Nirmal Dev vs Union Of India & Anr.

O R D E R

“(i)

This Hon'ble Tribunal may graciously be pleased to direct to Respondent No. 1 & 2 to fix/step up the basic pay of the applicant at least at par with his junior Shri Shivakant Singh, Ch. OS, COS/PCMM office, N. E. Railway, Gorakhpur within 30 days from the date of award.

(ii)

This Hon'ble Tribunal may graciously be pleased to direct to Respondent No. 1 & 2 to pay the arrear, which has incurred losses because of lesser salary than his junior within 30 days from the date of award.

(iii)

This Hon'ble Tribunal may graciously be pleased to direct to Respondent No. 1 & 2 to consider applicant's settlement and pension taking the basic pay at par his junior i.e. Shri Shivakant Singh, Ch. OS, COS/PCMM office, N. E. Railway, Gorakhpur.

(iv)

This Hon'ble Tribunal may graciously be pleased to, reliefs or directions, which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case in favour of the applicant and against the Respondents in the interests of justice.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31ST DAY OF JULY, 2021

PRESENT

THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA

AND

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO.33038 OF 2016(S-CAT)

BETWEEN:

1.

SRI C.R.MADHAVA MURTHY S/O SRI. RAGHAVENDRACHAR, AGED ABOUT 63 YEARS, SUPERINTENDENT OF CENTRAL EXCISE (RTD.,) R/O H.NO.25, VIDHATRI, V-CROSS, SIDDESHWARA LAYOUT, SIDEDAHALLI, BENGALURU-560 027.

2.

SRI. M.J. DAKAPPA S/O LATE JATTAIAH, AGED ABOUT 65 YEARS, SUPERINTENDENT OF CENTRAL EXCISE & CUSTOMS (RTD.), R/O FLAT NO.D-304, FRIENDS PARADISE, 2550, 2551/1, IX-CROSS, XIII-MAIN, E-BLOCK, SAHAKARA NAGAR, BENGALURU-560 092

. ...PETITIONERS

(BY SRI.N G PHADKE, ADVOCATE)

AND:

1.

THE UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-11 001. 2. THE CENTRAL BOARD OF EXCISE & CUSTOMS DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001. 3. THE SECRETARY DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI-110001. 4. THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-I COMMISSIONERATE, CENTRAL REVENUE BUILDING, P.B. NO.5400, QUEEN'S ROAD, BENGALURU-560001.

…RESPONDENTS

(BY SRI.GOPAL BILALMANE, ADVOCATE FOR R1-4; SRI.N.KUMAR, ADVOCATE FOR R1-4)

THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 04.01.2016 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN O.A.NOS.813 & 814/2014 AT ANNEX-E AND ETC.,

THIS PETITION COMING ON FOR HEARING THIS DAY, SATISH CHANDRA SHARMA J., MADE THE FOLLOWING:

ORDER

The petitioners before this Court have filed the present writ petition being aggrieved by the order passed by the Central Administrative Tribunal dated 04.01.2016 passed in O.A.Nos.813/2014 and 814/2014.

2.

The facts of the case reveal that the petitioner No.1 started his service career as Lower Division Clerk on 01.02.1973 and the petitioner No.2 started his service career again as Lower Division Clerk with effect from 03.08.1973. They were promoted to Upper Division Clerk on 04.10.1976. The petitioner No.1 was promoted to officiate as Inspector with effect from 02.04.1981 and petitioner No.2 was promoted to officiate as Inspector on 13.07.1981. One Shri C.K. Satish was appointed as Inspector on 17.12.1981 by way of direct recruitment and Shri B.S. Srikanth was also appointed as Inspector by way of direct recruitment on 15.05.1982.

3.

