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Judgment
O R D E R
BY MALLIKA ARYA, AM:-
By filing this Original Application, the applicant is seeking direction to the respondents to extend the benefit granted to the applicant vide order dated 12.01.2015 with all consequential benefits. Further the applicant is seeking quashment of the order dated 01.02.2017 passed by respondent No. 3.
The facts of the case in brief is that the applicant was initially appointed as clerk and attained superannuation from the post of AAO on 30.06.2013. The applicant was granted the benefit of stepping of pay by Respondent No.3 in compliance with the judgment passed in Ο.Α. No. 2124/2011 by Principal Bench of this Hon'ble Court at Delhi vide order dated 12.01.2015 w.e.f. 19.06.2003. However, the same was restricted upto 31.12.2007. Upon implementation of the seventh pay commission w.e.f. 01.01.2016, an anomaly has been created in the pay structure whereby the juniors are drawing more pay than the seniors. Being aggrieved by this applicant made representation on 25.11.2016 seeking the continuation of stepping up of pay after 31.12.2007. The respondent No.3 has rejected the prayer of applicant by assigning the reasons that the applicant having been promoted on the post of Assistant Accounts Officer, the benefit of the stepping up of pay has been rightly curtailed and also that the benefit of stepping of pay cannot be given as the rules are applicable to Senior Accountant's cadre.
The respondents have filed their reply wherein it has been submitted that the applicant was working in the cadre of Junior Accounts Officer. This got merged with the cadre of Assistant Accounts Officer cadre w.e.f. 25.06.2009. Thus, the appointing Authority for the said post was Chief Postmaster General M.P. Circle. The applicant and Shri B.S. Sharma were working in the cadre of Senior Accountant from 01.04.1987 to 31.07.2007. After grant of second ACP to Shri B.S. Sharma w.e.f. 19.06.2003, the pay of the applicant became lesser than his junior i.e. Shri B.S. Sharma. The applicant was granted stepping up of pay vis-à-vis his junior Shri B.S. Sharma, Retired AAO w.e.f. 19.06.2003 (i.e. the date of grant of second ACP) in the light of the order passed by the Principal Bench of this Tribunal (at Delhi) in O.A. No.2124/2011. There is a stipulation in the order that the pay parity as such would be compared annually and maintained in future. Accordingly, the pay of the applicant was fixed at par with Shri B.S. Sharma. This fact has been admitted by the applicant and it has been compared annually and maintained till the date he was holding the post of Senior Accountant in the same cadre and post. Thereafter, the applicant got promoted as Assistant Accounts Officer w.e.f. 01.01.2008 with the grade pay of Rs.4800/-and his pay has been fixed accordingly. On regular promotion as AAO w.e.f. 01.01.2008 the applicant was placed in the gradation list of AAO cadre which is prepared on an all India basis and maintained at the Directorate level. The applicant's seniority has also been fixed by the Directorate on an all India basis. Under these circumstances, the applicant is not entitled for any relief sought in the O.A.
The applicant has filed the rejoinder to the reply filed by the respondents wherein he has re-iterated his earlier stand as taken in the O.A.
We have heard both the learned counsel for the parties and perused the pleadings and the documents on record. We have also gone through the judgments advanced by the parties in support of their cases.
The issue to be decided in this case is whether the applicant is entitled for stepping up of pay at par with his juniors.
The main plea of the applicant is that he is an Assistant Accounts Officer (AAO) which is a Group-B (Gazetted) post. His pay should be stepped up at par with his junior i.e. Senior Accountant (SA) who have been extended the benefit of Grade Pay (GP) of Rs.5400/- on account of 3rd MACP. While going through the pleadings, it is seen that the applicant got promoted as Assistant Accounts Officer w.e.f. 01.01.2008 with the grade pay of Rs. 4800/- and his pay has been fixed accordingly. The applicant has been placed in the gradation list of AAO cadre which is prepared on all India level. The pay of the applicant cannot stepped up as per the relief clause of the O.A. i.e. at par with Shri B.S.Sharma as they are both working in different cadres.
