Delhi High Court
Anil Kumar Gupta vs Nct Of Delhi & Ors. on 20 August, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No. 757/2007
% Date of Reserve: 17.08.2010
Date of Decision: 20.08.2010
ANIL KUMAR GUPTA .... Petitioner
Through Mr.Ravinder Singh, Mr.Saundarya
Singh, Advs.
Versus
N.C.T. OF DELHI AND ORS. .... Respondents
Through Ms.Zubeda Begum, Ms. Sana
Ansari, Advs.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in
the Digest?
MOOL CHAND GARG, J.
*
1. FR 22(23) reads as under:
"(23) Removal of anomaly by stepping up of pay of
Senior on promotion drawing less pay than 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 post in
which they are entitled to draw pay should be
identical;
(c) The anomaly should be directly as a result of the
application of FR 22-C. For example, if even in the
lower post the junior officer draws from time to time
a higher rate of pay than the senior by virtue of grant
of advance increments, the above provisions will not
be invoked to step up the pay of the senior officer.
The orders refixing the pay of the senior officers in
accordance with the above provisions shall be issued under
FR 27. The next increment of the senior officer will be
drawn on completion of the requisite qualifying service
with effect from the date of refixation of pay.
2. Before the Tribunal it was pleaded on behalf of the petitioner
that despite Shri Rohtash Singh Yadav being his junior, he is getting
higher pay than as is being given to the petitioner and therefore there
is an anomal which needs to be taken care of in view of the provisions
of FR-22(23) as aforesaid. He also prayed for direction to the
respondents to pay all consequential benefits along with cost.
3. It was his case that he was initially appointed as TGT in the
Directorate of Education on 08.10.1983 and was recruited directly as
PGT since 22.10.1991. His counter-part Mr. Rohtash Singh Yadav who
was appointed as TGT on 27.10.1983 and was promoted as PGT on
19.07.1996 was getting higher pay. It was stated that Rohtash Singh
Yadav was junior to the petitioner at every stage. It was submitted
that he had been writing to the Department to upgrade his pay but
his claim was rejected by the Department by saying "his stepping up
case had not been found in order since he is a direct recruit and
stepping up is not allowed with a promotee teacher". It was also
submitted by the petitioner that his case was also not being
considered even though in the case of one N.L.Sharma who was also
PGT of G.B.S.S.S. Kidwai Nagar Delhi and whose case was similar to
that of petitioner, & who was also a directly recruited officer, his pay
was stepped up by the respondent after he made a representation
that he was senior to Rohtash Singh Yadav. To clarify the position the
petitioner has given the following chart which explain the position of
the petitioner viz-a-viz respondent Rohtash Singh Yadav.
Name Applicant Rohtash Singh Yadav
Cadre Admn. Cadre Admn. Cadre
Date of Birth 15.07.1957 08.04.1955
Date of Appt.
As TGT 08.10.1983 27.10.1983
Seniority No.
In SL of TG
For the period
Date of joining
As PGT 22.10.1991 19.07.1996
Seniority No.
In SL of PGT 256 1,273
Pay Fixation
Applicant Rohtash Singh Yadav
Date Pay Scale as Pay Date Pay Scale as Pay
8.10.83 440-750 TGT 440 27.10.83 440-750 TGT 440
1.1.86 1400-2600 TGT 1,480 1.1.86 1400-2600 TGT 1,480
1.10.86 1,520 1.10.86 1,520
1.10.87 1,560 1.10.87 1,560
1.10.88 1,600 1.10.88 1,600
1.10.89 1,650 1.10.89 1,650
1.10.90 1,700 1.10.90 1,700
1.10.91 1,750 1.10.91 1,750
22.10.91 1640-2900 PGT 1,820 22.10.91 1400-2600 TGT 1,750
1.10.92 1,880 1.10.92 1,800
1.10.93 1,940 1.10.93 1,850
1.10.94 2,000 1.10.94 1,900
1.10.95 2,060 1.10.95 1,950
1.10.95 2,060 27.10.95 1640-2900 TGT
Sr.Scale 2,000
1.1.96 6500-10500 PGT 6,900 1.1.96 6500-10500 TGT 6,900
19.7.96 6500-10500 PGT 6,900
1.10.96 7,100 1.10.96 7,100
1.10.96 Opted Fixation 7,500
1.10.97 7,300 1.10.97 7,700
1.10.98 7,500 1.10.98 7,900
1.10.99 7,700 1.10.99 8,100
1.10.2000 7,900 1.10.2000 8,300
1.10.2001 8,100 1.10.2001 8,500
1.10.2002 8,300 1.10.2002 8,700
1.10.2003 8,500 1.10.2003 8,900
1.10.2004 8,700 1.10.2004 9,100
1.10.2005 8,900 1.10.2005 9,300
------------------------------------------------------------------------------ --------------------------
4. It has also been submitted that FR-22(23), inter alia, provides
that if as a result of application of FR-22(C) now FR-22(1)(a) Sub-
clause(1), if a senior gets a lesser pay than a junior Government
servant, the pay of the senior needs to be stepped up to a figure
equal to pay fixed for junior officer and that stepping up should be
done w.e.f. the date of promotion of the junior officer subject to the
following three conditions:
(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.
