1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1723 OF 1998 1. J.P. Mishra, HC (Trailer Pump Operator) of Bombay Indian Inhabitant residing at RPF (F), Matunga Workshop, Bombay 400 019. 2. Sansar Singh Ramdas Yadav, HC (Driver), of Thane, Indian Inhabitant, residing at Sanjai Nagar, Bombay Pune Road, Mumbra, Thane. 3. Tileshwar Prasad Mourya, HC (TPO) of Bombay Indian Inhabitant, residing at J/Type Railway Quarters, C.R. Curry Road, Bombay 400 013. 4. Laxmiprasad Ramavtar Tripathi, HC (Driver), of Thane Indian Inhabitant, Sanjai Nagar, Bombhay Pune Road, Mumbra, Thane. 5. Shivanand Mishra, HC (TPO) of Bombay Indian Inhabitant, residing at RBI/28/4, Central Railway Quarters, Mulund, Bombay 400 081. 6. Jayprakash Narayan Pandey, HC (TPO) of Bombay Indian Inhabitant, residing at Sion Thopad Pathi, Kumbarwada, Dharavi, Bombay 400 016. 7. Foujdar Rajaram Yadav, HC (Driver) of Thane, Indian Inhabitant residing at Near Railway Station, Kalwa, New Shivaji Nagar, Thane. 8. Subhash Chandra Pandey, HC (TPO) of Thane, Indian Inhabitant residing at RBI/987/10, Central Raiwlay Quarters, Kalyan. 9. Ramsukhk Anandprasad Dube, HC (Driver) of Thane, Indian Inhabitant residing at Shuklaki Chawl, Panchmukhi Maruti, Beturkar Pada, Kalyan (East), Thane. 10.Sitoba Barkiya Udhade, HC (Hose Repairer), of Thane Indian Inhabhitant residing at Balaram Govindki Chawl, Room No. 19, Kolsewadi, Kalyan Thane. 2 11.Madhukar Nagorao Ingle, HC (Driver) of Thane Indian Inhabitant, residing at Rajaram Apartment, Katomanewali, 1st Floor, R. No. 30, Kolsewadi, Kalyan, Thane. 12.Iqbalsingh Tarsem Singh, HC (Driver) of Bombay, Indian Inhabitant, residing at RPF Barracks, Mulund, Bombay 400 081. 13.Narandas Abhiman Borkar, HC (Driver), of Bombay, Iidan Inhabitant, residing at Cedntral Railway; Quarters, Kurla, Bombay. 14.Mritunjaykumar Shivkumar Dwivedi, HC (Driver) of Jhansi, Indian Inhabitant, residing at SIPF (F), Jhansi. 15.Mamsu Kaloo Bagul, HC (Driver) of Bombay Indian Inhabitant, residing at SIPF Quarters, Parel, Bombay 400 012. 16.Mohamed Zakhariya Khan, HC (TPO), of Bombay, Indian Inhabitant, residing at SIPF (F), Byculla, Bombay. 17.Ramadhar Bipat Pal, HC (Driver), of Bomay Indian Inhabitant, residing at Govandi Bangonwadi, Plot NO. 28, Bombay 400 043. 18.Gulabsingh Bhavsingh Patil, HC (Fitter), of Thane, Indian Inhabitant residing at Jimmibag Road, Kolsewadi, Near Datta Mandir, Kalyan (East), Thane. 19. Ramchandra Naikuk Koli, HC (TPO), of Bombay Indian Inhabitant, residinga t RBI/29/9, C.R. Qrtrs, Mulund, Bombauy 400 081. 20.Madhukar Shiv Bansode, HC (TPO) of Thane Indian Inhabitant residing at RBI 987/19, Koklsewadi, Kalyan (E), Thane. 21.Chaitu Lala Dhruve, HC (TPO) of Bombay Indian Inhabitant, Rly. Quarters, RBI, Matunga, Bombay 400 019. 22.Rambhaji Sukaram Katho, HC (Painter) of Solapur, Indian Inhabitant, residing at ASI Maintenance, C.R. Solapur. 23.Subhash Ramchandra Thakare, HC (Driver), of Bombay, Indian Inhabitant, residing at RPF Maintenance, Wadibunder, Bombay 3 400 010. 24.Chatur Bhagprasad Miahsra, HC (TP) of Thane, Indian Inhabitant residing at RPF, Kalyan, Thane. 25.Pandurang Chima Darude, HC (TPO), Thane Indian Inhabitant residing at Datta Colony, Chawl No. 1, R. No. 9, Jimmibag, Kalyan, Thane. 26.Ramsnsar Ramjarup Rain, HC (TPO) of Bombay Indian Inhabitant residing at RPF (F) Matunga, Bombay 400 019. 27.Laxman Baburao Kand, HC (Driver) of Thane Indian Inhabitant, residing at RPF ASC, C.R. Thane. 28.Ramesh Tukaram Umale, HC (Driver) of Thane Indian Inhabitant, residing at RPF (F), Matunga, Bombay 400 019. 29.Inderjit Singh, HC (TPO) of Jhansi, Indian Inhabitant, residing at RPF (F), Jhansi. 30.Mahendraprasad Mishra, HC (Driver) of Bombay Indian Inhabitant residing at RPF (F), Matunga, Bombay 400 019. 31.Kamalluddin Habib Shaikh, HC (TPO), of Bombay Indian Inhabitant residing at RPF (F), Matunga, Bombayu 400 019. 32.Mahesh Chand, HC (TPO) of Bombay Indian Inhabitant, residing at RPF (F) Matunga, Bombay 400 019. 