Ram Niwas v. Union of India & Ors.

1. By way of the present writ petition, the petitioner seeks a direction that there basic pay be fixed at `9,910/- with effect from January 01, 2006. The basis of the claim is that this is the entry level pay to be fixed for directly recruited Head Constables as per the CCS (Revised Pay) Rules,

2008. The petitioner had also submitted the representation for the same, which was rejected vide order dated March 26, 2015 wherein the legal stand of the respondents is also reflected.

2. Briefly noted, the facts germane for adjudication of the present petition are that pursuant to a recruitment drive held in the year 1984, the petitioner was appointed in BSF to rank of Naik/RO, and thereafter, in the year 1995 petitioner underwent the Radio Line Grade –III course at the 2016:DHC:4994-DB Signal Training School, Bangalore, the same being the trade course for Radio Operators. The petitioner was appointed as Naik Operator on January 21, 1997 and at that point of time, the pay of the petitioner was fixed in terms of the recommendation of the 5th Central Pay Commission. He drew basic pay in sum of `950/- with annual increment of `25/-.

3. As per the recommendation of the 5th Central Pay Commission, the post of Naik Operator was merged with the of Head Constable as Head Constable/RO w.e.f. October10, 1997 and the same was an Entry Grade post in the communication wing of BSF. Consequent to the aforesaid upgradation, petitioner was placed in the pay scale `3200-85-4900 and accordingly, the basic pay of the petitioner upon joining the force was fixed at `3,200/-.

4. Pursuant to the recommendations of the 6th Central Pay Commission notified vide Gazette Notification No.F.1/1/2008-IC dated July 21, 2009, various pay scales were placed in the pay band `5200-20200, with different grade pays commencing from `1,800/- to `2,800/-. A formula for conversion was given in the CCS (Revised Pay) Rules, 2008.

5. The pay of the petitioner was re-fixed after audit at `9620/-, the same being calculated on the bases that the basic pay of the petitioner at that point of time was `3880/- and the same being revised by the multiplication factor of 1.86 as adopted by the 6th Central Pay Commission with Grade Pay of ` 2400/- being added thereto (i.e. 3880 x 1.86 = 7216.80, rounding off to ` 7220 + 2400/- = 9620/-.)

6. Learned counsel for the petitioner contends that the pay of the petitioner could not be fixed at less than `9,910/- on account of the fact that pursuant to the recommendations of the 6th Central Pay Commission and as reflected in the CCS (Revised Pay) Rules, 2008, the Entry Pay in the revised pay structure for direct recruits appointed on or after January 01, 2006 in Pay Band-1 (`5200-20200/-) is to be fixed at `7,510/- with Grade Pay of `2,400/- totalling to a sum of `9,910/-.

7. Our attention is also drawn to the fact that the premise of the order dated March 26, 2015, i.e. that as per part 11 of the table depicted in the gazette of India on August 29, 2008 the same would not be applicable in case of the petitioner. It was also pointed out to us that in certain conditions employees appointed in service prior to direct recruits were promoted earlier and were now drawing lesser pay than direct recruits appointed on January 01, 2006 could not be allowed to step up their pay has already been considered by the National Anomaly Committee in its meeting held on July 17, 2012 whereby it has been clarified under Sl. 8.[3] that wherever there is a provision of Direct Recruitment in the Recruitment Rules, pay on promotion would be fixed at the prescribed minimum of the entry pay as provided for in the Direct entrants in the revised pay rules irrespective of the fact that the Direct Recruitment has actually taken place or not.

8. Per contra, the respondents have taken the stand that the government was not bound by the decision taken in the anomaly committee as the same was a result of a meeting and such a decision supersede the statutory provisions of the CCS(Revised) Pay Rules, 2008.

9. The respondents also place reliance upon the decision of the principal bench of the Central Administrative Tribunal Dated September 23, 2014 passed in the case of MS Raja & Another V. Union of India & Another wherein the decision of the National Anomaly Committee was not accepted by the Tribunal. However, we note that in the said decision it was specifically stated that there was no data as to the implication of the recommendations of the Committee. Moreover, the Tribunal did not take into account a series of decisions of this court, some of which penned by us, which we will be proceeding to note herein after.

10. In three recent decisions of this court on the issue concerning us in the present petitions, i.e. the implementation after interpretation of the CCS (Revised Pay) Rules, 2008 which came into effect retrospectively from January 01, 2006.

11. In the case of other similarly situated persons holding the rank of Head Constable in CISF in WP(C) No. 7673/2012 tiled Kichlu R. Money & Others vs Union of India & Others, vide order dated September 18, 2014, this court had observed that the petitioners were entitled to the PB-I Basic Pay Scale of `7,510/- and Grade Pay of `2,400/- in accordance with the recommendations of the 6th CPC in view of the instructions by the respondents themselves as conveyed by the Government counsel, and accordingly directed the respondents to grant the said benefit to the petitioners.

12. In another decision penned by us on January 27, 2015 in WP(C) NO. 727/2015 titled Dashrath & Anr. vs. Union of India & Ors., the issue for consideration was if Direct Recruits to the post of Constable/Tradesmen were entitled to the minimum pay of `6,460/- with Grade Pay of `2,000/totalling to `8,460/-, then would the petitioners, who were promoted before the Rules came into vogue, be entitled to the same or would their pay be fixed by multiplying the existing basic pay by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10. In view of the fact that the department had already taken a view in the case of Head Constable/Tradesmen that a promote would be entitled to the basic pay to which a directly recruited Head Constable would be entitled to, as well as the decision in Kichlu R. Money (supra), the petition was allowed in favour of the petitioners.

13. In another decision penned by us on March 2, 2015 in W.P.(C) No.1853/2015 Lalit Kumar Choudhary Vs Union of India, the issue for consideration was the same in the present case relating to fixation of pay of HC/RO in CRPF wheras the present case deals with HC/RO in BSF. After considering the issue we had held that in no circumstance the pay of HC/RO who had been promoted to the said post prior to January 1, 2006 could be less than the minimum prescribed for direct recruitment to the said post.

14. Not only this we are also informed that the same view was taken by the Principal bench Of CAT in Delhi in O.A No 3715/2011 decided on August 21,2011 and the said judgement has been upheld by this Hon’ble Court in W.P.(C) No.6137/2013 decided on October 27,2014.