Rajeev Kumar Jain vs Union Of India: Through

The applicant has filed the present OA seeking the following reliefs:-

"8.1 That this Hon‟ble Tribunal may graciously be pleased to allow this application and quash the impugned order in so far as it adversely affects the applicant.

8.2 May be further pleased to direct the respondents to give all consequential benefits including arrears to the applicant from the date from which his juniors had been promoted and the applicant was illegally ignored.

8.3 Pass any other or further order which this Hon‟ble Tribunal may deem fit and proper in the circumstances of the case.

8.4 That the cost of the proceedings may kindly be granted in favour of the applicant and against the respondents."

The applicant was appointed as Data Entry Operator (DEO) on 06.04.1989. His qualification at that time was a graduate whereas as per the modified Recruitment Rules (RRs) the minimum qualification prescribed was matriculation. Thereafter, RRs were amended in 1993 and graduates were placed in Grade Rs.1350-2200 instead of Rs.1200-2040 with others being retained in Grade Rs. 1200-2040. However, the applicant was not placed in the pay scale of Rs.1350-2200 despite being a graduate. Some similarly placed persons filed OAs before Madras and Ernakulam Benches of this Tribunal, one of which, by the Madras bench, was decided on 07.03.2003 with a direction to the respondents to place the applicants in higher pay scale. OA before the Ernakulam bench was also allowed. The respondents challenged the order before the Hon‟ble Karala High Court, which was dismissed on 26.05.2005. Similar benefit was given to the applicant of this OA also but it was subsequently withdrawn and he was reverted to the earlier scale of Rs.1200-2040 vide order dated 19.09.2006. This order was challenged before this Tribunal in OA No.2523/2006, by the applicant of the present OA, along with one Sri Jitendra Kumar Sharma, which was allowed vide order dated 27.04.2007 with the following directions:-

"12. Keeping in view the above arguments and judgments, OA is allowed. The respondents are directed to treat the applicants in pay scale of Rs.1350-2200 w.e.f. 6.4.1989 and 27.3.1989. They will also be entitled to financial up-gradation of ACP and next promotion as Office Superintendent from the date their juniors have been granted. These directions may be complied with within a period of 3 months from the date of receipt of a copy of this order. No costs."

The respondents implemented this order in terms of fixation of pay as also regarding promotion. However, no arrears were paid.

2.1 The issue in the present OA is, thus, entirely about the payment of arrears. The applicant, while advancing the grounds as to why the arrears be paid to him, has raised the issue of two other similarly placed persons, Shri Jitendra Kumar Sharma and Shri Daya Shankar, having been given the benefit of arrears while the same was denied to him. He has also submitted that his case cannot be rejected on the ground of the principle of „equal pay for equal work‟ and in this connection has cited the judgment of the

Hon‟ble Apex Court in Union of India, Etc. Etc. vs. K.V. Jankiraman, Etc. Etc. [AIR 1991 SC 2010].

The respondents in their counter reply have contended that this Tribunal in OA No.2523/2006 (supra) has not issued any direction for payment of arrears. They have further added that as regards the cases of Shri Jitendra Kumar Sharma and Shri Daya Shankar, it was by mistake that the condition for non-payment of arrears was not incorporated in the order relating to them. They have since issued a Corrigendum dated 10.12.2013 in which it has been clearly stated that their promotion would be notional and they would not be entitled for any arrear of pay. They have further submitted that since the applicant did not function as Office Superintendent, he was not entitled for any arrears of pay.

3.1 Respondents have also referred to the decision of the Hon‟ble Supreme Court in the case of State of Bihar vs. Upendra Naryan Singh & Ors., [(2009) 5 SCC 65] which relates to Article 14 of the Constitution that the guarantee of equality before law is a positive concept and cannot be enforced by a citizen or Court in a negative manner.

The applicant has filed a rejoinder more or less reiterating the same arguments as given in the OA with the additional submission that the Corrigendum dated 10.12.2013 referred to in the counter reply of the respondents in relation to the two similarly placed persons named above has not yet been implemented and the arrears paid to them have not been recovered.

Ms. Meenu Mainee, learned counsel appearing on behalf of the applicant further elaborated the arguments made in the pleadings. Shri Ashok Kumar, learned counsel appearing on behalf of the respondents further clarified the contentions made in the pleadings.

We have carefully gone through the submissions made in terms of the pleadings and documents on record as also the arguments advanced by the learned counsels of two sides.

The impugned order mentions that the order dated 27.04.2007 in OA No.2523/2006 does not contain any direction for payment of arrears of pay. Reference has also been made to instructions in para 18.4.2 & 18.4.3 of the Swamy‟s Establishment and Administration in the part relating to „promotions‟ wherein it is mentioned that when a case of superseded officer is considered for promotion by review DPC, no arrears would be admissible.

The impugned order also mentions the order passed in the case of Shri Jitendra Kumar Sharma and Shri Daya Shankar attempting some explanation but we need not discuss this in view of the submissions made in the counter reply that the earlier order has been corrected by Corrigendum dated 10.12.2013 which places them in the same position as the applicant.

It is clear from the order of this Tribunal dated 27.04.2007 that there is no mention of payment of arrears. It is also clear from the order dated 29.03.2012 in relation to the promotion of the applicant to the post of Office Superintendent that it was only a notional promotion and the order itself mentions that the applicant along with other officers will not be entitled for any arrears of pay.

As regards the contention of the applicant that similarly placed persons namely, Shri Jitendra Kumar Sharma and Shri Daya Shankar were given the benefit of arrears, it has been clarified by the respondents that the initial order in relation to them was a mistake, which has subsequently been corrected through a Corrigendum dated 10.12.2013 and they have also been given notional promotion without the benefit of payment of arrears. It is not known whether the contention of the applicant that this order has not been implemented and the arrears paid to these employees have not been recovered is correct or not. However, the correctness of this submission or otherwise would have no bearing on the rights that could accrue to the applicant. In this regard, the relevant part of the decision in Upendra Naryan Singh & Ors. (supra) is quoted below:-

"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order."

As for the reference to the judgment of the Hon‟ble Apex Court in K.V. Jankiraman (supra), since the facts and circumstances therein are very different from that in the present case the same cannot be relied upon for deciding on the issue involved in the present case.

In view of the above discussion, no case is made out for quashing the impugned order dated 16/21.08.2012 and for granting arrears to the applicant. The OA is accordingly dismissed. No costs.