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Judgment
Sambuddha Chakrabarti, J.
The short question that falls for consideration in the writ petition is whether the respondents were justified in refusing senior time scale to the
petitioner. The petitioner joined the Central Reserve Police Force (CRPF, for short) in the year 1983 as an Assistant Sub-Inspector (M). Since then he
got three promotions and became an Office Superintendent (M). In the year 2007, a disciplinary proceeding was initiated against the petitioner and on
July 31, 2009 he was dismissed from service. The petitioner challenged the same by way of a writ petition. A Division Bench of this Court quashed
the charge-sheet and the order of punishment as well as the entire disciplinary proceeding.
The respondents were directed to reinstate the petitioner in service and to release the entire consequential admissible service benefits without any
delay. Against that order the respondents filed an appeal. The Supreme Court by an order, dated February 18, 2016 partly allowed the appeal to the
extent that the order passed by the High Court directing reinstatement of the petitioner stood confirmed. The High Court’s order in connection
with the payment of arrear of emoluments and allowances was modified to the extent that instead of full arrears towards back wages, the petitioner
herein would be entitled to 25% of such wages and for all other purposes the respondents shall be deemed to have been reinstated with continuity of
service.
On April 5, 2016 the petitioner was reinstated in service. On September 8, 2016 he was promoted to the rank of Assistant Commandant and after 22
days he retired from service on September 30, 2016. The petitioner says that he was assessed fit by the Departmental Promotion Committee for the
Year 2008-09. But the same was kept in a sealed cover as the departmental proceeding was contemplated against him. It is his further case that the
petitioner was found fit by the said Committee and his seniority in the gradation list was fixed below Malkhan Singh and above Pradip Kumar Biswas
as on April 1, 2009. He alleges that Sri Pradip Kumar Biswas who was junior to him was given the benefit of senior time scale in the post of Assistant
Commandant but the petitioner had been denied the said benefit. The petitioner made a representation to the superior authority. He received a
communication, dated February 28, 2017, from the respondents informing him that he was promoted to the rank of Assistant Commandant only 22
days before his retirement. As per the Government circular an officer in the rank of Assistant Commandant is required to serve on regular basis for
four years. Therefore, the petitioner is not eligible for the senior time scale.
By this writ petition, the petitioner has inter alia prayed for a writ in the nature of mandamus commanding the respondents to forthwith revoke and
cancel the memo, dated February 28, 2017 and to grant senior time scale of pay to the petitioner from the date when his junior was granted the said
scale, and for other reliefs. In support of his contention, the petitioner relied on the case of Ramesh Kumar Vs. Union of India and Others, reported in
2015 (5) Supreme 658. In that case the appellant was wrongly not considered for promotion which was finally given to him in the year 2000 with
retrospective seniority. The Supreme Court observed that the petitioner was entitled to pay and allowance from the date of the first Departmental
Promotion Committee till the date of his actual promotion on November 13, 2000.
In Netram Sahu Vs. State of Chhattisgarh and Another, reported in 2018 (3) Supreme 41, the appellant was a daily wager. Subsequently his services
were regularized on work charge establishment in the year 2008. The appellant was not paid the gratuity amount by the State. The Supreme Court
held that on regularization the period of service rendered as daily wager would be counted as continuous service for Payment of Gratuity Act. The
petitioner also relied on the case of Mrs. Raj Kanta Vs. The Financial Commissioner, Punjab and Another, reported in AIR 1980 SC 1464 for a proper
appreciation of the meaning of the word “regularâ€. The Supreme Court after considering various lexicons held that the word means “in a
regular mannerâ€, “methodicallyâ€, “in due order†etc.
The petitioner lastly relied on the case of Union of India and Others Vs. K. B. Rajoria, reported in AIR 2000 SC 1819. This judgment has also been
relied on for understanding the exact meaning of the word “regularâ€. There the Supreme Court held that the word “regular†does not mean
actual. The expression “on a regular basis†would be the appointment to the post on a regular basis in contradistinction to appointment on ad hoc
or stopgap or purely temporary basis.
The respondents have used an affidavit-in-opposition inter alia stating that the recommendation of the Departmental Promotion Committee was kept in
a sealed cover as he as not free from the vigilance angle as the departmental enquiry was contemplated or pending against him. After his dismissal
from service his name was not considered for promotion to the next rank by the subsequent Departmental Promotion Committees from the year 2009-
10 onwards as he was not in service. After his reinstatement the sealed cover proceeding was acted upon by the competent authority in accordance
with the rules. He was found fit for the promotion to the rank of Administrative Officer for the year 2008-09. Therefore, the promotion was granted to
him by an order, dated July 27, 2016 to the rank of Administrative Officer with reference to the Departmental Promotion Committee’s
recommendation for the year 2008-09 by reassigning his seniority at an appropriate place. He was placed above Sri Pradip Kumar Biswas and bolow
Malkhan Singh.
