Hazari Ram vs Union Of India & Ors.

The applicant submitted that he was initially appointed as Mazdoor in the pay scale of Rs.196-232 on 06.06.1979 and subsequently promoted to the post of Mate in Semi-Skilled category in the pay scale of Rs.800-1150 with effect from April 1992. Finally, he was promoted to the post of Carpenter Semi Skilled w.e.f. 01.09.1997 in the pay scale of Rs. 950-1500/3050-4590, in the revised pay scale of Rs.5200-20200 with GP of Rs.1900/-. Thereafter, he has been granted benefit of MACP scheme and granted GP Rs.2400/-. Learned counsel for the applicant contended that the applicant was initially junior to one Shri Jagdish on the post of Mazdoor. However, subsequently, the applicant by virtue of getting early promotion to the next post of Mate (Semi Skilled) became senior to Shri Jagdish, the respondent No. 5. The applicant also started getting higher pay as well as early promotion than said Shri Jagdish. Thereafter, Shri Jagdish got the next promotion to the post of Carpenter Semi Skilled on 01.01.2002 and his pay was accordingly fixed at a higher stage i.e. Rs.3800/-, whereas the applicant on the same day was Rs.3650/- only.

It is apt to mention that the initial fixation of the pay had also affected the subsequent pay fixation in the revised pay scale. He also referred to the service record which he received from the respondents qua the applicant and the respondent No.5 and submitted a comparative statement wherein it was stated that the initial entry point of the applicant was in the pay scale of Rs.196-232 on 06.06.1979 whereas in the entry point of the respondent No.5 was in the pay scale of Rs.196-232 on19.01.1979. Subsequently, the applicant was promoted as Mate (SS) in the pay scale of Rs.800-15-4 01 O-EB-20-1150 at the pay of Rs.950/- w.e.f. April 1992 whereas respondent No.5 was promoted as Mate (SS) in the pay scale of Rs.800-15-1010-EB-20-1150 at the pay of Rs.980/- w.e.f. 01.01.1995 and finally the applicant was promoted as a Carpenter (SK) on 01.09.1997 in the pay scale of Rs.3050-75-3950-80-4590 and his pay was fixed at Rs.3650/- on 01.09.2001, and the respondents No.5 was promoted to the post of Carpenter (SK) on 01.01.2002 in the pay scale of Rs.3050-75-3950-80-4590 and his pay was fixed at Rs.3800/- on 01.01.2002.

He also relied upon the Note No.23 below FR 22 of FRSR Vol-I 23rd edition Swami's Compilation, which stipulated as under:-

Therefore, the applicant fulfilled all the requisite condition required for stepping up of his pay at par with his next junior Shri Jagdish, respondent No. 5 with effect from 01.0.2002 and accordingly his pay should have been fixed at Rs.3800/- in place of Rs.3650/- at par with the basic pay of Shri Jagdish on 01.01.2002 according to FR 22 (C). Being aggrieved from the inaction on the part of the respondents, the applicant submitted representations, which were forwarded to the competent authority. The last exhaustive representation was filed on 12.11.2014. The respondents decided the representation of the applicant denying the stepping up of pay on the basis that the stepping up of pay rule is not applicable to the case of applicant herein.

Further, it is apt to mention that the applicant was getting higher pay after his promotion to the post of Mate i.e. feeder post for promotion as Carpenter SK and it was not a case where a junior got promotion earlier and was in receipt of lower pay. Therefore, the clause D of Rule 23 (2) as relied upon by 4th respondent is misconceived and is based on wrong facts. He further submitted that after recommendation of the 7^th CPC and revision of the pay, his case would be more complicated; he would be facing recurring financial loss and his future service prospectus would be jeopardised for none of his faults. Therefore, on the basis of the above, it requires the intervention of this Hon'ble Tribunal for redressal of his grievances on the following grounds.

It was submitted by learned counsel for the applicant that the pay anomaly had been due to the application of FR 22(C) and also covered under the Note.23 below FR 22. He was fully entitled for stepping up of his pay at par with his next junior i.e. private respondent No.5. Since, the respondent No.5, who is junior to the applicant has been fixed at a higher stage of pay and getting higher pay than the applicant, the respondents have not taken any final decision and on the other hand, the case is being kept pending due to some extraneous reasons best known the authorities. Therefore, on the basis of the above, he prayed that the instant OA may be allowed.

