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Judgment
Justice Dharam Chand Chaudhary, J.—By means of the present writ petition, the petitioners have claimed the following reliefs:
i) That the rejection of representation of the petitioners vide annexure P-4 may kindly be quashed and set aside and the respondent department may kindly be directed to grant the stepping-up benefit to the petitioner for removing the anomaly arisen between the petitioners and respondent No. 3 as the respondent No. 3 is junior to the petitioners.
ii) That the respondent department may further be directed to place the petitioners over and above to the respondent No. 3 in the seniority of Lecturers (School Cadre) in case the seniority of Lecturers(School Cadre) is circulated as the petitioners are senior to the respondent No. 3 all purposes.
The petitioners, admittedly being appointed as Trained Graduate Teacher (TGT) on 8.9.1988, 11.11.1988 and 19.11.1988 i.e. well before the appointment of the 3rd respondent on 15.12.1988 are senior to the said respondent. While the petitioners have been promoted as Lecturer (School Cadre) vide office order dated 29th June, 1998, Annexure P-2, the 3rd respondent has been promoted as such after them i.e on 20.8.1998. The petitioners on their promotion as Lecturer (School Cadre) have been granted the pay-scale of Rs. 9750/-, whereas the 3rd respondent, Rs. 10,640/-. The only grievance of the petitioners is that the fixation of the pay of the 3rd respondent, their junior as Rs. 10,640/- as compared to their pay i.e. Rs. 9750/-has resulted in an anomaly and the same in terms of the provisions contained under Fundamental Rule 22-C deserves to be removed by stepping up their pay. The petitioner No. 1 had made the representation, Annexure P-4 to the respondents with the request to remove the anomaly in fixation of his pay on his promotion by stepping-up the same equal to that of his junior, the 3rd respondent from the date he is drawing his salary in the higher pay-scale. The representation so made was rejected by making a reference to H.P. Finance (Regulations) Department Office Memo No. Fin(C)A(3)/3.98 dated 21.9.1999 which provides that "If a senior joins the higher post later than junior, for whatever reasons, whereby he draws less pay than junior, in such cases senior cannot claim stepping up of pay at par with junior."
The impugned order Annexure P-5 has been assailed on the grounds inter-alia that the 3rd respondent who admittedly was junior to the petitioners in the feeder category and promoted as Lecturer (School Cadre) after them, if is placed in the higher pay-scale merely on account of promoted erroneously on ad-hoc basis till joining duties by a regular hand and was even reverted also, they being they being senior to him in all respects are also entitled to the fixation of their pay at Rs. 10,640/- from the date, the said respondent has been drawing his salary in this pay-scale i.e. 10.8.1998 when he was promoted as Lecturer (School Cadre) on regular basis.
The respondents were put to notice. The 3rd respondent has allowed himself to be proceeded against exparte.
The 1st and 2nd respondents have come-forward with the version that the 3rd respondent though was junior to the petitioners, however, erroneously promoted as Lecturer (School Cadre) vide order Annexure P-1 dated 7.8.1989. When the respondents came to know about his wrong promotion, after being challenged by certain Lecturers, senior to him the same was withdrawn on 21.11.1999, however, keeping in view shortage of Lecturers teaching Mathematics, he was allowed to continue as Lecturer in the same school. The 3rd respondent from the date of his promotion was granted the benefits of higher pay-scale; which he availed till 29.2.1992 and when the Principal had stopped such benefit w.e.f. 1.3.1992, he approached the erstwhile Administrative Tribunal by filing Original Application No. 2260 of 1993. The same was disposed of vide judgment dated 11.1.2008 with a direction to pay him the salary of Lecturer (School Cadre) for the remaining period i.e. 1.3.1992 till 10.8.1998, if he had worked as Lecturer (Mathematics) in the school in question. The text of the reply, so come on record by way of supplementary affidavit filed on behalf of the 2nd respondent on 17.3.2012 reads as under :
That from the kind perusal of above four tables and comparison above four pay chart table admittedly the position is that all the three petitioner are senior to private respondent no. 3 in the initial appointment so made in the category of TGT but all this had accrued for the reason that respondent no. 3 Om Prakash was erroneously promoted as School lecturer on 21.8.1989. When this fact of erroneous promotion came to the notice of respondent department his promotion orders were withdrawn on 21-11-1989 but due to shortage lecturer mathematics in the school he was allowed to teach the same classes in the same School i.e. Senior Secondary School, Arsu, Kullu. Subsequently during on 28-2-1992 when his higher pay scale was stopped by the Principal, he feeling aggrieved, Sh. Om Prakash respondent no. 3 filed 2260/1993 before the erstwhile Administrative tribunal. This O.A was finally disposed of on 11-1-2008 with following Directions in the operative portion of the order:
In view of above discussion and conclusions, the order dated November 21, 1989, annexure A-2 is quashed to the limited extent, i.e. qua reversion of applicant and respondents are directed to pay to the applicant the salary of lecturers (School cadre) for the remaining period (i.e. w.e.f 1-3-1992 till 20-8-1998) [ (sic)-10-8.1998] also if he has worked as lecturer in Mathematics (school cadre) within eight weeks from the date of this order.
