Aniudh Kumar and 75 Others v. Union of India and 2 Others

JUDGMENT AND ORDER (C A V)

[1] Heard Mr.M.Devananda, learned senior counsel assisted by Ms. N. Jotsana, learned counsel for the petitioners and Mr.B.R.Sharma, learned CGSC for the respondents. [2] The brief facts of the present writ petition are that the petitioners have been working in the Assam Rifles, Ministry of Home Affairs since November, 1999 in the rank of Riflemen/Operator Radio & Lines ('ORL' for short). Their present scale has been fixed at Rs.3050/- which is not in consonance with the pay structure of other paramilitary forces of the Government of India. Hence, the writ petitioners are seeking the relief for pay rationalisation to the scale of Rs.4000-6000 w.e.f. their initial entry level in terms of the Ministry of Home Notification dated 22.1.1998. [3] The grievance of the petitioners relating to pay structures relate back to the 4th Pay Commission. Vide Gazette of India Notification dated 29.08.1986 notified implementation of 4th Pay Commission. The personnel of Assam Rifles were given the pay scale as applicable to other CPOs. But such pay structure was not implemented in the Assam Rifles because the technical staffs were not given the post as per the 4th Pay Commission. Thereafter, the 5th Pay Commission came into existence where all technical ranks were re-designated and the pay scale were revised. In all the paramilitary forces, the technical combatant staff were given the rank and pay scale of SI, ASI and Havildar. While the same was not implemented in the case of Assam Rifles, it remained stagnant. Therefore, the petitioners claimed pay parity along with designation of all Central Paramilitary forces, irrespective of the fact that they belong to Assam Rifles or not.

[4] After the declaration of 5th Central Pay Commission, the Ranks structure and Pay Scale from the rank of constable upto the rank of Subedar Major have been rationalized vide Government of India Order dated 10.10.1997 for all the COPs, the rank and the Pay Scale for the technical staff such as Operator Radio & Lines/Radio Mechanics/Cipher were re-designated to the rank of Havildar and till date, the pay scale given is Rs.3200/- and the Class-I & II employees were given the rank of ASI and the Pay Scale of Rs.4000/- per month. An Office Memorandum from the Ministry of Home Affairs in this regards was also issued vide Memo No.27011/103/97-PF, I/56 dated 22nd January, 1998 and the copies were sent to all the Central Police Organisations/Central Para Military Force, but the Assam Rifles failed to implement the said Office Memorandum, which would cover the case of the petitioners herein without any dispute. [5] The Government of India, Ministry of Home Affairs, by the communication dated 4th July, 2022 issued vide Memo No.II. 27013/18/99-PF.V, directed the Directorate General, Assam Rifles to upgrade the existing post of Riflemen Clerk to Havildar Clerk. It was contended that the Riflemen Clerk also falls within the communication wing/signal category of Assam Rifles and is a post below the Rfn/OLR, to which category, the petitioners belong. [6] It has been contended by the petitioners that there are three types of technical combatant staff in Assam Rufles, viz. (i) Operator Radio and Line/Radio Operator (ii) Radio Technician/Radio Mechanic and (iii) Cipher. In a similar case, another personnel, namely, Mr.Dinesh KK, who is a Radio Mechanic of Assam Rifles filed a writ petition which was allowed by this Court and upon challenge before Apex Court, the same was affirmed. [7] One of the petitioners, who was initially appointed as Riflemen (Radio Mechanic) in the Assam Rifles and subsequently

