C.W.P. No.5209 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.5209 of 1984 Date of Decision:- 27.02.2008 Balbinder Singh (died) through L.Rs. ....Petitioner(s) through Mr.S.K.Sharma, Advocate. vs. Union of India through Ministry of Home Affairs & ors. ....Respondent(s) through Mr.S.S.Sahu, AAG, Punjab. *** CORAM:-HON'BLE MR.JUSTICE SURYA KANT. *** 1) Whether Reporters of the local papers may be allowed to see the judgment? 2) To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest? *** SURYA KANT, J. The petitioner-Balbinder Singh (since deceased and now represented by his legal representatives) has invoked the writ jurisdiction of this Court for issuance of a Writ in the nature of Certiorari for quashing of notifications dated 10.12.1981 and 2.12.1982 (Annexures P/2 and P4/A) and has further sought a Writ of Mandamus to command respondent Nos.1 to 4 to modify the Gradation and Distribution List of Gazetted Officers of the Police Department, Punjab issued on 1.1.1984 and to consider him for appointment to Indian Police Service against the Allotment Year 1978 over and above his juniors, namely, respondents No.5 to 8 and further to pay him full pay and allowances for the period from 13.6.1979 to 13.4.1981 along C.W.P. No.5209 of 1984 2 with special pay at the rate of Rs.200/- per month with effect from 27.2.1981. [2] The petitioner had joined the Army of Patiala State and was later on transferred to Patiala State Police as Sub Inspector with effect from 8.8.1947. Meanwhile, the Patiala State was merged in PEPSU and the petitioner's services also stood transferred to the PEPSU State where he was further promoted as Inspector on 4.11.1951. He continued in the aforesaid rank even after merger of PEPSU State in the State of Punjab on 1.11.1956. The petitioner was thereafter promoted as Deputy Superintendent of Police on 1.12.1961 and confirmed with effect from 2.9.1971. The petitioner was then promoted to the rank of Superintendent of Police with effect from 5.3.1975 and was also granted selection grade though in the rank of D.S.P. with effect from 17.6.1976. [3] According to the petitioner, after his promotion as Superintendent of Police, he was posted as Divisional Commandant, Punjab Home Guards, Patiala against a newly sanctioned post and was also granted special pay of Rs.100/- per month. [4] It may be noticed here that as per the service record, the date of birth of the petitioner being 28.2.1921, he was to retire on attaining the age of superannuation in February, 1979. The petitioner, however, represented to the Authorities for the change of date of his birth as according to him, the same was erroneously recorded-his actual date of birth being 26.7.1924. The petitioner, however, could not persuade the Authorities, therefore, filed a civil suit for correction of his date of birth, which was decreed by the learned Sub Judge, Patiala on 30.5.1980. An appeal was preferred by the State of Punjab but the same was dismissed by the learned District C.W.P. No.5209 of 1984 3 Judge, Patiala on 17.2.1981. Regular Second Appeal No.1273 of 1981 was also dismissed by this Court on 22.6.1981. The matter was then taken up before the Hon'ble Supreme Court by way of SLP No.6494 of 1981 but that too met the same fate on 7.9.1981. Meanwhile, the petitioner was retired in February, 1979 as per the unchanged date of his birth. However, the respondents having lost the legal battle upto the Apex Court, as referred to above, reinstated the petitioner in service vide an order dated 30.11.1981 and posted him as Divisional Commandant, Punjab Home Guards at Jalandhar. [5] After the petitioner's rejoining/reinstatement in service, it was obvious that the period during which he remained out of service was required to be regularized. The Home Department, Punjab, accordingly issued a notification dated 10.12.1981 (Annexure P-2) whereby the petitioner was treated on earned leave with effect from 13.6.1979 to 23.7.1979, on half pay leave from 24.7.1979 to 1.1.1980 and on extraordinary leave from 2.1.1980 to 10.4.1981. [6] Meanwhile, the petitioner's juniors in the State Police Service were considered for appointment to Indian Police Service by the Selection Committee in accordance with the provisions of the Indian Police Service (Appointment by Promotion) Regulation, 1955. Some of his juniors were appointed to IPS vide notification dated 2.12.1982 (Annexure P-4/A). [7] The petitioner, therefore, seeks quashing of both the above- mentioned orders as according