Sh. Sunil Kumar Bansal vs Union of India and Others

Arun Palli, J.—Staff Selection Commission (for short ''the Commission''), New Delhi, carried out the process of selection to the Posts of Inspectors in the Department of Central Excise, Chandigarh Zone, Chandigarh. The Commission, out of the total 125 posts, reserved 105 posts and made selections accordingly. As a result, 70 members were selected in the category of Backward Classes, 23 belonged to Scheduled Castes, 12 belonged to Scheduled Tribes and 22 members were selected in the un-reserved category. Petitioner also competed for selection in the general category but remained unsuccessful. The said selection was assailed by the petitioner and two others before the Principal Bench of the Central Administrative Tribunal (for short ''the Tribunal).

The short ground on which the selection was sought to be quashed was that the reservation by the Commission which exceeded beyond 50% of the posts, was impermissible. It was asserted, that Hon''ble Supreme Court, in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., , had settled that reservation quota cannot exceed 50% in any given year and the 50% rule applies to every unit of a year irrespective of the composition of the vacancies. Thus, there was an apparent violation or overstepping of the parameters laid down by the Constitution and the Hon''ble Supreme Court. The Tribunal, on a consideration of the matter, vide order dated 13.11.1996, allowed the applications and quashed the selection. However, it was made clear that the process of selection was not required to be re-carried out once again as appointments could be made from the existing select list applying the limit of 50% quota.

Pursuant to the decision of the Principal Bench dated 13.11.1996, the Department carried out a fresh selection process. This, however, would be material to point out that the applicants who were selected pursuant to the original selection and had joined in the meanwhile, in the month of March 1996, were allowed to continue notwithstanding that their selection stood set aside. That as a result of the fresh selection, the petitioner along with some others, who were earlier selected, were selected in the fresh selection. Accordingly, the petitioner joined the Department on 25.09.1997.

Under the rules, the seniority of Inspectors, inter se, in the cadre was required to be fixed on the basis of their merit position or in terms of the recommendations made by the Commission. The petitioner having discovered that he was being shown junior to certain other members of service, who were his batch mates and, though joined in the month of March 1996 but were lower in merit than the petitioner. The petitioner made a representation that was acceded to by the respondents and the petitioner was afforded due position in the seniority list, circulated on 15.06.1999.

The petitioner, once again, represented to the Department, vide representation dated 06.01.2000 with a prayer to step up his pay, as he has been drawing lesser pay than his junior or his batchmates, who were part of the same selection. He prayed to be paid at par with one Narinder Kumar, Inspector, who was placed at Sr. No. 569 in the seniority list, whereas the position assigned to the petitioner was at No. 561. The Administrative Officer, on consideration of the representation of the petitioner and having found that both the petitioner and Narinder Kumar were from the same batch and were selected pursuant to the same test and the petitioner was senior, his prayer to step up his pay in order to remove the anomaly was well founded. Resultantly, he sought the advice of the Chief Accounts Officer, Central Excise Commission rate, Chandigarh. The matter remained under consideration of the authorities for some time, however, finally, vide letter dated 17.05.2001, the petitioner was conveyed that the pay of an employee was fixed in reference to his date of joining service and not as per the seniority and since Narinder Kumar had joined on 22.03.1996, almost a year and half prior to the petitioner, the said benefit could not be extended to the petitioner.

In the wake of the above, the petitioner approached the Tribunal vide OA No. 295/PB of 2002. In a nut-shell, the case set out by the petitioner for consideration before the Tribunal was, that the Department had not discontinued the services of certain selected candidates, who were appointed in March 1996, though their selection was quashed vide order rendered by the Principal Bench of Tribunal on 13.11.1996. It was as a consequence of the fresh selection, the petitioner and few others (who were even initially selected and continuing) were selected. There was no dispute that the seniority inter se the selected candidates was to be determined on the basis of the recommendations made by the Commission. Concededly, the petitioner was senior to said Narinder Kumar being higher in merit and was accordingly assigned the position above him. Thus, for all intents and purposes, the entry into service of the petitioner was required to be treated as of other candidates, who joined the Department in March 1996. A reference was also made to Rule 22 of the Fundamental Rules, which contemplates removal of anomaly by stepping up of pay of a senior.

The respondents opposed the claim of the petitioner and as is discernible from the written statement, filed before the Tribunal, the short ground upon which they sought to resist the prayer of the petitioner, was the difference in the date of joining of the petitioner and his junior Narinder Kumar. It was maintained, inter alia, that Narinder Kumar joined duty on 22.03.1996, whereas the petitioner joined the Department on 25.09.1997. Resultantly, Narinder Kumar started to draw pay in the pre-revised pay scale of 1640-2600 w.e.f. 22.03.1996 while the petitioner drew the same w.e.f. 25.09.1997. A reference was also made to decision No. 26 below Fundamental Rule 22 by the Government of India based on GOI, DO Personnel and Training OM No. 4/7/92-Estt. (Pay-1) dated 04.11.1993, to suggest that if a senior is appointed later than the junior in the lower post itself, whereby he is in receipt of lesser pay than the junior in such cases also the senior cannot claim the pay parity in the higher post though he may have been promoted earlier to the higher post.

