THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.15321 of 1999 (Dated : 30-08-2011) Between: R.Malleshwara Rao and others …Petitioners A n d Union of India and 9 others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.15321 of 1999 ORDER: This writ petition is filed by the petitioners, who are (57) in number, seeking a mandamus declaring the action of the respondents in denying the benefit of rationalized revised Pay Scales and fixation of pay with arrears from 1-1-1996 basing on the proceedings No.PC- V/97/G/4, (RBE 228/98) dated 07-10-98 and Para 2 of the proceedings No.PC-V/97/G/4 (RBE No.171/97) dated 4-12-97 of the Executive Director, Pay Commissioner, Railway Board Railway Mantralaya, New Delhi-2nd respondent as illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India. A further direction has been sought for to the respondents to pay the arrears of pay by fixing the rationalized pay scales with increments from 01-01-96. 2. The case of the petitioners, as stated in the affidavit filed in support of the writ petition, is as follows: - The petitioners are working in various posts such as Inspectors, Sub-inspectors, Head Constables and Constables in Railway Protection Force Department. As per Section 10 of the Railway Protection Force Act, Railway Protection Force is one of the Departments of Railway. The Government of India-1st respondent framed rules under Article 309 of the Constitution of India for fixation of pay, in pursuance of the recommendations made by V Pay Commission, vide Notification Proceedings No.PC-V/97/1/RSRP/1, DATED 08-10-1997. As per Rule 1 of the Railway Services (Revised Pay) Rules, 1997, pay revision shall be deemed to have come into force on 1st January 1996. The pay of the petitioners has been fixed giving effect to V Pay Revision Commission. Subsequently, the Ministry of Home Affairs has taken up rationalization of rank structure and Pay Scales of non-gazetted cadre of Central Police Organization. Consequent thereto, the Ministry of Railways have taken the decision to rationalize the scales of pay of Railway Protection Force, Railway Protection Special Force/staff (combatised) by Proceedings No.PC- V/97/G/4, dated 4-12-97 revising the pay scales with effect from 4-12- 1997. According to the petitioners, they are entitled for the benefit of rationalization of pay structure and pay scales from 1-1-1996 instead of 04-12-1997. The petitioners state that certain category of employees in the railways were granted revised pay scales with effect from 01-01-1996 and therefore, they were also to be given the benefit of rationalization of rank structure and pay scales with effect from 01-01-1996 instead of 04-12-1997. For better understanding of the grievance of the petitioners, I deem it appropriate to refer paras 6 to 8 of the affidavit filed in support of the writ petition and they read as hereunder:- “6. I submit that in pursuant to proceedings of the 5th respondent the scales of Railway Protection Force employees were fixed duly regularizing the period from 1-1- 96 to 3-12-1997 in the rationalize scales in accordance with V Pay Commission Rules 1997 with monetary benefits from 4-12-97 only, same was certified by all the Associated Divisional Accounts. It appears some other Railways have sought clarification from the second respondent and the Second respondent has issued proceedings No.PC- V/97/G/4, dated 07-10-98 to the effect that the revised Pay Scales will be given effect to from 4-12-97 as stated in para 2 of the letter, and further directed this pay would be fixed under FR 23 (1317 of IREM Vol.II). In pursuant to the proceedings No.PC-V/97/G/4, dated 07-10-98 of the second respondent, the Fifth Respondent has replaced the ready reckoner dated 22-10-98 in the place of ready reckoner 11-3-1998 thereby causing loss to the employees without giving any opportunity to the RPF Employees. I submit that when the Respondent tried to recover the amounts from 1-1-96, and trying to refix the pay scales without giving any opportunity, Ch.Chakradhar and others have filed W.P.No.34598/98 in this Hon’ble Court and this Hon’ble Court was pleased to issue Interim directions on 14-12-98. I submit that now the Respondents in the guise of letter S.No.PC-V177 No.PC- V/97/4/4, dated 10-5-99 of Dy. Director Pay Commission misreading the provision once again trying to recover the amounts from the salaries of the employees who are not members of the W.P.No.34598/98 with effect from July, 99. 7. I submit that the rationalization of pay scales was fixed by the Ministry of Railways on the strength of rationalization of structure and pay scales by the Ministry of Home Affairs for all Central Police Organizations who regularized the period from 1-1-96 to the till date of issuing order in the rationalized scale, as per the v Pay Commission pay Rules, 1997, but the same benefit is denied to employees in RPF Dept., which is illegal, arbitrary. 8. I further submit that the artisans staff in Railways were granted revised pay scales vide Board Lr.No.PC- V/97/1/RSRP/1, dated 16-10-97 and not satisfied with that scales the Artisan staff federations have given strike notice and it was decided by Railways to give altered, modified, rationalized scales to the Artisan staff w.e.f 1-1-96 vide Proceedings No.PC-V/97/R-II/17, dt.24-11-98 by the very same respondent No.2, showing step mother and hostile treatment to the members of RPF Dept. which is also one of the very important Department of the Railways. 