Dr. Ritesh Kansal & Ors. vs The State Of Madhya Pradesh Thr & Ors.

"(i)

That, impugned Circular dated 23-04-15 (contained in Annexure P/1) may kindly be set-aside or alternatively the respondents' authority may kindly be directed to give effect to said Circular dated 23-04-15(Annexure P/1) from the date of petitioners' initial appointment.

(ii)

That, respondents' authorities may kindly be directed to extend/grant the benefit of Advance Increment to the petitioners by virtue of holding Post Graduate Degree/Diploma.

(iii)

That, any other suitable further orders may kindly be passed in the interest of justice. Cost may kindly be awarded."

"13.

Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2.

14.

We are unable to accept the reasoning of the High Court in this regard or the submissions made in support thereof by Mr. Chhabra, since the very object to be achieved is to bring the pay scale of the appellant No.1 at par with that of his junior. We are clearly of the opinion that the reasoning of the High Court was erroneous and the appellant No.1 was also entitled to the same benefits of pay parity with Shri Shori as has been granted to the appellant No.2.

15.

We, accordingly, allow the appeals and set aside the judgment of the High Court. Consequently, the writ petition is also allowed and the respondents are directed to extend the benefits of pay parity with Shri Shori to the appellant No.1, as was done in the case of the appellant No.2.

16.

The writ petition is allowed to the aforesaid extent."

17.

If there is any anomaly to the effect that the senior government servants are receiving lesser pay than their juniors, who entered the service from a different source of recruitment, certainly such senior government servants are entitled to stepping up of their pay in order to bring them on par with the salary which is being received by their juniors. There is no clause in the scheme which prohibits such stepping up of salary which is a common practice applicable to all government employees in case there is anomaly in the pay structure of the employees.

18.

By the impugned judgment, the High Court has held that the respondents are entitled to get the ACP scales that are applicable to Group C post, but the Rules, as such, do not provide for that. The Rules say that if there are already two upgradations, then the employees concerned are not entitled to the benefit of ACP scales. Nevertheless, if ACP scales are higher, they are certainly entitled to the ACP scales at the starting point. The date of giving such ACP scales is the date of entry into the service and though these respondents are entitled to get ACP scales and get fixation of the ACP scales as applicable to Group D employees and in case there are anomalies to the effect that they receive lesser pay than their juniors working in the same cadre/post, such senior government servants are entitled to step up of their salary to get it on a par with the salary which is being received by their juniors.

19.

In the result, all the appeals are partly allowed. The appellants shall revise the pay scales of the respondents. In case of any anomaly, if the employees who, on fixation of ACP scales, are in receipt of lesser salary than their juniors in the same cadre/post, then their salary shall be stepped up accordingly. Revised orders shall be passed within a period of two months of the receipt of the copy of this order by the Government. However, if upon revision of the pay scales, any employee is liable to refund any amount, the Government shall not insist on refund of such amount. If any employee is entitled to get any amount by way of pay revision, the said amount shall be made available to him within a period of six months from the date of receipt of the copy of this order by the Government."

18.

The last and main question is whether the petitioner is entitled to get the benefit of stepping up of pay. In the judgment of Supreme Court reported in (2011) 15 SCC 772, Commissioner & Secy. to Govt. of Haryana vs. Ram Sarup Ganda, it was held that principle of stepping up of pay can be applied if junior and senior both are holding same post, same cadre in the same pay scale and junior is drawing more pay. The comparative statement aforesaid, shows that although private respondent was getting more pay while working as ad hoc Junior Research Assistant, the said pay was not protected when he became Junior Draftsman. Petitioner and private respondent started drawing same pay. On next promotion as Draftsman, the petitioner was not only promoted earlier to private respondent, he was drawing more pay in the pay scale of Rs. 1400-2300. Thus, the petitioner is admittedly senior and/or drawing equal or more pay on various posts. Thus, stepping up of pay must be extended in favour of the petitioner. It is noteworthy that pvt. respondent held the post of JRA on ad hoc basis long back in the year 82-83 and thereafter reverted as Jr. Draftsman. Then he was promoted as Draftsman. Thus his pay drawn on the post of JRA could not have been protected by operation of FR 22-C.Peittioner accordingly deserves stepping up of pay at par from the date his junior was getting more pay in the scale of 1640-2900/-.

