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Judgment
R.N. Singh, Member (J)
Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have impugned order dated 28.04.2014 (Annexure A-1), passed by the respondents in purported compliance of the order of the Hon’ble High Court of Delhi in W.P. (C) No.17207/2006, whereby their claim has been rejected.
The applicants have prayed for the following reliefs:
“1. The impugned order dated 28.02.2014 (Annexure A-1) be quashed and set aside.
The respondents be directed to consider the case on a pragmatic manner and remove the manifest anomaly that prevails in the case of members of the Applicant Association if need be by reference to the Ministry of Finance. Provisions of para 2(c) of the Order dated 19th October, 1994 vide para 4 of the Judgment of the High Court at Annexure A-3 be extended to the seniors to those D/Man who were the applicants in the Guwahati Bench and Calcutta Bench and the entitled senior D/men be afforded the difference in pay and allowances accordingly. In so far as those who had retired, their pension be also revised on the basis of their revised pay. Arrear arising out of these be paid to the all the entitled employees.”
This is the second round of litigation. Earlier the applicants filed OA No.457/2005, which was dismissed by this Tribunal vide order dated 27.02.2006. Thereafter applicants filed RA No.63/2006 before this Tribunal, which too was dismissed vide order dated 18.08.2006. The applicants filed Writ Petition (Civil) No.17207/2006 before the Hon’ble High Court of Delhi, challenging the orders passed in OA No.457/2006 and RA No.63/2006. The Hon’ble High Court after considering the decision of the Hon’ble Supreme Court in the case of Union of India v. R. Vasudev Murthy, [(2010) 9 SCC 30] held in para 28 of the order/judgment dated 12.12.2013 (Annexure A-2) that the claim of the petitioners is not based upon OM dated 01.06.2001. In the said order, on the issue of stepping up of pay, the Hon’ble High Court passed the following directions:
“31. Insofar as the submission of Ms. Jyoti Singh, learned senior counsel for the petitioners that the grant of higher scale to the juniors in terms of the judgment of the Guwahati Bench of the Tribunal and Calcutta Bench of the Tribunal has resulted in an anomaly inasmuch, the juniors are getting more pay than the seniors i.e. the petitioners herein, has some merit. We note that this issue was neither raised nor urged by the petitioners before the Tribunal. Even in the present writ petition no such plea has been taken. We only find that a reference to this aspect has been made by the petitioners in rejoinder to the reply filed by the respondents in C.M No.18323-24/2011 (page 436 of the paper book). In the absence of any factual foundation before the Tribunal and even in the present writ petition, the respondents are handicap for not giving a response to the same. It is a settled position in law that a question of law can be raised at any time of the proceedings but a question of fact which requires investigation and inquiry and for which no pleadings have been averred by a party, such issue cannot be determined by a Court, in this case by us.
The concept of step up of pay has originated by the issuance of O.M dated February 04, 1966 by the Government of India under FR 22. The same reads as follows:
“(18) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior. – (a) As a result of application of FR22-C. [Now FR22(I) (a) (1)}.- In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:-
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.
The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.”
A perusal of the instructions reveals that the pay of a senior would be step up if the conditions laid down in the instruction are fulfilled. In the absence of any pleadings, it is difficult for us to say whether those conditions have been fulfilled by the petitioners. This aspect has to be considered by the respondents who are in the custody of records, as such are better placed to ascertain the factual aspect and take a stand accordingly. We are of the view that the respondents are required to consider the aspect of anomaly which has crept in due to grant of higher pay scale to persons junior to the petitioners in terms of the order of the Guwahati Bench and the Calcutta Bench of the Tribunal and pass appropriate orders in that regard.
Accordingly, we dispose of this writ petition by calling upon the respondents to consider the aspect of anomaly in the pay of the W.P.(C) No.17207/2006 petitioners qua their juniors as pointed out by learned counsel for the petitioners and pass appropriate orders within a period of 3 months from the date of receipt of copy of this order and communicate the same to the petitioners.”
In purported compliance of the above directions of the Hon’ble High Court, the respondents have passed the impugned order dated 28.02.2014, denying them the aforesaid benefits. In the above backdrop the applicants have filed the instant OA, seeking stepping up of pay on the ground that the Draughtsmen who are juniors to them and posted in Assam and West Bengal, are getting higher pay as compared to their counter-parts in North India. Learned counsel for the applicants has placed reliance on Annexure A-4 table at pages 37-38 of paper-book to substantiate that the juniors are drawing higher pay than seniors. He has also placed reliance on FR 22 (I)(a)1).
Pursuant to the notices issued, the respondents have filed their reply and have contested the OA on the ground that the provisions of FR 22 (I)(a)(1) are not attracted here. It is further submitted that the Hon’ble High Court in para-33 of its order dated 12.12.2013 observed that a “perusal of the instructions reveals that the pay of a senior would be stepped up if the conditions laid down in the instructions are fulfilled”. Here, it is clarified that the applicants are not fulfilling the laid down conditions of anomaly, mentioned in Note-2 below Rule 7 of CCS (RP) Rules, 1997. Therefore, the order dated 28.02.2014 is according to the relevant rules/orders of anomaly, and according to law. The stepping up of pay to remove pay anomalies of senior(s) will be done with effect from the date of promotion or appointment of the junior officer(s) and will be subject to the following conditions:
“(i) Both the junior and senior officer should belong to the same cadre and the post in which they have been promoted or appointed should be identical and in the same cadre.
(ii) The scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical; and
(iii) The anomaly should directly arise as a result of the application of FR 22 (I)(a) (1).”
