Police constables sought revised pay after two years instead of the advertised eight years. The Court dismissed their challenge, applying acquiescence and upholding the recruitment cut-off classification. It clarified that dismissal did not prevent the Government from reconsidering the qualifying service period.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 26th DAY OF OCTOBER, 2021
BEFORE
HON’BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.102 of 2019
Between:-
1. CT VIKASH JAMWAL, CT NO. 675, S/O SH MAKAL KUMAR, 2ND INDIA RESERVE BATALION, SAKOH, DISTT. KANGRA-(HP).
2. CT VIKRANT, CT NO: 773, S/O SH RAJ KUMAR, 3RD INDIA RESERVE BATALION, PANDOH, DISTT MANDI-(HP).
3. CT ANIL KUMAR, CT NO:780, S/O LATE SH PAWAN KUMAR, 3RD INDIA RESERVE BATTALION, PANDOH, DISTT MANDI-(HP).
4. CT. SAHIL MEHRA, CT No.: 481, S/O SH YOGRAJ, 3RD INDIA RESERVE BATTALION, PANDOH, DISTTT MANDI-(HP).
5. CRT. SHYAM LAL, CT. NO. 740, S/O SH. SOM KRISHAN, 3RD INDIA RESERVE BATTALION, PANDOH, DISTTT MANDI-(HP).
6. CT. ASHWANI KUMAR, CT. NO: 761, S/O SH KHOOB RAM, 3RD INDIA RESERVE BATTALION, PANDOH, DISTTT MANDI-(HP).
……….PETITIONERS
(BY MR. K.D. SHREEDHAR, SENIOR ADVOCATE WITH MR. SOURABH AHLUWALIA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH, THOUUGH PRINCIPAL SECRETARY (HOME) TO THE GOVERNMENT OF HIMACHAL
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PRADESH, SHIMLA-171002, (H.P.) ROAD TRANSPORT 2. STATE OF HIMACHAL PRADESH, THROUGH PRINCIPAL SECRETARY (FINANCE) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171002, (H.P.) 3. THE DIRECTOR GENERAL OF POLICE, HIMACHAL PRADESH, NIGAM VIHAR, SHIMLA-171001, (HP). 4. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, ARMED POLICE & TRANING, H.P. SHIMLA171002. 5. THE COMMANDANT 2ND INDIA RESERVE BATTALION, SAKOH, DISTT KANGRA-(HP). 6. THE COMMANDANT 2ND INDIA RESERVE BATTALION, PANDOH, DISTT MANDI-(HP). ……….RESPONDENTS
(BYM/S ADARSH SHARMA, SUMESH RAJ AND SANJEEV SOOD, ADDITIONAL ADVOCATE GENERALS WITH M/S J.S. GULERIA AND KAMAL KANT CHANDEL, DEPUTY ADVOCATE GENEALS)
___________________________________________________________ Reserved on : 11.08.2021 Whether approved for reporting: Yes This petition coming on for pronouncement of judgment this day, the Court passed the following:- O R D E R This petition was initially filed as an original application before erstwhile learned Himachal Pradesh
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Administrative Tribunal and after the abolition of the learned Tribunal, the same has been transferred to this Court.
The case of the petitioners is that respondent-State vide recruitment notice dated 22.06.2012, invited applications from eligible desirous candidates for recruitment against the posts of constables (800 males) in the Himachal Pradesh Police Department in the pay scales of Rs. 5910-20200+Grade Pay Rs. 1900. A copy of the recruitment notice is appended with the petition as Annexure A-1. The pay structure of the constables sought to be so appointed was to be governed by Himachal Pradesh Civil Services (category/Post wise Revised pay) Rules, 2012 ( hereinafter to be referred as the ‘2012 Rules’ for short), copy of which is appended with the petition as Annexure A-2. Finance Department of the Government of Himachal Pradesh vide notification dated 28.09.2012 added certain provisions in the Schedule governing the pay structure of the employees of the Home Department in terms of Rule 9 of the 2012 Rules. The addition in the Schedule made with respect to the Constables in the Police Department was that revised pay structure of 10300-34800+3200 Grade Pay was introduced post completion of two years of regular service w.e.f.
