Jeevan Lal Sahu v. NONE

Jeevan Lal Sahu, S/o Shri Bisauva Ram Sahu, Aged about 27 years, Occupation -A.S.I. (M) Nawratan Lal Rathore, S/o Shri Manharan Lal Rathore, aged about 36 years, Occupation - A.S.I. (M) Ashwanee Kumar Kanwar, S/o Shri Budh Ram Kanwar, aged about 32 years, Occupation - A.S.I. (M) Sukhchain Kumar Bhardwaj, S/o Shri Mukund . Ram, aged about 34 years, Occupation - A.S.I. (M) Praveen Kumar Sahu, S/o Late Shri Samay Lal Soni, Aged 24 years, Occupation - Subedar (M)/ Stenographer,. All petitioners working in the office of 11th Battalion, (1/R) Chhattisgarh Arms Force, Janjgir - Champa (Chhattisgarh) VERSUS RESPONDENTS 1 The State of Chhattisgarh, Through The Secretary, Home & Police affairs, D.K.S. Bhawan, Mantralaya Raipur (Chhattisgarh) The Director General of Police, Police Head Quarters, Raipur (Chhattisgarh) Inspector General of Police, (C.A.F.) Bhilai, District - Durg (Chhattisgarh) Commandant 11 Battalion, (I.R.) C.A.F., Janjgir- Champa (Chhattisgarh)

6. Sanjay Kumar Rawat, S/o Late Shri M.R. Rawat, Occupation -A.S.I. (M), Office ofthe I.G. Police Bilaspur - Range, Bilaspur (C.G.) Sanjeev Kumar Shrivas, S/o Late Shri Shankar Singh Shrivas, Occupation -A.S.I. (M), II Battalion, Sakri, Bilaspur (Chhattisgarh) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA, FOR THE ISSUANCE OF DIRECTION (S) OR ORDER (S). ^'y^& ^"i Z-. HIGH COURT OF CHHATTISGARH Af BII..ASPUR SS: Hon'ble Shri Prashant Kumar Mishra. J. ./ W.P.fSVNo. 5892/2009 PETITIONERS Vikas Soni and others Versus RESPONDENTS The State of Chhattisgarh and othere. W.P. (S1N0.5893/2009 PETITIONERS Jaydeep Tiwari and others Versus RESPONDENTS The State ofChhattisgarh and others. PETITIONERS W.P.(S) N0.5894/2009 Kalimuddinahdothere ;::..: :,,,••'• :^,-.:,.::1: Versus' RESPONDENTS The State ofChhattisgarh and others. W.P.fSlNo. 5895/2009 PETITIONERS Jeevan LalSahuand others RESPONDENTS The State of Chhattisaarh and others. Versus And W.P.(SlNo. 6637/2009 PETITIONERS DJneshSharmaandothers Versus RESPONDENTS The State of Chhattisgarh and others. Shri PraKash Tiwari, counsel for the petitioners. ShriSatish Gupta, GA.forthe State. Shri V. Vijay, counsel for respondents No.4 and 5. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTIONOF INDIA ORALORDER (8/02/2012) In these bateh of writ petitions petitioners have prayed for grant ofpay scale \ of Rs.4000-6000/- for such petitioners who have been appointed as Assistant Sub -tfispector (Ministerial) in short A.S.I.(M) and payscale of Rs.5000-7000/- to such :'r'*i -1 petitioners who have been appointed as Stenographer Subedar-M. (Subedar-M) in short applied for appointment Case of the petitiohers is that in pursuancet6theadvertisement(Annexure (2) dated 28/09/2005 they post of P-2) A.S.I.(M)/Subedar-M in its respective pay scale fbr which these writ petitions have beenfiled. HOwever.aftercompletionoftheseleetion process.the respondentPHQ iSsuedselectlistmentioningthereinthataKhoughihtheaclvertisementpayscaleof Rs.4000-6000/-was mentioned for the post ofA.S.I.(IVi)andpay scale of Rs.5000- for Subedar-M but 7000/- was mentioned letter No. view of 486/C-2388WNi/four/2005, Raipur dated 16/12/2005 issued by Department of Finance, Government of Chhattjsgarh forthe post of Subedar-M pay scale of Rs.4500-7000/- ahd for the post of A.S.I.(M) pay scate of Rs.3050-4590/- is only this pay scale which would be paid to the selected admissible and it candidates and theprocessfortheirjoiningbecompletedontheabove pay scale and further that pay scate mentioned in the advertisementshall not be allowed. AcCording to the petitioners once tiaving referred a particular pay scale while making recruitment by advertisement issued in the month of September, 2005 the Police Headquarter cannot change the payscale at the time of issuance of select list in May, 2006 as the pay Scale which was applicable at the time of issuanceof advertisement can alone be applied. He would also submit that the respondents No.4 and 5 are working on the same post and are getting the payscale mentioned in theadvertisement, therefore the case