T M SOMARAJAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE grievance of the applicant in this O.A. is with regard to the unresolved anomaly in his pay fixation on appointment by promotion to the Indian Police Service (IPS for short) Cadre from the Kerala State Police Service (SPS for short). THE applicant, therefore prays, inter-alia, for the following reliefs:

(2.) The applicant was holding the post of Superintendent of Police (Non-IPS) in the Kerala Police Service. He was selected and appointed in the IPS Cadre under Rule 9 of the IPS (Cadre) Rules as per G.O. dated 30.11.95. He joined duty in the IPS Cadre as Superintendent of Police, CB CID, Kannur on 8.12.95 (AN). Later, by another G.O. dated 22.1.96, the applicant was appointed in the IPS Cadre with effect from 31.12.95. His basic pay in the State Police Service at the time when he joined duty in the IPS Cadre was Rs. 4650/- + Special Pay of Rs. 100/- (vide A-4). His pay enjoining IPS Cadre was fixed at Rs. 4125/- in the place of Rs. 4650/- + Special Pay of Rs. 100/- which he had been drawing in the State Police Service immediately prior to his appointment to the IPS (A-5). The applicant was confirmed as Superintendent of Police (Non-IPS) as per G.O. dated 5.7.97 with retrospective effect from 4.5.94. On confirmation in the Non-IPS post of Superintendent of Police, the applicant's pay was fixed at Rs. 4250/- with effect from 9.12.95, as per A-6 order dated 5.8.97. The applicant made a representation dated 16.8.97 to the second respondent, viz, the Accountant General (A & E), Kerala, Trivandrum (A-7) for the purpose of removal of the anomaly consisting in the reduction of pay in the IPS Cadre visa-vis the pay in the State Police Service which the applicant was drawing at the time of promotion. In reply to this, the applicant received the impugned A-1 communication dated 2.9.97 from the second respondent saying that the fixation of pay was made placing reliance on Clauses (iii) and (iv) of Schedule II of the IPS (Pay) Rules, 1954 and hence there was no anomaly at all. The applicant's detailed representation dated 16.10.97 (A-10) wherein the applicant had very elaborately explained the facts and the relevant rules with regard to pay fixation on his appointment to the IPS Cadre on promotion from the State Police Service and the provisions regarding the power of relaxation conferred on the respondents under Rule 6 of Section III of Schedule II of the IPS (Pay) Rules, 1954 also met with no success. Apparently, the said representation was rejected for the same reasons stated in A-1 as is evident from A-2 communication dated 4.2.98 received from the second respondent. It is mainly against these orders that the applicant has filed the present O.A. Apart from the pleadings in the O.A. the applicant has filed rejoinders and Miscellaneous Applications from time to time on the basis of the reply statement of the respondents and have filed further evidence in order to support his plea that the pay fixation allowed to him on his appointment from State Police Service to the IPS Cadre was unjustified and hence not maintainable.

(3.) REITERATING the pleadings in the application and the rejoinders filed by the applicant, learned Counsel for the applicant took us through the rules and Government Notifications pertaining to the fixation of pay of officers of the State Service on promotion and induction to All India Services, particularly, with reference to the State Police Service and the IPS cadre. As per Rule 4 (5) of the IPS (Pay) Rules, 1954, the initial pay of the officer of State Police Service appointed to hold a cadre post in an officiating capacity in accordance with Rule 9 of the Rules shall be fixed on the basis of the principles enunciated in Section I of Schedule II, according to learned Counsel. It is submitted that the applicant was holding a post in a substantive capacity in the higher scale in the State Police Service at the time of his appointment to IPS and that therefore his pay ought to have been fixed at the stage of the Senior Time Scale of the IPS i.e., Rs. 3000-100-125-4500, next above his actual pay in the higher scale as per Clause 2 of Section I of Schedule II of the Rules and proviso thereto. His actual pay as on 8.12.95 was Rs. 4650 + Special Pay of Rs. 100. So his initial pay in the IPS Cadre ought to have been fixed at Rs. 4650 + Rs. 150 being one increment in the IPS scale admissible for every 3 years of service in the State Police Service subject to a minimum of Rs. 150 + Special Pay of Rs. 100/- i.e., total Rs. 4900/-. Since the maximum pay in the IPS Cadre is Rs. 4500/-, according to