33.Shankar Baburao Bhabad, HC (TPO), of Bhusawal, Indian Inhabitant, residing at SIPF (F) Bhusawal. ... Petitioners Versus 1. The Union of India, (through the Secretary, Ministry of Railway, New Delhi) (to be served through the Central Government Pleader, Ministry of Law and Justice, Marine Lines, Bombay). 2. The General Manager, Central Railways, C.S.T. Mumbai. 3. The Director General of Railways, 4 Railway Protection Force and Security Rail Bhavan, New Delhi ( to be served through the Government Pleader, Ministry of Law and Justice, Marine Lines, Mumbai). 4. The Chief Security Commissioner, Railway Protection Force, Central Railway, C.S.T. Mumbai. ... Respondents WITH WRIT PETITION NO. 1725 OF 1998 1. Tulsiram Sonba Rohidas, HC Driver, Grade II of Bombay Indian Inhabitant, residing at Railway Quarters No. RBI/28/19, Mulund, Bombay 400 081. 2. Chhotalal Pamus Kol. HC (TPO), Grade II, of Thane Indian Inhabitant residing at RPF Berracks, Central Railway, Kalyan, Thane. 3. Anuruddin Ali, HC Driver Grade II of Bombay, Indian Inhabitant, residing at RPF Fire Station, Kurla, Bombay 400 070. 4. Dhanraj Singh, HC Fitter, Grade II, of Thane India Inhabitant residing at New Jimmi Baug, Kolsewadi, Kalyan (East), Thane. 5. Ramprasad Bhola Yadav, HC Driver, Grade II of Thane, Indian Inhabitant, residing at near Railway Station, Kalwa, Thane. 6. Chandrarama Singh Rajaram Yadav, HC Driver Grade II of Bombay, Indian Inhabitant, residing at Manibaiki Chawl, Jawar Nagar, Khar (East), Bombay. 7. Ram Kailash Sitaram Mishra, HC Driver, Grade Ii of Bombay, Indian Inhabitant, residing at Cement Chawl, Room No. 143, K/type, Rly Quarters, Bycylla, Bombay 400 027. 8. Ram Amar Yadav, HC Driver Grade II of Bombay, Indian Inhabitant, residing at Railway Quarters, Matunga, Bombay 400 019. 9. Vishwanath Vasudeo Singh, HC Driver Grade Ii 5 of Bombay Indian Inhabitant, residing at RBI/122/20 Central Railway Quarters, Matunga, Bombay 400 019. 10.Shambu Nath Dolusarayan Mourya, HC Driver, Grade II, of Bombay, Indian Inhabitant, residing at RPF Fire Matunga, Bombay. 11.Ram Naresh Pandey, HC Driver, Grade II of Bombay, Indian Inhabitant, residing at RPF V.T.C.R. Bombay. 12.C.M. Nayar, HC Driver, Grade II of Bombay, Indian Inhabitant residing at 22/61, RPF V.T.C.R. Bombay. 13.Jamunaprasad Sukhandas, HC Driver Grade II, of Jhansi, RPF JHS Jhansi. ... Petitioners Versus 1. Union of India, (through the Secretary, Ministry of Railway, New Delhi) (to be served through the Central Government Pleader, Ministry of Law and Justice, Marine Lines, Bombay). 2. The General Manager, Central Railways, C.S.T. Mumbai. 3. The Director General of Railways, Railway Protection Force and Security Rail Bhavan, New Delhi ( to be served through the Government Pleader, Ministry of Law and Justice, Marine Lines, Mumbai). 4. The Chief Security Commissioner, Railway Protection Force, Central Railway, C.S.T. Mumbai. ... Respondents WITH WRIT PETITION NO. 1549 OF 1998 1. Mahadeo Baloo Bhujbal, Sergent Driver Grade I of Thane Indian Inhabitant, residing at RBI/987/26, Central Railways Quarters, Kalyan District Thane. 2. Pundalik Baboo Salve, Sergent Driver Grade I of Pune Indian Inhabitant, residing at 6 Railways Quarters, Pune. 3. Naggelal Das Ram Palatdas, Sergent Driver Grade I of Jhansi, Indian Inhabitant, residing at Jhansi Workshop, Jhansi. ... Petitioners Versus 1. The Union of India, (through the Secretary, Ministry of Railway, New Delhi) (to be served through the Central Government Pleader, Ministry of Law and Justice, Marine Lines, Bombay). 2. The General Manager, Central Railways, C.S.T. Mumbai. 3. The Director General of Railways, Railway Protection Force and Security Rail Bhavan, New Delhi ( to be served through the Government Pleader, Ministry of Law and Justice, Marine Lines, Mumbai). 