Dhruba Jyoti Lahiri vs Union of India (UOI) and Others

B.B. Deb, J.

The gist of the petitioner''s case :

While serving in the Assam Rifles the petitioner has been promoted to the rank of Commandant w.e.f. 7.9.1992 on officiating basis followed by regularisation w.e.f. 1.2.1995.

Having accepted the Fifth Central Pay Commission report, the Central Government in the name of the President issued Notification dated 30.9.1997 merging the existing posts of Commandant (Ordinary Grade) with the Commandant (Selection Grade) and allowed the identical pay scale of Rs. 4500-5700 having re-named both the posts as Commandant and that was done vide order dated 27.10.1997. Before issuing this merger order there were two categories of Commandant In the Assam Rifles, one was called Commandant (Ordinary Grade) and the next rank was Commandant (Selection Grade with a higher pay scale), but pursuant to the Fifth Central Pay Commission report the said two ranks have been merged together providing a single pay scale. The related portion of the order dated 27.10.1997 is re-produced below :

"2. The President is also pleased to accept the recommendation of the Pay Commission that Second-in-Command of the CPMFS other than CISF will be in the pay scale of Rs. 3700-5000. All the existing Second-in-Command will continues to draw the scale of pay of Rs. 4500-5700 as personal to them till they are placed in the rank of Commandant, in their turn with reference to the number of vacancies available in each Central Para-Military Force. The Second-in-Command who are drawing pay in the pay scale of Rs. 4100-5300 and are being placed in the pay scale of Rs- 4500-5700 as personal to them will continue to wear the rank of Second-in-Command as prescribed in the relevant Acts and Rules."

Admittedly, prior to 27.10.1097, Commandant (Ordinary Grade) was the Second-in-Command and the Commandant (Selection Grade) was the First-in-Command. But by virtue of the merger/amalgamation of those two posts, the only post Commandant came into existence having same pay scale, but so far the rank is concerned, it is mentioned there in the said order that the Second-in-Command will continue to draw the scale of pay of Rs. 4500-5700 being personal to them till they are placed in the rank of Commandant in their turn with reference to the number of vacancies available in each Central Para-Military Force.

The grievance of the petitioner Is that as per seniority list published on 4.7.1998, he has been placed at serial No. 5 of the said seniority list while the private respondent No. 4 has been figured at serial No. 7. From another gradation list of Commandant (Selection Grade). Commandant (Ordinary Grade), Deputy Commandant etc. it has been published on 9.3.1997 showing the seniority position as on 1.3.1997, it is evident that the petitioner''s name has been figured at seniority position 19 of the Commandant (Ordinary Grade) and the name of respondent No. 4 has been figured at serial No. 23 in the Ordinary Grade. Having referred another seniority list published on 15.10.1999, the petitioner contends that his seniority position in the rank of Commandant has been shown at serial No. 4 while the respondent No. 4 has been placed at serial No. 5 in the said seniority list. The petitioner further contends that the Commandant who is in First-in-Command is allowed to use the badge with a symbol of one Ashoka and two stars with Gorget patches while the Second-in-Command is entitled to use Ashoka and one star. Though pursuant to the order dated 27.10.1997 the pay scales of Commandant (Selection Grade) and the. Commandant (Ordinary Grade) have been merged together allowing one identical pay scale, but in fact the Commandant (Selection Grade) has been treated as Commandant and the Commandant (Ordinary Grade) has been treated as Second-in-Command. The identical pay scale has been allowed to the Second-in-Command as personal to them till they are placed in the rank of Commandant, in their turn with reference to the number of vacancies available in each Central Para-Military Force and as such according to the petitioner, he should be given the said benefit whenever his turn would come, but obviously prior to his junior respondent No. 4. The petitioner averred in para 12 of the writ petition that though the respondent No. 4 has been junior to him, the authority processed the file to allow the movement of respondent No. 4 to the rank of erstwhile Commandant Section Grade) and from the Singal No. A 1433 dated 8.9.2000, the petitioner came to know that the respondent No. 4 would move the that rank by 30th September 2000 and thus he filed this writ petition on 12.9.2000 seeking a writ of mandamus allowing him the placement in the rank of erstwhile Commandant (Selection Grade).

