Punjab-Haryana High Court
Ashwani Kumar Chaudhary vs State Of Haryana And Others on 3 July, 2024
CWP-11290-2021 (O&M) Neutral Citation No:=2024:PHHC:082340
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP-11290-2021 (O&M)
Reserved on: 01.07.2024
Pronounced on: 03.07.2024
Ashwani Kumar Chaudhary ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present : Mr. Kanwal Goyal, Advocate for the petitioner
Mr. Ravi Dutt Sharma, DAG, Haryana
*****
AMAN CHAUDHARY. J.
1. The present petition has been filed for quashing the impugned order dated 01.06.2021, Annexure P7, passed by respondent No.3 vide which, the claim of the petitioner for stepping up of pay equivalent to his junior has been rejected.
2. Learned counsel submitted that the petitioner, who was appointed on 28.03.2003 along with one Palvinder Kaur Nadda as Assistant District Attorney, was placed at Sr. No.157, while she at 159 in the seniority list, being lower in merit in the selection process. The petitioner, after having applied through proper channel for the post of Deputy District Attorney, came to be selected as such and was appointed on 05.02.2014, while his pay was protected under Rule 4.4 c of the Punjab Civil Services Rules, Vol.-I (applicable to Haryana State). Palvinder Kaur Nadda, who was subsequently promoted to the post of DDA on 27.05.2019, started to draw higher pay than the petitioner on account of having been granted second ACP w.e.f. 01.04.2019, while holding the post of Assistant District Attorney. Though his claim for stepping up of pay was recommended vide letter dated 06.11.2020, Annexure P-9 by the Director of Prosecution, Haryana to the Additional Chief Secretary to Govt. Haryana, however, the same came to be 1 of 3 ::: Downloaded on - 21-07-2024 12:01:22 ::: CWP-11290-2021 (O&M) Neutral Citation No:=2024:PHHC:082340 2 wrongly rejected vide the impugned order. Since, the petitioner and his junior both belonged to the same cadre of Assistant District Attorney and due to grant of 2nd ACP, she started to draw higher salary after promotion, whereas he received only the difference in grade pay to which he was legally entitled upon promotion, the anomaly that occurred had to be rectified by stepping up of pay. He relied on Balbir Singh vs. State of Haryana and others1.
3. Learned State counsel opposed the prayer by placing reliance on illustration (e) of Rule 57 of Haryana Civil Services (Pay) Rules, 2016 stating that step up of pay of a senior is not admissible, where the junior was promoted to a post that he was appointed to via direct recruitment and that his selection is as per Rule 9 ibid. Further, as per ACP Rules, the 2nd ACP is to be granted on completing 16 years of service, before the completion of which, the petitioner was selected for the post of DDA by way of direct recruitment. Thus, the impugned order rejecting his request for step up of pay has been rightly passed.
4. Having heard learned counsel on either side, there is considerable strength in the plea raised on behalf of the petitioner.
5. Facts are not in dispute that the petitioner was senior to Palvinder Kaur Nadda and was appointed as Deputy District Attorney prior to her. However, his pay became lesser, on she having subsequently been promoted to the said post, on account of the benefit of 2nd ACP granted to her.
6. It would be beneficial to make a reference to State of Haryana vs. Ram Sarup Ganda2 and Union of India v. C.R. Madhava Murthy3, wherein Hon'ble the Supreme Court unequivocally held that in a case of a junior drawing more on account of upgradation under the ACP Scheme and was an anomaly, the pay of a senior was required to be stepped up from the date he started to draw lesser than the juniors.
1 CWP-20032-2015, decided on 22.11.2019 2 (2011) 15 SCC 772 3 (2022) 6 SCC 183 2 of 3 ::: Downloaded on - 21-07-2024 12:01:23 ::: CWP-11290-2021 (O&M) Neutral Citation No:=2024:PHHC:082340 3
7. The object and purpose of ACP Scheme is primarily to relieve the frustration on account of stagnation and it merely involves grant of monetary benefits in the form of next higher grade in place of actual promotion.
8. The premise of rejection of the claim by the respondents is misconceived, inasmuch as, firstly, once two employees are fused in a cadre, which in the present case was that of Deputy District Attorney, their birthmarks become inconsequential; secondly, upon the petitioner having been appointed to a higher post, it but naturally made him entitled to the grade pay of the said post, which cannot be termed as availing of financial benefit so as to deprive him of equivalence of pay to his junior; and thirdly, Rule 9 ibid relied upon in the written statement was not applicable, as it related to first appointment to a post, whereas Rule 10 ibid was, it being regarding subsequent appointment to higher posts, made through proper channel, providing for pay protection.
9. It is trite that the pay of a junior cannot be higher than that of a senior.
10. Stepping up of pay would prevent violation of the principle of equal pay for equal work, thus consistent with Article 39(d) of the Constitution.
11. As a fall out of the afore discussion, the impugned order dated 01.06.2021 deserves to be and is hereby set aside. It is directed that the pay of the petitioner be stepped up to bring it at par with that of his junior, from the date the anomaly arose, within a period of two months from the date a certified copy of this judgment is made available to the respondents.
12. The present petition is allowed accordingly.
(AMAN CHAUDHARY)
03.07.2024 JUDGE
ashok
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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