26 July 1982
Supreme Court


Bench: PATHAK,R.S.
Case number: Writ Petition (Civil) 3783 of 1978








CITATION:  1982 AIR 1253            1983 SCR  (1)   1  1982 SCC  (2) 458        1982 SCALE  (1)532

ACT:      Central Civil  Services (Revised  Pay)  Rules,  1973  - Revision of  scale of pay - Radio operators Grade III (Naik) in C.R.P.F - Validity of.

HEADNOTE:      An identical  scale of  pay was  being enjoyed  by both Naiks and  Radio operators  Grade III  (Naik) in  the antral Reserve Police Force before the revision of scales of pay of Central Government employees with effect from January 1,1973 consequent  upon   the  recommendations  of  the  Third  Pay Commission. However,  Radio operators  Grade III (Naik) were entitled to  a special  pay of  Rs. 30.  The Pay  Commission recommended the  scale of pay of Rs. 225-308 for the post of Naik but did not make any separate recommendation in respect of Radio operator Grade III (Naik).      The petitioners  who were  Radio  operators  Grade  III (Naik) were  initially paid  a salary  of  Rs.  250  with  a special pay  of  Rs.  30  from  January  1,1973.  They  were subsequently placed  in tho revised scale of pay of Rs. 225- 308 given  to Naiks  with a  special pay  of Rs.  30 and the excess amount  paid earlier  was sought to be recovered from them.      The petitioners  contended: (i) that they were entitled to the  scale of pay of Rs. 260-430 as that was the scale of pay prescribed  for posts  in other  departments  for  which matriculation was the minimum qualification, (ii) that their scale of  pay could not be far below the scale of pay of Rs. 330-480 prescribed  for the  next immediate  senior post  of Radio operator  Grade II  and (iii) that they should be paid at par  with comparable  government employees  on the  civil side. In  the alternative,  the petitioners  contended  that they were entitled to the pay of Rs. 250 and the special pay of Rs. 30 paid to them before refixation of their salary.      Dismissing the petition, ^      HELD: 1.  The minimum  qualification prescribed for the post  of  Naik  as  on  January  1,1973  was  Middle  School Examination  and   it  had   been  raised  to  Matriculation Examination only  from January  24, 1975. As Naiks and Radio operators Grade III (Naik) had been uniformly treated at par in the  matter of  that basic qualification, it was not open



to the  petitioners to  base their claim with reference to a qualification which  had not  existed on January 1, 1973. [5 E-G] 2      2. It  was not  for the  Court to examine how far below should be  the revised scale of pay of Radio operators Grade Ill as  compared to that of Radio operators Grade II. If the Government had  prescribed a particular pay scale in respect of them, all that the Court could do was to merely pronounce on the  validity of  that fixation.  If the prescription was found contrary  to law,  the Court  would strike it down and direct the  Government to  take  a  fresh  decision  in  the matter. This  case was  very different  from one  where  the Court had  sought to  prescribe scales  of  pay  in  appeals directly preferred from an award of the Labour Court dealing with such  a matter.  In the  latter case,  the Court in its appellate jurisdiction could be regarded as enjoying all the jurisdiction which the Labour Court enjoyed. [6 A-C]      3.  Radio   operators  Grade   Ill  (Naik)  had  to  be considered substantially  on the  same basis as Naiks and it was because  of their  special  qualifications  and  of  the specialised nature  of  their  duties  that  they  had  been provided with  a special  pay in  addition. Ever  since 1975 Radio operators Grade III (Naik) had been selected only from the rank of Constables on the General Duty Side. The revised pay scale  of Radio  operators of the rank of Head Constable as well  as Head  Constables on General Duty was Rs. 260-350 with a special pay of Rs. 40 to the former. As this post was the next  immediate higher  post above  the rank of Naik. it was apparent  that there  was no justification for giving to the petitioners,  who were  junior in rank, the scale of pay of Rs. 260-430. [6 D-F]      4. The  petitioners could  not claim  to be paid at par with comparable  government employees  on the  civil side as they were  entitled  to  certain  benefits  which  were  not available to the latter. [6 G-H; 7 A-B]      5. The  revised pay  initially paid  to the petitioners had been  computed in  error inasmuch as when fixing the pay in the  revised scale the special pay had been wrongly taken into account. [7 D-E]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 3783 of 1978.      (Under Article 32 of the Constitution of India)      R.K. Garg and V.J. Francis for the Petitioner.      M.M. Abdul  Khader, Mrs.  Shobha Dikshit  and  Miss  A. Subhashini for the Respondents.      The Judgment of the Court was delivered by      PATHAK, J.  The Petitioners  are Radio operators Grade- (lII) (Naik)  in the  Signals branch  of the Central Reserve Police Force.  They complain  that under  the Central  Civil Services (Revised  Pay) Rules, 1973 they have been placed in the pay scale Rs. 225-308 when they were entitled to the pay scale Rs. 260-430. 3      When the writ petition came on for hearing in the first instance, a  Bench of  this Court  made an order on December 19, 1979  providing an opportunity to the petitioners to put in a  representation before the Government and requiring the Government to dispose of the representation. The petitioners did make the representation and the Government considered it but the  relief claimed  by the  petitioners was  denied. In accordance with  the further  directions  contained  in  the



