Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 919 (ORI)

Mahendra Kumar Jena v. Union of India

2017-08-22

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. In both the writ petitions since common issue involved, as such they are being disposed of by this common order. These writ petitions have been filed inter alia for the following reliefs:- (i) why the deduction of two advance increments (granted to the petitioners in 4th CPC) retrospectively, while calculating the benefit in 5th CPC, shall not be declared illegal, arbitrary and contrary to law; (ii) why the pay shall not be re-fixed allowing the two additional increments (which was earlier allowed and presently deducted) will all the arrears and consequential benefits; (iii) and any other order/orders direction and/or directions, appropriate under the circumstances be passed giving complete benefits as this Hon’ble Court deem fit and proper. 2. The brief fact of the case of the petitioners is that they were duly been selected as Constables in different years after 1986, i.e. after 4th Central Pay Commission came into force in the scale of pay of Rs.825-15-900-EB-20-1200/-, the pay as such was fixed at Rs.855/-. The 5th Central Pay Commission came into effect with effect from 01.01.1996 and the petitioners’ pay has been revised in the scale of Rs.2750-70-3800-75-4400/- and the pay has been fixed at Rs.3170/- as on 1.1.1996. The pay scale of Rs.825-1200/- in the 4th Central Pay Commission, being Class-IV scale and the Constable / RPF being Class-III were favoured with two advance increments, as such on rationalization, the corresponding scale (Rs.825-1200/- in 4th Central Pay Commission) Rs.2750-4400 in 5th Central Pay Commission was raised to Rs.3050-4590/- vide Railway Board order dtd.04.12.1997. The Railway Board has come out with a circular on 27.3.2002 whereby and where under the benefit of two advance increments in the pay scale of Rs.2750-70-3800-75-4400/- has been directed to be granted with effect from 01.01.1996. The employees, who had already got the benefit of two advance increments at the time of fixation of 4th Central Pay Commission in the year 1989 (applicable w.e.f.1.1.96) would be first fixed with respect to the 4th Central Pay Commission, excluding the quantum of advance increments and then fixed at corresponding stage in revised scale of Rs.2750-4400/- in 5th Central Pay Commission. The benefit of advance increments would be granted during the period from 01.01.1996 to 09.10.1997 and thereafter, the pay scale of Constables of RPF would be fixed in the scale of Rs.3050-4590/-. 3. The benefit of advance increments would be granted during the period from 01.01.1996 to 09.10.1997 and thereafter, the pay scale of Constables of RPF would be fixed in the scale of Rs.3050-4590/-. 3. The contention of the petitioners is that applying the circular dtd.27.3.2002, the pay scale of the petitioners had been fixed w.e.f.01.01.1996 by deducting two advance increments, thereby, the basic pay of the petitioners are reduced with retrospective effect. According to the petitioners the circular dtd.27.3.2002 is not applicable mainly for the reason that the circular reflects that the employees who had been in the service and had got benefit of revision of the pay scale by virtue of the recommendation of 3rd Central Pay Commission would only be brought under the purview of the said circular but herein, the petitioners had came in service in the year 1989, i.e. in course of the subsistence period of 4th Central Pay Commission, as such the circular dtd.27.3.2002 will not be applicable so far as their cases are concerned. The further contention has been raised that the deduction of two advance increments which has been directed to be made vide circular dtd.27.3.2002 is highly erroneous, as such the same is not sustainable in the eye of law. 4. The further contention has been raised that the deduction of two advance increments which has been directed to be made vide circular dtd.27.3.2002 is highly erroneous, as such the same is not sustainable in the eye of law. 4. While on the other hand, the opposite parties have appeared and filed detailed counter affidavit, inter alia stating therein that the Railway Board, being the competent authority to fix the pay scale of one or the other employee, has come out with a circular on 27.3.2002 by which the advance increments which has been extended in favour of the employees on the basis of the recommendation of the 4th Central Pay Commission has been directed to be withdrawn with a further policy decision to give them two advance increments from 01.01.1996 to 9.10.1997, the authorities after taking into consideration the fact that the petitioners had been granted benefit of two advance increments at the time of fixation of their pay scale while they have joined their duties, in view of the policy decision taken by the competent board, has directed to withdraw the said benefit to re-fix the pay scale on the basis of the policy decision taken to grant two advance increments in the 5th Central Pay Commission scale w.e.f. 01.01.1996, as such the petitioners cannot have any grudge regarding discrimination or unfairness or any malafide rather it is by way of policy decision applicable to all. Learned counsel for the opposite parties has further submitted that so far as the contention raised by the petitioners that other persons have been granted the said benefit, but the same has not been withdrawn, this argument has been negated by submitting that although some of the employees of the other offices have been granted the same benefit but the moment it has come to the knowledge of the authority, it has been directed to be recalled and accordingly it has been recalled, as such the said ground of discrimination is not available as on date. In view of such a submissions argument has been advanced that the prayer made by the writ petitioners is not worth to be considered. 