to him the period during which he was forced to remain out of service, cannot be treated as leave of the kind due; rather the said period is entitled to be treated as spent on duty and that he is also entitled to be appointed to Indian Police Service with effect from the C.W.P. No.5209 of 1984 4 year 1978, which has been allocated to his juniors. Similarly, the petitioner contends that during the period he remained out of service, he is also entitled to get special pay of Rs.200/- per month which was granted to the Deputy Commandant General, Home Guards with effect from 25.2.1981 (Annexure P-1). [8] In response to the notice of motion, the respondents have filed their replies and have contested the petitioner's claim. From the pleadings, following issues apparently arise for consideration of this Court:- (i)whether or not the petitioner is entitled to the special pay at the rate of Rs.200/- per month; (ii)whether the petitioner's seniority in the cadre of D.S.Ps. was illegally altered; (iii)whether the petitioner is entitled to be considered for induction to IPS with effect from the date his juniors were appointed; and (iv)whether the order regulating the period falling between the original date of retirement of the petitioner till he was reinstated after change of date of his birth, has been correctly passed as per Rules. [9] Entitlement for Special Pay at the rate of Rs.200/- It is the petitioner's own case that after his promotion to the rank of Superintendent of Police, he was posted as Divisional Commandant in the Punjab Home Guards, Patiala. He continued to hold the said post till he was retired in February, 1979. After the petitioner was taken back in service due to change in the date of his birth, he was again posted as “Divisional Commandant”, Punjab Home Guards at Jalandhar. C.W.P. No.5209 of 1984 5 [10] The petitioner on the other hand, firstly relies upon an order dated 27.2.1981 passed by the Home Department, Punjab whereby special pay of Rs.100/- per month was enhanced to Rs.200/- per month “with the post of Deputy Commandant General, Punjab Home Guards............” It further appears that the special pay of Rs.100/- per month was admissible to the Deputy as well as Divisional Commandant of the Home Guards. [11] The Punjab Govt., however, vide its memo. dated 12.4.1984 (Annexure P-7) modified its earlier circular dated 3.3.1980 and held that not only an Officer of IPS scale but an officer of the rank of Superintendent of Police shall also be entitled for special pay admissible to the Divisional Commandants with effect from 1.1.1978. However, regarding enhancement of the special pay to Rs.200/- per month, the endorsement on the aforesaid letter categorically provides that “insofar as the enhancement of special pay to Rs.200/- per month with effect from 27.2.1981 is concerned, the matter is already under examination and the decision as and when taken will be communicated to him.” (emphasis applied) [12] There is nothing on record to suggest that the special pay was ever enhanced to Rs.200/- per month by the Competent Authority. On the contrary, respondent No.4 has taken the following categoric stand in the written statement:- “Enhancement of special pay from Rs.100/- to Rs.200/- P.M. w.e.f. 27.2.81 to the post of a Deputy Commandant General is not related to the enhancement of special pay attached to the post of Divisional Commandant in the Punjab Home Guards department. The special pay attached to the post of a Deputy Commandant General was enhanced from Rs.100/- to Rs.200/- for special considerations and cannot be the ground for the enhancement of special pay attached with the post of a C.W.P. No.5209 of 1984 6 Divisional Commandant..................” [13] It is well known that 'special pay' is granted keeping in view the arduous nature of duties attached to a post. The special pay, therefore, is referable to the post and not to the incumbent. The Competent Authority having taken a conscious decision not to enhance the special pay attached to the post of Divisional Commandant from Rs.100/- to Rs.200/- per month, the petitioner cannot claim the enhanced amount of special pay as a matter of right. [14] Seniority. So far as the petitioner's grievance against the adverse alteration of his seniority is concerned, it is true that the petitioner was confirmed as DSP with effect from 2.9.1971 vide Government order dated 10.7.1973 (Annexure P-33). Subsequently, the petitioner's date of confirmation as DSP was changed to 