The respondent Nos. 1, 2 and 3 entered appearance and filed their affidavit-in-opposition. The respondent No. 4 despite receipt of notice did not file in Court. The prime point of objection raised by the respondents in their affidavit-in-opposition is that though the pay scales of erstwhile Commandant (Selection Grade) and Commandant (Ordinary Grade) have been merged and an identical pay scale has been allowed by the Central Govt. on accepting the Fifth Central Pay Commission Report, but the status of the erstwhile Commandant (Selection Grade) and Commandant (Ordinary Grade) have never been made identical though both the posts are re-named as Commandant, but virtually the erstwhile Commandant (Selection Grade) is treated as senior Commandant and the Commandant (Ordinary Grade) is Commandant simpliciter.

The interpretation of the respondents in their affidavit-in-opposition is cogent and reasonable. Prior to 27.10.1997 obviously the Commandant (Selection Grade) was placed in a superior position in comparison to the status of Commandant (Ordinary Grade) and as such the Commandant (Selection Grade) has been correctly treated as First-in-Command while the Commandant (Ordinary Grade) was Second-in-Command. The merger done vide order dated 27.10.1997 cannot upset the said hierarchy though both the posts are combined having identical designation of Commandant. The erstwhile Commandant (Selection Grade) obviously has been placed above the status of erstwhile Commandant (Ordinary Grade).

The affidavit-in-opposition also contends that movement to the higher rank is always subject to availability of vacancy and fulfillment of eligibility condition. The erstwhile Commandant (Ordinary Grade) used to hold the post of Second-in-Command of a battalion whereas the erstwhile Commandant (Selection Grade) used to be the staff officer in higher Headquarters as this was non-functional Selection Grade post and at the time of allowing the placement of respondent No. 4 from Second-in-Command to the post of Commandant, the case of the petitioner was considered and he was not found suitable in comparison to the suitability of the respondent No. 4 and thus the petitioner cannot claim placement in that status.

Admittedly, both the petitioner and the respondent No. 4 had been holding the posts of Commandant (Ordinary Grade) and pursuant to order dated 27.10.1997 their pay scale has been upgraded equating with the pay scale of erstwhile Commandant (Selection Grade). Pay scales of both the Commandant (Selection Grade) and Commandant (Ordinary Grade) have been revised w.e.f. 27.10.1997 to Rs. 4500-5700 and those are re-named as Commandant.

The decisive Order dated 27.10.1997 is re-produced below :

"No. 11-27011/92/97-PF.(i)

Government of India

Ministry of Home Affairs

New Delhi the 27th October 1997.

ORDER

Subject:- Implementation of 5th CPC Report.

In pursuance of Para 8 of Ministry of Finance Department of Expenditure, Resolution No. 50(1)/IC/97 dated 30th September 1997 the President is pleased to accept the recommendations made by the 5th Central Pay Commission in para 70.21 of the recommendations In respect of Central Para Military Forces other than Central Industrial Security Force and to merge the existing Commandant (Ordinary Grade) with Commandant (Selection Grade) in the pay scale of Rs. 4500-5700 and both be re-named as Commandant.

The President is also pleased to accept the recommendation of the pay Commission that the Second -in-Command of the CPMFs other than CISF will be in the pay scale of Rs. 3700-5000. All the existing Second-in-Command will continue to draw the scale of pay of Rs. 4500-5700 as personal to them till they are placed in the rank of Commandant, in their turn with reference to the number of vacancies available in each Central Para Military Force. The Second-in-Command who are drawing pay in the pay scale of Rs. 4100-5300 and are being placed in the pay scale of Rs. 4500-5700 as personal to them will continue to wear the rank of Second-in-Command as prescribed in the relevant Acts and Rules.

In the case of CISF, the President is pleased to accept the recommendations made in para 70.25 of the recommendations of the 5th Central Pay Commission and the Commandants (Ordinary Grade) will be placed in the pay scale of Rs. 3700-5000 and will be known as Commandant and the Commandant (Selection Grade) in the pay scale of Rs. 4500-5700 will be designated as Senior Commandant in the pay scale of Rs. 4500-5700.

The Commandant (Ordinary Grade) in CISF who are in the pay scale of Rs. 4100-5300 will draw the scale of Rs. 4500-5700 as personal to them till they are placed at Senior Commandant in their turn. The Commandant (Ordinary Grade) who draw pay in the scale of pay of Rs. 4500-5700 as personal to them will continue to wear the rank as prescribed for the Commandant.

These orders will take effect from 1st October 1997.

This issues with the concurrence of the Integrated Finance Division of this Ministry vide their Dy. 3245/97-Fin.II dated 23rd October 1997.