(c) The anomaly should be directly as a result of the
application of FR 22-C.
5. It has been submitted that the petitioner fulfills all these
conditions and thus there is no reason as to why the same should be
denied to the applicant.
6. Before the Tribunal it was the case of the respondents that the
petitioner and Shri Rohtash Singh were from two different cadre
inasmuch as petitioner became PGT as a direct recruit while Shri
Rohtash Singh was promoted. Thus taking into consideration sub-
clause (a) of FR-22(23), the petitioner was not entitled to stepping up
of his pay.
7. Respondents also stated that:
"Rohtash Singh Yadav was given a senior scale after
completing twelve years of service and his scale was fixed
on 2000/- as his basic pay. On 1.1.96 because of the 5th
Pay Commission, both were the teachers at 6900/-. There
was no anomaly on that fixation. However, the petitioner
was well aware that he was a PGT and Sh. Rohtash Singh
Yadav was TGT on 1.1.96. As the petitioner became a PGT
as direct recruit he did not remain TGT for 12 years like
Rohtash Singh Yadav. Rohtash Singh Yadav got senior
scale consequent to which the re-fixation in higher scale.
The petitioner on his direct recruitment got his pay
elevated and revised from 1750 to 1820. Rohtash Singh
Yadav became PGT on 17.7.1996 on departmental
promotion and he got benefit of advancement of increment
as per rules."
8. Vide impugned order dated 23.11.2006 the Tribunal accepted
the case of the respondent and dismissed OA No.425/2006 filed by
the petitioner. The observation made by the Tribunal in bringing out
a distinction in the case of the petitioner and Shri Rohtash Singh
Yadav is reproduced hereunder:
"In order to attract FR 22-C, on which reliance was placed,
it is necessary that both junior and senior should belong to
same cadre and draw identical pay scale in same cadre.
Such are not the facts in hand. A perusal of DOP&T OM
dated 04.11.1993, relevant excerpts of which are
reproduced herein below, would show that in cases where
a person is promoted from a lower to a higher post, his pay
is fixed with reference to the pay drawn by him in the
lower post under FR 22-C and he is likely to get more pay
than direct appointee and the senior direct recruit cannot
claim parity with juniors based on seniority alone, which
had not been termed as anomaly. Therefore, stepping up
of pay is not admissible. The said OA, in our considered
view, is squarely attracted in the facts and circumstances
of present case. Relevant excerpts read as under:"
9. According to the Tribunal, in view of the Office Memorandum
dated 04.11.1993 issued by the DOP&T, the case of the petitioner
was not a case of anomaly which require stepping up of pay with
reference to his junior. Some of the instances which have been taken
note of in the Office Memorandum by quoting as sub-para 2 & 3 of
the aforesaid memorandum are reproduced hereunder:
"2. Instances have come to the notice of this
Department requesting for stepping up of pay due to the
following reasons:-
(a) xxxxxxxxxxxxxxxxx
(b) xxxxxxxxxxxxxxxxxx
(c) xxxxxxxxxxxxxxxxxx
(d) xxxxxxxxxxxxxxxxxx
(e) where a person is promoted from lower to a higher
post, his pay is fixed with reference to the pay drawn by
him in the lower post under F.R. 22-C and he is likely to get
more pay than a direct appointee whose pay is fixed under
different set of rules. For example, an UDC on promotion
to the post of Assistant gets his pay fixed under F.R. 22-C
with reference to the pay drawn in the post of UDC,
whereas the pay of Assistant (DR) is fixed normally at the
minimum under F.R. 22-B (2). In such cases, the senior
direct recruit cannot claim pay parity with the junior
promoted from a lower post to higher post as seniority
alone is not a criteria for allowing stepping up;
(f) xxxxxxxxxxxxxxxxxxx
3. In the instances referred to in Para.2 above, a junior
drawing more pay than the senior will not constitute an
anomaly. In such cases, stepping up of pay will not,
therefore, be admissible. [G.I., Dept. of Per. & Trg., O.M.
