Umrao Singh vs Commissioner Of Police, Delhi & Anr.

Hon’ble Mr. Rajveer Singh Verma, Member (J) :

The present Original Application has been filed by the applicant, who was appointed as Constable (Executive) in Delhi Police on 03.10.1980 and was promoted as Head Constable (Executive) w.e.f. 06.06.1991. His pay was fixed on promotion under FR 22(1)(a)(1) and he continued to receive increments thereafter. The applicant was placed under suspension w.e.f. 29.11.2000 and was reinstated on 13.03.2001. In the disciplinary proceedings, punishment was initially imposed upon him on 20.09.2001. The said matter was challenged before the Tribunal in O.A. No.2479/2002, which was dismissed on 28.05.2003. The applicant thereafter approached the Hon‟ble High Court in CWP No.6388/2003. Pursuant to the judgment dated 31.05.2007, the earlier punishment was modified and the period of suspension from 29.11.2000 to 12.03.2001 was treated as spent on duty. Consequently, his pay and increments were regulated by the respondents and the relevant orders were issued in the year 2007-08.

The applicant completed 24 years of service on 03.10.2004 and was granted the 2^nd financial upgradation under the ACP Scheme from that date in the pay scale of Rs.4000-6000. His pay was fixed at Rs.4700/- w.e.f. 03.10.2004. However, the respondents failed to give him the option contemplated under FR 22(1)(a)(1) and consequently fixed his next increment from 01.10.2005 instead of 01.06.2005. The learned counsel for the applicant submitted that this incorrect fixation resulted in his drawing less pay than his juniors. The pay slips and other documents relied upon for showing the alleged disparity have been filed as Annexure A-4 (Colly.). It is further submitted that the respondents could not have denied the benefit of the option merely because the fixation had already been made.

The applicant raised the issue before the department by submitting a representation dated 21.02.2013. As the grievance was not appropriately considered, he approached the Tribunal in O.A. No.1811/2014. The said O.A. was disposed of by order dated 11.07.2014 with a direction to the respondents to consider the applicant‟s representation in accordance with law and pass a reasoned and speaking order (Annexure-A/5). Pursuant thereto, the respondents considered the matter but rejected the applicant‟s representation vide order dated 03.11.2014. Hence, the present OA has been filed by the applicant seeking the following relief(s) :-

The applicant challenges the impugned action on the ground that the respondents failed to properly consider the issue of non-grant of option under FR 22(1)(a)(1), the consequential postponement of his increment and the disparity between his pay and that of his juniors.

The applicant relied upon FR 22(1)(a)(1), filed as Annexure A-6, and submitted that the option for fixation of pay is required to be made available to an employee on promotion or appointment to a post carrying duties and responsibilities of greater importance. In support of his contention, the applicant has relied upon the judgment dated 11.10.2011 in O.A. No.1121/2011, titled Inspector Aas Mohammad v. Commissioner of Police. In the said case, the Tribunal considered the requirement of providing the option for fixation of pay and also referred to the Police Headquarters circular dated 17.11.1997 and the DoP&T O.M. dated 12.12.1997, under which availability of the option was required to be indicated in the promotion order. The applicant has also relied upon the judgment dated 23.11.2022 of the Hon‟ble High Court of Delhi in W.P.(C) No.10940/2019, titled SI Daya Chand (Retd.) v. Govt. of NCT of Delhi & Ors. In that case, the Hon‟ble High Court held that deprivation of the option under FR 22 was discriminatory and directed grant of fresh option and consequential re-fixation of pay. The said judgments have been filed by the applicant along with the later compilation.

The applicant also relied upon the principle laid down in Union of India v. Tarsem Singh (2008) 8 SCC 648 that an incorrect fixation of pay gives rise to a continuing cause of action, though monetary arrears may be restricted in accordance with the principles laid down therein. The applicant submitted that his grievance is not merely with regard to an old fixation but concerns the continuing payment of lesser salary on account of the alleged incorrect fixation. He, therefore, seeks re-fixation of his pay from the appropriate date, consequential fixation of subsequent increments, payment of arrears and all consequential benefits.