In compliance with the judgment dated 12.12.2013 of the Hon’ble High Court, the aspect of pay anomaly in the pay of the present applicants with the applicants of OA No.14/2002 have been examined in the light of the above relevant rules/orders and it has been found that in this case, the application of provisions of FR 22 (I)(a) (1) is not attracted as the applicants and their juniors do not fall under the same cadre. The scale of applicants and their juniors is also different. The promotion or appointment of the applicants to a higher post is not involved here. Moreover, the benefits of higher pay scale extended by the Guwahati Bench of this Tribunal have not been extended to the applicants in any Writ Petition.
The applicants have filed rejoinder, more or less, reiterating his averments made in the OA. Learned counsel for the applicants has further filed written arguments.
We have heard learned counsels for the parties at length and carefully gone through the pleadings on record and particularly the judgment of the Hon’ble High Court of Delhi in W.P. (C) No.17207/2006. The Hon’ble High Court has noted that the anomaly in pay does exist as seniors are drawing less pay than their junior counterparts in certain regions. The Surveyor General of India is a single entity with various regions. Each region has the Draughtsman Grade-II employees and the recruitment rules as well as other service conditions are one and the same to be applicable uniformly, save perhaps with reference to certain special allowances on the basis of geographical situations which is not the issue in this case. The claim of Draughtsmen Grade-II for extending the provisions of OM dated 19.10.1994 is common to all the regions. In view of territorial jurisdiction of this Tribunal, one set of Draughtsmen at Guwahati approached Guwahati Bench of this Tribunal for revision of pay scale, which has been allowed and also implemented consequent upon its affirmation by the Hon’ble High Court and the Hon’ble Supreme Court. Same is the case with regard to Kolkata region, where another set of similar employees approached the Kolkata Bench of this Tribunal which was also implemented on affirmation of the order by the Hon’ble High Court and Hon’ble Supreme Court. One of the reasons for rejection of the claim of applicants herein by the respondents is that no such Court order exists in their favour.
Stepping up of pay is an aspect which initially originated in view of certain differences in fixation of pay at the time of promotion whereby the junior may happen to draw more pay than his senior, in which event, subject to certain conditions, the pay of seniors is stepped up at par with the juniors. However, in due course of time, the rigidity in application of the instructions on stepping up of pay, rules have been liberally interpreted and applied. The dominant aspect to be kept in view is that the pay of the seniors shall not be less than that of their juniors. The same is evident from the fact that the Hon’ble Supreme Court in the case of Gurucharan Singh Grewal & Others v. Punjab State Electricity Board & Another, reported in [(2009) 3 SCC 94] had an occasion to consider a similar matter where there were two appellants claiming stepping up of pay at par with their juniors and the Hon’ble High Court, on the basis of the written statement of the respondents, allowed the case of appellant no.2 therein, but was not granted to appellant no.1 on the ground of some incremental difference. The relevant part of the order of the Hon’ble Supreme Court reads as under:
“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.
(Emphasis supplied)
Applying the above decision to the facts of this case, we find that the rejection of the claim of the applicants by the respondents is almost on same grounds and unlike the case of other regions of Assam and Kolkata there is no court direction. It is trite that similarly situated persons cannot be treated differently and unnecessarily should not drag them to litigation.
Further, the Hon’ble Supreme Court in the case of Inderpal Yadav v. Union of India, [(1985) 2 SCC 648], has held as under:
“......those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court.”
The Hon’ble Supreme Court, as early as in 1975, in the case of Amrit Lal Berry v. Collector of Central Excise, [(1975 4 SCC 714 held as under:
“We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court. In the petition of K. N. Kapur & others, we do not even find at assertion that any representation was made against any violation of a petitioner's right. Hence, the rule recognised by this Court in Kamini Kumar Das Choudhury v. State of West Bengal & Ors., that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners.”
At this stage, it is useful to reproduce the recommendations made by the V Central Pay Commission in its Report at para 126.5 with regard to extension of benefits of Court judgments to similarly situated, as under:
“126.5 We have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefits of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the full Bench of CAT, Bangalore in the case of C.S. Elias Ahmed & Others v. UOI and others (OA Nos.451 and 541 of 1991) wherein it was held that entire class of employees who are similarly situated are required to be given the benefit of decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C. Ghosh v. UOI, (1992) 19 ATC 94 SC dated 20.07.1993, K.L. Shephard v. UOI, JT (1987) 3 SC 600, Abid Hussain Vs. UOI, JT (1987) 1 SC 147 etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing other employees to approach the Court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee.”
It is not in dispute that the case is relating to Draughtsmen Grade-II who are/were working in Surveyor General of India, which is having various units all over India, and the rules and terms and conditions of service are equally applicable to its employees all over India. Hence, relying on the ratio of the various judgements of the Hon’ble Supreme Court, as quoted above, as also the recommendations of the V CPC, we are of the considered view that the applicants are entitled to the reliefs as sought by them. Accordingly, the OA is allowed with the following directions:
(i) Impugned order dated 28.02.2014 (Annexure A-1) is quashed and set aside;
(ii) The respondents are directed to step up the pay of the applicants at par with their juniors from the date the anomaly crept in;
(iii) Pursuant to stepping up of pay, the respondents are further directed to calculate the difference in pay and allowances and pay arrears thereof to the applicants who are still in service;
(iv) In case some of the applicants have retired/died, their pension/family pension shall be revised by revising their PPOs on the basis of grant of stepping up of pay and the respondents shall grant arrears of pension/family pension to pensioner/family pensioner with interest of 6% p.a. on such arrears;
(v) The above exercise shall be completed within a period of 04 months from the date of receipt of a certified copy of this order. No costs.