1.7.1974 vide order dated 4.6.1981 (Annexure P-34). Normally, a service benefit already conferred upon an employee cannot be withdrawn or modified without observing the principles of natural justice, however, an authority cannot be forced to comply with these principles as an empty formality. In the case in hand, the order dated 4.6.1981 (Annexure R-3) categorically stipulates that it has been passed “in compliance with the directions of the Supreme Court dated 22.3.1979, in Civil Appeals No.2902-2903 of 1977 in case Paramjit Singh Sandhu and others vs. Ram Rakha and others.” The petitioner has not been able to point out as to what prejudice has been caused to him by non-issuance of a show cause notice before passing of the said order which was issued to comply with the directions issued by the Hon'ble Supreme Court in a case which admittedly pertained to inter se seniority dispute of the DSPs of the C.W.P. No.5209 of 1984 7 State of Punjab. Consequently, I do not find any merit in this contention as well. [15] Induction to IPS. Though an employee does not enjoy any indefeasible right to seek promotion, however, he is entitled to be considered for such promotion as and when his juniors are promoted. In the present case, it appears that vide notification dated 2.12.1982 (Annexure P-4/A), as well as the Gradation and Distribution List as it stood on 1.1.1984 (Annexure P-5), that Officers juniors to the petitioner in the State Police Service, were inducted into IPS and were allocated the year 1978. Undisputedly, after the change of date of birth of the petitioner to 26.7.1924, he remained eligible for consideration for induction into IPS till he attained the age of 54 years on 26.7.1978. In other words, if there were vacancies in the IPS cadre for the year 1978 which were to be filled in by promotion from amongst the members of the State Police Service, the petitioner too was entitled to be considered along with his juniors like Sukhdarshan Likhi, Harsh Raj Chadha, Jaspal Singh Dhaliwal and Harjit Singh. [16] As averred by respondents No.1 to 3 in para 10 of their written statement, the date of birth of the petitioner was changed only after 5.11.1981 when the litigation came to an end. By that time, he had crossed the age of 54 years. However, once the date of birth stood changed, it was imperative upon the respondents to hold a meeting of the Review Select Committee to consider the petitioner's case against the vacancies of the year 1978 when his juniors were considered and promoted to IPS. If no such exercise was undertaken by the respondents, as is not discernible from the written statement, they are obligated to convene a Review Departmental C.W.P. No.5209 of 1984 8 Promotion Committee and consider the petitioner's claim for induction into IPS in the year 1978 when there was no legal impediment in his way. The petitioner's claim for promotion to IPS has been considered on merits despite his death as it involves monetary benefits. [17] Regularization of the interregnum period. Adverting to the petitioner's claim regarding regularization of the interregnum period, the official respondents have taken the following stand in paras 7 and 8 of the written statement:- “ xxx xxx xxx. As stated in para-5 supra, he filed a civil suit for getting his date of birth changed from 28.2.1921 to 26.7.1924 on the basis of Matriculation Certificate. The court of Senior Sub Judge, Patiala, granted an interim injunction on 27.2.79 which was made absolute on 9.4.79, directing that the plaintiff may not be retired till final decision of the civil suit. The Hon'ble Court further directed that the plaintiff will not get pay till final decision of the case. Since according to court's order the petitioner was not to get pay, he applied for 110 days earned leave on 4.6.1979 from 11.6.1979 to 28.9.1979 which was sanctioned by the Government and orders conveyed to the petitioner through letter No.10696/S.A.