promoted to the post of Warrant Officer (Radio Mechanic) in Assam Rifles submitted a representation to the Director General Assam Rifles, Shillong requesting to upgrade all the Riflemen (Radio Mechanic) appointed in the Assam Rifles to the post of Warrant Officer (Radio Mechanic) from the date of their initial appointment as Riflemen (Radio Mechanic) in Assam Rifles with the pay scale of Rs.4000-6000 (Annexure A/6 to the writ petition). [8] Affidavit-in-opposition has been filed on behalf of the Union of India and Ors wherein it has been stated that before the introduction of Recruitment Rules, 2000 issued by the Ministry of Home Affairs vide letter dated 31.08.2000, where no separate pay scale of class I and Class II Operators of Assam Rifles is specified and the pay scale in Assam Rifles has been implemented in accordance with the letter dated 10.10.1997 issued by the Ministry of Home Affairs and, therefore, it is submitted that the contention raised in the writ petition is incorrect. [9] Mr. M. Devananda, learned senior counsel for the petitioners has drawn the attention of this Court to the decision in the case of Union of India v. Dineshan K.K.: (2008) 1 SCC 586, where Hon'ble Supreme Court held that the Radio Mechanics of Assam Rifles are entitled to parity in pay scale and rank with similar personnel of other central military and police forces. Relying the decision of Dineshan KK (supra), a Division Bench of Gauhati High Court, in the judgment/order dated 22.09.2011 in WA No. 50(SH) of 2010 titled No.3589164Y Rfn/ORL Savendra Singh Chauhan v. Union of India & Ors., upgraded the rank of Rifleman/ Operator Radio & Lines (ORL) in Assam Rifles as warrant officer. SLP(C) being No. 6241 of 2012 against the Division Bench judgment was dismissed by Hon'ble Supreme Court on 02.07.2012 and thereafter the direction of the Division Bench was complied vide order dated 26.12.2012. Mr. M. Devananda, learned senior counsel

for the petitioners urges that the matter has attained finality. Reliance is placed on another judgment/order dated 08.05.2014 passed by High Court of Meghalaya in WP(C) No.56 of 2013 titled 357918 Rfn/ORL Madhuvendra Singh & Ors. v. Union of India, Riflemen/ORLs in Assam Rifles were conferred rank and pay scale of warrant officer relying on the judgment of the Division Bench of Gauhati High Court (supra). It is also pointed out that vide order dated 05.01.2024 issued by the Directorate General Assam Rifles, Shillong, even the Pharmacist in Assam Rifles has also been conferred the same benefit. Learned senior counsel cites the decision in the case of State of Karnataka v. C. Lalitha: (2006) 2 SCC 747, where Hon'ble Supreme Court discussed the concept of equality of treating persons similarly situated in service matter. It is prayed that similar relief be granted to the petitioners in terms of the above cited judgments. [10] MR. BR Sharma, learned CGS for the respondents submits that the petitioners seventy six in numbers, have filed WP(C) No.675 of 2022 praying for a direction to the respondents to grant the rank of Warrant Officer with effect from their initial enrolment to the post of Rifleman (Radio Mechanic) in Assam Rifles. [11] The petitioners were enrolled as Rifleman (Radio Mechanic) through various appointment orders from 2008 to 2014 as per the then prevailing recruitment rules. In the said recruitment rules the minimum qualification prescribed for the post of Rifleman

(RM) was matriculation with English, mathematics and science. [12] After the publication of revise recruitment rule 2012 which provides minimum qualification for recruiting rifleman (RRM) as 10+2 with 3 years diploma in radio and television tech for electronics or telecommunications or computer or electrical or mechanical engineering or domestic appliances from a recognised university or institute. The respondents as per the revised

recruitment rule 2012 for the first time advertised for the post of Warrant Officer Radio Mechanic in the year 2015. Thereafter, the revised recruitment rule 2012 was again revised in the year 2018 with modification in the minimum qualification required for recruitment of Warrant Officer Radio Mechanic. As per the existing policy, the petitioners are eligible for the post of Warrant Officer Radio Mechanic on fulfilling all the qualitative requirement including passing of Radio Mechanic Class 1 test and as such the petitioners were upgraded to the post of Warrant Officer RM with effect from 1st Jan 2020 as they pass the said test in Feb 2019. [13] The petitioners have interpreted the office memorandum dated 22nd Jan 1998 and created the impression that the petitioners are to be given promotion to the post of Warrant Officer RM. It is stated that the Office Memoranda dated 22.1.1998 and 3.3.1998 nowhere mentioned that the post of Rifleman RM should be re-designated as Warrant Officer Radio Mechanic instead the office memorandum specifically provides for re-designation of Head Constable (equivalent to Havildar in Assam Rifles). The said OM also provides that if the pre revised pay scale of Havildar in Assam Rifles and revised pay scale of Head Constable in other CPF's are identical then Havildar in Assam Rifles can be re-designated as ASI or Warrant Officer which is equivalent to ASI in other CAPFs. Learned CGS submits that both the OMs dated 22.1.1998 and