9. I submit that in pursuant to the rationalization of pay scales the RPF Employees are entitled not only monetary benefits but also fixation of pay with increments from 1-1-96 as it was done in the matter of Artisan Staff by the Proceedings No.PC-V/97/R-II/17, dated 24-11-1998 of the second respondent, but the second respondent not only deprived benefit of rationalized scale up to 3-12-97 by proceedings No. PC-V/97/G/4, dated 4-12-97 in para 2 of the proceedings but also denied the fixation of pay in the rationalized scales w.e.f 1-1-96 vide clarification proceedings No.PC-V/97/G/4, dated 7-10-98 which is illegal, arbitrary for the following grounds:- i) As benefit of revised pay scales ( V Pay Scales) was given effect to from 1-1-1996 rules framed under Article 309 of the Constitution of India. Any revision or modification of pay scales shall be given effect to from 1-1-1996. ii) The second respondent has no power to restrict the monetary benefits only from 4-12-1997 by the impugned order as executive order cannot override rules framed under Article 309 of the Constitution of India. iii) The second respondent himself has given the benefit of modified and revised scales to the Artisan category w.e.f 1-1-96 vide proceedings No.PC-V/97R-II/17, dated 24-11-1998 but denied the same benefit to the numbers of the RPF employees which is clearly violative of Article 14 & 16 of the Constitution of India iv) Once the pay has been fixed the same cannot be altered without notice v) The 5th Pay Revision rules framed by the President of India under Article 309 of the Constitution of India is having the over riding effect of all the Railway Fundamental Rules, the Railway Services (Revision of Pay ) Rules, 1947, the Railway Services (Authorized Pay ) Rules, 1967, the Railway Services (Revised Pay ) Rules, 1973, and the Railway Services (Revised Pay) Rules, 1986. vi) The respondent can’t show the hostile step mother treatment to the members of the RPF Dept., as they are weak and they cannot protest the actions of the respondent in view of the ban of Union by declaring them as armed Forces as the RPF Department is one of the Departments. vii) The juniors of the employees in RPF Dept. who went to other departments of railways are given benefit from 1-1- 196 but denied to the employees who reinstated in the RPF Dept, which is impermissible. viii) The petitioners are denied of weightage increments, as provided in Rules framed by the President of India ix) Benefit of interpretation of law shall be given in favour of employees x) The R.P.F members are Railway servants as per Section 10 of R.P.F.Act, 1985 and Railway Board alone has issued R.B.E.No.133/97 whereunder the R.P.F members are given benefit of Revised pay with effect from 1-1-96.”. 3. Rule nisi came to be issued on 02-08-1999. The respondents filed counter resisting the relief sought for by the petitioners. P.S.Rawa, Deputy Chief Security Commissioner, South Central Railway has sworn to the affidavit filed on behalf of the respondents. It is stated in the counter that the revised scales of pay in pursuance of the V Pay Commission has been given to the petitioners. Subsequently, the Ministry of Home Affairs took up the rationalization of rank structure and pay scales of non gazetted rank of Central Police Organization. Thereupon, the Ministry of Railways have taken the decision to rationalize the scales of pay of Railway Protection Force/Railway Protection Special Force, Staff (Combatised) vide Railway Board’s Lr.No.PC-V/97/G/4, dt.04.12.1997 circulated by the Chief Personnel Officer/Secunderabad under serial Circular No.222/97 dated 30.12.1997. The Financial Advisor and Chief Accounts Officer/Secunderabad prepared ready reckoner for pay fixation from 01-01-1996 to 03.12.1997 on proforma fixation and actuals from 04.12.1997. The Rule 1313 IRDC Vol-II has been interpreted as the fixation at the same stage if any, in the higher scale and the difference allowed as personal pay to be absorbed in future increase in pay. Clarification has been given that the pay scales allowed after V Central Pay Commission would be applicable for the period from 01-01-1996 to 03-12-1997 and thereafter, rationalization of rank structure and pay scales has to be given effect. The pay scales of artisan staff came to be modified and modified scales have been given effect from 01-01-1996 because of disparity and disturbance of relativities of other categories of railway employees. 4. Heard learned counsel appearing for the petitioners and learned senior Standing Counsel appearing for the Railways appearing for the respondents. 