting lesser pay due to the above anomaly despite the fact that in various decisions of this court, involving an identical question, the situation has been repeatedly clarified.10. mr.ankur chhibber, learned counsel for the petitioners has submitted that assuming without admitting the stand taken by the respondents that the petitioners cannot be treated as direct recruits but as promotees, even then the said issue is no more res integra and has been decided by co-ordinate benches of this hon’ble court in w.p.(c) no.2654/2014 entitled h.c./ro s.s.suhag & ors. vs. union of india & ors. decided on 20.05.2014, w.p.(c) no.1853/2015 entitled lalit kumar choudhary vs. union of india & ors. decided on w.p.(c) 8135/2017 & connected matters page 6 of 12 02.03.2015, w.p.(c) no.8058/2015 entitled union of india & ors. vs. malbika deb gupta decided on 04.11.2016, w.p.(c) no.5215/2016 entitled xavier p.j.& ors. vs. union of india & ors. decided on 01.05.2017 and w.p.(c) no.2634/2017 entitled government of nct of delhi & anr. vs. somvir rana & ors decided on 23.03.2017. he has also submitted that the decision on the question involved in the above petitions, has attained finality in view of the judgment dated 01.09.2017 of the supreme court in government of nct of delhi & anr. vs. somvir rana (tgt eng) & ors. and director general, esic & ors. vs. sheeja santosh & ors. where the appeals preferred by the government have not only been dismissed, directions have been issued to the government of india to look into the matter and issue appropriate orders for granting the pay scale so that people are not made to approach the tribunals or the high courts or the supreme court, time and again.11. the fact situation in these petitions though not disputed by learned counsel for the union of india, it has been submitted that since the petitioners were not direct recruits, they being promotees appointed as head constable through ldce, their pay has been rightly directed to be re-fixed by allowing one increment @3% of the basic pay + grade pay of the head constable. the manner of fixation of pay on promotion from one grade pay to another in the revised pay structure was clarified in rule-13 of ccs(rp) rules, 2008 i.e. pay on promotion to a higher grade pay was fixed by adding one increment equal to 3% of the sum of the pay in the pay band and the existing grade pay and rounding it to the next multiple of ten + grade w.p.(c) 8135/2017 & connected matters page 7 of 12 pay of the promoted post. but the manner of fixation of pay of the government servants appointed to a higher post was not mentioned.12. it was admitted on behalf of the respondents that the entry pay in the revised pay structure for direct recruits appointed on or after 01.01.2006, in the rank of hc/clerk was fixed in pb-i `5200-20200 + grade pay of `2400/- at `7510/- + grade pay of `2400/-. since the basic pay of constables in the revised pay scale of `5200-20200 + grade pay of `2000/- was fixed by multiplying the existing basic pay with the factor of 1.86 and the same was less than the entry pay of `7510/- + grade pay of `2400/- admissible to direct recruits appointed on or after 01.01.2006, a proposal was taken up with the ministry of home affairs which was examined in consultation with the ministry of finance and finally, the manner of fixation of pay by increasing the basic pay + grade pay of lower post by 3% was confirmed by the ministry of finance, department of expenditure vide uo no.16628/2013/e-ii-a, dated 25.04.2013. accordingly, the pay of the petitioners was re-fixed as above.13. the issue agitated in these batch matters has already been considered in two rounds of litigations wherein the petitioners, lalit kumar choudhary and abhishek yadav, in the first round of litigation had filed w.p.(c) nos.2494/2014 and 2488/2014 claiming their pay had been re-fixed pursuant to the recommendations made by the 6th central pay commission, to their detriment without even issuance of a show cause notice. both the above writ petitions were allowed and the impugned order dated 09.01.2014 was quashed with a direction to the respondents that the petitioners would continue to draw pay and w.p.(c) 8135/2017 & connected matters page 8 of 12 allowances in pay band-i in the pay scale of `5200-20200/- with grade pay of `2400/-, amounting to a sum of `9,910/-, with effect from 01.01.2006. it was also directed that if the respondents intend to take any action to re-fix the pay of the petitioners to their detriment, a show cause notice would be issued containing the reasons therefor and a decision would be taken thereon after giving an opportunity to the petitioners to be heard and till then, no recoveries shall be effected from them.14. both the petitioners, lalit kumar choudhary and abhishek yadav (in w.p.