The original application is finally disposed off in terms of above orders with no orders as to costs.
The copy of this order is annexed as Annexure R-1 pursuant to this direction, vide office order dated 30-4- 2008, respondent No. 3 was granted the salary of School Lecturer for the said period. However, the petitioner was further ordered that he shall find place in the seniority as school lecturer from the date of his actual regular promotion i.e. 20-8-1998 as per his own seniority as also approved by the DPC. The copy of this order and its corrigendum are annexed as Annexure R-2 (colly.). Thus from the kind perusal of the above factual position it is clear that respondent no. 3 despite being junior in the entry grade and also promoted jointly on regular basis on 10-8-1998 alongwith all the three petitioner''s as lecturer mathematics on the basis of initial seniority in the entry grade but drawing higher pay in comparison to petitioneRs. However, all this had happened/accrued due to above stated facts and circumstances which in view of instruction issued by finance(Regulations) department dated 21-9-1999 (para 6(c) does not give any cause to the petitioner for claiming stepping up of pay at par with juniors. The copy of this instruction is annexed as Annexure R-3.
It is in this backdrop, I have heard Learned Counsel on both sides and also gone through the entire record.
In view of the specific stand taken by the respondents in supplementary affidavit that as per corrigendum Annexure R-2 (Colly.) the 3rd respondent was promoted with the understanding that his name shall find mention in the seniority list as Lecturer (School Cadre) from the date of his regular promotion on his own turn as per seniority i.e. 10.8.1998, Learned Counsel representing the petitioners has restricted the claim in this writ petition only to the extent of issuance of a direction to the respondents to remove the anomaly in the pay-scale of the petitioners resulted in view of the fixation of the pay of their junior, the 3rd respondent in higher pay-scale on his promotion as Lecturer (School cadre) on 10.8.1998. In order to buttress such contentions, the provisions contained under FR-22-C (now) FR-22 1(a) (i) which reads as under, have been pressed into service:-
(18) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay then 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 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;
(emphasis supplied)
Reliance on behalf of the petitioners has also been placed on the judgment of the Hon''ble Apex Court in 1997(3), Supreme Court Cases, 176. In this judgment, the Hon''ble Apex Court while interpreting the principle of stepping up of pay in terms of fundamental rules has held as under:-
The stepping up is required to be done with effect from the date of promotion or appointment of the junior officer. On re-fixation of the pay of the senior officer by applying the principle of stepping up, the next increment of the said officer would be drawn on completion of the requisite qualifying service with effect from the date of the re-fixation of pay. This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay. This being the principle of stepping up contained in the Fundamental Rules and admittedly the respondents being senior to several other Senior Clerks and the respondents having been promoted earlier than many of their juniors who were promoted later to the post of Head Clerks, the principle of stepping up should be made applicable to the respondents with effect from the date their juniors in the erstwhile cadre of Senior Clerks get promoted to the cadre of Head Clerks and their pay was fixed at a higher slab than tht of the respondents. The stepping up should be done in such a way that the anomaly of juniors getting higher salary than the seniors in the promoted category of Head Clerk would be removed and the pay of the seniors like the respondents would be stepped up to a figure equal to the pay as fixed for their junior officer in the higher post of Head Clerk.
Now, if adverting to the case in hand, the present is not a case where the 3rd respondent was drawing higher pay than the petitioners in the feeder category i.e. Trained Graduate Teacher. They all were rather appointed as Trained Graduate Teachers in the same pay-scale i.e. on Rs. 1640/-, as basic pay. The tabulated information given in the supplementary affidavit reveals that on the completion of one year service, while granting one increment to the petitioners, they were fixed at Rs. 1680/-, whereas, the 3rd respondent at Rs. 1800/- on account of his promotion though erroneous to the post of Lecturer (School cadre) in the pay-scale of Rs. 1800-3200/-.