No.4/7/92-Estt. (Pay I), dated the 4th November, 1993]"
10. Aggrieved by the impugned order it has been submitted by the
petitioner that the Tribunal went wrong in holding that the petitioner
was not entitled to stepping up of pay on the basis of sub-Rule 23 of
FR-22. It is also submitted that the claim of the respondent that the
petitioner was a direct recruit was also not correct. In any event the
interpretation of sub-rule (a) of sub-rule (2) of FR-22 was not correctly
done by the Tribunal inasmuch as whether it be a case of promotees
or be it a case of direct recruit because the opening Clause of FR-
22(C) starts with the words "to remove the anomaly of a Government
servant promoted or recruited to a higher post"; he therefore submits
that whether respondent may treat him as a direct recruit or a
promote it would not make a difference and he would be still entitled
to the benefit of equalization.
11. However, the learned counsel for the respondent submits that
the petitioner being a direct recruit for the post of PGT and the
respondent having risen in rank and who was also having the benefit
of grant of first ACP while working as TGT after having completed 12
years in service, the petitioner is not entitled for any upgradation
because there is no anomaly in the light of FR-22(C) as the condition
of sub-Clause (a) of FR-22(23) is not satisfied in the case of the
petitioner. It is also submitted that the relief to Shri N.L.Sharma had
been granted because he was also promote and was appointed as
PGT through direct recruitment with the approval of Lt. Governor
under fundamental Rule 27 the Department is not in a position to
reduce the pay of Shri N.L.Sharma but that cannot be a precedent
which may help the petitioner inasmuch as the petitioner is not
eligible for upgradation. Reliance has also been placed upon the
judgment of the Hon‟ble Supreme Court in the case Union of India and
Anr. Vs. R.Swaminathan and Ors. 1997 (7) SCC 690. The relevant
observation made in the aforesaid judgment which makes a
distinction and would not help the case of the respondent are
reproduced hereunder:
9. We are, however, in the present case, concerned
basically with Fundamental Rule 22(I)(a)(1) and 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. This is because the Department of
Telecommunications is divided into a number of Circles
within the country. The regular promotions from the junior
posts in question to the higher posts are on the basis of all
India seniority. The Heads of Circles have, however, been
delegated powers for making local officiating
arrangements based on Circle seniority to the higher posts
in question against short-term vacancies upto 120 days in
the event of the regular paneled officers not being
available in that Circle. This period of 120 days was
subsequently revised to 180 days. Under this provision for
local officiation, the senior-most official in the Circle is
allowed to hold the charge of the higher post for a limited
duration. This is purely out of administrative considerations
and is resorted to in order to tide over the exigencies of
work. This practice, we are informed, has been followed in
all Circles in the Department of Telecommunications since
1970. This is because, at times it is not possible to fill up all
the vacancies in a particular Circle for various reasons such
as non-joining by a particular person, chain promotions or
short-term vacancies arising on account of leave etc. It is
submitted before us by the Department that it is not
always possible to convene the meetings of the
departmental promotion committee for filling up all the
posts which are only available for short periods on an All
India basis because of administrative problems. To fill up
this gap, Government has issued instructions from time to
time to allow local officiating arrangements in the interest
of work. The department has also pointed out that all the
aggrieved employees in these appeals have availed of
such officiating promotions as and when such occasion
arose in their Circle and they were eligible. The juniors,
therefore, in each of these cases who have received a
higher pay on their regular promotion than the seniors,
have received this higher pay on account of the application
of the proviso to Fundamental Rule 22.
12. As observed by the Hon‟ble Supreme Court in that case the
junior employee who have got higher pay on promotions than their
seniors had officiated on the promotional post on different periods on
account of local ad-hoc promotions granted to them which is not the
case in hand. The conclusion dawn by the Hon‟ble Supreme Court
though there is reference of FR-22(C) also in that case but which
explains the position is available in para 12 & 13 which are also
reproduced for the sake of reference:
12. The aggrieved employees have contended with some
justification that local officiating promotions within a Circle
have resulted in their being deprived of a chance to
officiate in the higher post, if such chance of officiation
arises in a different Circle. They have submitted that since
there is an All India seniority for regular promotions, this All
India seniority must prevail even while making local
officiating appointments within any Circle. The question is
basically of administrative exigency and the difficulty that
the administration may face if even short-term vacancies
have to be filled on the basis of All India seniority by calling
a person who may be stationed in a different Circle in a
region remote from the region where the vacancy arises,
and that too for a short duration. This is essentially a
matter of administrative policy. But the only justification
for local promotions is their short duration. If such vacancy
is of a long duration there is no administrative reason for
not following the all India seniority. Most of the grievances
of the employees will be met if proper norms are laid down
for making local officiating promotions. One thing,
however, is clear. Neither the seniority nor the regular
promotion of these employees is affected by such
officiating local arrangements. The employees who have
not officiated in the higher post earlier, however, will not
get the benefit of the Provision to Fundamental Rule 22.