4. The Chief Security Commissioner, Railway Protection Force, Central Railway, C.S.T. Mumbai. ... Respondents Mr. S.A. Sawant for the Petitioners. Mr. Sureshkumar for R. Nos. 2 to 4. CORAM : FERDINO I. REBELLO & MRS.MRIDULA BHATKAR, JJ. DATED : APRIL 20, 2010 ORAL JUDGMENT (Per Ferdino I.Rebello,J.): All these Petitions are being disposed of by the common order as the question of law which arises is the same. 7 2. The Petitioners in W.P. No. 1723 of 1998 at the relevant time were working as HC driver/TPO/Painter/Fitter/House Repairer or having corresponding functional designations in the Railway Protection Force in the pay scales of Rs. 950-1500. By the present petition, they are demanding pay scale of RS./ 1320-2040 which is given to their counter part N.K. Driver Grade III in the Eastern Railway, Calcutta. The Petitioners in Writ Petition No. 1725 of 1998 belong to the cadre of Head Constable Grade II working as Driver/Fitter/TPO and receiving pay in the pay scale of Rs.1200-30-1400-EB-30-1800. Their grievance is that they should be paid in the pay scale of Rs.1400-2300 which is given to their counter part HC Driver in Grade II in the Eastern Railway, RPF Calcutta. In Writ Petition No. 1549 of 1998 the Petitioners belong to Cadre of Sergent Driver/Fitter and receiving pay in the pay scales of Rs.1320-2040. They are claiming the pay scale of Rs.1400-2300 which their counter parts working in the Eastern Railway are getting. 3. In all three petitions the Petitioners rely on the judgment of the learned Single Judge of the Calcutta High Court in case of Bhola Samanta and Others Versus Union of India and Others in Civil Rule No. 3287 (W) 1987 decided on 18th Jun, 1991. Pursuant to that Judgment, the Eastern Railway Calcutta made applicable the pay scales provisionally subject to the 8 decision of the Division Bench in appeal. It appears that thereafter various other employees claiming that they were similarly situated also filed petitions which were also allowed with the directions that the Petitioners in those petitions also be given the same benefit. The present Petition was filed on the basis of these judgments. 4. Earlier Petitioner had approached this court and filed Writ Petition being W.P. No. 396/94, 397/94 and in W.P. No. 398/1994 which was disposed of by this court by order dated 12.12.1992 directing the respondents to decide the claim based on representations made by the Petitioners relying on the judgment of the High Court of Calcutta. By letter of 10.3.1998 the Petitioners in those petitions were informed that their claim was not tenable and therefore, pay scale as prayed could not be refixed at that juncture as the orders of the learned Single Judge of Calcutta High Court was in appeal in that court. 5. A reply has been filed on behalf of Respondents by Sarika Mohan, Chief Security Commissioner of C.S.T.M. It is pointed out that the pay of the Petitioners had been fixed by the 4th Pay Commission which was accepted by the Railways by notification dated 24.9.1986. The Pay Commission had given replacement Scale as also had granted a specific pay scale to certain posts. These all are included in the notification dated 24.09.1986. Wherever, the Pay Commission have given a specific pay scale to the posts held by the 9 employees, those employees were given the pay scale recommended by the Pay Commission. Wherever, the Pay Commission had not specifically granted any specific pay to any post in that event the general recommendations providing the replacement scale was given to the employees. 6. In Writ Petition No. 1723 of 1998, the Petitioners were working as HRK Driver Grade III in the rank of Head constable. The Petitioners there were in the earlier pay scale of Rs.260-400 and in terms of the 4th Pay Commission they were granted pay scale of Rs.950-1500. The 4th Pay Commission in respect of Sub Inspector of RPF in lieu of pay scale of Rs. 330-560 provided pay scale of Rs.1400-2300 to Sub Inspector RPF. Similarly to Assistant Sub Inspector who were in the pay scale of Rs. 260-400 were given pay scale of RS.1320-2040. These pay scales were made applicable to persons holding those posts. There were specific pay scales for Head Constable but in the pay scale 950-1400. It is also pointed out that prior to implementation of the 4th Pay Commission, the Railway Board had granted the higher pay scale to the employees working in the RPF. The Petitioners in Writ Petition No. 1723 of 1998 had been given Pay Scale of RS.260-400. Similarly the Petitioners in W.P. No. 1725 of 1998 were given pay scale of Rs.330-560 in the place of Rs.225-300 and Petitioners in Writ Petition No. 1549 of 1998 who were in the pay scale of Rs.260-400 were granted the pay scale of Rs.330-500. 