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01.10.2012. A copy of said notification is appended with the petition as Annexure P-3.
1030034800+3200 Grade Pay was now made available to Constables after completion of eight years of regular service. The amendment was made applicable w.e.f. 01.10.2013.5
completion of eight years regular service from the date of initial appointment in terms of notification dated 14.01.2015.
7810, which was to be revised to 10300-34800+3200 (Grade Pay) after completion of long span of eight years as Constables.6
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after completion of five years regular service instead of eight years, and according to the petitioners, this request was suo motu made at the level of Director General of Police understanding their plight, and in view of the anomaly in the pay of Clerks who get revised pay scale of `10300-34800+3200 Grade Pay, on completion of two years of regular service, whereas the petitioners had to wait for similar benefit for eight years of regular service despite the fact that they perform hazardous duties.
“I. That the application is for quashing notification of the Government of Himachal Pradesh Finance (Pay Revision) Department dated 14.01.2015 (Annexure A-6) & partial modification of the said notification dated
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17.06.2016 (Annexure A-9) whereby an arbitrary amendment has been given effect to w.e.f. 01.01.2015 purportedly in exercise of the powers conferred by Rule 9 read with Rule 3 of the Himachal Pradesh Civil Services (Category/Post wise Revised pay) Rules, 2012.
II. That the application is for setting aside the stand taken by the Government of H.P. (Home Department) in letter dated 24.06.2016 & 17.03.2017 (Annexure A-10 & A-12) as it is arbitrary and discriminatory.
III. That the application is for granting the applicants revised pay structure of Rs. 10,300-34800+3200 grade pay after putting in 2 years regular service as is being granted to constables appointed before 2015 and clerks even now, along with interest @ 10% from the date when it became first due on 01.09.2017 till its realization.
IV. That in the alternative the respondents may be directed under Rule 10 of the HPCS Rules, 2012 to relax the provision in column 5 of the amended schedule (Annexure A-6) suitably in order to release the benefit of revised pay structure of Rs. 10300-34800+Rs 3200 grade pay in favour of the applicants.”
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at entry level and at the rate of 10300-34800+3200 (G.P.) after two years of regular service. Subsequently, the Department of Finance vide notifications dated 14.01.2015 and 17.06.2015 substituted/amended serial No. 3 vide abovementioned notifications and ordered that Constables are to be granted higher pay band with 3200/- Grade Pay after completion of eight years of regular service w.e.f. 01.01.2015. It was clarified vide government letter dated 12.06.2015 that on or after 01.01.2015, the Constables would be entitled for pay structure of `1030034800+3200 (GP) only after completion of eight years of regular service. According to the Department, the issue regarding grant of higher pay structure to the Constables who were appointed before 01.01.2015 but were completing two years of service after 01.01.2015, was re-considered by the government, and vide notification dated 17.06.2016, provisions contained in Notification 14.01.2015 were made applicable only to the Constables appointed on or after 01.01.2015. As per the Department, the petitioners having been appointed in Police Department as Constables on 01.09.2015 were not eligible for grant of higher pay band and Grade Pay after completion of two years of regular service in terms of government Notifications dated 14.01.2015 and 17.06.2015. This act of the government was not arbitrary, as provisions contained in Notification dated 14.01.2015 were made applicable
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to the Constables appointed on or after 01.01.2015, and as all the petitioners herein were appointed after 01.01.2015, therefore, they were eligible for grant of higher pay band and grade pay only after completion of eight years of regular service. The action of the State has been justified to be legally fair on the said basis.
