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2010 DIGILAW 461 (GAU)

Dhan Singh v. Union of India

2010-07-01

I.A.ANSARI

body2010
ORDER I. A. Ansari, J. 1. Heard Mr. A.S. Choudhury, learned Senior counsel, for the petitioner, and Ms. M. Deka, learned Government Advocate, appearing on behalf of the State respondents. Heard also Ms. R. Sharma, learned Central Government counsel, appearing for the respondent No. 1. 2. The factual matrix of this writ petition has been delineated in the judgment and order, dated 25.04.2006, whereby the petitioner's earlier writ petition, namely, WP(C) No. 86(AP)/2002, was disposed of with certain directions. The facts, as were set out in para 3 and 4 of the earlier writ petition, being relevant for the purpose of the present writ petition too, are reproduced below : 3. It would be expedient to take, in brief, a stock of the relevant facts. The petitioner, who had joined the Indian Army on 03.10.1963, retired therefrom with effect from 01.11.1985. He thereafter joined the Arunachal Pradesh Police Force in the rank of Head Constable and was sanctioned the pay scale of Rs. 975-1660/- per month together with other allowances admissible in law. This was by order dated 23.10.86 issued by the Assistant Inspector General of Police, Arunachal Pradesh. By order dated 25.03.87, the Superintendent of Police (HQ) Arunachal Pradesh, Itanagar, in terms of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) New Delhi, Office Memo No. 3/1/85-Estt(Jay) dated 04.04.86 confirmed the pay scale to be Rs. 975-1660/- per month. While the matter rested at that, the petitioner was conferred the rank of Naib Subedar on honorary basis with effect from 01.11.85. On this, the petitioner approached the State authorities to the extended the consequential benefits by sanctioning him the status of Sub-Inspector of police in the State service and incidental service benefits, like pay, allowance etc. As his representation failed to evoke any positive response, he approached this Court. 4. In their counter the State respondents have pleaded that the petitioner on his induction/reemployment as Head Constable (Armourer) in the State police service, was granted a pay scale of Rs. 975-1660/- per month together with allowances as admissible from time to time, having regard to his rank in the army as Havildar on the date of his retirement. 4. In their counter the State respondents have pleaded that the petitioner on his induction/reemployment as Head Constable (Armourer) in the State police service, was granted a pay scale of Rs. 975-1660/- per month together with allowances as admissible from time to time, having regard to his rank in the army as Havildar on the date of his retirement. According to the State respondents, the conferment of the rank of Naib Subedar on the petitioner with effect from 01.11.85, was on honorary basis and without any financial benefit and therefore his claim for being elevated to the Grade of Sub-Inspector in the Arunachal Pradesh Police Service equivalent to that of Naib Subedar of the Army and the resultant service benefits was untenable in law. 3. Having found the materials on record insufficient to come to a correct decision, the Court, while disposing of the earlier writ petition, observed and directed as under: 11. The materials on record, in my considered view, are not sufficient for this Court to arrive at a decisive conclusion on the issue. Firstly, the letter dated 04.04.86, on the basis of which the petitioner's pay scale was fixed at Rs. 975-1660/- per month is not on record. It is not clear, as to whether the above fixation of pay of the petitioner was after being informed of the conferment of the rank of Naib Subedar w.e.f. 01.11.1985. The State respondents while admitting that the post, pay and allowances of the petitioner on reemployment were sanctioned having regard to the post/pay, held/drawn by him, while in the services of the army, have contended that he is not entitled too any financial benefit, the rank of Naib Subedar having been conferred on him only on honorary basis. The communication dated 15.12.86 (Annexure E to the Additional Affidavit to the petitioner) indicates that following the assignment of the status of Naib Subedar, the Central Government for the purpose of computation of pension, had sanctioned a monetary allowance of Rs. 45/- per month with effect from 01.11.85. In absence of the Union of India, it is not clear as to whether the benefit of pay of the post of Naib Subedar had been extended to him for the limited purpose of pension and other retrial benefits. 45/- per month with effect from 01.11.85. In absence of the Union of India, it is not clear as to whether the benefit of pay of the post of Naib Subedar had been extended to him for the limited purpose of pension and other retrial benefits. Having regard to the principle based on which the State respondents had identified the post and the pay scale of the petitioner on his reemployment as referred to above, I am of the firm opinion that it is a fit case where a fact finding exercise is necessary so as to enable the State respondents to take necessary decision in connection therewith. The recorded facts and documents before this Court being insufficient, this Court considers such a course of action indispensably essential, lest any decision on the basis of the incomplete materials on record, results in injustice to either of the parties. 12. In the above view of the matter, this petition is closed with a direction to the respondent No. 2, Inspector General of Police, Itanagar, Arunachal Pradesh, to cause necessary steps to be taken to have the issue regarding the petitioner's entitlements of pension from the Central Government following the conferment of the status of Naib Subedar on him with effect from 01.11.85 ascertained from the Union authorities. The said authority would ensure that the decision on the said issue is obtained from the concerned authorities of the Central Government without undue delay and a determination be made thereafter by the respondent No. 2 on the petitioner's claim for the post of Sub-Inspector of Police in State service and the corresponding service benefits, like pay, pension, etc. with effect from 01.11.85. As the petitioner has already retired from service, it is further directed that the process referred to hereinabove, should be completed within a period of two months from the date of receipt of the certified copy of this order. 