3.3.1998 provide that Havildar in Assam Rifles, equivalent to Head Constable shall only be re-designated as Warrant Officer (equivalent to ASI) if and only if the pay scale of Havildar in Assam Rifles is identical to Head Constable in BSF, CRPF etc [14] Vide letter dated 3rd Dec 2008 the Government of India wrote a letter to the Director General Assam Rifles regarding up-gradation of the posts of Havildar RM to Warrant Officer RM. In the said letter approval of the competent authority was conveyed

for up gradation and re-designation of the posts of Havildar RM in Assam Rifles in the light of the Hon'ble Guwahati High Court decision dated 11.2.2005. As regards to up gradation of posts of Riflemen to the posts of Warrant Officers in Assam Rifles the competent authority does not agree as the recruitment qualification of Rifleman RM so prescribed being lower. Hence the promotion criteria prescribed in the RR, 2000 in respect to Havildar RM still stands good. For the Rifleman RM to qualify consideration for promotion to the post of Havildar RM must attend the following criteria:

(a) Must have passed Radio Mechanic course from the Army/Central Police Organisation Institute

(b) Must have min of eight year service in the grade of Rifleman (RM)

(c) Must be in medical category AYE (one)/SHAPE-I except for low medical category attributable to actual hostilities/insurgency operations and aggravated due to service.

(d) Must have passed promotion cadre, MR standard-II and Tech Trade Test One. [15] It is submitted that only when a Rifleman RM is promoted to the post of Havildar RM, he shall be automatically upgraded and re-designated to the post of Warrant Officer RM by virtue of the OMs dated 22.1.1998 and 3.3.1998. It is further stated that all Riflemen RM in Assam Rifles who have passed TER Class 1 shall be upgraded/promoted to the rank of Warrant Officer RM by virtue of being qualified for the post of Havildar RM subject to availability of vacancy. The petitioners passed TER Class 1 on different dates starting from 17.1.2014 to 26.3.2022. Therefore, the claim of the petitioners that they should be upgraded/ promoted to the post of Warrant Officer RM in the Assam Rifles from the date of their initial appointment is untenable in the eye of law.

[16] Mr. BR Sharma has pointed out that the petitioners were recruited as per the recruitment rules prevailing prior to 2012 as Rifleman Radio Mechanic in Assam Rifles by accepting the terms and conditions of the service as well as the recruitment rules prevailing at the point of time. It is not a case of the petitioners that they qualify the criteria to be appointed/promoted to the post of Warrant Officer from the day they were appointed to the post of Rifleman Radio mechanic. It is an admitted fact that the qualification required for the post of Rifleman RM is only matriculation without any additional specialized degree/ diploma. Further, it is also not the case of the petitioner that though the nomenclature of the post of Rifleman RM is not Havildar RM (equivalent to Head Constable RM), the pay scale of Rifleman RM in Assam Rifles is equal to Head Constable RM in other CPFs. It is also stated that the petitioners firstly need to qualify for promotion to Havildar Radio mechanic and then only the OMs dated 22.1.1998 and 3.3.1998 will come into play as upgradation in the said OMs are made only in respect of Head Constable RM (equivalent to Havildar in Assam Rifles) to the post of ASI (equivalent to Warrant Officer RM in Assam Rifles). Assuming but not admitting that the OMs dated 22.1.1998 and 3.3.1998 issued by the Ministry of Home Affairs by the Government of India are applicable to the petitioners, as claimed in the writ petition, the OMs are documents of Government policies and decisions and the same cannot overwrite the recruitment rules framed under Article 309 of the Constitution of India. In service jurisprudence, it is well settled position of law that service rules framed under statutes shall always prevail over conflicting government decisions/policy/resolution. Relying on 2023 SCC online SC 311:Ashok Ram Prahad v. State of Maharashtra, it is submitted that the claim of the petitioners that they should be upgraded/promoted to the post of Warrant Officer RM in Assam Rifles from the date of their initial