(c) nos.2494/2014 and 2488/2014) were issued show cause notices and after considering and rejecting their replies, vide order dated 20.01.2015 yet again, directions were issued to re-fix their pay as per schedule specified in the order and to also effect recoveries of the excess amount already paid to them.15. in the second round of litigation, the petitioners, lalit kumar choudhary and abhishek yadav filed w.p.(c) nos.1853/2015 & 1854/2015 challenging the order dated 20.01.2015, which were allowed for the following reasons:-"“20. we note that the anomalous situation has resulted because in the first schedule, section ii of the ccs revised pay rules, 2008, „entry pay in the revised pay structure for direct recruits appointed on or after 1.1.2006‟ has been specified for various posts in various pay bands and grade pays. for the posts in pb-1 having scale `5200-20200 with grade pay `2,400/- the entry level pay in the pay band is `7,510/- and with the grade pay of `2,400/- the pay would be `9,910/-. w.p.(c) 8135/2017 & connected matters page 9 of 12 as per the revised pay rules, the salary of head 21. constables directly recruited in pb-1 would thus be `9,910/-. but as regards promotees, the rule envisages the pay to be fixed with reference to the previous basic pay multiplied by 1.8 and rounded off to the nearest 10. it results in an anomaly because the basic pay of direct recruits who joined later, and hence would be junior, to the promotees is more.22. taking analogy from the principle of stepping up of pay of a senior if the junior receives more pay, in the decision in dashrath‟s case supra it was decided by this court that wherever such anomalous situation exists, the basic pay of the promotees with effect from january 01, 2006 has to be at the minimum prescribed for direct recruitment to the post in question.23. the writ petitions are accordingly allowed. impugned orders are quashed. recoveries if any made are directed to be restored. pay of the petitioners as of january 01, 2006 when the petitioners were holding the rank of a head constable (min.) would be fixed at the minimum prescribed in the ccs revised pay rules i.e. basic pay `7,510/- and grade pay `2,400/-.” 16. the issue raised in these batch petitions is no longer res integra. in the decision of the supreme court dated 01.09.2017 in the case government of nct of delhi & anr. vs. somvir rana (tgt eng) & ors. (vide diary no.23663/2017) and in the case director general, esic & ors. vs. sheeja santosh & ors. (vide diary no.23440/2017), the issue has been finally set at rest by the supreme court and it was held as under: w.p.(c) 8135/2017 & connected matters page 10 of 12 “delay condoned. we find that there are several matters in which the aggrieved employees have been going to the tribunal, then to the high court and thereafter those matters are brought before this court at the instance of the union of india/nct of delhi. once the question, in principle, has been settled, it is only appropriate on the part of the government of india to issue a circular so that it will save the time of the court and the apart administrative departments avoiding unnecessary and avoidable expenditure. the present situation is that the stepping up is available only to those who have approached the court. but since the issue has otherwise become final, we direct the government of india to immediately look into the matter and issue appropriate orders for granting the pay-scale so that people need not unnecessarily travel either to the tribunal or the high court or this court. with the above observation and directions, the special leave petitions are dismissed.” from 17. in view of the decision of co-ordinate benches of this court referred to above as well the issue being finally settled by the supreme court vide judgment dated 01.09.2017 in government of nct of delhi & anr. vs. somvir rana (tgt eng) & ors. (vide diary no.23663/2017) and in the case director general, esic & ors. vs. sheeja santosh & ors. (vide diary no.23440/2017), the orders w.p.(c) 8135/2017 & connected matters page 11 of 12 impugned in these writ petitions are quashed and set aside. the pay of the petitioners in the rank of head constable (clerk) shall be fixed at the minimum prescribed in the ccs revised pay rules i.e. basic pay `7,510/- and grade pay `2,400/-. recoveries, if any, effected from the salaries of the petitioners pursuant to the impugned orders, shall be restored within eight weeks from the date of passing of this order.18. the petitions are accordingly allowed, with no order as to costs. march15 2018 „hkaur/st‟ pratibha rani, j.hima kohli, j.w.p.(c) 8135/2017 & connected matters page 12 of 12
Judgment:

$~9 to 17 * + W.P.(C) 8135/2017 + W.P.(C) 8138/2017 + W.P.(C) 8139/2017 + W.P.(C) 8142/2017 + W.P.(C) 8149/2017 + W.P.(C) 8158/2017 + W.P.(C) 8559/2017 + W.P.(C) 8600/2017 + W.P.(C) 8602/2017 ASI/CLERK DEVI RAM TIRU ASI/CLERK C.P.CHAKRAVARTY ASI/CLERK VIKRAM SINGH MANRAL ASI/CLERK ANIL YADAV ASI/CLERK BITTO SINGH ASI/CLERK YOGENDER KUMAR ASI/CLERK SUNIL KUMAR SHARMA ........ Petitioner

........ Petitioner

........ Petitioner

........ Petitioner

........ Petitioner

........ Petitioner

........ Petitioner

........ Petitioner

........ Petitioner

IN THE HIGH COURT OF DELHI AT NEW DELHI ASI/CLERK CHHAMA NATH ASI/CLERK RAJVIR SINGH Through: Mr.Ankur Chhibber, Adv. versus UNION OF INDIA AND ORS. ........ RESPONDENTS

Through: Mr.Dev P. Bhardwaj, CGSC for UOI with Ms.Anubha Bhardwaj, Adv. CORAM: HON’BLE MS. JUSTICE HIMA KOHLI HON’BLE MS. JUSTICE PRATIBHA RANI W.P.(C) 8135/2017 & Connected Matters Page 1 of 12 % 1. ORDER

1503.2018 The petitioners herein joined CISF in the rank of Constable (GD). In the year 2005, CISF published an advertisement for filling up the post of Head Constable (Clerk) and ASI (Stenographer) in the pay scale of `3200-85-4900, for which 70% vacancies were to be filled up by way of direct recruitment and 30% vacancies were to be filled by way of Limited Departmental Competitive Examination (LDCE), for which the departmental candidates having rendered 3 years service were eligible.

2. The petitioners successfully qualified the LDCE along with the direct recruits and received offers of appointment. The petitioners completed the training as freshly recruited Head Constables along with the Head Constables who were directly recruited and a seniority list of the Head Constables (Clerks) who had qualified in the year 2005, was also published on 18.03.2008, depicting the respective seniority number of the petitioners and the direct recruits.

3. The grievance of the petitioners is that as per clarification issued by the Department of Personnel & Training, such candidates who had appeared in the open competitive examinations would be direct recruits consequent to their selection to the subject post. Hence, the petitioners who have competed with the direct recruits by participating in the LDCE, cannot be treated as promotees and their pay cannot be less than `9,910/-, which is payable to the direct recruits at the entry level. W.P.(C) 8135/2017 & Connected Matters Page 2 of 12 4. As per the recommendations of the 6th Pay Commission, as reflected in the CCS(Revised Pay) Rules, the entry pay in the revised pay structure for direct recruits appointed to the subject post on or after 01.01.2006, in Pay Band-I was fixed at `7,510/-, with Grade Pay of `2,400/- totalling to a sum of `9,910/- and the pay of the petitioners herein was also fixed in terms of the above recommendations.

5. The petitioners felt aggrieved when on 05.09.2013, respondent issued a clarification that the pay of the Constables on appointment to the rank of Head Constable (Clerk) against the vacancies of the departmental candidates, will be fixed by one notional increment @ 3% of the basic pay of the lower post.

6. Pursuant to the above clarification dated 05.09.2013, without issuing any show cause notice, the respondents issued an order dated 20.01.2014, impugned herein, fixing the pay of the petitioners as `6,490 + Grade Pay of `2,000/- w.e.f. 01.07.2006 and thereafter on promotion to the post of Head Constable (Clerk) as `6,750/- + Grade Pay of `2,400/-, w.e.f. 30.07.2006. As a result of the above clarification and re-fixation, the petitioners’ pay has been fixed as `6750 - `2,400/-, totalling to a sum of `9,150/- w.e.f. 30.07.2006 whereas the entry pay for the directly recruited Head Constables in the revised pay structure had been fixed at `9,910/-.

