MOHAN SINGH BANGYAL vs STATE OF UTTARAKHAND AND OTHERS

K.M. Joseph, J

The petitioner has approached this Court seeking the following reliefs:

“i) Issue a writ, order or direction in the nature of certiorari quash the impugned order dated 14.10.2015 passed by respondent no. 1 (Contained as

Annexure NO. 12 to this writ petition).Â

ii) Issue a writ order or direction in the nature of mandamus directing the respondents to grant all promotional and consequential benefits to the

petitioner treating him as Additional Superintendent of Police (Special Category) w.e.f. July 2004, on the date on which the petitioner was eligible /

entitled to get promotion on the said post.Â

iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to ensure that the petitioner may not get less salary / pay scale

to his juniors serving under the IPS Uttarakhand Cadre in accordance with Government of India Notification dated 27.9.2008.â€​

Briefly put, the case of the petitioner is as follows:

Petitioner joined as a Member of the Provincial Police Services in the year 1986 as a Deputy Superintendent of Police in the State of Uttar Pradesh.

 He was allocated by Annexure-1 to the State of Uttarakhand. 103 posts were sanctioned for Provincial Police Service cadre. Admittedly, the

categories, which have been created, are as follows:

1) Additional Superintendent of Police (Special Category) (pay scale 14300-18300);

2) Additional Superintendent of Police Grade-1 (pay scale 12000-16500);

3) Additional Superintendent of Police (Special Category) Grade-2 (pay scale 10000-15200);

4) Deputy Superintendent of Police (Senior Scale) (pay scale 10000-15200);

5) Deputy Superintendent of Police (pay scale 6000-13500).

Petitioner does have a case that only four posts of Additional Superintendent of Police (Special Category) were created, but in terms of the

recommendation, 10% posts of total posts, which means 10 posts should have been created.  That apart, the petitioner had completed 16 years of

satisfactory service serving as Additional Superintendent of Police Grade-1 in the year 2004 and he was not promoted; whereas two others were

promoted. The petitioner came to be inducted in the I.P.S. Cadre with effect from the year 2000. The substantial grievance of the petitioner

appears to be that there is pay disparity as the petitioner is drawing lesser pay than two others and juniors have also been given higher pay. The

petitioner represented his grievance and the same has been rejected by the impugned order. Â

The stand taken in the counter affidavit is, inter alia, as follows:Â

The Government decided not to have as many posts as were recommended and to keep number of various ranks in the police structure minimum and,

accordingly, four posts of Additional Superintendent of Police (Special Category) were created. On 03.07.2004, a DPC for promotion to the rank of

Additional Superintendent of Police (Special Category) held.Â

Three posts were unreserved; one post was reserved for Scheduled Caste. One R.S. Nayal was holding one post of Additional Superintendent of

Police (Special Category). Against two posts of General Category, which remained, Sri G.S. Martolia, Mr. Pushkar Singh Sailal, Mr. Satish Kumar

Shukla (the fifth respondent in this writ petition), Mr. Mohan Singh Bangyal and the petitioner were eligible. No Officer of Scheduled Caste

category fulfilled the eligibility criteria for promotion and, accordingly, one post reserved for the Scheduled Caste was kept vacant. Annexures CA3

to CA-5 purport to be the letters, which were written. They contain the proposal of the petitioner, inter alia, for being considered for the post of

Additional Superintendent of Police (Special Category). Thereafter, there is reference, which is made to the clarifications in letter dated 11.01.2012

of the Ministry of Home Affairs, Government of India. This is in regard to the complaint of the petitioner relating to pay disparity and representation

for stepping up of the pay, which reads as follows:

“15. That in reply to the contents of para 13 of the writ petition following clarifications given in letter dated 11.01.2012 of Ministry of Home

Affairs, Government of India are submitted:-

“2(i) Both junior and senior should belong to the same cadre both in lower and higher grade. In the case of anomaly in the pay of officers

promoted from State Service to IAS/IPS/IFS in a State cadre, both junior and senior should belong to same cadre in the state service (lower grade).Â

(ii) Anomaly must have arisen as a result of fixation of pay either on promotion from one grade to another in IAS/IPS/IFS or on promotion from State

Service to IAS / IPS / IFS, as the case may be.Â

(iii) Posts in higher and lower grade must be identical and in lower grade senior must not be drawing less pay than junior for whatsoever reasons. Â

For example if the junior officer draws higher grade of pay than the senior in the lower post or state service post by virtue of advance increments or

on any other account, the above provisions will not be invoked to step up the pay of the senior officers.â€​

5. Thereafter, it is specifically stated that the petitioner was promoted from the post of Additional Superintendent of Police (Grade-1, Pay Scale

