Partly allowed

P. Surendran v. Director General, Central Reserve Police Force

Kerala HC10 Sept 2018WP(C)/12163/2018

Case brief

AI extract

What is this about?

Retired CRPF Head Constables sought the second financial upgradation under the Assured Career Progression Scheme. The Court held they are entitled only to the first upgradation with effect from 09.08.1999, directing respondents to re-fix pay and pension based on this benefit.

What did the court decide?

Petitioners declared entitled to first ACP with effect from 09.08.1999; respondents directed to re-fix pay, recompute pension, and grant consequential benefits including arrears within four months.

P. Surendran Vs Director General, Central… — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940

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WP(C).No. 10992 of 2018

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PETITIONER/S:

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1 V. RAGHAVAN S/O.LATE KELAPPAN, AGED 67 YEARS, HEAD CONSTABLE (RO) (RETD) CENTRAL RESERVED POLICE FORCE PRBHATHAM HOUSE, AZHIYOOR P.O., KOZHIKODE DIST.673309, KERALA STATE. 2 M.V.KRISHNAN S/O.LATE KARIMBIL KRISHAN NAIR, AGED 66 YEARS, HEAD CONSTABLE (RO)(731130063)(RETD.) (CENTRAL RESERVED POLICE FORCE) KRISHNALAYAM, OOTTUPURAM, KARINKALKUZHI, KOLANCHERY P.O. KANNUR-670601, KERALA STATE.

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BY ADVS.

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SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR

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RESPONDENT/S:

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1 DIRECTOR GENERAL

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CENTRAL RESERVE POLICE FORCE, BLOCK NO.1, CGO COMPLEX, LODHI ROAD, NEW DELHI-110003 2 COMMANDANT,

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4 SIGNAL BATTALION, CRPF, NEEMUCH-458441 3 DIRECTOR OF ACCOUNTS, PAY & ACCO0UNTS OFFICE, CENTRAL RESERVE POLICE FORCE, MAHAVIR NAGAR, TILAK NAGAR P.O., NEW DELHI-110018. 4 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PERSONNEL & TRAINING, NORTH BLOCK, NEW DELHI-110001. 5 SECRETARY DEPARTMENT OF PENSION & PENSIONERS' WELFARE, SOUTH BLOCK, NEW DELHI-110001. BY ADVS. SRI.JAISHANKAR V.NAIR, CGC

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SRI.N.NAGARESH, ASGI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.09.2018, ALONG WITH WP(C). NO.12163/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 10992 & 12163 of 2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940

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WP(C).No. 12163 of 2018

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PETITIONER/S:

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P. SURENDRAN S/O.LATE PADMANABHAN, AGED 67 YEARS, HEAD CONSTABLE (RF)(RETD.)(NO.710570537), CENTRAL RESERVE POLICE FORCE, NADUVILAZHIKATHU HOUSE, IVERKALA WEST SOUTH, PUTHANAMBALAM P.O., KOLLAM DIST.-691553, KERALA STATE. BY ADVS.

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SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR

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RESPONDENT/S:

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1 DIRECTOR GENERAL, CENTRAL RESERVE POLICE FORCE, BLOCK NO.1, CGO COMPLEX, LODHI ROAD, NEW DELHI-110003.

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2 COMMANDANT, 1 SIGNAL BATTALION, CRPF, J/KALAN, NEW DELHI-110072.

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3 DIRECTOR OF ACCOUNTS PAY & ACCOUNTS OFFICE, CENTRAL RESERVE POLICE FORCE, MAHAVIR NAGAR, TILAK NAGAR P.O., NEW DELHI-110018.

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4 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PERSONNEL & TRAINING, NORTH BLOCK, NEW DELHI-110001.

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5 SECRETARY, DEPARTMENT OF PENSION & PENSIONERS WELFARE, SOUTH BLOCK, NEW DELHI-110001. BY ADVS. SRI.N.NAGARESH, ASGI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.09.2018, ALONG WITH WP(C).10992/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 10992 & 12163 of 2018

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JUDGMENT

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Petitioners in all these cases except the 1^st petitioner in W.P.(C) No.10992/2018, entered service in CRPF as Constables and were re-mustered as Naiks and were thereafter promoted as Head constables. Subsequent to their promotion as Head Constables, the posts of Naiks and Head Constables merged, as per orders issued on 10.10.1994. Orders were issued introducing Assured Career Progression (ACP) Scheme to the Central Government employees as per Office Memorandum No.35034/1/97-Estt(D)dated 09.08.1999 which is produced as Ext.P2 in W.P.(C) No.12163/2018. In these writ petitions they are seeking directions to grant them the 2^nd financial upgradation under the ACP Scheme with effect from 09.08.1999.