Pursuant to notice, the respondents have filed their reply opposing the OA. They maintained that the applicant‟s pay was correctly fixed in accordance with the applicable rules. According to the respondents, the applicant was granted the 2^nd ACP w.e.f. 03.10.2004 on completion of 24 years of service and his pay was correctly fixed at Rs.4700/- from that date. The respondents contended that the applicant had an opportunity to exercise the prescribed option within the stipulated period but did not exercise the same. Consequently, his next increment became due from 01.10.2005 after completion of the requisite period in the higher scale. The respondents, therefore, submitted that there was neither any error in the fixation nor any entitlement to retrospective re-fixation.

It is further submitted that subsequent to implementation of the Sixth Central Pay Commission the applicant‟s annual increment was regulated under the revised system, under which the common increment date became 1^st July of every year. According to the respondents, the applicant, whose earlier increment date was 1^st of October, was not placed at any disadvantage under the revised system and cannot claim an additional increment on the basis of employees whose earlier increment dates fell between February and June. The respondents also disputed the applicant‟s reliance upon the senior-junior pay disparity and submitted that the pay of the applicant was fixed under the applicable rules and that mere difference in pay does not, by itself, establish an illegality in fixation.

The respondents further distinguished the judgments relied upon by the applicant and submitted that the facts of those cases cannot automatically be applied to the present matter. Their case is that the applicant‟s ACP fixation was made in accordance with the ACP Scheme and FR 22(1)(a)(1), that the prescribed option was available to him, and that he cannot seek a fresh option after considerable delay.

We have heard the learned counsel for the parties and perused the material placed on record.

The material question for consideration is, therefore, whether the applicant was in fact afforded the option contemplated under FR 22(1)(a)(1) at the relevant stage, whether his pay and increment were consequently fixed correctly from 03.10.2004 and Central Administrative Tribunal^{01.10.2005 respectively, and, if the option was not} properly made available, whether in view of the judgments in Aas Mohammad and Daya Chand the applicant is entitled to fresh exercise of the option, re-fixation of pay, consequential increments, arrears and other consequential benefits.

The core issue appears to be involved in the matter is as to whether the respondents have given an option as mandated under the provisions of FR 22(1)a(1) before or at the time of pay fixation/ upgradation under the ACP Scheme or not? If answer to this issue is negative, then as to whether any direction can be issued to the respondents to re-fix the pay of applicant at this stage?

The applicant was granted 2^nd financial upgradation w.e.f. 03.10.2004 under ACP Scheme on completion of 24 years of Service since he joined the service on 03.10.1980. Perusal of order dated 14.08.2008 issued under signature of Joint Commissioner of Delhi Police indicates that an option as per provisions of FR 22(1)a(1) was given to all the officials of Delhi police at the time of giving benefits under ACP Scheme. The name of the applicant is figuring at Sr. No 29 in the list, enumerated in the said order.

It is understood that the applicant has not availed the option, and has not submitted any written or formal option as contemplated under the relevant rules. As a result thereof, the respondents have proceeded to determine the applicant's pay fixation on the basis of the record available with them and without any option having been exercised by the applicant. The impugned decision was accordingly taken on that basis.

From the above, answer to issue no 1 is that the respondents have given an adequate opportunity to avail the option under provisions of FR 22(1)(a)(1) to the applicant before fixation of his pay at the time to grant 2^nd upgradation under ACP Scheme which was not exercised by the applicant and as a result thereof, there is no requirement to interfere in the impugned order as we do not find any infirmity therein.

From the above, we are of the view that present OA is devoid of merit and deserves to be dismissed. As a result thereof, OA is dismissed.

Central Administrative Tribunal^{17. All pending MAs, if any, shall stand disposed of.} There shall be no order as to costs.