7. The details of the order by which the benefit of stepping up was given to the petitioners and the orders by which the said benefits have been withdrawn and the orders impugned in each of these petitions have been compiled below in a tabulated form :-

"W.P.(C) 8135/2017 & Connected Matters Page 3 of 12 Sr.No.Name of the petitioner 1.

2.

3. 4.

5. ASI/Clerk Devi Ram Tiru (Petitioner W.P.(C) No.8135/2017) in C.P ASI/Clerk Chakravarty (Petitioner in W.P (C) No.8138/2017) Singh ASI/Clerk Vikram Manral (Petitioner in W.P (C) No.8139/2017) ASI/Clerk Anil Yadav (Petitioner in W.P (C) No.8142/2017) ASI/Clerk Bitto Singh (Petitioner of Date vide order the which of benefit stepping up was given to the petitioners. 26.03.2010 23.11.2009 15.12.2009 20.01.2009 of Date vide order which the benefit was withdrawn Orders impugned in the writ petitions 05.09.2013, 20.01.2014 & 21.04.2017 05.09.2013, 20.01.2014 & 21.04.2017 05.09.2013, 20.01.2014 & 21.04.2017 21.04.2017, 05.09.2013 & 28.05.2014 05.09.2013, 20.01.2014, 21.04.2017 05.09.2013, 20.01.2014, 21.04.2017 05.09.2013, 20.01.2014, 21.04.2017 05.09.2013, 28.05.2014, 21.04.2017 19.09.2011 05.09.2013, 21.04.2017 05.09.2013, 20.01.2014, W.P.(C) 8135/2017 & Connected Matters Page 4 of 12 6.

7. 8.

9. in W.P (C) No.8149/2017) ASI/Clerk Yogender Kumar (Petitioner in W.P (C) No.8158/2017) ASI/Clerk Sunil Kumar Sharma (Petitioner in W.P (C) No.8559/2017) ASI/Clerk Chhama Nath (Petitioner in W.P (C) No.8600/2017) ASI/Clerk Rajvir Singh ((Petitioner in W.P (C) No.8602/2017) & 20.01.2014 21.04.2017 07.04.2009 20.01.2014, 21.04.2017 & 05.09.2013 05.09.2013, 20.01.2014, 21.04.2017 26.03.2010 20.05.2014, 21.04.2017 & 05.09.2013 05.09.2013, 20.05.2014, 21.04.2017 02.06.2010 20.01.2014, 21.04.2017 & 05.09.2013 05.09.2013, 20.01.2014, 21.04.2017 23.09.2008 21.04.2014, 17.09.2014 & 05.09.2013 05.09.2013, 17.09.2014, 21.04.2017 8. Mr.Ankur Chhibber, learned counsel for the petitioners has submitted that the respondent had fixed the pay of the petitioners by giving an increment @3% of the basic pay of the lower post i.e. by treating their case as a promotion from the post of Constable (GD) to Head Constable (Clerk), whereas the post of Head Constable (Clerk) W.P.(C) 8135/2017 & Connected Matters Page 5 of 12 is not a promotional post, but an entry post in the ministerial cadre, for which the same method of recruitment is applicable as is applicable to direct candidates. It has been further contended that there is no provision in the Recruitment Rules for filling the post of Head Constable (Clerk) through promotion from Constable (GD) as both are different cadre posts. Despite the Department of Personnel & Training having made it clear that such candidates who had appeared in the open competitive examinations would be direct recruits consequent to their selection, post the examination, the respondents have treated the petitioners differently than the direct recruits and that their pay can in any event, not be less than `9,910/-.

9. Learned counsel for the petitioners has drawn the attention of this court to the seniority list for the year 2005, to show that the petitioners who are senior in the seniority list as compared to the Head Constables recruited directly, are getting lesser pay due to the above anomaly despite the fact that in various decisions of this Court, involving an identical question, the situation has been repeatedly clarified.