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2. Even though they have also prayed for revision of their pensionary benefits, the learned counsel for the petitioner submitted that they are not pressing that relief, in these writ petitions.

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WP(C).No. 10992 & 12163 of 2018

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3. The 2^nd petitioner in W.P.(C) No.

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10992/2018, though commenced service as constable and re-mustered as Naik, he was not promoted as Head Constable as in the case of the other petitioners. On merger of the posts of Naiks with Head Constables with effect from 10.02.1995, he started drawing the pay attached to the merged post till his retirement.

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4. All these petitioners tendered voluntary retirement from service while working as Head Constables after merger of the posts. The ACP Scheme was introduced before their retirement.

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5. The respondents have filed a statement and thereafter an additional statement stating that petitioners are not eligible for the benefit of the Scheme. One of the contentions is that since they were re-mustered as Naiks, the service which can reckoned for financial upgradation under ACP Scheme is only that service they rendered with effect from date of re-mustering. The further contention is that when the petitioners completed 12 years of service, ACP Scheme was not introduced. According to

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WP(C).No. 10992 & 12163 of 2018

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the respondents, in order to grant the benefit of ACP Scheme, petitioners should have completed 24 years of service before their retirement, after remustering. However all the petitioners retired from service before they completed 24 years of service and therefore they are not eligible for the said benefit. It is pointed out that in view of condition no.15 of Ext.P2 Scheme, the petitioners would have been eligible for second upgradation only on completion of 24 years of regular service.

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6. The learned counsel for the petitioner relies on the clarification issued by Government in Ext.R1(f), which is produced along with additional statement filed by the respondents in W.P.(C) No.12163/2018. Ext.R1(f) is an Office Memorandum issued on 10.02.2000 issuing clarification with respect to various points of doubts. As per this clarification the promotions granted prior to merger

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are to be ignored for granting the benefit of ACP scheme. It is specifically stated that an employee who got promoted from lower pay-scale to higher pay-

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WP(C).No. 10992 & 12163 of 2018

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scale as a result of promotion before merger of payscales shall be entitled for upgradation under ACPS ignoring the said promotion as otherwise he would be placed in a disadvantageous position vis-a-vis the fresh entrant in the merged grade.

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7. Despite this, the learned ASGI vehemently contended that the petitioners are not entitled for

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the same because the benefit of the Scheme is available only on completion of either 12 years of service; but when they completed 12 years, the scheme was not in existence and thereafter they had to wait for completion of total 24 years from the date of their re-mustering and that on account of their promotion as Head Constables they could not have been granted the benefit except on completion of 24 years after re-mustering.

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8. Having considered the rival contentions, I find that the claim of petitioners for financial upgradation reckoning their service from the date of their joining as Constables cannot be accepted. As rightly contended by the learned ASGI, the service

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WP(C).No. 10992 & 12163 of 2018

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rendered by the petitioners after re-mustering as Naiks alone can be considered for financial upgradation under ACP scheme, in the light of the judgment in W.P.(C) No. 32624 of 2008.

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9. In order to examine the eligibility of petitioners for the benefit of the ACP scheme, it is necessary to have a look at the relevant provisions

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in Ext.P2 Scheme. Annexure-I to that scheme provides for the conditions to be fullfilled for grant of benefits under the ACP Scheme.

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10. As per condition no.3 of the Annexure financial benefits under the ACP Scheme shall be granted from the date of completion of eligibility period prescribed under the ACP Scheme or from the date of issue of those instructions whichever is later. All the petitioners had completed much more than 12 years as on 09.08.1999. .

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11. Condition no.3 of the Annexure read as

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follows:

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"3. The financial benefits under the ACP Scheme shall be granted from the date of completion of the eligibility period prescribed under the ACP Scheme or from the

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WP(C).No. 10992 & 12163 of 2018

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date of issue of these instructions whichever is later;"

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12. The contention of the learned counsel for the respondents is based on Condition no. 4, which reads as follows:

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"4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly;"

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13. Condition no.4 provides that the first upgradation shall be after 12 years of regular service and second upgradation shall be after 12 years of regular service from the date of first financial upgradation subject to fulfillment of prescribed conditions. A reading of Condition no.3 and 4 together, makes it clear that those who completed 12 years even before the date of

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WP(C).No. 10992 & 12163 of 2018

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introduction of the scheme are eligible for the first financial upgradation with effect from the date of the order viz.09.08.1999.