appointment is untenable in the eye of law and as such, the writ petition has no merit, as the petitioners are not aggrieved persons inasmuch as there is violation of fundamental rights or legal rights of the petitioners. [17] This Court has minutely examined the materials on record, the submissions made at bar and the relevant case law. [18] It will be relevant to reproduce the relevant portion of decision of Hon'ble Supreme Court in the case of Union of India v. Dineshan K.K.: (2008) 1 SCC 586, which held that the Radio Mechanics of Assam Rifles are entitled to parity in pay and rank with similar personnel of other military and Central Police organisations. Relevant para are reproduced below:

¶18Vide Order dated 10-10-1997 passed by the Ministry of Home Affairs in pursuance of Para 7 of the Ministry of Finance, Department of Expenditure Resolution dated 30-9-1997, it was notified that the President was pleased to rationalise the rank structure and pay scales of non-gazetted cadre of the Central Police Organisations and as a result of this exercise certain ranks were to be merged and the rank structure was communicated in the order along with the revised pay scales and replacement pay scales. Copy of this order was sent to all the paramilitary forces, including Assam Rifles.

¶19On 22-1-1998, an office memorandum was issued by the Government of India, Ministry of Home Affairs, by way of a clarification. In the said letter, it was clarified that Order dated 10-10-1997 was equally applicable to all advertised categories. In the said letter, directions with regard to the redesignation of the three posts including Head Constable (RM) as ASI in Central paramilitary forces along with their replacement pay scales were also ordered.

¶20It appears that the disparity in rank and pay in various Central paramilitary forces could not be resolved and on 24-4-2001, the Director General, Assam Rifles submitted a report to the Government with regard to the progress on pay anomaly cases. Para 4 of the said letter is of some relevance to the issue at hand and it reads as follows:

"Rank and pay of technical cadre person, RM, Ptmn., Pharma, and compounder of AR with the same intake QR for remounts are given the rank of Havildar wherein they are (sic whereas their) counterparts in CPOs are given ASI. MHA had ordered to submit proposal in directing cadre to cadre comparison with BSF where the rank of ASI is available in other technical and also along with financial implication. The proposal along with financial implication has been submitted to MHA and the case is lying with MOF for approval."

¶21Having failed to receive any positive response from the Government, one of the Radio Mechanics issued a notice of demand to the Ministry of Home Affairs and Director General of Assam Rifles, inter alia, praying for giving effect to Office Order dated 10-10-1997 and Office Memorandum dated 22-1-1998. Vide Order dated 26-12-2001, the Ministry of Home Affairs informed the Director General of Assam Rifles that his proposal had been examined in consultation with Ministry of Finance and it was found that there was no point for comparison of grades and scales of pay for such posts across various Central paramilitary forces.

¶22It was stated that the proposed upgradation may disturb relativities of various trades and grades within Assam Rifles and there was no functional justification for upgrading these posts. It is evident that on rejection of the recommendation made by the Director General of the Force, the respondent herein was left with no option but to approach the High Court for redressal of his grievance. …………………………………………………………………….

¶24From the afore-extracted paragraphs of the counter-affidavit and the résumé of correspondence referred to above, it clearly stands admitted by the petitioners herein that: (i) all the paramilitary forces, including Assam Rifles are on a par with each other and (ii) there was apparent "disparity" in the pay scales of the personnel of Assam Rifles with their counterparts in other Central paramilitary forces. In order to rectify this disparity, Director General, Assam Rifles, Petitioner 2 herein, vide his letter dated 18-2-1998 had, in fact, taken up the grievance of the respondent with the Ministry of Home Affairs, inter alia, recommending redesignation of Havildar (RM) Grades I and II of Assam Rifles as warrant officer and for replacement of pay scale of Rs 4000-100-6000 to bring them on a par with their counterparts in other Central Police Organisations.

