WRIT APPEAL No.50(SH) of 2010 Page 1 of 23 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, MIZORAM, TRIPURA AND ARUNACHAL PRADESH) WRIT APPEAL No.50(SH) of 2010 NO.3589164Y Rfn/ORL SAVENDRA SINGH CHAUHAN, (D.G.SECRETARIAT) (The Directorate General Of Assam Rifles) Shillong, Meghalaya), Present Place of Posting 4 th Battalion, The Assam Rifles, C/O:99 APO, Pin: 932004 …APPELLANT/PETITIONER -Versus- 1. THE UNION OF INDIA, represented by the Secretary to the Government of India, Ministry of Home Affairs, North Block, New Delhi: 110001. 2. THE DIRECTOR GENERAL ASSAM RIFLES, Mahanideshalaya, (The Directorate General of Assam Rifles) Shillong, Meghalaya: 793011. 3. THE STAFF OFFICER 1(A) Mahanideshalaya (The Directorate General of Assam Rifles) Shillong, Meghalaya: 793011. ...RESPONDENTS P R E S E N T THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA THE HON’BLE MR. JUSTICE BD AGARWAL
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WRIT APPEAL No.50(SH) of 2010 Page 1 of 23
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, MIZORAM, TRIPURA AND ARUNACHAL PRADESH)
WRIT APPEAL No.50(SH) of 2010
NO.3589164Y Rfn/ORL SAVENDRA SINGH CHAUHAN, (D.G.SECRETARIAT) (The Directorate General Of Assam Rifles) Shillong, Meghalaya), Present Place of Posting 4th Battalion, The Assam Rifles, C/O:99 APO, Pin: 932004
…APPELLANT/PETITIONER
-Versus-
1. THE UNION OF INDIA, represented by the Secretary to the Government of India, Ministry of Home Affairs, North Block, New Delhi: 110001. 2. THE DIRECTOR GENERAL ASSAM RIFLES, Mahanideshalaya, (The Directorate General of Assam Rifles) Shillong, Meghalaya: 793011. 3. THE STAFF OFFICER 1(A) Mahanideshalaya (The Directorate General of Assam Rifles) Shillong, Meghalaya: 793011.
...RESPONDENTS
P R E S E N T
THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA THE HON’BLE MR. JUSTICE BD AGARWAL
WRIT APPEAL No.50(SH) of 2010 Page 2 of 23
Advocates for the appellant : Mr. DP Chaliha, Sr. Advocate.
Mr. HG Baruah, Mr. S Deka Mr. BP Dutta
Advocates for the respondents : Mr. SC Shyam,
Central Govt. counsel
Date of hearing : 15.6.2011.
Date of delivery of judgment : 22.9.2011
JUDGMENT AND ORDER
by Hazarika, J.
Challenge in the instant writ appeal is made against the
order of the learned Single Judge passed on 25.06.2010 in WP(C)
No.32(SH) of 2008 whereby and whereunder the learned Single
Judge disposed of the writ petition by holding that as per
communication dated 24.06.2010 the petitioner would be entitled
to the pay scale of Rs.5200-20,200/- with effect from 19.11.2009
by way of granting first financial upgradation under Modified
Assured Career Progressive Scheme (MACPS) without considering
the points raised in the writ petition and hence the writ appeal.
2. In the writ petition the petitioner sought the following
relief -
WRIT APPEAL No.50(SH) of 2010 Page 3 of 23
The petitioner should be given appropriate rank and pay
scale as per guideline of Fifth Pay Commission and Office
Memorandum dated 22.01.1998.
3. In order to determine the relief sought for, it would be
appropriate to discuss the pleaded facts of the petitioner vis-à-vis
the respondents.
The facts pleaded in the writ petition is that the petitioner
has been working in Assam Rifles, Ministry of Home Affairs as a
Para Military Force and one of the Central Police Organization
(„CPO‟ for short) since November 1999 in the rank of
Rifleman/Operator Radio & Lines („ORL‟ for short) and his present
scale has been fixed at Rs.3050/- which is not in consonance with
the pay structure of other paramilitary forces of the Government
of India and hence, the writ petition seeking the relief as
indicated above.