13. The employees in question are, therefore, not entitled
to have their pay stepped up under the said Government
Order because the difference in the pay drawn by them
and the higher pay drawn by their juniors is not a result of
any anomaly nor is it a result of the application of
Fundamental Rule 22(I)(a)(1).
13. Taking note of the aforesaid observation dealing with a case
where both the litigants before the Hon‟ble Supreme Court were
promotees, we find that this judgment is of no help to the case in
hand. We may however observe that the anomaly which has been
created in this case is the creation of the respondents inasmuch as
Shri Rohtash Singh Yadav was in the pay scale of ` 6,500-10500 as on
01.10.1996 after the implementation of 5th Pay Commission. He
became PGT only on 19.07.1996. The pay scale of PGT was also the
same i.e. ` 6,500-10500. For the purpose of fixation of his pay in the
promoted scale, the relevant rules which would have governed the
situation are sub-Rule (2) of FR-22 which reads as under:
"(2) When the appointment to the new post does not
involve such assumption of duties and responsibilities of
greater importance, he shall draw as initial pay, the stage
of time-scale which is equal to his pay in respect of the old
post held by him on regular basis, or, if there is no such
stage, the stage next above his pay in respect of the old
post held by him on regular basis:
Provided that where the minimum pay of the time-
scale of the new post is higher than his pay in respect of
the post held by him regularly, he shall draw the minimum
as the initial pay:
Provided further that in a case where pay is fixed at
the same stage, he shall continue to draw that pay until
such time as he would have received an increment in the
time-scale of the old post, in cases where pay if fixed at
the higher stage, he shall get his next increment on
completion of the period when an increment is earned in
the time-scale of the new post."
14. It would also be relevant to take note of sub-Rule (III) of sub-
Rule 2 of FR-22 which reads as under:
"(III) For the purpose of this rule, the appointment shall
not be deemed to involve the assumption of duties and
responsibilities of greater importance, if the post to which
it is made is on the same scale of pay as the post, other
than a tenure post, which the Government servant holds
on a regular basis at the time of his promotion or
appointment or on a scale of pay identical therewith."
15. A reading of sub-rule (III) (supra) along with sub-rule (2) of FR-
22 taking into consideration that the pay scale of PGT was also the
same i.e. ` 6,500-10500 which was the pay scale available to the
respondent as on 01.10.1996 as TGT, the initial pay of the respondent
even as PGT has to be fixed at the minimum of pay scale of ` 6,500-
10500.
16. In view of the aforesaid two rules, the pay of Shri Rohtash Singh
Yadav who became PGT in the pay scale of ` 6,500-10500 and was
drawing the pay of ` 6,900 was rightly fixed as ` 6,900 on the day
when he became the PGT. However, he was also granted the next
increment as on 01.10.1996 which was his normal date of increment.
It is however not clear as to how his pay could have been fixed at `
7,500 with the next date of increment being 01.10.1997.
17. In these circumstances while we do not find fault in the order of
the Tribunal in having dismissed the Original Application filed by the
petitioner as the petitioner being a direct recruit and Rohtash Singh
being a promotee, the petitioner was rightly not entitled to claim
upgradation of pay in view of FR-22(23) as quoted above, we find that
the anomaly is also being created by the respondents themselves
who have wrongly fixed the pay of Shri Rohtash Singh Yadav as on
01.10.1996 at ` 7,500 instead of ` 7,300 without changing the date of
his next increment. Had this would have been done, the question of
any anomaly and difference of pay scale in the pay scale of the
petitioner and Shri Rohtash Singh Yadav would not have arisen.
18. It hardly needs to be emphasized that law does not recognize
negative equality. If somebody gets a wrong benefit it would not be a
ground to do a further wrong and extend the wrong benefit to
another.
19. In these circumstances, being conscious of the fact that Shri
Rohtash Singh Yadav is not a party before us we may only guide the
respondents that they may proceed to re-fix the pay of Shri Rohtash
Singh Yadav as on 19.07.1996 in accordance with FR-22 (2) read with
sub-clause (III) of sub-rule (2) of the aforesaid rule after issuing a
notice to Shri Rohtash Singh. But in said circumstances the order
would have to be with prospective effect and no recoveries could be
made.
20. With these observations the writ petition is disposed of.
MOOL CHAND GARG, J.
AUGUST 20, 2010 PRADEEP NANDRAJOG, J.
„ag‟