10. Mr.Ankur Chhibber, learned counsel for the petitioners has submitted that assuming without admitting the stand taken by the respondents that the petitioners cannot be treated as direct recruits but as promotees, even then the said issue is no more res integra and has been decided by Co-ordinate Benches of this Hon’ble Court in W.P.(C) No.2654/2014 entitled H.C./RO S.S.Suhag & Ors. vs. Union of India & Ors. decided on 20.05.2014, W.P.(C) No.1853/2015 entitled Lalit Kumar Choudhary vs. Union of India & Ors. decided on W.P.(C) 8135/2017 & Connected Matters Page 6 of 12 02.03.2015, W.P.(C) No.8058/2015 entitled Union of India & Ors. vs. Malbika Deb Gupta decided on 04.11.2016, W.P.(C) No.5215/2016 entitled Xavier P.J.& Ors. vs. Union of India & Ors. decided on 01.05.2017 and W.P.(C) No.2634/2017 entitled Government of NCT of Delhi & Anr. vs. Somvir Rana & Ors decided on 23.03.2017. He has also submitted that the decision on the question involved in the above petitions, has attained finality in view of the judgment dated 01.09.2017 of the Supreme Court in Government of NCT of Delhi & Anr. vs. Somvir Rana (TGT ENG) & Ors. and Director General, ESIC & Ors. Vs. Sheeja Santosh & Ors. where the appeals preferred by the Government have not only been dismissed, directions have been issued to the Government of India to look into the matter and issue appropriate orders for granting the pay scale so that people are not made to approach the Tribunals or the High Courts or the Supreme Court, time and again.

11. The fact situation in these petitions though not disputed by learned counsel for the Union of India, it has been submitted that since the petitioners were not direct recruits, they being promotees appointed as Head Constable through LDCE, their pay has been rightly directed to be re-fixed by allowing one increment @3% of the Basic Pay + Grade Pay of the Head Constable. The manner of fixation of pay on promotion from one grade pay to another in the revised pay structure was clarified in Rule-13 of CCS(RP) Rules, 2008 i.e. pay on promotion to a higher grade pay was fixed by adding one increment equal to 3% of the sum of the pay in the pay band and the existing grade pay and rounding it to the next multiple of ten + Grade W.P.(C) 8135/2017 & Connected Matters Page 7 of 12 Pay of the promoted post. But the manner of fixation of pay of the Government servants appointed to a higher post was not mentioned.

12. It was admitted on behalf of the respondents that the Entry Pay in the revised pay structure for direct recruits appointed on or after 01.01.2006, in the rank of HC/Clerk was fixed in PB-I `5200-20200 + Grade Pay of `2400/- at `7510/- + Grade Pay of `2400/-. Since the basic pay of Constables in the revised pay scale of `5200-20200 + Grade Pay of `2000/- was fixed by multiplying the existing basic pay with the factor of 1.86 and the same was less than the Entry Pay of `7510/- + Grade Pay of `2400/- admissible to direct recruits appointed on or after 01.01.2006, a proposal was taken up with the Ministry of Home Affairs which was examined in consultation with the Ministry of Finance and finally, the manner of fixation of pay by increasing the Basic Pay + Grade Pay of lower post by 3% was confirmed by the Ministry of Finance, Department of Expenditure vide UO No.16628/2013/E-II-A, dated 25.04.2013. Accordingly, the pay of the petitioners was re-fixed as above.

13. The issue agitated in these batch matters has already been considered in two rounds of litigations wherein the petitioners, Lalit Kumar Choudhary and Abhishek Yadav, in the first round of litigation had filed W.P.(C) Nos.2494/2014 and 2488/2014 claiming their pay had been re-fixed pursuant to the recommendations made by the 6th Central Pay Commission, to their detriment without even issuance of a show cause notice. Both the above writ petitions were allowed and the impugned order dated 09.01.2014 was quashed with a direction to the respondents that the petitioners would continue to draw pay and W.P.(C) 8135/2017 & Connected Matters Page 8 of 12 allowances in Pay Band-I in the pay scale of `5200-20200/- with Grade Pay of `2400/-, amounting to a sum of `9,910/-, with effect from 01.01.2006. It was also directed that if the respondents intend to take any action to re-fix the pay of the petitioners to their detriment, a show cause notice would be issued containing the reasons therefor and a decision would be taken thereon after giving an opportunity to the petitioners to be heard and till then, no recoveries shall be effected from them.

14. Both the petitioners, Lalit Kumar Choudhary and Abhishek Yadav (in W.P.(C) Nos.2494/2014 and 2488/2014) were issued show cause notices and after considering and rejecting their replies, vide order dated 20.01.2015 yet again, directions were issued to re-fix their pay as per schedule specified in the order and to also effect recoveries of the excess amount already paid to them.