Counsel, the applicant's pay should have been fixed at Rs. 4500 + Rs. 400 being Personal Pay, subject to the condition that the personal pay would be adjusted against future increments. It has been contended by Counsel for the applicant that the respondents' stand that on the basis of definition of the expression 'higher scale' given in Definition Clause (iii) of Schedule II, pay fixation effected for the first time after 1 st January, 1986 should be the criterion for fixation of pay in the IPS Cadre is unreasonable, illegal, untenable and discriminatory.The applicant's confirmation as Superintendent of Police (Non-IPS) came after two revisions of pay, first with effect from July, 1988 and the second with effect from March, 1992. The induction to IPS Cadre on 9.12.95 was after the date of his retrospective confirmation as Superintendent of Police (Non-IPS), i.e., 4.5.94. Thus, recourse taken to definition of 'higher scale' contained in Clause (iii) of Schedule II is legally incorrect. Counsel would draw our attention to Clause 6 of Schedule III of the Rules which confers on the Central Government powers to remove unreasonableness in the rules. The respondent plea that the Special Allowance of Rs. 300/- and Rs. 500/- respectively sanctioned to the Junior Scale and the Senior Scale officers of IAS, IPS and IPS cadres as per A-8 order dated 25.7.95 and A-9 order dated 16.7.96 in order to rectify the disparity arising out of the implementation of the Central scales of pay for State Government employees would have the effect of removing the anomaly, is erroneous, according to applicant's Counsel. He would maintain that the purpose of A-8 and A-9 is different from the purpose of pay fixation deal with in the provisions of Section I Schedule II. The rejection of the applicant's representation (A-10) by means of A-2 order is, therefore, legally unsustainable, urges the Counsel. The learned Counsel would further plead that the anomaly pointed out as per the applicant's D.O. letter dated 13.12.99 (A-14) was recognised by the 2nd respondent as is clear from the A-15 communication dated 3.12.99. Though the same was brought to the notice of the first respondent (Government of India) for further action, the impugned A-16 communication dated 22.5.2000 received from the 2nd respondent would betray total lack of application of mind with regard to the rectification of the anomaly. The applicant's Counsel would submit that pay fixation allowed in the case of applicant's juniors like Shri M. Sethuraghavan (promoted to IPS on 17.4.97) and Shri K.G. Somasundara Menon and Shri R. Shamsudeen, (both selected to IPS in 1996) and still later to a junior like Shri D. Vijayan, inducted in IPS Cadre on 21.3.2000, would show that injustice having the effect of reducing his due remuneration has been perpetrated against him. Learned Counsel would invite our attention to A-12 and A-13 Pay slips to show that the applicant's junior gets higher basic pay than himself inspite of his getting the promotion to IPS much earlier. The applicant's Counsel has endeavoured to meet the arguments put forward on behalf of the respondents to the effect that if the restrictive definition of higher scale were not pressed into service, it would have led to the State Service Officers drawing inordinately higher basic pay as compared to officers directly entering into All India Services. In this connection, A-11 notification dated 14.7.95 of the DOPT is relied on by the applicant's Counsel to show that the pay fixation requested for would not, as alleged by the respondents, lead to fixation of maximum pay to SPS officers on the basis of each and every pay revision ordered by States. It is contended that the DOPT's notification No. GSR 437(E) dated 9.5.94 seeks to amend the IPS (Pay) Rules 1954 so as to provide for the protection of the State Service Officers pay to the extent of Rs. 5700 i.e., the then prevailing maximum of the Selection Grade being the third and last component of the Senior Scale of the IPS. With that amendment, effective from 9.5.94, the concept of 'Personal Pay' was done away with according to applicant's Counsel. However, in order to remove the continuing hardship of the SPS officers appointed to IPS, the amendment contained in GSR 437(E) dated 9.5.94 was, by A-1 notification dated 14.7.95 made notionally effective from 1.1.86 with no arrears upto 8.5.94. Learned Counsel for the applicant would vehemently contend that the impugned A-16 communication dated 22.5.2000 turning down the request for removal of anomaly is factually and legally unsustainable in view of the facts and circumstances explained.