15600-39100-Grade Pay-7600) to the rank of IPS category and juniors were promoted from the higher post of Additional S.P. (Special Category, Pay

Scale 37,400-67,000-Grade Pay 8700) to the rank of IPS. They were granted higher pay scale. It is further stated that such cases related to

anomalies in pay fixation are under consideration for solution at the Government level. Here, we may refer to Paragraphs 21 and 23 of the counter

affidavit:

“21. That the contents of para 19 of the writ petition are absolutely misconceived and are not admitted as stated, hence, denied. In reply thereof,

it is submitted that Shri Satish Kumar Shukla was fit for promotion by reason of merit from the post of Additional S.P. Grade -1 to the post of

Additional S.P. (Special Category) in the D.P.C. held on 03.07.2004. Promotions for 02 such posts were made on 17-072004 and at that time Shri

Satish Kumar Shukla was 3rd candidate in merit. Since, had the 03 posts were vacant in the year 2004, Shri Shukla would have got promoted at that

time. In course of process candidate Shri R.S. Nayal filed a writ petition no. 110/2009 (S/B) in the Hon’ble High Court of Uttarakhand at

Nainital, which was decided on 20-02-2013. In compliance with the orders dated 20-02-2013 issued by Hon’ble High Court Nainital in the

above noted writ petition the initial appointment of Shri R.S. Nayal in Provincial Police Service was fixed fromk 15101972 instead of 15-01-1983.Â

Consequently, Shri R.S. Nayal was inducted / selected in I.P.S. cadre with effect fromk 01-01-1989. Hence, 01 post of Additional S.P. (special

category) remained vacant for the year 2004 in force. Shri Satish Kumar Shukla, whose candidature in merit was relied upon by the then D.P.C. in

the year 2004 made a representation to the Government for promotion against the vacant post of Additional S.P. (Special Category) with effect from

17-07-2004. After due consideration of such representation Shri Satish Kumar Shukla was promoted to the post of Additional S.P. (Special

Category) with effect from 17-07-2004 vide G.O. No. 560XX(1)-2015-2(22)2008 dated 19-05-2015. A copy of G.O. dated 19-05-2015 is being filed

herein and marked as ANNEXURE NO. CA-7 to this Counter Affidavit. In view of the above, orders for retrospective promotion to Shri Satish

Kumar Shukla with effect from 17-07-2004 issued by the Govt. in the year 2015 are appropriate and justified.Â

That in reply to the contents of para 21 of the writ petition, it is submitted that in view of the Hon’ble Supreme Court’s judgment dated 27-

042012, policy of reservation in promotions has ended. Consequently 01 reserved promotional post of Additional S.P. (Special Category) for S.C.

candidate as has been indicated hereinbefore in para 9 of the Counter Affidavit, turned into unreserved category. No policy has so far been made

for giving promotion to unreserved category retrospectively against reservation based S.C., S.T. promotee or vacant posts. The representation of

the petitioner has already been referred to the Government of Uttarakhand, and decision on the representation is still awaited.â€​

Rejoinder affidavit has been filed.Â

We heard Mr. Dushyant Mainali, learned counsel for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel for the State of

Uttarakhand.Â

What is pointed out before us is the aspect relating to pay anomaly. Apparently, Mr. Pradeep Joshi, learned Standing Counsel would point out

that the stand taken in the impugned order is in consonance with the stand taken in the counter affidavit, which we have noted. Quite clearly,

petitioner when he was placed in IPS cadre, he was working as Additional Superintendent of Police, Grade-1. The persons, with whom, the

comparison is sought to be made with reference to whom he is claiming pay parity, they are persons, who are working in the cadre of Additional

Superintendent of Police (Special Category). They were in the special category and drawing a higher scale. It is thereafter that they were given

promotion in the IPS. Therefore, the posts and the pay scales were different, which the petitioner and the persons holding reference posts were

occupying. Thus, in terms of the order, which is referred to by us, the claim of the petitioner for stepping up was rejected. We do not see how

we can be persuaded to interfere with the impugned order.Â

However, Mr. Dushyant Mainali, learned counsel for the petitioner would place emphasis on the fact that what is stated in page 6 of the counter

affidavit and in Paragraph 23, namely, that the matter relating to this kind of pay anomaly is pending consideration.

In such circumstances, while we do not wish to interfere with the order impugned, we only direct that the second respondent will consider the

aspect relating to pay anomaly, which is projected by the petitioner and take a decision in accordance with law within a period of one month from the

date of production of a certified copy of this judgment. Â

The writ petition stands disposed of.Â