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General of Police to the State, yet the cause of the petitioners is being defeated on account of the indifferent attitude, which has been adopted by the Finance Department by taking the plea of financial implications. He has argued that taking into consideration the nature of duties, which are to be performed by the petitioners, which as per office of Director General of Police, are hazardous as also risky and round the clock, the petitioners are entitled for parity as far as the revised pay band and grade pay is concerned vis-a-vis the Constables recruited in the year 2012. He has further argued that the cut of date which has been fixed by the government vide Notification dated 17.06.2016 is arbitrary as the same is not based on any reasonableness. He also submitted that as said notification was issued on 17.06.2016, at least those Constables, who stood appointed on or before 17.06.2016, should have been given similar treatment. On these grounds, he has prayed that the writ petition be allowed and the petitioners be granted revised pay band and grade pay, as prayed for. He has also relied upon the following judgments in support of his contentions:-
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Union and South Malbbar Gramin Bank Officers’ Federation and Others (2001) 4 Supreme Court Cases 101;
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assailing the condition of grant of revised pay scale after eight years of service because the petitioners acquiescenced to the terms of the recruitment notice. He further submitted that the petitioners cannot equate themselves with the Constables who stood recruited before issuance of Notification dated 14.01.2015. According to him, the Constables, who were recruited earlier, were rightly given protection because in the recruitment notice to which they responded, it was mentioned that they would get revised pay scale after two years regular service. As per him, the petitioners are not being discriminated as alleged because in terms of the terms and conditions of the recruitment notice to which they responded, no alteration to their deterrent has been made by the State. He has also relied upon the following judgments in support of his contentions:-
Municipal Corporation of Delhi versus Surender Singh and Others, (2019) 8 Supreme Court Cases 67;
Air Commodore Naveen Jain versus Union of India, (2019) 10, Supreme Court Cases 34;
Bhagwat Sharan (Dead Through Legal Representatives) vs. Purushottam and Others, (2020) 6 Supreme Court Cases 387;
State of H.P. & Ors. versus Rajesh Chander Sood etc. etc. 2016 (10 SCC 77;
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591020200+Grade Pay @ 1900/- upto eight years of service as per H.P. Government’s Notification No. Fin(PR)-B(7)-64/2010, dated 14.01.2015.15
5910-20200+1900 (GP) with initial start of 7810 as entry level scale and the pay band of 10300-34800+ Grade Pay of 3200 after eight years of regular service. The date of applicability of this notification was mentioned as 01.01.2015.16
whereas the category of Clerks enjoy the revised Grade pay after completion of two years of service. It was further mentioned in this communication that in terms of policies of the government, the services of the contractual appointees were being regularized after completion of 5 years of service as on 31.05.2015 in the pay scale of 5910-20200+1900 (GP) with initial start of 7810. Clerks after completion of two years of regular service were being given pay band of 10300-34800+3200 (GP). The clerks were getting Grade Pay of 3200/- after completion of total seven years of service, including the services on contractual basis. Therefore, there was gap of one year as far as the Constables getting the revised Grade Pay of 3200/- was concerned. It was further mentioned in this communication that Constabulary comes under the category of trained manpower, whose nature of duties is hazardous, risky and round the clock, therefore, the disparity in pay scale was irrational. A request was made to re-examine the matter with the competent authority to reduce the condition of eight years to five years for the grant of revised pay band of 10300-34800+3200(GP) as the same would boost the morale of the Constables and result in more efficiency and effectiveness in discharging their duties. 23. In response thereto, the Director General of Police was intimated vide communication dated 17.03.2017 (Annexure A-12), that the matter was examined in consultation with the Finance
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Department, which did not accede to the request of the Police Department. It was further mentioned in the communication that in view of the nature of duties performed by the Police Constables, they were being appointed on regular basis whereas all other categories of employees are appointed on contractual basis.
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the pay scale of other drivers in the service of Delhi Administration. Hon’ble Supreme Court in the facts of the case held that construing Articles 14 and 16 in the light of the Preamble and Article 39(d) of the Constitution of India, the principle of ‘equal pay for equal work’ is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
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in matters relating to the scale of pay. It held that it was open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned and if the classification had reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the rest of reasonable nexus and the classification was founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Hon’ble Court held that equality must be among the equals and unequal cannot claim equality.
