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Judgment
REKHA PALLI, J(ORAL)
The petitioners, who are working as Assistant Commandants in the Central Reserve Police Force (CRPF) have approached this Court seeking directions to the respondents to re-fix their basic pay at par with their batchmates including respondent no.3/Assistant Commandant Pankaj Rai.
At the outset, the brief factual matrix as emerging from the record maybe noted.
Upon the respondents inviting applications for the post of Sub-Inspector (GD) in the year 2002, the petitioners submitted their applications and were based on their performance in the CPO Examination placed in the merit list. However, despite their merit they were not appointed as they were found to be medically unfit in the medical examination conducted by the respondents in 2003. Upon an appeal being submitted by them, they were examined by a Review Medical Board, which Board declared them fit on 25.06.2005. Consequently, the petitioners were appointed as SI (GD) on 25.06.2005 and were subsequently promoted as Inspector (GD) on 09.11.2009 after they had completed four years of service as SI(GD), even though their batchmates, who had been appointed as SI (GD) pursuant to the same selection process were promoted in 2007 itself.
Being aggrieved by this action of the respondents in granting them promotion as Inspector(GD) only in 2009, some of the batchmates of the petitioners approached this Court by way of W.P.(C)5670/2018, which writ petition was allowed on 25.02.2019. The respondents were accordingly directed to grant notional seniority w.e.f. 2003 as SI(GD) to all persons, who were part of same selection process filed in 2003, but had been appointed after they were declared medically fit by the Review Medical Board. Based on restoration of their seniority as SI(GD), the seniority of the petitioners as Inspector(GD) was also restored w.e.f 2007.
However, since despite they being granted notional seniority as SI(GD) w.e.f 2003, the benefits of the Old Pension Scheme i.e. Pension Scheme under the CCS Pension Rules was being denied to them. The petitioners were again compelled to approach this Court by way of W.P.(C)2802/2019. This writ petition also came to be allowed on 11.12.2019 with the petitioners being extended the benefit of the Old Pension Scheme.
As a result of the orders passed in the aforesaid two writ petitions, the petitioners have not only been extended the benefit of Old Pension Scheme, but also granted notional seniority at par with their batchmates, who had been promoted as Assistant Commandant(GD) on 21.03.2014. The grievance of the petitioners, however, is that though they have been granted notional seniority at par with their batchmates in the rank Assistant Commandant(GD), their pay has still not been correctly fixed and they are continuing to draw lesser basic pay than their batchmates selected as SI(GD) pursuant to the same selection process.
Learned counsel for the petitioner, therefore, contends that once the notional seniority of the petitioners has been restored, their pay as Assistant Commandant(GD) ought to be fixed w.e.f. 2014 itself as per the notional seniority granted. He, therefore, prays that the writ petition be allowed.
Per contra, learned counsel for the respondents opposes the writ petition and submits that the pay of the petitioners has been rightly fixed from the date of joining the post of Assistant Commandant(GD). This pay fixation, he contends is strictly in consonance with the principles laid down in Fundamental Rule 27. He further submits that grant of notional seniority to the petitioners w.e.f. 2014 does not entitle them to claim pay fixation from the said date and, therefore, prays that the writ petition be dismissed.
Having considered the submissions of the learned counsel for the parties and perused the record we are of the considered view that once the respondents have granted notional seniority as Assistant Commandant(GD), Inspector(GD) and SI (GD) to the petitioners from the date their batchmates were appointed/promoted to these posts, the notional pay of the petitioners had to be fixed at par with their batchmates. The very purpose of granting notional seniority to the petitioners was to ensure that they are granted all benefits at par with their batchmates except actual arrears for the period they had not actually served as Assistant Commandant (GD), Inspector (GD) or SI(GD) as the case may be. In fact, the respondents being well aware that the petitioners are entitled to receive all other benefits by treating them as having been appointed in 2003, have already extended the benefit of Old Pension Scheme to them. In these circumstances, we are of the view that once the seniority position of the petitioners has been restored, they cannot be granted lesser pay than their juniors in the same seniority list. The grant of lower pay to the petitioners than their batchmates would also be violative to Fundamental Rule 22, which prescribes that a senior cannot draw lesser pay than his junior in the same seniority list.
In the light of the aforesaid, we are of the considered that the writ petitioners having been granted notional seniority at par with their batchmates who were appointed pursuant to the same selection process, their claim for the same basic pay as being received by their batchmates deserves to be accepted. We, accordingly, allow the writ petition partly by directing the respondents to re-fix, within three months, the basic pay of the petitioners in the rank of Assistant Commandant(GD) at par with their batchmates and grant them all consequential benefits. Arrears upon re-fixation of their pay in terms of this order will, however, be paid to the petitioners only from the date they actually joined the post of Assistant Commandant(GD).