Sneh Lata vs State Of Jammu & Kashmir & Ors.

Per: - Ram Mohan Johri, Administrative Member

The SWP No.1890/2018 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.1776/2020 by the Registry of this Tribunal.

The present matter was filed before the Hon’ble High Court seeking following relief: -

The present Transferred Application has arisen out of SWP No.1890/2018, whereby the applicant has called in question Government Order No.211-FST of 2018 dated 28.06.2018, essentially to the limited extent that, while stepping up her pay at par with her junior notionally with effect from 01.12.2008, the respondents have restricted the actual monetary benefit thereof only for the period from 01.05.2018 to 31.05.2018. The applicant seeks actual monetary benefit of such stepping up from 01.12.2008 till the date of her superannuation on 31.05.2018, along with consequential benefits.

The case set up by the applicant is that she was initially appointed as Junior Assistant in the Forest Department in the year 1979. Her date of appointment, as reflected in the service record, is 22.09.1979. During the course of her service, she was granted the benefit of first Time Bound/In-situ Promotion with effect from 01.01.1995 and second Time Bound/In-situ Promotion with effect from 01.10.1997. Thereafter, she was substantively promoted to the post of Senior Assistant vide Order No.50 of 2005 dated 09.07.2005.

The grievance of the applicant emanates from a pay anomaly which arose between her and her junior, Smt. Jyoti Jamwal. The latter was appointed as Junior Assistant on 01.11.1981 and was thus admittedly junior to the applicant. Upon grant of third Time Bound/In-situ Promotion to Smt. Jyoti Jamwal with effect from 01.12.2008, she came to draw pay higher than that of the applicant, notwithstanding the fact that both were working as Senior Assistants in the same cadre.

As per the case projected by the applicant, as on 01.12.2008 she was drawing pay of Rs.5,875/-, whereas her junior, Smt. Jyoti Jamwal, was drawing Rs.5,900/-. The seniority position was also not in dispute, as the applicant figured at Serial No.8 whereas Smt. Jyoti Jamwal figured at Serial No.16 in the seniority list of Senior Assistants. The applicant represented before the departmental authorities seeking removal of the anomaly and stepping up of her pay at par with her junior. Representations were submitted, inter alia, on 28.04.2010 and 19.12.2014 and the matter was thereafter processed at different levels of the Department.

Significantly, the departmental authorities themselves found substance in the grievance. The Chief Conservator of Forests specifically recorded that the applicant had been appointed on 22.09.1979 whereas Smt. Jyoti Jamwal had been appointed on 01.11.1981; that the applicant stood at Serial No.8 and her junior at Serial No.16 in the seniority list; and that despite being senior, the applicant was drawing lesser salary. The Department accordingly recommended stepping up of her pay for redressal of the anomaly.

The matter ultimately culminated in issuance of Government Order No.211-FST of 2018 dated 28.06.2018. By virtue of the said order, sanction was accorded to stepping up of the applicant’s pay from Rs.11,450/- plus Grade Pay of Rs.2,800/- in PB-I of Rs.5200-20200 to Rs.15,560/- plus Grade Pay of Rs.4,200/- in PB-II of Rs.9300-34800, notionally with effect from 01.12.2008. However, actual monetary benefit was restricted from 01.05.2018 to 31.05.2018, i.e. only for the last month preceding her retirement. The applicant retired from service on 31.05.2018. Aggrieved by the restriction of monetary benefits, the applicant approached the High Court. Upon transfer from High Court, the matter has come to be registered as the present T.A. before this Tribunal.

The respondents have contested the application and raised preliminary objections to its maintainability, contending that no enforceable cause of action has accrued to the applicant and that no legal, fundamental or statutory right of hers has been violated. According to them, the impugned Government Order has been issued in accordance with the applicable rules and suffers from no legal infirmity.

On facts, however, the respondents do not dispute the material service particulars. They admit that the applicant was initially appointed as Junior Assistant vide Order No.CCF-285 of 1979 dated 18.09.1979; was granted the first and second Time Bound/In-situ Promotions; was promoted as Senior Assistant vide Forest Order No.50 of 2005 dated 09.07.2005; and retired on 31.05.2018.

The respondents further acknowledge that the applicant had sought stepping up of her pay at par with Smt. Jyoti Jamwal. The Principal Chief Conservator of Forests forwarded the matter to the Administrative Department, recording that the applicant, despite being senior to Smt. Jyoti Jamwal, was drawing lesser pay and requesting sanction for stepping up in terms of Article 77-B of the J&K Civil Service Regulations.

The principal defence of the respondents for denying actual arrears from 01.12.2008 rests upon Rules 2-41 and 2-43 of the erstwhile J&K Financial Code. According to them, stale monetary claims beyond the prescribed period are not ordinarily entertainable and reopening of old cases is to be deprecated. It is further pleaded that even when an old case relating to refixation of pay is reopened as a special case, arrears ought not to be allowed.

Reliance has also been placed upon Rule 298 of the General Financial Rules, 2017, to contend that retrospective effect should not ordinarily be given to sanctions relating to revision of pay or grant of concessions except in special circumstances with the requisite approval.

The respondents have further pleaded delay on the part of the applicant and have referred to Circular No.41-JK(GAD) of 2021 dated 06.10.2021 regarding belated claims in service matters. On these premises, they seek dismissal of the application.