The respondents say that the concerned Ministry by an order, dated February 25, 2011 had accorded approval for creation of certain posts against the
abolition of some others. The Ministry had accorded approval for combatization/ appointment of 15 willing and eligible Administrative Officers as one
time measure subject to their fitness. The name of the petitioner could not be found in the proposal as he was not in service due to award of
punishment. After being promoted to the post of Administrative Officer the petitioner expressed is willingness for combatization of Assistant
Commandant. He was combatized as Assistant Commandant (Mean) with the condition that the combatization would take effect from the date of
assuming the charge of Assistant Commandant (Mean) and he would be entitled to grade pay from the date of taking over the charge of combatized
posts. Accepting the terms and conditions he took over the charge of Assistant Commandant (Mean) on September 8, 2016.
As per the guideline issued by the concerned Ministry four years’ regular service in the grade of junior time scale, i.e., in the rank of Assistant
Commandant, is mandatory for the grant of senior time scale in the grade pay. Therefore, the petitioner is not eligible for the senior time scale. The
seniority of the petitioner, however, was fixed at par with the officials assessed as fit by the Departmental Promotion Committee for the vacancy year
of 2008- 9. His pay was also fixed with reference to the pay of his junior Sri Pradip Kumar Biswas. Therefore, the claim of the petitioner for sanction
of senior time scale is not covered by the scope of the relevant Rules and Regulations as he was combatized only 22 days before his superannuation.
That apart, the post of Administrative Officer is a Group-B gazetted post and Assistant Commandant (Mean) is a Group- A are different groups and
cannot be clubbed together.
The petitioner has filed an affidavit-in-reply largely reiterating his stand in the writ petition. He, however, has denied that at the time of combatization
apart from the medical fitness there was no other condition as alleged. Such condition cannot also get precedence over the order of the court.
Therefore, the respondents cannot deprive the petitioner of the benefits which had been accrued in his favour. The alleged condition cannot be
resorted to by the respondents to take away the effect of the orders passed by the courts, particularly when the court directed the respondents to
confer upon him all the service benefits and to reinstate him in the service. From this, the petitioner alleged that he was entitled to be promoted from
the date when his juniors were given promotion.
As mentioned earlier the High Court’s direction for reinstatement of the petitioner herein with continuity of service and other benefits were
affirmed by the Supreme Court. Only the direction for payment of arrears of emoluments and allowances were modified to the extent that instead of
full arrears towards the back wages the petitioner herein was found to be entitled to only 25% of the said wages. It cannot be disputed that the
reinstatement of the petitioner was allowed by the respondents with continuity of service. The Deputy Inspecting General of Police had passed an
order directing that the intervening period from July 31, 2009 to the date he resumed the service has been treated as spent on duty and during this
period he was paid 25% of the wages. Again the seniority of the petitioner was fixed at par with the officials assessed as fit by the Departmental
Promotion Committee for the vacancy year 2008-09. The respondents have specifically mentioned that he was combatized as an Assistant
Commandant (Mean) with the condition that it would take effect from the date of assuming the charge and he would be entitled to grade pay from the
date of taking over the charge of combatized post. According to them, the petitioner had accepted those terms and conditions and took over as an
Assistant Commandant (Mean) on September 8, 2016.
It appears that the Deputy Inspector General (Organization) by an order, dated September 8, 2016 proved the combatization of the petitioner. It was
specifically provided that on combatization no pay fixation benefits would be admissible to him. The concerned was directed to ensure that he was in
SHAPE-I medical category on the date of assuming the charge of Assistant Commandant.
The respondents have specifically taken a point that the petitioner was aware of this condition and he had assumed the charge on this condition alone.
It may be mentioned that in the affidavit-in-reply this very specific allegation of the respondents made in paragraph 10 of the affidavit-in-opposition has
not been controverted at all. The case of the respondents appears to be probable inasmuch as the petitioner claimed that the only condition that was
imposed was with regard to his medical fitness.
It seems to be a matter of surprise that the petitioner is aware of condition relating to his medical fitness, but not the other condition when both of them
were contained in the same order. From this the Court has to hold that the petitioner had accepted the position after knowing the condition for
promoting him to the post of Assistant Commandant.
It is no good arguing that the order of the respondents cannot get precedence over the orders of the Supreme Court. The order of the Supreme Court
has not been violated. Benefit of the past service has been given to him undoubtedly. But at the time of his promotion, he had accepted the same
subject to the condition mentioned in the order. It cannot be that an employee will take advantage of an order but not the condition attached to it.
Undoubtedly, the promotion of the petitioner was a conditional order.
If the petitioner had informed the respondents that he was not willing to accept the terms of the order they might not have given him the promotion for
only 22 days before his retirement. In such view of it I do not find any merit in this writ petition and the same is dismissed. There shall be no order as
to the costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite
formalities.