We take note of the order dated 01.02.2017 wherein it has been mentioned that he cannot be given pay parity with Shri B.S. Sharma, Senior Accountant since he was granted the benefit of 3rd MACP and his pay was fixed in the grade pay of Rs. 5400/- (Pay Band II). The order of the CAT, Principal Bench passed in O.A. No. 2124/2011 dated 01.02.2013 was limited only to the grant of ACP. Moreover, Shri B.S.Sharma is a Senior Accountant wherein the applicant has already become an Assistant Accounts Officer. The benefit of stepping up of pay cannot be granted to him since they belongs to different cadre. Further, the respondents have also submitted that the applicant has suppressed the material fact that respondents Nos. 4 to 7 were junior to the applicant in the Senior Accountants cadre and not in the cadre of Assistant Accounts Officer. The applicant has not controverted this contention of the respondents in the rejoinder. The respondents have also submitted that pay parity was also maintained in respect of respondents Nos. 4 to 7 in the cadre of Senior Accountant as per directives given in O.A. No. 2124/2011. This pay parity has been maintained after grant of MACP to the juniors of respondents Nos. 4 to 7 as well. Hence the respondents in a nut shell have submitted that pay parity has been maintained in the substantive cadre i.e. Senior Accountant only.
We also take note of the fact that the benefit was given to the applicant in light of the judgment passed by the Hon’ble Apex Court in SLP (Civil) No.4952/2014 and the order of the CAT Principal Bench in O.A. No.2124/2011 which was upheld by the Hon’ble High Court of Delhi. Thereafter this benefit was extended to the applicant vide order dated 12.01.2015 by the respondents. However the same was restricted upto 31.12.2007.
We observe that the Original Application suffers from non-joinder of party since the applicant is claiming the extension of benefit of stepping up of pay at par with Shri B.S.Sharma which was granted vide order dated 12.01.2015 w.e.f. 19.06.2003. He has not made Shri B.S.Sharma a party in the O.A. Hence, the O.A. suffers from non-joinder of party.
Reliance is placed on the judgment of Karnataka High Court in the case of Sandhya S. Murthy vs. Union of India & Ors. in W.P. No. 19456 of 2022. During the first round of litigation, the co-ordinate bench of this Tribunal at Bengaluru had dismissed the O.A. No. 170/00559/2020 stating as follows:-
"25.As is evident from these provision notified under MACP, there is no provision of pay protection to a senior on account of any pay anomaly due to grant of MACP benefit to his junior. The orders of this Tribunal in OA 2124/2014 were relevant to the pay anomaly due to ACP scheme only and were not applicable for the MACP scheme. Hence, the applicant is not entitled to any step up of pay on grant of MACP to junior and there is no question of any such pay parity on this account.
26.Keeping the above mentioned points in view, the present OA, being devoid of any merit, is liable to be dismissed.”
Thereafter during the second round of litigation, the Hon’ble High Court of Karnataka at Bengaluru has opined as under:-
“…..5. The said submission of Mr.Holla is appealing on a first blush, but on a deeper consideration, more so in view of the directions given in Paragraph No.6 of the order of the Tribunal in the earlier round of litigation, when the liberty has been granted to the respondents to consider the representation to be given by the petitioner for a decision and pursuant thereto the respondents have rejected her representation, with which the Tribunal in the impugned order has not found fault with it, we are of the view that since that discretion has been vested with the respondents to decide the representation and the respondents having decided the representation against the petitioner more so when it is a settled law that senior is not entitled to step up of pay merely because the junior is drawing a higher salary on account of grant of MACP, the decision of respondents cannot be faulted.”
In light of the settled position of law, it is observed that pay parity cannot be given to a senior merely because a junior is drawing higher salary on account of grant of MACP to the junior.
Accordingly, the Original Application is dismissed with no order as to costs.