"18.

The above-noticed plea, in our considered view, is wholly unjustified. Firstly, Shetty / Commission has nowhere recommended that three advance increments are not to be granted to those Officers who acquire higher qualification while in service. The phrase "selected candidates.... having higher qualification" does not and cannot mean that if higher qualification is acquired by the selected candidates after their appointment, it would not improve their efficiency with better knowledge of Law. Secondly, the Judicial Officers having Postgraduate Degree in Law before appointment and those who acquire such Degree after joining the service, constitute one homogenous class and the artificial classification to discriminate against the latter category of Officers does not satisfy the test! of equality within the meaning of Articles 14 & 16 of the Constitution. Thirdly, the classification professed in the case of Judicial Officers contradicts the State when confronted with the other services like Junior Engineers to whom benefit of advance increments, on acquisition of higher qualification 'during service', has been expressly granted vide circular dated 30.08.2011 (Annexure P14).

19.

For the reasons afore-stated, we allow this writ petition and quash the impugned circular dated 19.05.2011 (Annexure P6) to the extent it denies the benefit of three increments to those Judicial Officers who have acquired/acquire higher qualification of LL.M. after joining the service. We further direct that:-

i.

the benefit of three additional increments shall be admissible to the petitioners as well as other similarly placed Judicial Officers;

ii.

the only permissible distinction shall be that the Judicial Officers who acquire LL.M. Degree before joining the service shall be entitled to additional increments from the date of joining the service, while those who have acquired/acquire the same after joining the service shall be entitled to these increments from the date of acquisition of the higher qualification of LL.M.;

iii.

the three increments granted to the Judicial Officers on acquisition of LL.M. Degree shall be treated as 'additional increments' in the same manner as has been directed by this Court in Priya Sood's case (Punjab matter);

iv.

the additional increments shall continue to be drawn by the Judicial Officers on their further promotion and/or placement in higher pay scale, as the case may be."

6.

After considering the submissions made by both sides, the Tribunal observed that it is only because of non-payment of one annual increment to the respondent, that the pay of her junior was more than her and held that she was entitled to salary at par with her junior in view of the well settled legal position in the cases of Gurcharan Singh Grewal v. Punjab State Electricity Board, (2009) 3 SCC 94; Punjab State Electricity Board v. Gurmail Singh, (2008) 7 SCC 245; and Commissioner and Secretary to Government of Haryana v. Ram Swarup Ganda, (2011) 15 SCC 772, wherein, it has been held that the principle of stepping up of pay has to be applied across the board in all cases where a person who is senior, gets lesser salary than his junior, requiring the salary of the senior to be stepped up and brought at par with the junior. The Tribunal also referred to a judgment in the case of Government of NCT of Delhi v. Saroj Khosla, (2013) 199 DLT (CN) 27 DB, wherein relying on the decisions of the Supreme Court cited above, a Division Bench of this Court had directed that the respondent employee in that case would be entitled to stepping up of pay at par with persons immediately junior to them in the combined seniority list.

9.

We have heard learned counsel for the petitioner and carefully perused the impugned judgment, the documents and pleadings before the Tribunal. We are of the opinion that the view expressed by the Tribunal in the impugned judgment to the effect that where the salary of the junior is higher than that of the senior, the senior is also entitled to fixation of salary at par with her junior, is a logical conclusion backed by several decisions of the Supreme Court and High Court on the aforesaid aspect. In any case, the respondent cannot be held responsible for the delay in verification of her age as she had taken all necessary steps to submit the requisite documents to the petitioner in time. It is only fortuitous that the documents of Ms. Mamta Meena were got verified earlier due to which a letter of appointment was issued to her on 07/08.11.2007, whereas it took some time to verify the documents submitted by the respondent and resultantly, the letter of appointment was issued to her on 04.03.2008. The respondent cannot be held responsible for the said delay. Further, in the seniority list drawn by the petitioner, the respondent's seniority has been fixed over and above that of Ms. Mamta Meena. This being the position, the respondent was justified in claiming that she is entitled to stepping of pay at par with that of her junior.