Raj Kumar Gupta vs N.D.M.C. And Anr.
2001 Latest Caselaw 1209 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1. In this writ petition, the petitioner has sought for a direction to respondent No. 1 to grant promotion to the petitioner in the cadre of Surveillance/Sanitary Inspectors w.e.f. 16.6.1987 i.e. from the date of adhoc promotion of respondent No. 2 and/or to direct the respondent No. 1 to refix the pay of the petitioner w.e.f. aforesaid date i.e. 16.6.87 when the respondent No. 2 was promoted to the aforesaid post on adhoc basis by stepping up his pay in terms of F.R. 22 (C) of the Fundamental Rules.

2. Both the petitioner and the respondent No. 2 were working as Surveillance Workers with the respondent/N.D.M.C. It is an admitted position that the petitioner was senior to respondent No. 2 in the aforesaid grade of Surveillance Worker. However, a short term vacancy arose in the post of Surveillance Inspector. The said post was, however, reserved for a Scheduled Caste candidate. One Sh. Ramesh Prakash, a Scheduled Caste candidate was approved for promotion to the said post. However, due to pendency of a departmental proceeding against him the said Sh. Ramesh Prakash was under suspension and, therefore, he could not be promoted. Consequently, the respondent No. 2 being seniormost Schedule Cast candidate, was promoted to the post of Surveillance/Sanitary Inspector on adhoc basis, on 16.6.1987. Thereafter, on 10.8.1988, the petitioner was also promoted as Surveillance/Sanitary Inspector on adhoc basis. The respondent No. 1, however, immediately thereafter considered the cases for regular promotion to the posts of Surveillance/Sanitary Inspector and as a follow-up action a Departmental Promotion Committee was constituted and the meeting was held on 2.8.1990. Pursuant thereto both the petitioner as also respondent No. 2 were ordered to the regularised, with petitioner being placed higher in the panel than respondent No. 2. Accordingly, in the seniority position the petitioner ranks senior to respondent No. 2 even in the higher post of Surveillance/Sanitary Inspector. But on account of his early officiation in the post of Sanitary Inspector on adhoc basis, respondent No. 2 drew higher pay as compared to the petitioner. Being aggrieved by the aforesaid decision, the present petition was filed by the petitioner seeking for the aforesaid relief.

3. It was contended by the counsel appearing for the petitioner that since respondent No. 2 is junior to the petitioner, his pay cannot be higher than that of the petitioner and in support of the said contention, counsel appearing for the petitioner sought to rely upon the provisions of F.R. 22-C and also the Government circular of instructions dt. 4.2.1966, which is a part of F.R. 22 in Swamy's Fundamental Rules. The aforesaid Government instruction starts with the aforesaid heading "Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior. It is laid down therein as follows:-

As a result of application of F.R. 22-C

(a) 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 conditions as mentioned therein.

4. Relying on the aforesaid provisions, the petitioner also prayed for stepping up of his pay to the one, which is being received by his junior, namely, respondent No. 2.

5. Counsel appearing for the respondents, however, contended that the aforesaid Government instruction is not at all applicable to the facts and circumstances of the present case as there is no anomaly. In support of his contention, counsel relied upon a decision of the Supreme Court in Union of India and Anr. v. R. Swaminathan and Ors., .

6. Fixation of pay on promotion to a higher post, is governed by FR. 22(I)(a)(1) which was earlier FR. 22C. The same provision, in the context of similar facts, came up for consideration before the Supreme Court in the case of R. Swaminathan (supra). In para 9 of the said decision the Supreme Court said thus:-

"We are, however, in the present case, concerned basically with Fundamental Rule 22(I)(a)(1) & the proviso to Fundamental Rule 22 because, in all these appeals, the junior employees, who have got higher pay on promotion than their seniors, had officiated in the promotional post for different periods on account of local ad hoc promotions granted to them.

7. In the said decision, a reference was also made to the Government Instruction dt. 4.2.1966, which was issued by the Government of India for removal of anomaly by stepping up of pay of a senior on promotion drawing less pay than his junior. Reference was also made to the Office Memorandum dt. 4.11.1993 of the Government of India, under which various instructions have been set out where stepping up of pay cannot be done. Having considered all that, the Supreme Court held that the difference in the pay of a junior and a senior in the present case is not as a result of application of FR 22(I)(a)(1) and that the higher pay received by a junior is on account of his earlier officiation in the higher post because of local officiating promotion. It was further held that he may, because of the proviso to F.R. 22(I), have earned increments in the higher pay scale of the post to which he is promoted on account of his past service and also his previous pay in the promotional post has been taken into account in fixing his pay on promotion. The Supreme Court held that since the pay of the juniors was increased in view of the said factors, the same would not be considered as an anomaly, requiring stepping up of pay of the senior. Having held thus and after considering the Office Memorandum dated 4.11.1993, it was further held by the Supreme Court that the increased pay drawn by a junior because of ad hoc officiating or regular service rendered by him in the higher post for period earlier than the senior is not an anomaly because pay does not depend on seniority alone nor is seniority alone a criterion for stepping up of pay. In the context of the aforesaid observations, it was held that the employees in question were, therefore, not entitled to have their pay stepped up because the difference in the pay drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly; nor is it as a result of the application of F.R. 22(I)(a)(1).

8. The facts of the present case and that of R. Swaminathan's (supra) are similar. It is also to be noted that the decision of R. Swaminathan (supra) was approved and followed by the Supreme Court in another subsequent decision, Union of India v. M. Suryanarayana Rao, . In the present case also the respondent No. 2, who was junior to the petitioner, received higher pay on account of his earlier officiation in the higher post, which adhoc promotion was given to him earlier than the petitioner. Because of proviso to FR.22, he had earned increments in the higher pay-scale of the post, to which he was promoted subsequently, on regular basis. Therefore, the same cannot be considered as an anomaly requiring stepping up of pay of the petitioner, who is senior. The aforesaid ratio of the decision rendered by the Supreme Court is squarely applicable to the facts of the present case. Accordingly, following the said decision, the present writ petition stands dismissed but without any costs.