4. Following the directions, given in the order, dated 25.04.2006, in WP(C) No. 86 (AP)/2002, an order has been made, on 10.07.2006 (Annexure 8 to the writ petition) by the Director General of Police, Arunachal Pradesh. The relevant portion of the order reads as under: In compliance with the above direction, necessary clarification was sought from the authority regarding entitlements of pension following the conferment of status of Naib Subedar vide letter No. WP (C) 7427/2001 dated 06.062006. The relevant portion of the order reads as under: In compliance with the above direction, necessary clarification was sought from the authority regarding entitlements of pension following the conferment of status of Naib Subedar vide letter No. WP (C) 7427/2001 dated 06.062006. In response to the above letter, the Chief Record Officer, EME, records, Secunderabad, clarified the position vide letter No. 7075655 Court Case Pen, dated 12th June 2006, wherein it is stated that he was paid service pension for file in the rank of Havildar. As per para 137 of Pension Regulation for the Army, 1961, Part-I, Havildar, granted honorary rank of Naib Subedar are entitled for additional sum of Rs. 45/- per month. The honorary rank of Naib Subedar granted to him was not a promotion. It does not entitle him to higher rate of pay and allowances, the status of the petitioner is not affected by the grant of honorary rank of Naib Subedar to him on retirement. In other words, for all purpose he will be treated at par with other Havildars. However, additional sum of Rs. 45/- per month with liquor facility applicable to a Naib Subedar will differentiate him from other Havildars. In view of the above factual position his claim for conferring on him the rank of Sub-Inspector in APP has no force. This order disposes of the directions passed by the Hon'ble High Court in WP(C) No. 7427/ 2001(PS)corresponding to WP(C)No. 86(AP)/ 2002 filed by Havildar Dhan Singh (now Ex-Havildar). [Emphasis is added] 5. While considering the findings reached above by the respondents, in the present case, what needs to be pointed out is that the petitioner, while serving under the Union of India, retired, on superannuation, on 31.10.85, as a Havildar. 6. By order, dated 15.12.1986, the Union of India conferred on the petitioner the honorary rank of Naib Subedarand allowed the petitioner to draw a monthly allowance @Rs. 45/- per month with effect from 01.11.1985. On being conferred with the rank of Naib Subedar as aforesaid, and also on being allowed to draw monthly allowance @Rs. 45/- per month, with effect from 01.11.1985, the petitioner applied for being given the status of an Assistant Sub-Inspector of Police in the State services and the incidential service benefits like pay and allowances etc. 7. On being conferred with the rank of Naib Subedar as aforesaid, and also on being allowed to draw monthly allowance @Rs. 45/- per month, with effect from 01.11.1985, the petitioner applied for being given the status of an Assistant Sub-Inspector of Police in the State services and the incidential service benefits like pay and allowances etc. 7. Since the substantive appointment of the petitioner, in the Indian Army, was Head Constable, 'the mere conferment of the status of a Naib Subedar by virtue of the order, dated 15.12.1986, aforementioned could not have been taken to have placed the petitioner in the substantive post of an Assistant Sub-Inspector of Police. Notwithstanding, thus, the conferment of the status of Naib Subedar, by virtue of the order, dated 15.12.1986, aforementioned, the petitioner could not have been treated to have become an Assistant Sub-Inspector of Police. To the extent, therefore, that the status and rank of an Assistant Sub-Inspector of Police was not conferred by the State Government of the petitioner, the petitioner cannot have any legitimate grievance. 8. As regards the monetary benefits, which carry with the conferment of the honorary rank of Naib Subedar, it is pertinent to note that had the petitioner not been re-employed, he would have received the additional sum of Rs. 45/- per month as allowance in terms of the order, dated 15.12.1986. The respondents have clearly denied to the petitioner the consequenial monetary benefits, which the petitioner ought to have received by virtue of being conferred with the honorary rank of Naib Subedar, the consequential monetary benefit being an additional sum of Rs. 45/- per month as allowance. The denial of this allowance to the petitioner was illegal and unjust inasmuch as the relevant policy of the State Government transpires to be to allow a person, who retired from Union of India, to receive, on his re-employment by the State Government, the same monetary benefit, which the person would have, otherwise, received by serving in the Union of India Considered thus, it is clear that while the denial to the petitioner's demand of his being given the status of an Assistant Sub-Inspector of Police cannot be said to be illegal, the denial to pay the additional sum of Rs. 45/-, per month, as allowance to the petitioner was illegal an unjust. 45/-, per month, as allowance to the petitioner was illegal an unjust. To this extent, therefore, the impugned order, dated 10.07.2006, aforementioned, needs to be interfered with, in exercise of this Court's power under Article 226 of the Constitution of India, and a direction is required to be given to the respondent Nos. 2,3,4 and 5 to pay to the petitioner the said allowance of Rs. 45/-, per month, with effect from 23.10.1986, i.e. the date, on which the State Government happens to have re-employed the petitioner. It may be noted, in this regard, that though the petitioner has been granted the status of Naib Subedar and also the consequential monetary benefit of Rs. 45/- per month, as allowance, with effect from 01.11.985, the State Government has re-employed him on 23.10.1986, and, hence, the State Government cannot be compelled to pay to the petitioner the said allowance of Rs. 45/- per month, with effect from 01.11.1985. 9. Considering, therefore, the matter in its entirety and in the interest of justice, the impugned order, dated 10.07.2006, is hereby set aside to the extent that the same denies payment of the additional sum of Rs. 45/- per month to the petitioner making it clear that the respondents shall pay to the petitioner the said additional sum of Rs. 45/-, per month, as allowance, such sum being payable to the petitioner with effect from 23.10.1986, and the arrears, payable, in this regard, to the petitioner shall be made available to him within a period of three months from the date of receipt of a copy of this order by the respondent No. 2, namely, Director General of Employment, New Delhi. The petitioner may furnish to the respondent No. 2 a certified copy of this order along with a copy of the writ petition and annexures thereto. 10. With the above observations and directions, this writ petition shall stand disposed of. 11. No costs. 12. Furnish a copy of this order to the learned State Counsel.