The respondents also submitted the statements of the pay fixation of the applicant as well as respondent No.5, wherein it is stated that on 01.09.2002, the basic pay of the applicant was reportedly mentioned as Rs.3725/- and also the basic pay of the respondent No.5 was reportedly mentioned as Rs.3725/-. It is apt to mention that the main prayer of the applicant for stepping of pay is based on the provision as per Note 23 (a) to (c) appended below FR-22. However, it was submitted that the provisions and instances described under note 23 (2) (a) to (c) are not applicable in the facts and circumstances of the instant case. In fact note 23 (2) (d) governs the situation arisen in the instant case which provides as follows:-

While applying the aforesaid provision in the instant case admittedly the applicant although became senior in consequence of promotion on the post of Carpenter (Semi Skilled) but he was in fact appointed after respondent No.5 on the lower post and consequently was getting lesser pay than respondent No.5 on the initial post. Therefore, even in consequence of promotion on the higher post prior to his senior i.e. respondent No.5, the applicant cannot claim any pay parity on the higher post. In fact the applicant is claiming stepping up of pay and made the basis on those provisions which are not applicable upon him therefore the applicant is not entitled for any relief.

The respondents also referred to the cardinal principles behind the provisions quoted hereinabove is that "the senior on the initial post shall always remain senior" which is well recognized by the courts of law through various pronouncements. The respondents also assailed the delay in filing the OA by the applicant. It is evident from the record that the cause of action of stepping of the pay arose on 01.01.2002 whereas the applicant chose to file the representation only on 12.11.2014 after passing of more than 12 years of arising of the cause of action as the present OA has been filed in the year 2016. It is also well settled law that filling the representation and informing about the rejection of the same cannot be a ground to condone the delay caused by the applicant for approaching this Tribunal. Therefore, the instant OA is also time barred by limitation by a period more than 15 years and consequently the same is liable to be dismissed. In this regard, he also referred to the ratio laid down by the Hon’ble Apex Court in the case of Boop Singh vs UOI & Ors that the period of limitation for filling an application under Section 19 of Administrative Tribunal Act, 1985 is to be counted from original date of cause of action and submissions of representation does not extend the period of limitation. He also referred the judgment delivered by CAT Bench Jaipur in OA No. 585/2009, quoting the following observation in judgment of Apex Court in the cases of C. Jacob vs. Director of Geology and Mining and Anr and UOI & Ors. vs. M K Sarkar, decision on 22.03.2010:-

Therefore, on the basis of the above ratio laid down by the Hon’ble Apex Court, the instant OA deserves to be rejected on the ground of limitation.

Learned counsel for the respondents also countered the stand taken by the applicant for supporting his arguments on the basis that the fixation of the applicant and respondent No.5 are according to the entitlement, Rules, bye-laws and policy in vogue on the subject thus there is no violation of Articles 14 and 16 of the Constitution of India as claimed by the applicant herein. It is also a settled principle of service law that a senior even promoted later cannot become junior if he was senior at initial stage. Consequently the applicant being junior at initial post shall always remain junior and cannot claim parity on the post on the basis of so called misconceived anomalies as alleged in instant OA. Therefore, on the basis of the above, the OA may be dismissed.

As far as the contention of the applicant on the basis of the principles of stepping up of pay with regard to junior is concerned, the arguments of the applicant is not acceptable on the basis of provisions of the stepping of pay as per Note 23 (2) (a) to (c) appended below of FR 22 as it is not applicable to the applicant. The fact is that, according to the facts and circumstances of the applicant, the relevant provisions is mentioned in Note 23 (2) (d) which governs the situation for fixation of the pay of the applicant herein. Both the provisions are listed as follows:-

As per perusal of the above provision, it is evident that para 23 (2) (d) would be squarely applicable to the facts and circumstances of the present case instead of Note 23 (2) (a) to (c).

It is also evident from the record that the applicant has filed this OA after 14 years of arising cause of action on 01.01.2002, when the respondent No.5 was promoted to the post of Carpenter (Semi Skilled). According to the statements submitted by the respondents herein, the pay of the applicant as well as respondent No.5 were Rs.3725/- on 01.01.2002, therefore, there is complete pay parity between the applicant and the respondent No.5.

In view of the above, we find no merit in the instant OA. Hence, The OA is dismissed. No order as to costs.