¶25However, the Ministry of Home Affairs vide Letter dated 3-3-1998 while accepting the said proposal had recommended redesignation of Havildar/RM as warrant officer but subject to the condition that the prerevised and revised pay scales of Havildar/RM in other paramilitary forces were identical to the pay scales of Head Constable (RM) in CRPF and BSF. Manifestly, in the instant case, the differentiation in the pay scales of the two paramilitary forces is sought to be achieved not on the ground of dissimilarity of academic qualification or the nature of duties and responsibilities but only on the ground that there was "initial anomaly" in the Fourth Central Pay Commission Report. The counter-affidavit does not even attempt to explain how the case of Havildar/RM in Assam Rifles is different from that of Radio Mechanics in other Central paramilitary forces. …………………………………………………………………………….

¶27Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the "apparent disparity" and "anomaly" in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in prerevised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution.

[19] The decision in Dineshan K.K. (supra) has been relied by various High Courts including this Court and the erstwhile common Gauhati High Court and the matter has attained finality. The facts of the present case is also similar with the case of Dineshan K.K.. [20] From perusal and detail analysis of the judgements passed by Hon'ble Supreme Court, Gauhati High Court and

Meghalaya High Court in the above cited cases of Dineshan K.K., order dated 22.09.2011 in WA No. 50 (SH) 2010 and order dated

08.05.2014 in WP(C) No. 56 of 2013 respectively, this Court is of the firmed view that the petitioners herein are also entitled to the similar reliefs. Accordingly, the respondents are directed to grant/ upgrade the ranks of the petitioners to the post of Warrant Officers (Radio Mechanic) in Assam Rifles equivalent to ASI (Radio Mechanic) in BSF/ITBP/CRPF with pay scale of Rs.4000-6000 with effect from their initial entry level in terms of Ministry of Home Affairs Notification dated 22.01.1998 with all consequential reliefs. The direction shall be complied within a period of three months from the date of receipt of a copy of this order. [21] Writ petition is allowed and disposed of in terms of the above directions. No cost. [22] Send a copy of this order to the Director General, Assam Rifles at Shillong for information and necessary compliance.

JUDGE FR/NFR Priyojit RAJKUMA R PRIYOJIT SINGH by RAJKUMAR PRIYOJIT SINGH Date: 2024.05.18 11:16:31 +05'30'