The Tribunal, on a consideration of the matter, as is discernible from the order, rejected the claim of the petitioner on a short ground that admittedly the petitioner had joined service subsequent to his junior namely Narinder Kumar and thus he could not claim the benefit of stepping up of his pay under the provisions of FR 22(1)(a)(1) (FR 22-C old). The operative part of the order reads as thus:

As regards, the merits of this case, admittedly, the applicant had joined the service subsequent to so called his junior, Sh. Narinder Kumar and he cannot claim the benefit of stepping up of his pay under provisions FR 22(I)(a)(1) (FR 22-C old) because this provision of stepping up of pay deals with where anomaly is direct result of application of FR 22-C i.e. promotion to higher post, but here, in this case, both the applicant and so called his junior to applicant have appeared in the same selection but the junior had joined earlier than the applicant. So FR 22(I)(a)(1) has no application and the applicant cannot be given the benefit of stepping up of pay under FR 22(I)(a) (1). We find no illegality in rejecting the representation of the applicant for stepping up of his pay at par with his junior.

The OA was accordingly dismissed vide order dated 06.01.2005.

Thus, this petition.

We have heard learned counsel for the parties and perused the record. In our considered view, the order rendered by the Tribunal, is wholly erroneous in law and cannot be sustained, as is being demonstrated, hereinafter.

Concededly, the Commission, out of the total 127 posts had reserved 105 posts and had made selections accordingly. There is no dispute that the said selection was quashed by the Principal Bench of the Tribunal, being unconstitutional. Although, the selection was set aside but it was made clear that the appointments could be made from the existing select list by applying the limit of 50% quota. Meaning thereby, there was no re-examination for the purposes of selection but definitely re-selection on the basis of the already declared results and the select list was to be drawn on the basis thereof.

It would be apposite to notice here, in the meanwhile, certain candidates who were selected pursuant to the original selection, joined the Department in the month of March 1996. Notwithstanding the fact that their selections stood set aside, the Department in its administrative discretion and wisdom allowed them to continue.

A fresh selection process was carried out in sync with the permissible limit of 50% quota. As a result, the petitioner was selected and so were others, though, it is hardly of any consequence that they were even originally selected and joined in March 1996 and the petitioner joined on 25.09.1997 (pursuant to fresh selection). Another aspect which has a decisive bearing on the matter in issue is, the seniority inter se the selected candidates were to be drawn/assigned on the basis of the recommendations of the Commission. Indisputably, on a representation being made by the petitioner, he was assigned seniority at Sr. No. 561 i.e. higher than said Narinder Kumar, who though joined in March 1996, but was placed at Sr. No. 569 in the seniority list. Needless to assert, said Narinder Kumar was selected, appointed and is concededly continuing in service as a result of the fresh selection carried out by the Commission, post decision of the Principal Bench on 13.11.1996. Once that is so the fact that Narinder Kumar joined the Department in March 1996 pales into insignificance. The petitioner in the situation cannot be made to suffer and deprive of the parity in pay viz-a-viz. his junior in the same cadre. The respondents could not claim any advantage of their own wrong as the original selection pursuant to which Narinder Kumar had joined in March 1996 was set aside. Thus, in the circumstances, the anomaly in the pay of the petitioner and said Narinder Kumar could be removed by stepping up the pay by notionally treating his date of joining from the date when other selected candidates and his batchmates had joined the Department i.e. March 1996. An analysis of the order being assailed irresistibly shows that the Tribunal failed to consider the matter in issue from the above perspective. As demonstrated above, once the original selections stood set aside, the appointment and joining service is a consequence of the said selection was of no consequence in law. What evidently, seems to have escaped the notice of the Tribunal is that the petitioner and the junior of the petitioner namely Narinder Kumar were selected pursuant to a fresh process of selection and are continuing in service as a consequence thereof. Thus, the reason/rationale, which permeates the order passed by the Tribunal, is completely vitiated.

We may also briefly, refer to the instructions dated 04.11.1993 (Annexure A-15), issued by the Government, which postulates for stepping up of the pay of senior in the pay scale to that of juniors provided both the junior and senior officer belonged to the same cadre and the posts in which they have been promoted or appointed is identical and in the same cadre. We find it expedient to point out, at this stage, both i.e. petitioner and his junior Narinder Kumar were appointed as Inspectors, in the same cadre, pursuant to the same selection and in the same pay scale of 1640-2600. Therefore, we find no reason, least plausible, on record, to justify the anomaly in the pay of the petitioner viz-a-viz. his junior.

On a conspectus of the aforesaid, we are of the view that the instant petition has merit and thus deserves to succeed. Accordingly, the same is allowed. The order passed by the Tribunal dated 06.01.2005 (Annexure P-4) is set aside and the respondents are accordingly directed to step up the pay of the petitioner and bring the same at parity with his junior i.e. respondent No. 4 Narinder Kumar. However, as regards the arrears of pay, we deem it fit to direct that the petitioner shall be entitled thereto from the date of filing of the OA with interest as admissible under the rules.

The petition stands allowed in the aforesaid terms.