order dated  December 19,  1979 this  writ petition  has now come on for consideration on its merits.      The Central  Reserve Police  Force forms  a part of the Ministry of  Home Affairs in the Government of India, and it has a  Signals branch in which one of the categories is that of Radio  operators Grade  III (Naik).  The petitioners  say that Naik  Radio operators  are appointed  either by  direct recruitment, in which case the candidate is required to be a Matriculate or his equivalent, or by promotion from the rank of Constable, in which case the Constable should have passed the Radio operators Grade III course. Originally, members of the Central Reserve Police Force of the rank of Naik enjoyed the pay scale Rs.85-110, and Naik Radio operators were given a  special   pay  of   Rs.  30  in  view  of  their  special qualifications and  the specialised  nature of their duties. By its  order dated  April 23,  1970 the  Central Government appointed the  Third Pay  Commission to make recommendations in regard  to  the  structure  of  the  emoluments  and  the conditions  of  service  of  different  classes  of  Central Government employees.  The Commission  submitted  its  final report  to  the  Central  Government  on  March,  31,  1973. Paragraph 30  of Chapter  29 of  Part I of Volume 2 contains the recommendations  in respect  of Radio  Mechanics in  the Central Reserve Police Force. It states :-           "30. Post  of Radio  Mechanic, Grade  I in the CRP      and Sub-Inspector  (Radio Mechanic)  in the  BSF are on      the scale  of Rs.  150-10-290-15-380, but  the  Diploma      holders are  given the  scale of Rs. 180-10-290-15-380.      We recommend  for these  posts the scale of Rs. 380-560      but the  Diploma holders  working on these posts should      be remune rated on the scale of Rs. 425-700. Below this      level, posts of Radio Mechanic, Grade II and. the Radio      operators are on 4      the scale  of Rs.150-10-210 or on the scale of Rs. 125-      3-131-4-155 with  a special pay of Rs. 35 per month and      we recommend that these posts should be given the scale      of Rs.  330-480. For  the posts  of Radio Fitter on the      scale of  Rs. 125-3-131-4-155 we recommend the scale of      Rs. 320-400."      Admittedly, no reference has been made therein to Radio operators Grade III (Naik). Following the recommendations of the Third  Pay Commission  the Central Government framed the Central Civil  Services (Revised Pay) Rules, 1973 which came into force  on January  1, 1973.  The petitioners  exercised their option  in favour of the revised pay scales. They were paid a  salary of  Rs. 250 with a special pay of Rs. 30 from January, 1975  for a  few months,  together with  arrears on that basis  for the  years 1973  and 1974.  The  petitioners accepted the revised pay and special pay although, they say, it fell  short of  the pay  to  which  they  were  entitled. Subsequently, in  April 1975, the petitioners were placed in the revised  pay scale  Rs. 225-308  given to  Naiks and the excess  amount  paid  earlier  to  them  was  sought  to  be recovered by deducting from future payments of their salary.      Aggrieved by  the  refixation  of  their  pay  and  the deduction of  the excess  already paid,  they have filed the present writ petition.      So far  as the  deduction is  concerned, this Court has already directed  by its  order dated December 19, 1979 that the Government  should restore to the petitioners the excess amount already  recover ed  from them. Nevertheless, it will be necessary  to examine  the validity  of the refixation of the salary  now paid  to the  petitioners inasmuch  as  that question is relevant for the period commencing from the date