IN THE HIGH COURT OF MANIPUR AT IMPHAL WP(C) No.675 of 2022 1. Force No. S/5016573 WO/RM Shri Anirudh Kumar aged about 33 Yrs, S/o Siyaram kumar, from Village Singariawan, P.O. Singariawan, District- Patna, Bihar- 801304, at present HQ 27 Sector CCPUR C/O 99 APO. 2. Force No. S/5020935 WO/RM, Shri Ningthoujam Chand Singh aged about 32 Yrs, S/o N Indrajit Singh, from Village Koutruk Maning Leikai, P.O. and P.S. Lamsang, District- Imphal West, Manipur- 795146, C/O 99 APO. 3. Force No. S/5013338 WO/RM Shri Hemam Tommy Singh aged about 34 Yrs, S/o (L) Hemam Biren Singh, from Village Moirang, P.O. Moirang, P.S. Moirang, District- Bishnupur, Manipur- 795133, C/O 99 APO. 4. Force No. S/5013454 WO/RM Shri Pramod Kumar Yadav aged about 35 Yrs, S/o Laxman Prasad Yadav, from Village Ghagha, P.O. Ghagha, District-Mandla, Madhya Pradesh- 481661, C/O 99 APO. 5. Force No. S/5014332 WO/RM Shri Sardar Barpate Vilas aged about 33 Yrs, S/o Vilas Shamrao Barpate, from Vitthalwadi, P.O. Kameri, Teh- Walwa, Maharashtra- 415403, C/O 99 APO. 6. Force No. S/5014780 WO/RM Shri Amit Azad aged about 34 Yrs, S/o Nirmal Ram, from Village Dumri, P.O. Dumri, District- Buxar, Bihar- 802120, C/O 99 APO. 7. Force No. S/5014923 WO/RM Shri Ravi Kumar aged about 34 Yrs, S/o Rangasubbaiah, from Village Thurimella, P.O. Thurimella, District- Prakasham, Andhra Pradesh- 523372, C/O 99 APO. 8. Force No. S/5014930 WO/RM Shri Ananthaneni Manjunath aged about 34 Yrs, S/o Ananthaneni Subbanna, from Dubbarlapallai, P.O. Peruru, P.S. Ramagiri, District- Anantapur, Andhra Pradesh- 515621, C/O 99 APO. 9. Force No. S/5015101 WO/RM Shri Laishram Rupachandra Singh aged about 39 Yrs, S/o Laishram Surendro Singh, resident ofNaoremthong Laishram Leirak, District- Imphal West, Manipur- 795001, C/O 99 APO. 10. Force No. S/5015260 WO/RM Shri Raj Pratap Verma aged about 36 Yrs, S/o Romnath verma, from Village Tulsi, Teh- Tilda, P.S. Tilda, District- Raipur, Chhattisgarh- 493114, C/O 99 APO. 11. Force No. S/5015303 WO/RM Shri Heramani Sinha aged about 35 Yrs, S/o Laxmikanta Sinha, from Village Fultali, P.O. Fultali, Teh- Birchandranagar, District-Unakoti, Tripura- 799280, C/O 99 APO. 12. Force No. S/5015345 WO/RM Shri Pushpinder Chouhan aged about 34 Yrs, S/o Onkar Singh Chouhan, from Village Karoa, P.O. Karoa, Tehsil- Dehra, District- Kangra, Himachal Pradesh- 177103, C/O 99 APO. 13. Force No. S/5015447 WO/RM Shri Shyamal Gope aged about 36 Yrs, S/o Ajit Gope, from Village Ashok Pally, P.O. Ambassa, District- Dhalai, Tripura- 799289, C/O 99 APO. 14. Force No. S/5015818 WO/RM Shri Ashutosh, S/o Balgovind Singh aged about 34 Yrs, from VillageKohra, P.O. Kohra, P.S. Sajetee, Teh- Ghatampur, District- Kanpur Nagar, Uttar Pradesh- 209206, C/O 99 APO. 15. Force No. S/5016057 WO/RM Shri Md Bhuttu Khan aged about 32 Yrs, S/o (L) Md Karu Khan, from Village Banpur, P.O. Banpur, P.S. Khaira, Teh- Jamui, District- Jamui, Bihar- 811305, C/O 99 APO. 16. Force No. S/5016084 WO/RM Shri Damodar Paul, S/o Ravindra Paul aged about 35 Yrs, from Village Barakaimari, P.O. Jatamari, P.S. Sitalkhuchi, District- Coochbehar, West Bengal- 7146, C/O 99 APO. 17. Force No. S/5016190 WO/RM Shri Pranab Lahkar aged about 33 Yrs, S/o Madhu Ram Lahkar, from VillageUparnoi, P.O. Bangoan, P.S. Patacherkuchi, District- Bajali (old district Barpeta), Assam- 781375, C/O 99 APO. 18. Force No. S/5016188 WO/RM Shri Ranjit Das aged about 33 Yrs, S/o Dandiram Das, from Village Dekasenchowa, P.O. Chamaguri Satra, District- Jorhat, Assam- 785110, C/O 99 APO. 19. Force No. S/5016191 WO/RM Shri Kalyan Mitra Shyam aged about 33 Yrs, S/o Pranab Shyam, from Village Pohukatia Shyam Goan, P.O. Panjan, District- Jorhat, Assam- 785631, C/O 99 APO. 20. Force No. S/5016272 WO/RM Shri Ramesh Kumar aged about 34 Yrs, S/o Mathura Sah, from Village Hafizpur, P.O. Hafizpur, P.S. Baniyapur, District- Chapra, Bihar- 841422, C/O 99 APO. 21. Force No. S/5016292 WO/RM Shri Pappu Ansari aged about 34 Yrs, S/o Jahoor Ansari, from Village Rakasiyan, P.O. J