10 6. It is set out that against the judgment of the learned Single Judge, an appeal has been preferred in the Calcutta High Court which is pending. In the event Petitioners were aggrieved by the order of the Pay Commission, they should have made a representation to the department and could have got the mater referred to the anomaly committee which looks into the grievances in respect of pay scales recommended by the Pay Commission. It was open to the Petitioners to raise similar issue to the 5th Pay Commission as well as 6th Pay Commission. 7. The question before us is whether the action of the Respondents can be said to be arbitrary in not following the judgment of the Calcutta High Court. In the first instance, the Petitioners herein are the employees of Central Railway who were not parties before the Calcutta High Court where the respondent was Eastern Railway. As such the judgment would not be binding on the Central Railway. However, at the same time, if in respect of the 4th Pay Recommendations if it is implemented by one of the Railways, there is no reason as to why it should not be implemented in the other cases. Eastern Railway it is pointed out, have implemented the pay scales provisionally subject to the orders that may be passed in the appeal pending before the Calcutta High Court. 8. The real controversy is whether the Petitioners are entitled to the pay scales of the post designated for Assistant Sub Inspector and Sub Inspector. 11 The scale of Assistant Sub Inspector is Rs.260-400 and the same has been revised to Rs.1320-2040 and the scale of Sub Inspector has been revised from Rs.330-560 to Rs.1400-3200. In so far as Head Constables are concerned, the scale shown there was Rs.225-308 which has been revised to Rs.,975-1660. There is a note which sets out that special pay attached to the existing posts is not admissible to the new scales of pay and consequently the pay scales of other posts in RPF/RPSF will be provided replacement scales as given in Annexure A. In Annexure A are given the replacement scales for those posts. In respect of the Petitioners we have already mentioned scales which they were earlier getting and which have been revised. The question is whether because the persons holding higher posts are being paid in the pay scale which Petitioners may be getting, are they entitled to those pay scales. In our opinion, the answer is clear no. The pay scales are normally implemented by making rules as per Article 309 of the Constitution of India. We do not have the entire rules but we have notification in respect of which the pay scales were notified. In our opinion, therefore, the respondents were right in refusing to grant pay scales as sought for by the Petitioners merely on the ground that the learned Judge of Calcutta High Court had directed granting of higher pay scales to similarly situated employees of Eastern Railway. We are unable to agree with the counsel for the petitioners on that count. As pointed out the scale of Head Constable in the notification is lessor than the pay scale which the Petitioners who are Head Constable were getting and therefore, respondents were right in giving to them the 12 replacement pay scale in terms of the Schedule A to the notification. We therefore, do not find action of the Respondents as arbitrary or violative of Constitution of India. 9. With the above observations, rule discharged in all these three Petitions. (MRS.MRIDULA BHATKAR,J.) (FERDINO I. REBELLO,J.)