4. The grievances of the petitioner relating to pay structures
relates back to the 4th Pay Commission. Vide Gazette of India
Notification dated 29.08.1986 notified implementation of 4th Pay
Commission. The personnel of Assam Rifles were given the pay
scale as applicable to other CPOs. Accordingly, the pay scale of
Rfn/ORL to which category the petitioner belongs, based on their
technical qualification, pay scale were fixed as under-
WRIT APPEAL No.50(SH) of 2010 Page 4 of 23
Tech Class Rank Pay Scale
Cl- I ASI Rs. 1320 /-
Cl- II Hav Rs. 975 /-
Cl- III N/K Rs. 950 /-
But the scale of pay as indicated above were not
implemented in the Assam Rifles because the technical staffs
were not given the post as per the 4th Pay Commission and the
pay scale in Assam Rifles remained as under : -
Tech Class Rank Pay Scale
Cl- I Hav Rs. 975/-
Cl- II N/K Rs. 950/-
Cl- III Rfn Rs. 825/-
5. Thereafter the 5th Pay Commission came into existence
wherefor all technical ranks were re-designated and the pay scale
were revised. In all the paramilitary forces, the technical
combatant staff were given the rank and pay scale of SI, ASI and
Hav as follows: -
WRIT APPEAL No.50(SH) of 2010 Page 5 of 23
Tech Class Rank Pay Scale
Cl- I SI Rs. 5500/-
Cl- II ASI Rs. 4000/-
Cl- III Hav Rs. 3200/-
While the same was not implemented in case of Assam
Rifles and it remained stagnant as follows: -
Tech Class Rank Pay Scale
Cl- I SI Rs. 5500/-
Cl- II Hav Rs. 3200/-
Cl- III Rfn Rs. 3050/-
Therefore, the petitioner claimed pay parity along with
designation of all central paramilitary forces, irrespective of the
fact that he belongs to Assam Rifles.
6. There is discrimination in the technical pay also between
the Assam Rifles employees and their counterpart in other
Central Para Military Forces. Such as, after the declaration of 4th
Central Pay Commission all the three ranked employees, ASI, Hav.
and N/K were given Rs.80/- per month as technical pay in all the
Central Para Military Force, but in the Assam Rifles only Class-II
N/K and Class-I Havildar were given Rs.40/- per month. After the
WRIT APPEAL No.50(SH) of 2010 Page 6 of 23
Gazette notification of 5th Central Pay Commission, the technical
pay were doubled as a result in all the Central Para Military
Force, i.e. all three categories of staffs started receiving Rs.160/-
per month but in the Assam Rifles only the Class-I category were
given Rs.80/- per month only and the Class-III, i.e. Rfn. were not
given any amount/benefits as per the guidelines issued from time
to time by Government of India.
7. After the declaration of 5th Central Pay Commission, the
Ranks structure and Pay Scale from the rank of constable upto
the rank of Subedar Major have been rationalized vide
Government of India Order dated 10.10.1997 for all the CPOs, the
rank and the Pay Scale for the technical staff such as Operator
Radio & Lines/Radio Mechanic‟s/Cipher were re-designated to the
rank of Havildar and till date, the Pay Scale given is Rs.3200/-
and the Class-I & II employees were given the rank of ASI and the
Pay Scale of Rs.4000/- per month and Office Memorandum from
the Ministry of Home Affairs in this regards had also been issued
vide its Memo No.27011/103/97-PF, I/56 dated 22nd January,
1998 and the copies were sent to all the Central Police
Organisations/Central Para Military Force, but the Assam Rifles
failed to implement the said Office Memorandum as otherwise,
this Memorandum covers the case of the petitioner without any
dispute.
WRIT APPEAL No.50(SH) of 2010 Page 7 of 23
It has further been contended that the petitioner passed
ORL Technical class-III and II, Map Reading Standard III, II and I
and promotion cadre N-II and N-I, pursuant to which, the
petitioner ought to have been re-designated as Havildar or re-
appointed as Head Constable/ORL at the pay scale of Rs.3200/-
per month plus technical pay of Rs.160/- per month as per CPO
policy. But the same was not carried out in case of the petitioner.
8. The Government of India, Ministry of Home Affairs, by the
communication dated the 4th day of July, 2002 issued vide memo
No.II. 27013/18/99-PF.V, directed the Directorate General,
Assam Rifles to upgrade the existing post of Rifleman Clerk to
Havildar Clerk. It was contended that the Riflemen Clerk also
falls within the communication wing/signal category of Assam
rifles and is a post below the Rfn/ORL (to which category the
Appellant/Petitioner belong).
9. It has been contended by the appellant/petitioner that
there are three types of technical combatant staff in Assam
Rifles, viz. (i) Operator Radio and Line/Radio Operator (ii) Radio
Technician/Radio Mechanic and (iii) Cipher. In a similar case,
another personnel, namely, Mr. Dineshan KK, who is a Radio
Mechanic of Assam Rifles filed a writ petition which was allowed
by this Court and upon challenge before Apex Court, the same
WRIT APPEAL No.50(SH) of 2010 Page 8 of 23
was affirmed. The same would be referred to in the subsequent
paragraphs.