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14. Condition no.15 of the Annexure to Ext.P2

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is also relevant, which reads as follows:

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“15. Subject to Condition No.4 above, in cases where the employees have already completed 24 years of regular service, with or without a promotion, the second financial upgradation under the scheme shall be granted directly. Further, in order to rationalise unequal level of stagnation, benefit of surplus regular service (not taken into account for the first upgradation under the scheme) shall be given at the subsequent stage (second) of financial upgradation under the ACP Scheme as a onetime measure. In other words, in respect of employees who have already rendered more than 12 years but less than 24 years of regular service, while the first financial upgradation shall be granted immediately, the surplus regular service beyond the first 12 years shall also be counted towards the next 12 years of regular service required for grant of the second financial upgradation and, consequently, they shall be considered for the second financial upgradation also as and when they complete 24 years of regular service without waiting for completion of 12 more years of regular service after the first financial upgradation already granted under the Scheme.”

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WP(C).No. 10992 & 12163 of 2018

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15. In this context it is relevant to have a look at the clarification issued in Ext.R1(f) also, as against one of the doubts given as S.No.1, which

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reads as follows:

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*S.No.*	*Point of doubt*	*Clarification*
1	*Two posts carrying different* *pay scales constituting two* *rungs in a hierarchy have now* *been placed in the same pay-* *scale as* *a result* of *rationalisation of pay-scales.*	*Since the benefits of* *upgradation under ACP* *Scheme (ACPS) are to* *be allowed in the* *existing hierarchy,* *the mobility under*
	*This has resulted into change* *in the hierarchy in as much as* *two posts which constituted* *feeder and promotion grades in*	*ACPS shall be in the* *hierarchy* *existing* *after merger of pay-* *scales by ignoring*
	*the pre-merged scenario have*	*the promotion. An*
	*become one grade. The position*	*employee* *who* *got*
	*may be clarified further by*	*promoted from lower*
	*way* of *the* *following*	*pay-scale to higher*
	*illustration: prior to the*	*pay-scale as a result*
	*implementation of the Fifth*	*of promotion before*
	*Central* *Pay* *Commission*	*merger of pay-scales*
	*recommendation, two categories*	*shall be entitled for*
	*of posts were in the pay-*	*upgradation* *under*
	*scales of Rs.1200-1800 and*	*ACPS ignoring the*
	*Rs.1320-2040 respectively; the*	*said promotion as*
	*latter being promotion post*	*otherwise he would be*
	*for the former. Both the*	*placed* in a
	*posts have now been placed in*	*disadvantageous*
	*the pay-scale of Rs.4000-6000.*	*position* *vis-a-vis*
	*How the benefits of the ACP*	*the fresh entrant in*
	*Scheme is to be allowed in* *such cases?*	*the merged grade.*

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In view of the above clarification, the benefit of upgradation is admissible in the existing hierarchy, to petitioners who were promoted before the merger. In other words petitioners cannot be

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WP(C).No. 10992 & 12163 of 2018

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denied the upgradation on the ground that they got promotion as Head Constables which got merged with Naiks.

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16. The contention that benefit of ACP can be given only at the time when petitioners completed 12 years or at the time they completed 24 years from the date of re-mustering and that they are ineligible because of nonavailability of the scheme when they completed 12 years and because of their retirement before they could complete 24 years of service, is unsustainable.

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17. The contention that petitioners are not eligible for the benefit of first ACP since they got promotion as Head Constables and therefore they could have been considered only for the 2^nd upgradation is also unsustainable. Such a contention could have been accepted but for the clarification given in Annexure-R1(f) which provides that the promotions granted before merger shall be ignored. The said clarification does not say that the promotions before merger need be ignored only for

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WP(C).No. 10992 & 12163 of 2018

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the purpose of granting second upgradation.

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18. When the ACP Scheme was introduced only on 09.08.1999 those who had already completed 12 years became eligible for the benefit of the ACP Scheme not withstanding the fact that they had completed more than 12 years, though the benefit was admissible only with effect from 09.08.1999. It is also relevant to note that in paragraph 15 itself of the Ext.P2, it is provided that in respect of employees who have rendered more than 12 years but less than 24 years of regular service, while the first financial upgradation shall be granted immediately, the surplus regular service beyond the first 12 years shall also be counted towards the next 12 years of regular service required for grant of second financial upgradation and, consequently, they shall be considered for the second financial upgradation also as and when they complete 24 years of regular service, without waiting for completion of 12 more years of regular service after the first financial upgradation already granted under the

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WP(C).No. 10992 & 12163 of 2018

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Scheme. That would indicate that the benefit of the scheme is liable to be granted even to those who completed 12 years much prior to 09.08.1999.