- 1 dated 5.7.1979. Thereafter, the petitioner continued submitting applications for the grant of leave of the kind due till 13.4.1981. The leave was sanctioned through letters dated 23.8.79, 31.10.79, 14.11.79, 23.1.80, 7.3.80, 9.4.80, 16.5.80, 27.6.80, 15.7.80, 20.8.80, 30.9.80, 16.10.80, 14.11.80, 27.11.80, 17.12.80, 21.1.81, 5.2.81 and 15.4.81 addressed direct to the petitioner at his residential address i.e. House No.15-D, Passey Road, Patiala. The averment of the petitioner that he did not submit applications for leave on the prescribed proforma is wrong. He submitted all the applications on the prescribed proforma. The petitioner submitted an application requesting that he be given posting and did not submit any C.W.P. No.5209 of 1984 9 leave application from 14.4.81 onwards. The petitioner thus remained on leave from 13.6.79 to 13.4.81 and this period was treated as under through Notification No.18725 dated 10.12.1981:- i) Earned leave for 45 days 13.6.79 to 23.7.79. ii)Half pay leave for 162 days 24.7.79 to 1.1.80 iii)Extra-odinary leave for 2.1.80 to 10.4.81 with 465 days. Permission to suffix 11.4.81 to 13.4.81. It will not be out of place to mention here that the petitioner himself demanded through his application dated 29.6.1981 that the period he remained on leave be adjusted as leave of the kind due, copy enclosed as Annexure R-1. The petitioner was posted as Divisional Commandant, Punjab, Home Guards, Jalandhar, w.e.f. 30.11.1981. He was given full pay and allowances from 14.4.81 to 29.11.81 being on compulsory waiting. The petitioner thus remained on leave intentionally as he was not sure whether he will get pay during the pendency of the civil suit or not. The same were sanctioned through letters dated 23.8.79, 31.10.79, 14.11.79, 23.1.80, 7.3.80, 9.4.80, 16.5.80, 27.6.80, 15.7.80, 28.8.80, 30.9.80, 16.10.80, 14.11.80, 27.11.80, 17.12.80, 21.1.81, 5.2.81 and 15.4.81 addressed direct to petitioner at his residential address i.e. House No.15- D, Passey Road, Patiala.” (emphasis applied) [18] Since the petitioner has been granted different kinds of leave for the interregnum period at his own request and there is nothing on record to suggest that the applications moved by the petitioner, as relied upon by the respondents, were actually not moved by him, no interference with the impugned order-cum-notification dated (Annexure P2) is called for. [19] To be fair to learned counsel for the petitioner, he has placed reliance upon the following judgments in support of his one or the other C.W.P. No.5209 of 1984 10 contentions:- (i)K.K.Jagia v. The State of Haryana and another 1980(1) S.L.R. 165; (ii)M.P.Singh, Deputy Superintendent of Police, CBI and Union of India and others, I(1987) ATLT 255; (iii) The Director Recruit Class-II Engineering Officers' Association and others v. State of Maharashtra and others, AIR 1990 SC-1607; (iv)S.B.Patwardhan and another v. State of Maharashtra and others, AIR 1977 SC-2051; (v) Paramjit Singh and others v. Ram Rakha and others, AIR 1979 SC-1073; (vi)Municipal committee, Rohtak v. Shri Johri Mal Mitter, Ex.Municipal Engineer, 1970 SLR-29; (vii)Ahmad Thonnan Thodi v. The State of Kerala and others, 1970 SLR-34; (viii)Union of India and others v. Madan Lal Head Clerk, Rajindra Hospital, Patiala, 1971 SLR-51; (ix)Abdul Rashid Qadiri v. State ofJammu and Kashmir and another, 1973(2) SLR-184; (x)Charan Dass v. Punjab State Electricity Board Patiala and another, 2005(4) Law Herald (P&H) (DB) 637; (xi)The Coal Controller, Government of India, Ministry of Petroleum, Chemicals and Non Ferrous Metals (Department of Mines and Metals) Calcutta and others, 1974(1) SLR-241; (xii)Shri Krishan v. The Kurukshetra University, Kurukshetra, AIR1976 SC-376; and (xiii)State of Mysore v.C.R.Seshdri & ors. 1974(1) SLR-407; [20] In the light of the facts explained regarding each and every claim of the petitioner, it is obvious that the legal principles laid down in the aforementioned judgments have either been applied or are distinguishable C.W.P. No.5209 of 1984 11 and do not attract to the facts and circumstances of the present case. [21] For the reasons aforestated, this writ petition is disposed of with the directions that if there were vacancies in I.P.S. cadre in the recruitment year 1978 as it appears from Gradation list (Annexure P-5) to be filled by promotion from amongst the members of the State Police Service, a Review Select Committee be convened and the petitioner's case be also considered for his induction to IPS along with his juniors. The consequential monetary benefits, if any, shall also be granted to the family of the petitioner. Similarly, if the petitioner has not been paid 'special pay' at the rate of Rs.100/- per month during the period he remained posted as Divisional Commandant, Home Guards, the same shall be paid to his legal representatives within a period of four months from the date of receipt of certified copy of this order along with interest at the rate of 7% per annum. No order as to costs. February 27, 2008 ( SURYA KANT ) poonam JUDGE