5. Learned counsel appearing for the petitioners submits that the petitioners are entitled to rationalization of rank structure and pay scales with effect from 01-01-1996 and the railways having given effect to the said scales from 1-1-1996 is not justified in withdrawing the benefit and consequent recovery of the amount. A further submission has been made that in similar circumstances, the railway represented to the Court that no recovery is sought to be effected from the employees on the ground that the salaries as adopted by the Railway Board was less than the pay scales recommended by V Pay Commission (Central) with effect from 01-01-1996 and basing on the said representation, W.P.No.34598 of 1998 came to be dismissed and therefore, similar benefit is required to be given to the petitioners. He would also contend that the pay of the petitioners has been fixed by the Department and arrears have been paid and subsequent revision by the Department and recovery of the amount already paid on the ground that rationalization of rank structure and pay scales has to be given effect from 04-12-1997 is not legal and proper. In a way, his contention is that the petitioners are in no way responsible for fixation of their pay, pursuant to certain instructions issued by the Department and if any modification in the pay scales has been given pursuant to the subsequent instructions, no recovery of excess amount paid to the petitioners can be resorted to. In support of his submissions, reliance has been placed on the Judgment of the Supreme Court in Sahib Ram v. State of Haryana & Ors.[1]. Much emphasis has been laid on para (4) of the cited judgment, which reads as hereunder:- “4. Admittedly, the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised pay scale. However, it is not on account of any mis- representation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs”. 6. Learned Standing Counsel appearing for the respondents submits that the pay of the petitioners has been fixed pursuant to the Railway Services (Revised Pay) Rules, 1997 with effect from 01-01- 1996. Thereafter, the Ministry of Home Affairs, rationalized the rank structure and pay scales of non-gazetted cadre of Central Police Organization and the same has been given effect by the Railway Board with effect from 04.12.1997. In a way, his contention is that since some department in the railways has sought for clarification as to how the pay scales of the RPF employees have to be fixed after rationalization of rank structure and pay scales, the Railway Board has issued clarification for fixation of pay to non gazetted staff in revised scales. 7. The letter emanating from the Railway Board has been filed along with the counter and the text of the letter reads as hereunder:- GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) S.No.PC-V/177 R.B.ENo.91/99 No.PC-V/97/G/4 New Delhi, dated 10.5.99 The GMs/CAO®s/OSDs All Indian Railways & Production Units etc, (As per mailing list) Sub : Fixation of pay of RPF/RPSF staff in revised pay scales. Ref : (i) Board’s letter of even number dated 07.10.98 (ii) Board’s letter No.F(E) IL 89/FR-I/1 dated 12.12.91. ***** In supercession of the Board’s letter dated 07.10.98 referred to above, it is clarified that the pay fixation of RPF/RPSF staff would be done in accordance with FR-23 [1317-IREC-vOLii (1987 Edition)]and FR-22 (I)(a) (2) [ Amended Rule 1313 (I)(a)(ii) circulated as ACS No.14 to IREC Vol.II.1987 Edition vide Board’s letter No.F(E) II/89/FR-I/1, dated 12.12.91} read with Audit Instructions (1) below FR-22. In other words, the pay of the incumbent would be fixed at the stage of the time scale which is equal to his pay in respect of the old post held by him on regular basis, or , if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis. Provided further that incase where pay fixed at the same stage, the next increment will be drawn on the date of increment in the pre-revised V CPC scale and in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the revised time scale. When pay is drawn at the maximum of the old scale and there is an equal stage in the revised scale Audit Instructions (1) below FR 22 will have to be taken care of the while determining next increment in the revised scale. 3. Hindi version is enclosed. (Kosy Thomas) Dy. Director. Pay Commissioner Railway Board” 8. The issue as to from what date the petitioners are entitled for rationalization of rank structure and pay-scale is no more res integra in view of the decision of this Court in C.J.Chakradhar and others v. Union of India[2], wherein it has been held that the employees of Railway Protection Force and Railway Protection Special Force are entitled to the benefit of rationalization of rank structure and pay scale with effect from 04-12-1997 and not from 01-01-1996. Even otherwise also, the pay scales recommended by V Pay Commission (Central) came in to effect from 01-01-1996. The petitioners have availed the benefit of V Pay Commission. Subsequently, the Ministry of Home Affairs took up the rationalization of rank structure and pay scale in Central Police Organization. The Railway Board has given effect to the recommendations made by the Ministry of Home Affairs with effect from 04-12-1997. Therefore, it is impermissible for the petitioners to contend that they are entitled to have the benefit of rationalization of rank structure and pay scales with effect from 01-01-1996. 9. In that view of the matter, I find that the writ petition is devoid of merits and accordingly, the same is hereby dismissed. No order as to costs. _____________________ B.SESHASAYANA REDDY, J Dt.30-08-2011 Note:- Issue CC within a week (B/o) RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.15321 of 1999 (Dated : 30-08-2011) [1] 1995(1) All India Service Law Reporter 151 [2] 2008(4) ALD 714