10. The petitioner, therefore, submitted a representation on
29.5.2006, which was followed by another representation dated
6.10.2006 and in reply to the representations submitted by the
petitioner, the office of the respondent No.2 vide communication
dated 28.11.2006 specifically stated that the department has
taken up for suitable amendment in Revised Peace Establishment
(RPE), 2003 holding that the Recruitment Rules can only be
amended after approval of amendment in RPE by Ministry of
Home Affairs. In another communication dated 29.01.2008
relating to grant of rank and pay in respect of ORL category, it
has been specifically communicated referring three service notes
dated 23.01.2008, 24.01.2008 and 23.01.2008 whereof it has been
held that all “Sig Pers” of Assam Rifles are directly recruited as
Rfn/ORL as per Recruitment Rules 2000 with educational
qualification Matric without any technical education, whereas
“Sig Pers” of other CPOs are enrolled directly in the rank of Head
Constable with educational qualification Matric plus two years ITI
certificate in Radio and TV/Electronics or intermediate or 10+2.
Educational qualifications and terms of reference being different
in Assam Rifles from that of other CPO‟s, the rank structure and
pay scales are fixed as per Recruitment Rules. However,
WRIT APPEAL No.50(SH) of 2010 Page 9 of 23
personnel in ORL trade with technical qualifications have the
opportunity to remuster themselves to the rank of Havildar in
Assam Rifles. It has been further spelt out that in case they have
any proof to claim that other CPOs have similar or lower
qualifications in their rank, it may be forwarded to the office to
pursue the case with Ministry of Home Affairs.
11. An affidavit-in-opposition has been filed on behalf of the
Union of India and others wherein it has been stated that before
the introduction of Recruitment Rules, 2000 issued by the Ministry
of Home Affairs vide letter dated 31.08.2000, all categories of
Assam Rifles personnel were enrolled as per Record Office
Instructions 1/83 and Standard Operating Procedure (SOP) issued
vide DGAR letter dated 07.05.1991 with educational
qualifications as Matriculate and medical fitness and in the
instant case, the petitioner was enrolled in Assam Rifles on
19.11.1999 in the scale of pay of Rs.3050-75-4590/- p.m. and
completed 7 years of service. Regarding petitioner‟s claim for
equal pay scale and rank as per 5th pay Commission and Office
Memorandum dated 22.01.1998, it is contended that the pay
scale of Rifleman/Operator Radio Line is fixed as per Recruitment
Rules, 2000 and according to Ministry of Home Affairs letter dated
10.10.1997, the salary has been fixed at Rs.3050-75-4590/-.
Moreover, in the Office Memorandum dated 22.01.1998 there is
WRIT APPEAL No.50(SH) of 2010 Page 10 of 23
no provision for Rifleman/Operator Radio Line in the Assam Rifles
for grant of special pay and revised pay scale. According to Office
Memorandum dated 22.01.1998 the Head Constable (Radio
Mechanic) Grade I, Grade II and Head Constable (Draughtsman)
only are entitled to the revised pay scale and hence submitted
that the prayer of the petitioner is misleading and lacks
substance. For ready reference Office Memorandum dated
22.01.1998 and 3.3.1998 are quoted hereunder,
“No.27011/103/97-PF.I/56
Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya
North Block,
New Delhi, the 22nd Jan 98
Office Memorandum
Subject:- FIXATION OF PAY ON RATIONALISATION OF PAY SCALES
WITH EFFECT FROM 10.10.97 IN THE CENTRAL PARA
MILITARY FORCES.
In the context of certain doubts expressed by the
Central Para Military Forces in fixation of pay of certain
non-gazetted personnel of the Central Para Military Forces
with effect from 10.10.97, vide order No.27011/1/97-PC
Cell/PF.I dated 10.10.97, it is hereby clarified that the
orders are equally applicable to all combatised categories.
For example, the HC (RF) will be given the replacement pay
scale of Rs.3200-4900, as approved by the Government, in
the said orders for HCs and will continue to the known as
HC (RF).
2. In the case of HC (RM) Gr.I and Gr. II and HC
(Draughtsman), since the Pay commission has given the
replacement pay scale of Rs.4000-6000/- in respect of these
WRIT APPEAL No.50(SH) of 2010 Page 11 of 23
three categories of posts in Central Para Military Forces ,
these three categories may be re-designated as ASI in the
scale of pay of Rs.4000-5000. As regards other categories
of HC, in any of Central Para Military Forces , such as HC
(RO, Cry) etc., these posts will continue to be known as HC
in the relevant scale of pay approved by the Government.
3. This issues with the concurrence of Integrated
Finance Division of this Ministry vide their Dy.No.305/97-