Others (2001) 4 Supreme Court Cases 101, Hon’ble Supreme Court has been pleased to hold that as the award passed by the Justice S. Obul Reddy’s Tribunal had become final and award in question not having been assailed and on the other hand having been implemented, it was futile attempt on the part of the employer as well as the Union of India to re-agitate the dispute, which has already been resolved and has been given effect to and it would no longer be open, either for the Bank or the Union of India to raise a contention that in determining the wage structure
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for the employees of the Regional Rural Bank, the financial condition would be a relevant factor.
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other connected matters (2008) 7 SCC 375, Hon’ble Supreme
Court has been pleaded to hold as under:-
“33. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India and Indian Overseas Bank v. Staff Canteen Workers’ Union. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion.”
Others (2014) 10 SCC 432, Hon’ble Supreme Court has been pleased to hold that when officers are a part of the cadre, their birthmarks, based on how they joined the cadre is not relevant.
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They must be treated equal in all respects including salary and other benefits.
Jain versus Union of India , (2019) 10, Supreme Court Cases 34, has been pleased to hold that a party is stopped to challenge the policy after participating in the selection process on the basis of such policy. While holding so, Hon’ble Supreme Court has been pleased to rely upon its earlier judgment passed in Madan Lal vs. State of J & K, (1995) 3 SCC 486 and subsequent judgments in which this principle of estoppel has been followed.
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hold that doctrine of of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. Any party, which takes advantage of any instrument, must accept all that is mentioned in the said document. While arriving at the said conclusion, Hon’ble Supreme Court has referred to treatise 'Equity-A course of lectures' by F.W. Maitland, Cambridge University, 1947, wherein the learned author described principle of election in the following terms:-
“The doctrine of Election may be thus stated: That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it....’’
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Government never intended to allocate financial resources out of State funds, to run the pension scheme, therefore, the State Government could not be burdened by the High Court for the liability, which it never contemplated.
5910-20200+1900 (GP) up to eight years of regular service in terms of recruitment notice dated 14.01.2015, they cannot be now permitted to assail the same. Whether or not Notification dated 14.01.2015, as amended subsequently, is sustainable in law, cannot be questioned by the petitioners for the reasons that by participating in the recruitment process, without any caveat qua the condition of serving in the pay scale of 591020200+1900 (GP) upto eight years of service, they impliedly consented to this condition, and thus of pay scale acquiescensed to the same by their act of participation. It is settled law of the land that if a person participates in a process without protest/prejudice, then such incumbent cannot assail the process thereafter. In this case, the condition of serving in the pay scale of `5910-20200+1900 (GP) up to eight years of service as a condition of recruitment notice to which the petitioners responded and participated. It is not in dispute that the petitioners did not lay25
challenge to this condition at the time of participating in the process of recruitment nor they participated in the process subject to their right to assail this condition. This Court is alive to the fact that bargaining power of the petitioners cannot be equated with that of mighty State but still the fact remains that it is not as if the conditions, as were contained in the recruitment notice, to which the petitioners responded, were subsequently altered to their disadvantage. Here is a case where the government in its wisdom issued a Notification vide which, it revised the period of grant of revised pay band and grade pay to the Constables from two years service to eight years regular service. This Court has no doubt that those Constables who stood recruited before issuance of said Notification and whose right of grant of revised pay band+grade pay was adversely affected by the Notification, had a right to assail the same. However, incumbents like the petitioners, who were not borne in the cadre as on the date when the Notification was issued, do have any locus to assail it. It is reiterated that pursuant to the issuance of recruitment notice dated 06.09.2015, it was open for the petitioners not to respond to the same, in case, they were not satisfied with the terms and conditions of the appointment, including the pay scale. 39. The plea of cut-off-date being arbitrary raised by learned Senior Counsel appearing for the petitioners also does not