from which  salary has  been actually  paid on  the  refixed basis.      The question whether the petitioners have been properly placed in  the pay  scale  Rs.  225-308  must  be  examined, therefore, from two aspects;      1, Their claim to the Pay scale Rs. 260.430 and 5      2. Alternatively,  their claim  to the pay of Rs. 250/- and the  special pay  of Rs.  30 paid  to  them  before  the refixation of their salary.      On the  first point, a few facts may be briefly stated. On the  basis  of  the  recommendations  of  the  Third  Pay Commission  the   pay  scales   of  all  Central  Government employees, including  personnel in the para-military forces, were revised  with effect  from January  1, 1973.  Under the original pay scales, Naik Radio operators were placed on the scale Rs.85-110  with a  special pay  of Rs.  30 in  view of their special  qualifications and  the specialised nature of their duties. They were entitled to allowances calculated on the aggregate  of their  basic  pay  and  special  pay.  The Commission prescribed a scale of Rs. 225-308 for the post of Naik, but  did  not  make  any  separate  recommendation  in respect of  the post  of Radio  operator Grade  III  (Naik). Inasmuch as  before the revision of the pay scales the scale of a  Naik and Radio operator Grade III (Naik) was the same, that is  to say,  Rs. 85-110,  the revised pay scale for the post of  Radio operator  Grade III  (Naik) was raised to the same level  as that prescribed for the post of Naik, that is to  say,   Rs.  225-308,   and  in  view  of  their  special qualifications and  the specialised  nature of  their duties Radio operators Grade III (Naik) were given a special pay of Rs. 30 also.      The petitioners urge that posts in other departments of the Central  Government, for which the minimum qualification was  the   Matriculation  examination   and  an   additional requirement of  training, carried  the pay scale of Rs. 260- 430 and  since  that  requirement  was  also  the  basis  of appointments to the post of Radio operators Grade III (Naik) they should also be held entitled to that pay scale. Now the revised pay  has been given with effect from January 1, 1973 and on that date the qualification in the case of a Naik was the Middle  School examination,  and it was only with effect from January  24, 19 75 that the qualification was raised to the Matriculation  examination. As Naiks and Radio operators Grade III  (Naik) had  been uniformly  treated at par in the matter of  that basic  s qualification it is not open to the petitioners  to   base  their  claim  with  reference  to  a qualification which did not exist on January 1, 1973.      In support of their claim to the pay scale Rs. 260-430, the petitioners have drawn our attention to the circumstance that the 6 immediately next  senior category, Radio operators Grade II, carries the  revised scale Rs. 330-480 and, it is contended, the revised  pay scale  in the case of Radio operators Grade III should  not be  far below  It is  not for this Court, we think, to  examine how  far below  should be the revised pay scale of  the Radio  operators Grade  III. If the Government has prescribed  a particular  pay scale  in respect of them, all that  the court  can do  is to  merely pronounce  on the validity of that fixation. In the event that the court finds that the  prescription is  contrary to law it will strike it down and  direct thee Government to take a fresh decision in the matter.  It is a very different case from one where this Court has sought to prescribe pay scales in appeals directly



preferred from  an award  of the  Labour Court  dealing with such a  matter. In  the  latter  case,  this  Court  in  its appellate jurisdiction  can be  regarded as enjoying all the jurisdiction which  the Labour  Court enjoys. That is not so in the present case.      We are  satisfied that Radio operators Grade III (Naik) have to  be considered  substantially on  the same  basis as Naiks in the Central Reserve Police Force, and it is because of their  special  qualifications  and  of  the  specialised nature of  their duties  that  they  have  been  provided  a special pay in addition. It may be mentioned that ever since 1975 Radio operators Grade III (Naik) are selected only from the rank  of Constables on the General Duty Side The revised pay scale  of Radio  operators of the rank of Head Constable as well  as Head  Constables on General Duty is Rs. 260-350, with a  special pay  of Rs.  40 to  Head  Constables  (Radio operators). This  post is  the immediately  next higher post above the  rank of Naik, and it is apparent that there would be no  justification of  giving to  the petitioners, who are junior in rank, the pay scale Rs. 260-430.      The petitioners have also contended that they should be paid at  par with  comparable Government  employees  on  the civil side.  This claim  is refuted  by the  respondents who point out  that the  petitioners  are  entitled  to  certain benefits not  available to  the others.  Learned counsel for the respondents  bas listed  before  us  a  number  of  such benefits.  It  is  pointed  out  that  the  petitioners  are entitled to  casual leave  for a  period of  twenty days  as against casual  leave  for  a  period  of  twelve  days  for Government employees  on The  civil side, earned leave for a period of sixty days as against earned leave for a period of thirty three  days for  Government employees  on  the  civil side, and rent free accommodation or house 7 allowance at  10% of  the salary  in contrast  to Government employees on the civil side who are liable to pay 10% of the salary if accommodation is provided.      We are  not satisfied that the petitioners are entitled to the pay scale Rs. 260-430.      The second  point requires  us to consider the validity of the  refixation of  the pay  of the petitioners when they were receiving  Rs.  250  with  a  special  pay  of  Rs.  30 According  to   the  recommendations   of  The   Third   Pay Commission, the  existing pay  scale of a Government servant drawing basic  pay  upto  Rs.  1800  per  month  was  to  be augmented by  an amount  representing five  per cent  of the basic pay  subject to  a minimum  of Rs. 15 and a maximum of Rs. 50.  The Government of India Memorandum No. F. 67/II/23/ 74-lC dated  May 17,  1974 directed that special pay was not to be included in the existing emoluments for the purpose of determining the  accretion where  in addition to the revised pay the  Government servant  was to  be given  a special pay also. The  revised pay  actually  paid  to  the  petitioners initially was  computed in error inasmuch as when fixing the pay in  the revised  scale the  special pay  was taken  into account for  the purpose  of computing  the  accretion.  It, therefore, became  necessary to recompute the amount payable to the petitioners and to reduce it to the level now paid to them. It has not been shown to us that the basis adopted for refixation of the pay is invalid.      In the  result, this  petition fails  and is dismissed, but in the circumstances there is no order as to costs. This will not  affect the order dated December 19, 1979 directing the Government to restore to the petitioners the excess paid to them earlier and subsequently recovered from them.



H.L.C.                                   Petition dismissed. 8