We have considered the rival submissions and perused the material placed on record. The controversy lies in a narrow compass. The entitlement of the applicant to stepping up of her pay at par with her junior is no longer in dispute. The respondents themselves have accepted the anomaly and have already granted stepping up notionally with effect from 01.12.2008. The only question that survives for consideration is whether, after recognizing the applicant’s entitlement from 01.12.2008, the respondents were justified in restricting the actual monetary benefit thereof only to the period from 01.05.2018 to 31.05.2018.

It assumes significance that this is not a case where the applicant seeks creation or recognition of an altogether new right after retirement. Her status as senior to Smt. Jyoti Jamwal is admitted. The fact that the junior started drawing higher pay is also admitted. The competent authorities examined the matter and accepted that the anomaly warranted stepping up of the applicant’s pay. Indeed, the Department’s own communication unequivocally records that the applicant was senior, was drawing lesser salary and that stepping up was necessary for redressal of her grievance.

Once the competent authority, after examining the service record of both officials, reached the conclusion that the pay anomaly had arisen with effect from 01.12.2008 and consequently stepped up the applicant’s pay from that date, the respondents were required to disclose a cogent and legally sustainable reason for withholding the actual financial consequences of such fixation for virtually the entire period and releasing the same only for the last month of the applicant’s service.

The distinction drawn in the impugned order between notional and monetary benefit, in the peculiar facts of this case, does not appear to have any rational nexus with the anomaly which the order itself seeks to remove. If the applicant’s pay was required to be stepped up from 01.12.2008 because her junior had started drawing higher pay from that date, the anomaly existed throughout the intervening period. Granting actual benefit only from 01.05.2018 does not explain how or why the applicant became financially entitled only during the last month of her service when her substantive entitlement had admittedly arisen much earlier.

The plea of delay raised by the respondents also cannot be viewed in isolation from the departmental record. The applicant had not remained completely dormant till her retirement. The record placed before us shows that the matter of stepping up was being pursued and processed departmentally. The respondents themselves state that her case was forwarded to the Administrative Department and that the Principal Chief Conservator of Forests had recorded her seniority and lower pay while recommending stepping up. The departmental communication placed on record further demonstrates that the competent field authority considered stepping up necessary to redress her grievance.

The respondents’ reliance upon Circular No.41-JK(GAD) of 2021 dated 06.10.2021 also does not advance their case materially in the peculiar factual matrix. The applicant’s claim had already been considered and partly accepted through Government Order dated 28.06.2018, and the proceedings before the Court arose from the applicant’s challenge to the restriction contained in that very order. The subsequent Circular of 2021 cannot, by itself, alter the factual position that the competent authority had already acknowledged the pay anomaly and granted stepping up from 01.12.2008. The Circular relied upon by the respondents itself concerns the treatment of delayed service claims.

Equally, Rules 2-41 and 2-43 of the Financial Code cannot be read in abstraction from the peculiar facts of the case. The respondents have themselves reopened, examined and decided the claim on merits and have granted the substantive benefit from 01.12.2008. This is, therefore, not a case where the Tribunal is being asked for the first time to reopen a wholly stale and settled pay fixation. The Department itself has determined the correct date from which stepping up was warranted.

There is another aspect of the matter. The respondents have themselves relied upon the communication of the departmental authority recording that the applicant was senior to Smt. Jyoti Jamwal but was drawing lesser pay and recommending stepping up in terms of Article 77-B of the J&K CSR. Thus, the foundational facts giving rise to the applicant’s claim are not matters of controversy between the parties.

In such circumstances, allowing the applicant only notional fixation for nearly ten years and actual monetary benefit for merely one month immediately preceding retirement would render the admitted correction of the pay anomaly largely illusory. Once the anomaly has been acknowledged and the effective date for stepping up has been fixed by the respondents themselves as 01.12.2008, there must exist a discernible and legally sustainable basis for depriving the applicant of the consequential monetary benefit. On the material placed before us, we do not find sufficient justification for restricting the benefit in the manner done.

We are, therefore, of the considered view that the applicant is entitled to succeed. At the same time, the Government Order need not be quashed in its entirety, since the substantive decision contained therein granting stepping up of pay is in favour of the applicant. Interference is warranted only with that part of the order which restricts actual monetary effect to the period from 01.05.2018 to 31.05.2018.

Accordingly, the present Transferred Application is allowed. Government Order No.211-FST of 2018 dated 28.06.2018 is set aside/modified only to the extent it restricts the monetary benefit of stepping up of the applicant’s pay to the period from 01.05.2018 to 31.05.2018.

The respondents are directed to give actual monetary effect to the stepping up of the applicant’s pay at par with her junior, Smt. Jyoti Jamwal, with effect from 01.12.2008 up to the date of her superannuation on 31.05.2018, in terms of the pay fixation already sanctioned under Government Order No.211-FST of 2018.

Consequent upon such refixation, the respondents shall also refix/recalculate the pension and other admissible retiral benefits of the applicant on the basis of the pay so determined and release the differential arrears of pay as well as consequential pensionary/retiral benefits, after adjustment of any amount already paid to her under the impugned Government Order.

The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

In the facts and circumstances of the case, we are not inclined to award interest on the arrears at this stage. However, in case the admissible amount is not calculated and released within the aforesaid period of three months, the amount remaining unpaid thereafter shall carry simple interest at the rate of 6% per annum from the expiry of the stipulated period till actual payment.

The T.A. stands disposed of in the above terms. Pending M.A(s), if any, shall also stand disposed of. No order as to costs.