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comes to their assistance for the following reasons. The notification vide which the conferment of the higher pay band + grade pay was revised from two years to eight years payable to Constables, was issued by the Finance Department on 14.01.2015. The recruitment notice to which the petitioners responded is dated 05.03.2015. Notification dated 14.01.2015 was modified as being applicable to Constables appointed on or before 01.01.2015 vide Notification dated 17.06.2016. However, fact of the matter remains that this notification stood issued so as to protect the interests of Constables upon whom, right of grant of revised pay band and grade pay had accrued after two years service in terms of earlier Notification dated 28.09.2012. As far as the petitioners are concerned, as already mentioned hereinabove, when the advertisement to which they responded to, was issued, Notification dated 14.01.2015, in terms whereof revised pay band and grade pay was payable to the Constables after eight years of regular service, was already in force. Not only this, in advertisement dated 05.03.2015 also it was clearly mentioned that the posts of Constables were in the pay scale of 5910-20200 + Grade Pay of Rs. 1900/- up to eight years of service in terms of notification dated 14.01.2015. Therefore, the cut-off-date, as has been fixed subsequently vide notification dated 17.06.2016, is not arbitrary, as has been argued by learned Senior Counsel appearing
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for the petitioners, for the reason that the classification which has been made by the department between the Constables appointed before 01.01.2015 and after 01.01.2015 is based on intelligible differentia because the right of grant of revised pay scale had already accrued upon the appointees who stood appointed before 01.01.2015 when the same was taken away from them vide notification dated 14.01.2015.
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that the petitioners have been forced to accept the conditions of service against their wish or will because of their diminishing bargaining power as compared to the State.
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petitioners by the Court shall not come in the way of the State Government, in case, it does intend to revisit the number of years of regular service, which a Constable has to put in after his appointment for the grant of revised pay scale and grade pay. With these observations, the petition is ordered to be closed.
The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel) Judge
October 26, 2021 (narender
2 issues framed by the court
Could constables challenge the advertised eight-year qualifying service for revised pay after participating in recruitment without protest?
Was the classification between constables appointed before and after the specified cut-off arbitrary?
Colour shows how this judgement treated each authority
Randhir Singh Versus Union of India and OthersDistinguished¶88
(1982) 1 SCC 618 · Who else cites this
Mewa Ram Kanojia Versus All India Institute of Medical Sciences and OthersDistinguished¶91
(1989) 2 SCC 235 · Who else cites this
South Malabar Gramin BankDistinguished¶94
(2001) 4 Supreme Court Cases 101
State Bank of India and Another Versus M.R. Ganesh Babu and OthersDistinguished¶98
(2002) 4 SCC 556 · Who else cites this
Union of India and Another Versus International Trading Co. and AnotherDistinguished¶99
(2003) 5 SCC 437 · Who else cites this
Chairman and MD, NTPC LTD. Versus Reshmi Constructions, Builders & ContractorsDistinguished¶100
(2004) 2 SCC 663 · Who else cites this
Union of India and Others Versus Atul Shukla and OthersDistinguished¶106
(2014) 10 SCC 432 · Who else cites this
Municipal Corporation of Delhi versus Surender Singh and OthersApplied¶110
(2019) 8 Supreme Court Cases 67
Air Commodore Naveen Jain versus Union of IndiaApplied¶111
(2019) 10, Supreme Court Cases 34
Bhagwat Sharan (Dead Through Legal Representatives) vs. Purushottam and OthersApplied¶113
(2020) 6 Supreme Court Cases 387
State of H.P. & Ors. versus Rajesh Chander Sood etc. etc.Referred¶117
2016 (10 SCC 77 · Who else cites this
1 provisions across 1 enactments
VIKASH JAMWAL
VIKRANT
ANIL KUMAR
SAHIL MEHRA
SHYAM LAL
ASHWANI KUMAR
Ajay Mohan Goel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court