Sh. Hari Singh Arya vs Union of India and Others

Anil Kumar, J.—The petitioner has sought directions against the respondent Nos. 1 to 3 praying that he should be shown senior to

respondent No. 4, Sh. S.C. Pandey and that the seniority list showing him junior to Sh. S.C. Pandey be set aside and also that he be granted

arrears of pay, and other allowances on the basis of his salary @ Rs. 4475/- per month instead of Rs. 4000/- per month, with an interest at the

rate of 18% per annum on such arrears.

The petitioner contended that he joined the training course after his selection in the Railway Protection Force on 28th December, 1960. He was

promoted to the higher post and grade of Inspector/Company Commander from August, 1969. He was posted at Loco Workshop, Charbagh,

Lucknow and thereafter at various other places and his work was well appreciated.

According to the petitioner an All India Selection was held in 1978 and the result of the said selection was declared on 13th December, 1978.

The petitioner alleged that he was declared outstanding in the said selection and was promoted to the post, grade and pay of Assistant Security

Commissioner in the Northern Railway, Delhi Division on 9th January, 1979. He was further promoted to the senior scale post and grade as

Security Officer/Commandant in July, 1984.

In 1981, the Railway Protection Force (Group A and Group B posts) Recruitment Rules, 1981 were framed and the rules prior to 1981 were

superseded. Under the new rules a Junior Scale Group `A"" post was introduced between the Junior Scale Group B post and the Senior Scale

post. The appointment to Junior Scale Group A post was by direct recruitment as well as by promotion.

According to the petitioner he was promoted to Senior Scale on July, 1984 when the Railway Protection Force (Group A and Group B posts)

Recruitment Rules, 1981 were applicable. The petitioner contended that there had been litigation in respect of the said rules and that a decision

was given by the Supreme Court on 28th August, 1997 in the matter of Sh. H.S. Grewal & Ors v. Union of India.

The plea of the petitioner is that on 28th July, 1989 a seniority list of Group ""B"" of Assistant Security Commissioner (RPF/RPSF) was issued in

which the petitioner was placed at serial No. 91 whereas Sh. S. C. Pandey, respondent No. 4 was placed at serial No. 116. The said seniority list

was subject to the decision in the various writ petitions filed in various High Courts by Sh. Baldev Raj, Sh. R. K. Sharma, Sh. Y. Hossain, Sh.

Dharamveer Singh and others.

The petitioner retired from the service on 31st October, 1993 from the post of Joint Director (RPF) though, according to him he was

discharging the work and duties of Junior Administrative Grade since 1988. But he was shown to have retired from the lower grade of Senior

Scale of Rs. 3000-4500/-. At the time of his retirement his pay was shown to be Rs. 4000/- per month though it should have been Rs. 4475/- per

month in the JA Grade of Rs. 4100-5300/-. The contention of the petitioner is that since he was promoted though on adhoc basis and after

selection he was not reverted and was subsequently regularized and he therefore continued on the higher post and was even promoted thereafter.

His, his regular promotion should have been from the date of his original promotion.

The grievance of the petitioner is that on his retirement his pay was wrongly fixed and has not been corrected despite the repeated undertakings

by the respondents to do so and despite the observations made by the Supreme Court in the case of H. S. Grewal (Supra).

The petitioner contended that the relevant grades in 1986-95 were as under:-

(i) Junior Scale Group ""B"" : Rs. 2,000-3,500

(ii) Junior Scale Group ""A"" : Rs. 2,200-4,000

(iii) Senior Scale : Rs. 3,000-4,500

(iv) Junior Administrative Grade : Rs. 4,100-125-4,850-5,300.

According to the petitioner the Recruitment Rules of 1981 also prescribed as under:-

(i) That after selection as Assistant Security Officer Group ""B"", a service of three years is required for the promotion to the Junior Scale Group ""A

and for that post there was a direct recruitment as well, available.

(ii) That from the post of Junior Scale Group ""A"" to the post in Senior Scale, a service of 5 years after appointment on regular basis was

prescribed.

(iii) That from the post of Senior Scale to that of in Junior Administrative Grade a period of five years in Senior Scale service was prescribed after

such appointment on regular basis.

According to the petitioner while implementing the Rules in 1981 though he was entitled for regular promotion, however, he was given ad-hoc

promotion with assurance that the matter shall be settled and that the petitioner and the other employees will get the benefit of promotions even

from the period the petitioner was given ad-hoc promotion.

The other grievance of the petitioner is that though he was always senior to Sh. S.C. Pandey, respondent No. 4, however, in the seniority list

issued pursuant to Railway Board""s letter No. E(O) I-97/SR-6/56 dated 28th August, 1998 the petitioner was shown at serial No. 28 and the

respondent No. 4, Sh. S.C. Pandey was shown at serial No. 15. In another list showing the names of RPF officers and their dates of regular

promotion to the rank of Security Commissioner in the senior scale dated 22nd October, 1998 the petitioner was shown at serial No. 26 whereas

the respondent No. 4 being his junior was still shown at serial No. 14.

In the submissions made by the petitioner, he has stated that after his retirement on 31st October, 1993, showing his juniors as his seniors had

not persuaded the petitioner to work under his junior. The allegation made by the petitioner in para 6. 8 of the writ petition is as under:-

8 That as framing of any seniority list after 31. 10. 93 when the petitioner had retired and showing some one junior to the petitioner as senior to

the petitioner shall not persuade the petitioner to work under his such junior, the whole effort of the respondents in authority to grant some benefit

to the respondent No. 4 on one principle, i. e. of counting his service on adhoc and followed by regular promotion in the total service for eligibility

for further/higher promotion/grade (Annexure-1 dated 16. 7. 98) and not giving of the same benefit of same principle in case of the petitioner, is

most arbitrary, discriminatory. Annexure-1 shows that not only Shri S.C. Pandey but several others were granted the said benefit. Further, there is

one Civil Writ Petition No. of 1999 filed by one Shri Ranjit Singh Raghav vs. UOI & Ors.) on the same principle as shown in Annexure-1 is

pending determination. That the law is clear that even without a representation, the authorities must treat all its employees here the respondents are

openly acting capriciously, arbitrarily, discriminately and in most unfair manner and after retirement from service.