That Union of India in order to provide upgradation to its employees stagnating on a particular post, introduced 'Assured Career Progression Scheme' (ACP Scheme) with effect from 09.08.1999 and Shri C.K.Satish and Shri B.S.Srikanth were granted upgradation under the ACP Scheme. The petitioners were promoted to the post of Superintendent of Central Excise and Customs on 02.07.2000 whereas employees junior to them were granted upgradation with effect from 17.12.2005 and 15.05.2006. Undisputedly, the persons who were placed lower in the upgradation list than the present petitioners, on account of upgradation granted to them under the ACP Scheme started drawing higher pay and in those circumstances, the present petitioners submitted a representation to the Department for stepping up their pay. The said representation was rejected and in those circumstances, the original application was preferred. The Tribunal has rejected the application submitted by the present petitioners by a common order dated 04.01.2016.

4.

The solitary question before this Court is whether the petitioners who are admittedly senior in the cadre of Superintendent of Excise are entitled for stepping up of pay or not.

5.

F.R. 22 provides for stepping up of pay and the Government of India, Ministry of Finance issued an Official Memorandum dated 04.02.1966 for stepping up of pay of juniors. The relevant extract of F.R. 22 and the order issued by the Government of India is reproduced as under:

"(22)

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 FR 22-C. [Now FR 22 (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 the 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.

[ G.I., M.F., O.M., No.F.2(78)-E. III(A)/66, dated the 4th February,1966.]"

"The petitioner had initially joined the office of the Chief Commissioner- appellant No. 2 as Lower Division Clerk on 25.11.1980. Thereafter he was promoted as Upper Division Clerk on 2.8.1988 and then as Tax Assistant on 30.11.1990. He was eventually promoted as Inspector, Central Excise and Custom and joined as such on 29.3.1993. One Ram Chand Sharma joined as Inspector by way of direct recruitment on 31.3.1993 and is apparently junior to the petitioner. In the seniority list of Inspectors his name figures at serial No. 268 whereas that of the petitioner is at serial no.206. The petitioner approached the Tribunal with the grievance that in pursuance of Assured Career Progression Scheme (ACP) dated 9.8.1999 the aforesaid Ram Chand Sharma has been given the benefit of upgradation on completion of 12 years of service in the pay scale of Rs.7500-12000 whereas the petitioner continues to work in the pay scale of Rs.6500-10500 although he is senior to Ram Chand Sharma. He made representation which was turned down vide letter dated 6.3.2008 (A.1). The petitioner had placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Commissioner and Secretary to Govt. of Haryana and others v. Ram Sarup Ganda and others 2007(2) SCT 476. The respondent took the view that judgment in Ram Sarup Ganda's case (supra) was judgment in persona and not a judgment in rem and on that basis has rejected the claim.

However, the Tribunal set aside the order passed by the respondents and granted the petitioner the relief of stepping up of pay and bringing it at par with the pay of his junior but it has refused to grant him the benefit of giving pay scale which is being drawn after the grant of ACP to his junior. Similar view was taken by the Tribunal in the case of Harcharan Singh Sudan v. Union of India (OA No. 97 CH of 2007) decided on 23.12.2008 which in turn is based on the judgment of Hon'ble the Supreme Court in Ram Sarup Ganda's case (supra).

Having heard the learned counsel we are of the considered view that the order passed by the Tribunal for stepping up the pay of the petitioner and bringing it equivalent with the pay of his junior Shri Ramesh Chand Sharma does not suffer from any legal infirmity. There is no provision in the ACP Scheme that the petitioner is entitled to the same pay scale as is given to his counter part who is a direct recruit. Moreover, the petitioner had already earned three promotions and therefore would not be entitled to any other benefit in the shape of higher pay scale.

Accordingly, the writ petition fails and the same is dismissed."

"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.

20.

Consequently, the appeals are partly allowed with no order as to costs."

In the Supreme Court of India

Civil Appeal Jurisdiction

Civil Appeal Nos.2087-2088 of 2022

Union of India & ors. ….Appellant (S)

Versus

Shri C.R. Madhava Murthy & Anr.

…..Respondents (S)

Judgment

1.

Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 31.07.2021 passed by the High Court of Karnataka in Writ Petition Nos. 3303833039/2016, by which the High Court has allowed the said writ petitions, the Union of India and others have preferred the present appeals.

2.

The facts leading to the present appeals in a nutshell are as under:

2.1

That the respondents herein original writ petitioners were appointed as Lower Division Clerk on 01.02.1973 and 03.08.1973, respectively. Thereafter, they were promoted to the post of Upper Division Clerk on 04.10.1976. That one of the respondents was promoted to officiate as an Inspector w.e.f. 02.04.1981 and the other respondent was promoted to officiate as an Inspector on 13.07.1981. One Shri C.K. Satish was appointed as an Inspector on 17.12.1981 by way of direct recruitment and one Shri B.S. Srikanth was also appointed as an Inspector by way of direct recruitment on 15.05.1982. In order to provide upgradation to its employees and to remove the stagnation on a particular post, the Union of India introduced “Assured Career Progression Scheme” (ACP Scheme) w.e.f. 09.08.1999. The said Shri C.K. Satish and Shri B.S. Srikanth were granted upgradation under the ACP Scheme. The original writ petitioners were promoted to the post of Superintendent of Central Excise and Customs on 02.07.2000. The employees, juniors to the original writ petitioners were granted upgradation under the ACP Scheme w.e.f. 17.12.2005 and 15.05.2006. However, it so happened that the persons who were placed lower in the upgradation list than the original writ petitioners, on account of upgradation granted to them under the ACP Scheme, started drawing higher pay. Therefore, the original writ petitioners submitted a representation to the Department for stepping up and to remove the anomaly and to fix their salaries at par with their juniors. Thereafter, the original writ petitioners preferred O.A. Nos. 813 & 814/2014 before the Central Administrative Tribunal, Bengaluru Bench, Bengaluru. By the common order dated 04.01.2016, the Tribunal rejected the said applications. Feeling aggrieved and dissatisfied with the common order dated 04.01.2016 passed by the Tribunal, the respondents herein preferred the present writ petitions before the High Court. On considering FR 22, which provides for stepping up of pay and the removal of anomaly by stepping up of pay of a senior on promotion drawing lesser pay than his junior, by the impugned common judgment and order the High Court has allowed the writ petitions and has directed the appellants herein to step up the pay of the respondents herein, keeping in view the pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors.

2.2

Feeling aggrieved with the impugned common judgment and order passed by the High Court, the Union of India and others have preferred the present appeals.

3.

Ms. Madhvi Divan, learned ASG, appearing on behalf of the appellants has vehemently submitted that while passing the impugned common judgment and order, the High Court has not at all appreciated and/or properly considered the ACP Scheme.

3.1

It is submitted that the respective original writ petitioners were already promoted to the post of Superintendent of Central Excise and Customs. It is submitted that once the respective writ petitioners were already granted the promotion, thereafter, there was no question of granting any stepping up of pay under the ACP Scheme.

3.2

It is submitted that the High Court has not at all appreciated the object and purpose of ACP Scheme. It is submitted that as per the catena of judgments of this Court and various High Courts, the purpose of the ACP Scheme/MACP Scheme is to relieve the frustration on account of stagnation and the Scheme does not involve the actual grant of promotional post to the employees, but to merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria. It is submitted therefore that when in the present case the original writ petitioners were already promoted to the next higher post – Superintendent of Central Excise and Customs and they were placed in the appropriate pay scale of the promotional post, thereafter, there was no question of any stepping up in the pay.

4.

Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.

5.

The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under:

"(22)

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 FR 22 C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 141961 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 the 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-22C. 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 I accordance with the above provisions shall be issued under FR27. 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. [G.I., M.F., 0.M. No.F.2 [78)E.III (A)/66, dated the 4th February, 1966)".

6.

Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for.

7.

In view of the above and for the reasons stated above, the present appeals deserve to be dismissed and the same are dismissed, accordingly.”