No doubt, the orders of his promotion were subsequently withdrawn being erroneous, however, he was allowed to continue as Lecturer (school cadre), in view of the shortage of Lecturer (Mathematics). Not only this but he was allowed to draw the salary of a Lecturer also till 29.2.1992. It is w.e.f.1.3.1992, the benefits of higher pay-scale being enjoyed by him was also withdrawn, may be on account of his order of promotion withdrawn, however, this has led in filing Original Application No. 2260 of 2011 in the erstwhile Administrative Tribunal. The order, Annexure R-1 dated 21.11.2008 passed in the said application, makes it crystal clear that order of withdrawal of his promotion dated 21.11.1999 (Annexure P-2) was quashed to the extent of the same pertains to his reversion with further direction to the respondents to pay him the salary of Lecturer (School cadre) for remaining period also i.e. from 1.3.1992 till 10.8.1998, the day when he was appointed as Lecturer on regular basis, however, subject to the condition that if he had worked as Lecturer (Mathematics) in the said school during that period. As a matter of fact, such direction are in the nature of grant of ''equal pay for equal work'' and not for any other purpose.
The office order Annexure R-2 to the supplementary affidavit reveals that he was allowed to draw the salary of the post of Lecturer for the period from 1.3.1992 to 10.8.1992 on the analogy of ''equal pay for equal work'' because keeping in view there being the shortage of Lecturer (Mathematics), irrespective of withdrawal of his order of promotion, the petitioner was allowed to work as such in the same school. There was no direction of the Tribunal to fix his pay in the higher pay-scale on his regular promotion w.e.f. 10.8.1998. The present is not a case where the 3rd respondent can be said to have been legally promoted as Lecturer (School cadre) because his promotion being dehors the Rules and in ignorance of the seniors was bad in law and even treated as so and erroneous by the respondents also. The respondents are thus not at all justified while pressing into aid clause ''C'' below item No. 6 of office memorandum dated 21st September, 1999 (Annexure R-3) issued by the Finance (Regulations) Department, Government of Himachal Pradesh while rejecting the representation made by the petitioners vide order Annexure P-5 for the reason that the present is not a case where the petitioners who are seniors have not joined the higher post i.e. Lecturer (School Cadre) later than their junior i.e. the 3rd respondent but well before him i.e. pursuant to their order of promotion Annexure P-2 dated 29th June, 1998, whereas, he was promoted on regular basis on 10.8.1998 read with office order Annexure R-2 to the supplementary affidavit filed by the 1st and 2nd respondents with the clear understanding that he will be assigned the seniority w.e.f 10.8.1998, his actual date of promotion on regular basis.
Although the petitioners are not aggrieved from the placement of the 3rd respondent in higher pay-scale, yet their plea is that if the said respondent who was never appointed in accordance with law and rather being their junior, was erroneously promoted as Lecturer on ad-hoc basis till joining duties by a regular hand if can be placed in the higher pay-scale, why their pay cannot be fixed in the said scale particularly when he was promoted on regular basis after them.
Keeping in view the peculiar facts and circumstances of this case that the 3rd respondent, admittedly was junior to the petitioners in the feeder category i.e. in the cadre of Trained Graduate Teachers and even his promotion as Lecturer (School Cadre) on regular basis is also later than the petitioners, they are absolutely justified in claiming that his placement in the higher pay-scale as compared to them had resulted in an anomaly and the same should be removed.
In view of the appraisal of the facts and circumstances of this case and also the legal principles discussed hereinabove, this Court is of the considered opinion that order Annexure P-5, whereby the representation made by the petitioners has been rejected, is neither legally nor factually sustainable and the same as such deserves to be quashed and set aside. Consequently, the petitioners, who admittedly have been promoted as Lecturers (School Cadre) well before the 3rd respondent are held entitled to be placed in the same pay-scale, in which the 3rd respondent has been placed from the date of his regular promotion i.e. 10.8.1998. The writ petition accordingly deserves to be allowed.
In view of above discussion, this writ petition succeeds and the same is accordingly allowed. Consequently, the impugned order Annexure P-5 is quashed and set aside. The respondents are directed to fix the pay of the petitioners w.e.f. 10.8.1998 in the same pay-scale in which the pay of the 3rd respondent has been fixed. The consequential monetary benefits shall be disbursed to them within three months from the date of production of a copy of this judgment by the petitioners before the 1st respondent, failing which together with interest @ 6% per annum from the date of institution of this writ petition in this Court i.e. November 6, 2009 till the payment is made and in that event the amount of interest will be recovered from the officer(s)/official(s) responsible for the delay. With the above observations, this writ petition stands disposed of, so also the pending application(s), if any.
No orders as to costs.