15. In the second round of litigation, the petitioners, Lalit Kumar Choudhary and Abhishek Yadav filed W.P.(C) Nos.1853/2015 & 1854/2015 challenging the order dated 20.01.2015, which were allowed for the following reasons:-

"“20. We note that the anomalous situation has resulted because in the First Schedule, Section II of the CCS Revised Pay Rules, 2008, „Entry Pay in the Revised Pay Structure for Direct Recruits appointed on or after 1.1.2006‟ has been specified for various posts in various pay bands and grade pays. For the posts in PB-1 having scale `5200-20200 with grade pay `2,400/- the entry level pay in the pay band is `7,510/- and with the grade pay of `2,400/- the pay would be `9,910/-. W.P.(C) 8135/2017 & Connected Matters Page 9 of 12 As per the revised pay rules, the salary of Head 21. Constables directly recruited in PB-1 would thus be `9,910/-. But as regards promotees, the Rule envisages the pay to be fixed with reference to the previous basic pay multiplied by 1.8 and rounded off to the nearest 10. It results in an anomaly because the basic pay of direct recruits who joined later, and hence would be junior, to the promotees is more.

22. Taking analogy from the principle of stepping up of pay of a senior if the junior receives more pay, in the decision in Dashrath‟s case supra it was decided by this Court that wherever such anomalous situation exists, the basic pay of the promotees with effect from January 01, 2006 has to be at the minimum prescribed for direct recruitment to the post in question.

23. The writ petitions are accordingly allowed. Impugned orders are quashed. Recoveries if any made are directed to be restored. Pay of the petitioners as of January 01, 2006 when the petitioners were holding the rank of a Head Constable (Min.) would be fixed at the minimum prescribed in the CCS Revised Pay Rules i.e. basic pay `7,510/- and grade pay `2,400/-.” 16. The issue raised in these batch petitions is no longer res integra. In the decision of the Supreme Court dated 01.09.2017 in the case Government of NCT of Delhi & Anr. vs. Somvir Rana (TGT ENG) & Ors. (vide Diary No.23663/2017) and in the case Director General, ESIC & Ors. vs. Sheeja Santosh & Ors. (vide Diary No.23440/2017), the issue has been finally set at rest by the Supreme Court and it was held as under: W.P.(C) 8135/2017 & Connected Matters Page 10 of 12 “Delay condoned. We find that there are several matters in which the aggrieved employees have been going to the Tribunal, then to the High Court and thereafter those matters are brought before this Court at the instance of the Union of India/NCT of Delhi. Once the question, in principle, has been settled, it is only appropriate on the part of the Government of India to issue a Circular so that it will save the time of the Court and the apart Administrative Departments avoiding unnecessary and avoidable expenditure. The present situation is that the stepping up is available only to those who have approached the Court. But since the issue has otherwise become final, we direct the Government of India to immediately look into the matter and issue appropriate orders for granting the pay-scale so that people need not unnecessarily travel either to the Tribunal or the High Court or this Court. With the above observation and directions, the special leave petitions are dismissed.” from 17. In view of the decision of Co-ordinate Benches of this Court referred to above as well the issue being finally settled by the Supreme Court vide judgment dated 01.09.2017 in Government of NCT of Delhi & Anr. vs. Somvir Rana (TGT ENG) & Ors. (vide Diary No.23663/2017) and in the case Director General, ESIC & Ors. vs. Sheeja Santosh & Ors. (vide Diary No.23440/2017), the orders W.P.(C) 8135/2017 & Connected Matters Page 11 of 12 impugned in these writ petitions are quashed and set aside. The pay of the petitioners in the rank of Head Constable (Clerk) shall be fixed at the minimum prescribed in the CCS Revised Pay Rules i.e. Basic Pay `7,510/- and Grade Pay `2,400/-. Recoveries, if any, effected from the salaries of the petitioners pursuant to the impugned orders, shall be restored within eight weeks from the date of passing of this order.

18. The petitions are accordingly allowed, with no order as to costs. MARCH15 2018 „hkaur/st‟ PRATIBHA RANI, J.

HIMA KOHLI, J.

W.P.(C) 8135/2017 & Connected Matters Page 12 of 12