The grievance of the petitioner under the circumstances is that though work from him had been taken for the higher post and that he had been

performing the work assigned to him on the higher post, but still he has not been paid the pay and allowances for the entire period. The petitioner

also sought notional benefits relying on the decision of the Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., . According to the

petitioner there is a patent discrimination and violation of Articles 14 & 16 of the Constitution of India. The petitioner has contended that despite

the repeated representation, the grievance of the petitioner has not been addressed and rectified.

The writ petition had come up for hearing on 4th August, 1999 after it was filed on 31st July, 1999 and show cause notice was issued to the

respondents. Costs on different dates were also imposed on the petitioner for not taking steps for service of notice to the respondents.

The respondent Nos. 1 to 3 were served on 18th January, 2006, however, respondent No. 4, Sh. S.C. Pandey remained unserved. On 18th

April, 2006 the counsel for the petitioner had stated that the petitioner does not wish to proceed against respondent No. 4, Sh. S.C. Pandey.

Despite the service of notice to respondent Nos. 1 to 3, no reply to show cause notice or counter affidavit was filed on behalf of respondent

Nos. 1 to 3 leading to closure of the right of the respondents Nos. 1 to 3 to file the counter affidavit. The respondent No. 5 Union Public Service

Commission was not served. Rule D. B was issued on 28th August, 2006.

The matter came up for hearing on 8th August, 2011 on which date no one appeared on behalf of the parties and, therefore, the notices were

issued pursuant to which Sh. Partap Singh, Advocate had appeared on 17th November, 2011 on which date the matter was listed for hearing at

the end of ""After Notice Misc. Matters"".

Hence the matter was heard on 17th November, 2011. Since the petitioner had given up respondent No. 4 on 18th April, 2006 the issue of

showing the petitioner junior to respondent No. 4 in the seniority list dated 28th August, 1998 and 22nd October, 1998 cannot be adjudicated. If

the petitioner was aggrieved by respondent No. 4 being shown as senior to him, the petitioner should not have given up his claim against

respondent No. 4 after filing the writ petition against him in the year 1999.

The learned counsel for the petitioner is also unable to show as to how the right of the petitioner will be impacted after his retirement on 31st

October, 1993, by making the respondent No. 4 Sh. S.C. Pandey senior to him in 1998. If the petitioner had retired on 31st October, 1993 then

why his name was shown in the seniority list of subsequent years has not been explained by the petitioner. No one is present on behalf of

respondent Nos. 1 to 3 nor has any reply or counter affidavit been filed by the respondents.

In any case in the facts and circumstances the petitioner is not entitled to claim that even after his retirement he shall continue to be senior to

respondent No. 4. How the name of the petitioner continued to be shown in the seniority list issued in 1998 when the petitioner had already retired

in 1993 has not been explained by the petitioner""s counsel. In the circumstances, the relief prayed by the petitioner that he should be shown as

senior to respondent No. 4 even after retirement does not make any sense nor can it be granted in the present facts and circumstances. In any case

even the petitioner had given up respondent no. 4 as party to the present writ petition.

The next relief prayed by the petitioner is that he should be granted retiral benefits taking into consideration his last drawn pay as Rs. 4475/-

per month instead of Rs. 4000/- per month. Though the petitioner contended in the writ petition that he made a number of representations to the

respondents Nos. 1 to 3 regarding his entitlement of pay of Rs. 4475/- per month at the time of his retirement instead of Rs. 4000/- per month,

however, no copy of any representation has been filed by the petitioner. The petitioner retired on 31st October, 1993 whereas the writ petition

was filed on 31st July, 1999.

The petitioner has not averred as to why the writ petition was filed almost after five years of his retirement. It appears that the petitioner

continued to get the retiral benefits on the basis of his last drawn pay of Rs. 4000/- per month on 31st October, 1993. The learned counsel for the

petitioner is unable to show either on facts or in law that the petitioner would be entitled for the last drawn pay of Rs. 4475/-per month. Though it

appears that the case of the petitioner is that he was first appointed on ad-hoc basis to the post of Junior Scale Group ""A"" pursuant to the Railway

Protection Force (Group A and Group B posts) Recruitment Rules, 1981 and later he was regularized, however, no details or particulars have

been given. The petitioner has not disclosed as to how much arrear he is entitled for and what is the basis of claiming the said arrears on the pay

scale of Rs. 4475/-. In the circumstances, the petitioner is not entitled for directions to the respondent to pay the retiral benefits to the petitioner

including the commutation amount, leave salary, etc. on the basis that the last drawn pay of the petitioner was Rs. 4475/- per month and not Rs.

4000/- per month. The petition lacks in material particulars and no basis has been established for the relief prayed by the petitioner. The learned

counsel for the petitioner is also unable to make out a case which would entitle the petitioner for the relief prayed by him.

In the circumstances, the writ petition is without any merit and the relief prayed by the petitioner cannot be granted to him. The petition also

suffers from delay and latches as the petitioner superannuated on 31st October, 1993 and the petition was filed on 31st July, 1999 and the

petitioner has not given any cogent explanation for the same. The writ petition, therefore, is without any merit and it is dismissed.