Yours faithfully, Sd/- (J.K. Khanna) Director."

From the afore quoted order dated 27.10.1997 it is transpired that the posts of Commandant (Ordinary Grade) and Commandant (Selection Grade) have been merged and an identical pay scale of Rs. 4500-5700 has been allowed and both the posts have been re-named as Commandant. All the erstwhile Second-in-Command will continue to draw the pay scale of Commandant at Rs. 4500-5700 as personal to them till they are placed in the rank of Commandant on their turn with reference to the number of vacancies available in each Central Para Military Force. The Second-in-Command who were drawing the pay scale of Rs. 4100-5300 have been placed in the pay scale of Rs. 4500-5700 as personal to them and will continue to wear the badge meant for the rank of Second-in-Command as prescribed under the relevant Act and Rules.

Pursuant to communication dated 23.3.1998 (Annexure-2), the Commandant is entitled to use the badge having Ashoka and two stars with Gorget pitches while the Second-in-Command is entitled to use the badge with Ashoka and one star. Pursuant to the implementation order dated 27.10.1997, the petitioner though was allowed the pay scale of re-named Commandant at Rs. 4500-5700. He has been allowed to use the bodge of Second-in-Command till he is placed in the rank of Commandant. The respondent No. 4 has/had the identical entitlement. Both the petitioner and the respondent No. 4 were allowed the pay scale of Commandant at Rs. 4500-5700 but they would be entitled to use the badge of Commandant with Ashoka and two stars with Gorget patches only when they are placed in the rank of Commandant on their turn subject to availability of vacancies. In case one vacancy is made available the petitioner''s turn would come first as admittedly he has been/is senior to the respondent No. 4 in the rank of erstwhile Commandant (Ordinary Grade), but unfortunately the respondent No. 4 was allowed to be placed in the said rank with a right to use badge with Ashoka and two stars with Gorget patches and that undoubtedly deprived the petitioner and the right of reasonableness, equality and fairness have been violated.

Mr. P.K. Dhar, learned senior Central Govt. Standing Counsel, appearing on behalf of the respondent Union of India submits that before placement of the respondent No. 4 in the revised rank of Commandant, the case of the petitioner was considered by the D.P.C. and was not found suitable.

I cannot share with the interpretation given by Mr. Dhar, the learned senior C.G.S.C. as because in the implementation order dated 27.10.1997 as quoted above none is authorised to test the suitability of erstwhile Commandant (Ordinary Grade) for the purpose of placement to the rank of Commandant because the placement is to be made in accordance with the "turn" with reference to the number of "Vacancies". Turn would come according to seniority and seniority alone. In the order dated 27.10.1997 no qualifying term like "subject to suitability" or "subject to fulfillment of any prescribed criterion" are provided, but the said order dated 27.10.1997 prescribes that the erstwhile Commandant (Ordinary Grade) had/has to wait for placement in the rank of re-named Commandant for their turn and turn would obviously come first to the petitioner than to junior respondent No. 4, but curiously authority having extraneous consideration applied the suitability clause in the matter of placement for which none has been authorised by the implementation order dated 27.10.1997. The erstwhile Commandant (Ordinary Grade) has been/are allowed the identical pay scale of the re-named post of Commandant as personal till they are placed in the said rank on their turn and when the turn comes they are to be placed automatically. There is no scope left for the authority to assess the suitability and/or eligibility of the incumbent concerned.

Having analysed the implementation order dated 27.10.1997 and the communication dated 23.3.1998 prescribing use of different badges, I am of the considered opinion that the authority ought to have allowed the petitioner first to be placed in the rank of re-named Commandant with the entitlement to use badge of Ashoka and two stars with Gorget patches before the same is allowed to respondent No. 4 and as such the action of the Govt. respondents in allowing the respondent No. 4 to be placed in the rank of re-named Commandant with the right of use of the badge of Ashoka and two stars with Gorget patches before the same was allowed to the petitioner, is illegal, void and liable to be struck down. The respondent No. 4 has already been allowed the said benefit. In case there is at least one additional vacancy, the petitioner should be placed against the vacancy in the rank of re-named Commandant with right to use the badge of Ashoka and two stars with Gorget patches. In case there is no vacancy, the respondent No. 4 to be reverted and the petitioner should be placed against that resultant vacancy. This should be implemented within a period of fort-night.

With these observations and directions the writ petition is allowed. No order as to costs.