5. This court has heard the learned counsels for the parties and perused the documents available on record. In view of such a submissions argument has been advanced that the prayer made by the writ petitioners is not worth to be considered. 5. This court has heard the learned counsels for the parties and perused the documents available on record. The admitted fact in this case is that the petitioners have been appointed as Constables in the RPF in different years after 1986 in a scale of Rs.825-15-900-EB-20-1200/- at pay of Rs.825/- + two advance increments, at that time the 4th Central Pay commission Rules was in operation. Subsequently, during implementation of the 5th Central Pay Commission the scale of Constables was revised from Rs.825-1200/- to Rs.2750-4400/-, while fixing the revised pay on the basis of the recommendation of the 5th Central Pay Commission, the earlier two advance increments have been withdrawn by virtue of the Government circular dtd.27.3.2002 and thereafter the petitioners had been placed in the revised pay scale of Rs.3050-4590/- w.e.f.10.10.1997. It is further evident from the material available on record that while fixing the pay from 4th Central Pay Commission to 5 Central Pay Commission w.e.f.01.01.1996, as per rule the old two advance increments have been withdrawn and new two advance increments in higher side have been directed to be given on the basis of recommendation of 5th Central Pay Commission which was subsequently been confirmed by the Railway Board vide letter dtd.27.3.2002. This court has examined the circular dtd.27.3.2002 which is under annexure-3 to the writ petition, the same has been passed with respect to adjustment of two advance increments granted to Constables in RPF whereby and where under it has been stated that the benefit of two advance (additional) increments in the pay scale of Rs.2750-4400/- has been directed to be granted to all RPF Constable as on 01.01.1996, those employee who had already got the benefit of 2 advance increments at the time of fixation in 4th Central Pay Commission / pay scale would be first fixed with reference to pay in the 4th Central Pay Commission pay scale excluding the quantum of advance increments and then fixed at the corresponding stage in the revised scale of Rs.2750-4400/-. It is evident from the pleading that the competent authority has taken decision to recall the old two advance increments having been granted by virtue of the 4th Central Pay Commission but also granted new two advance increment w.e.f.1.1.1996 as per the 5th Central Pay Commission which has been confirmed by Railway Board vide its letter dtd.27.3.2002. The grievance of the petitioners is that the authority cannot recall the old increment which has been extended in their favour. The further grievance is that the circular dtd.27.3.2002 is not applicable for the reason that the same is applicable only with respect to such employee who are in service in course of recommendation of 3rd Central Pay Commission but admittedly the petitioners are not the appointees in course of subsistence period of 3rd Central Pay Commission. This court has examined the circular dtd.27.3.2002 as also the pleading made by the opposite parties in the counter affidavit whereby and where under the circular dtd.27.3.2002 reflects that the employees who had been drawing basic pay of Rs.216/- in the 3rd Central Pay Commission scale of Rs.200-240/- should have been fixed at Rs.825/- in 4th Central Pay Commission scale of Rs.825-12000/- + two advance increments but due to the benefit of minimum fixation at Rs.855/-, the employee whose pay was fixed at Rs.855/- as on 1.1.1986. This condition as contained in column No.3 of the circular dtd.27.3.2 clearly reflects by referring the 3rd Central Pay Commission with respect to basic pay existing in course of the subsistence of the 3rd pay commission vis-à-vis the revision made of the said pay in the 4th Central Pay Commission scale, but it does not mean that the employee who were in service at the time of the 3rd pay commission would only be affected from the circular dtd.27.3.2002. This court further finds that the authorities have taken a policy decision applicable to all and it is settled that in the matter of policy decision, the High Court, sitting under Article 226 of the constitution of India is not supposed to exercise its extraordinary jurisdiction unless the decision is arbitrary or discriminatory, but the petitioner has not made out a case showing the action of the authorities as arbitrary or discriminating rather this court finds that the decision is applicable to all and it cannot be said to be arbitrary one because that has been taken by way of policy decision by recalling the benefit granted by 4th Central Pay Commission and extending the benefit by virtue of the recommendation of the 5th Central Pay Commission. 6. Taking into consideration this aspect of the matter and considering the scope of judicial review so far as it relates to policy decision of the authority in the matter of monetary benefit, since the petitioner has not made out any case of arbitrariness or discrimination, as such this court refrains itself from exercising its extraordinary jurisdiction by not passing any positive direction upon the authorities. In that view of the matter this court finds no merit in these writ petitions. In the result both the writ petitions stand dismissed.