ofthe petitioners deserves to be allowed on the principleof equal pay for equal work. (3) petition deserves to be dismissed on the ground that at joining petitioners had accorded eorisentforthe new pay scale mentioned in the select list and furtherthat in view ofthe letter issued by the Department ofFinance any higher pay scale cannot be granted. Contestingthe plea ofequal pay for equal work he would submit that the respondents No.4 and 5 were not appointed in the same selection process and it is not clear from the petition as to under whatcircumstance they have been granted a particular pay scale and furtherthateveh if pay scale has wrongly been granted to any employee the same would not attract doctrine of equality. On the other hand, learned counsel for the State would submit that the writ the time of Admittedly, the advertisement was issued jn September, 2005, however (4) during pendency of the selection process, fhe Department of Finance issued a communicationon 16/12/2005 (AnnexureR-2) inwhich reference has been madeto Rufe 7 (1) (b) (IV) of Chhattigarh Revision of Pay Rules, 1983 and it has been stated that suchSecretarial employee of Police Department who have been treated as Ministerial staff shall be entitled to pay scale after adding ad hoc increment but it <^. I1/ E.: I <<."^' ^y^/ :.ts,'y' does not mean that they shall be paid higher pay scale. Referring to the PHQ memo dated 2/11/2005the Finance Department has stated that grant of higher pay scale to theSecretarial employee is not It has also been in accordance with rules. informed bythe Finance Department tothe PHQ that in cases where higher pay scale has been applied the mistake should be corrected and all concemed should be instructedaccordingly. It appears acting on the said letterof the Finance Department the PHQ (5) changed the pay scale while issuing selectiist and directed concemed appointee to join onthe posts. Argument raised by learned counsel for the petitioners that since a particular (6) pay scale was referred in the advertisement a different/inferior pay scale cannot be allowed and thesame is illegal is riot acceptable because reference toa pay scale in the advertisement does not create any rightin favburof a candidatewho was not yet bom inthe cadreatthatpointoftime. He remains aprospective candidate with uncertaintyabout his selection. Even otherwise, with respect to the fixation of pay scale or applicabilityofcon'ectpayscaletheappropriateauthority isthe Department of Finance and When once before fihalization of selection process the Finance Department has clarified that for the said posts a particular pay scale would be admissible, it isnone of the jurisdiction of the court to issue a writdirecting theState to grarit different orhigher pay scaletothe petitioners. Learned counsel for the petitioners has relied orithejudgments in the matter (7) ofYogeshwar Prasad andOthersVs. National Institute ofEducation Planning and Administration & Others, (2011) 2 SCC (L & S) 533, Union of India Vs. Dineshan K.K. (2008) 1 SCC 586 and Randhir Singh Vs. Union of India & Others, AIR1982 SC879. In the matter ofStateof U.P. and others Vs. J.P. Chaurasiaand others, (8) AIR 1989 SC 19 and Umesh Chandra Guptaandothers Vs.OiIand Natural Gas Commission and others, AIR 1989 SC 29 the Hon'ble Supreme Court has held issue with regard to applicability of pay scale to grade/cadre should be determined by the management/employer and court shoufd not interfere unless it is demonstrated that it is patently erroneous either in law or on fact. In the present case except for the plea that a particular pay scale was mentipned in the advertisement no other material has been placed before the court as to how the petitioners are entjtled to the said pay scale on the basis of any recommendation of the paycommission or underany provision of the revision of lpay:rules. ' ' . • • ; ' ': ..,'•,•::• ,./. :• •: , ' , , : Plea regarding applicability of equal pay for equal work viz-a-viz grant of (9) , same pay scale to responderits No.4 and 5 is also not sustainable because the •'concept of equality does hot pennit acceptance of negative equality ifanypay scale -L)- has wrongly been applied tofew individuals which runs contfaryto the instructions issued by the Department of Finance otheremployee cahnot claim same pay scate even if it has been made applicable t6 them by mistake. This princjple has been laid down by the Hon'ble Supreme Court in the (10) matter of Union of India and others Vs. M.K. Sarkar, (2010)2 SCC59wherein thefollowing hasbeenheldin paragraphs24to26:- "24. Learned counsel Kasturi who had retired in 1973, wasgranted the benefitof exercising the for the respondent lastly submitted that one K.V. option byanorderdated 19-9-1994, andtherefore.principles of equality and equalopportunityrequJredthattheRailwaysshouldgivehim the option. The Chairman of Railway Board, while rejecting the resDOndents' representation by orderdated 15-5-2004 has clarified that K.V. Kasturi's case was similar to thatof D.R.R. Shastrias he had also not been Jnformed ofthe availability of option. If someone has been wrongly 25. There is another angle to the issue. extended a benefit, thatcannot bec'rtedas a precedent for claiming similar behefit by others. This Court in a series ofcfecisiohs has held that guarantee ofequality before law under Article 14 is a poSJtive concept arid cannot be enfbrced in a negative manner and that if ariy illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of courts for perpetuating the same irregularity or illegalityintheirfavOuralsoonttiereasoningthattheyhavebeendeniedthe (See Chandigarh benefits whicll have been itlegally extended to others. Admn. V. Jagjit Singh, (1995) 1 SCC 745, GursKaran Singh V. NDMC, (1996) 2 SCC 459, Fai-idabad CT Scan Centre v. D.G. Health Services, (1997) 7 SCC752,StateofHaryanav.RamKumarMann,(1997)3SCC321,Stateof Bihar V. Kameshwar Prasad Singh,(2000) 9 SCC 94 and Union of India v. Intemational Trading Co. (2003) 5 SCC 437). 26. A claim on the basis of guarantee of equatity, by reference to someone is permissible only when the person similariy placed has simitarly placed, been lawfully granted a relief and the pereon elaiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or - irregularly extended to someoneelse, a person who is nbt extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a personis refuseda benefittowhichheis not entitled, he cahnotapproach the court and Claim that benefiton the ground thatsomeone ' else has been illegallyextended such benefit. lfhewants,he canchallenge \^. _. \ the benefit illegally granted to others. The factthat someone who may not be _ -•.'.•/. . i .. \.. '. \.~ ':.1.: !^. ' \ . ' ' ' entitled to the relief has been given relief illegalty, is not a ground to grant reliefto a personwho is not entitled to the relief." (11) Evenotherwise the petitioners were specjfically instructed to submit letter of consent at the time ofjoinirtg the service. fn Writ Petition (S) No.5895/2009 one such letter of consentsigned by the petitioner, Jeevan Lal Sahu has beenannexed as Annexure P-3. According to leamed eounsel for the State all the petitioners were asked to submit letter ofconsent andthis plea has been raised in the return which has not been controverted by filing any rejoinder.In this view of the matter, sihce petitioners have consented to join the services by accepting the pay scale mentioned in theselect list, their claim for grant ofor entitlement to a different pay scate is not acceptableand theyare estopped from claiming a different or higher pay scale than for which they have accepted at the time ofjoining. Learned counsel for the petitioners has relied on judgments mentioned in the (12) earlier paragraphofthis order. Thosejudgmenfe dealwiththe principle ofequal pay forequal work, however as has been found by thiscourt, the said principle is not applicableinthepresentcase.becausethieprivaterespondentshavewronglybeen granted pay scale which is contraryto the letter of Finahce Department issued on 16/12Q005. (13) In viewofthe above, allthewrit petitjonsfail and are dismissed. Sd/- Prashant Kumar Mishra Judge