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19. Therefore on consideration of the Condition nos.3 and 15 of the Annexure to Ext.P2 scheme as well as the clarification given against entry no.1 in Annexure-R1(f), it can be safely concluded that the intention of the Government was to grant atleast one ACP to those who completed 12 years of service. In the case of the petitioners, the promotion as Head Constable which was prior to the merger, was also liable to be ignored, in the light of the clarification in Annexure-R1(f).

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20. Even though the prayer in the writ petition is for grant of 2^nd financial upgradation, I find that petitioners are eligible only for the first upgradation and that is liable to be granted with effect from 09.08.1999. Therefore these writ petitions are allowed to the extent of declaring that petitioners are entitled to the benefit of first ACP with effect from 09.08.1999. Respondents

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WP(C).No. 10992 & 12163 of 2018

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are directed to re-fix their pay and recompute their pensionary benefits based on the pay thus re-fixed and grant them all consequential benefits including arrears of pay and pension within a period of four months from the date of receipt of a copy of this

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judgment.

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Sd/P.V.ASHA JUDGE

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WP(C).No. 10992 & 12163 of 2018

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W.P.(C) No.10992/2018

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APPENDIX

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PETITIONER'S/S EXHIBITS :

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EXT.P1	A TRUE COPY OF THE	PPO NO.239030237180
EXT.P2	A TRUE COPY OF THE	PPO NO.239030206094
EXT.P3	A TRUE COPY OF THE CRPF ON IMPLEMENTAT	REVISED PAY SCALE IN ION OF 5TH CPC
EXT.P4	A TRUE COPY OF THE NO.35034/1/97 ESTT. ISSUED BY THE DOPT	OFFICE MEMORANDUM (D)DT.9.8.1999
EXT.P5	A TRUE COPY OF THE DT.15.4.2017 SUBMIT PETITIONER.	REPRESENTATION TED BY THE 1ST
EXT.P6	A TRUE COPY OF THE DT.20.8.2017 SUBMIT PETITIONER.	REPRESENTATION TED BY THE 2ND

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WP(C).No. 10992 & 12163 of 2018

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W.P.(C) No.12163/2018

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APPENDIX

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PETITIONER'S/S EXHIBITS :

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EXHIBIT P2 A TRUE COPY OF THE OFFICE MEMORANDUM NO.35034/1/97-ESTT.(D) DT.9-8-1999 ISSUED BY THE DOPT. EXHIBIT P3 A TRUE COPY OF THE PAY STRUCTURE OF BSF. EXHIBIT P4 A TRUE COPY OF THE FITMENT TABLE ANNEXED TO CCS(RP)RULES 2008.

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EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN OP(CAT)NO.169/2015.

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EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 1ST RESPONDENT ON 202-2015.

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EXHIBIT P7 A TRUE COPY OF THE REMINDER DT.10-12017.

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RESPONDENT'S/S EXHIBITS

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ANNEXURE-R1(a) TRUE COPY OF THE LETTER NO.P.I.4/200405-C(10) DATED 24/05/2004. ANNEXURE-R1(b) TRUE COPY OF THE LETTER NO.P.I.1/201314-C(10) DATED 26/03/2014. ANNEXURE-R1(c) TRUE COPY OF THE FILE NO.35034/1/97ESTT.(D) (VOL-IV)DATED 10/02/2000. ANNEXURE-R1(d) TRUE COPY OF THE ORDER DATED 24.10.2017 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN OP(CAT) No.198 of 2017.

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ANNEXURE-R1(e) TRUE COPY OF THE RELEVANT PAGE OF CRPF RECRUITMENT MANUAL 1975 CONTAINING PARA 6.3 AND 6.4

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WP(C).No. 10992 & 12163 of 2018

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DEPT. OF PERSONNEL AND TRAINING OM NO.35034/I/97-ESTT(D)-VOL.IV DATED ANNEXURE-R1(f) 10/02/2000.

P. Surendran v. Director General, Central Reserve Police Force

Case brief

What is this about?

What did the court decide?

P. Surendran v. Director General, Central Reserve Police Force

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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