Govt. Of Nct Of Delhi & Ors. vs Krishna Mohan Tiwari
2013 Latest Caselaw 1406 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision : March 21, 2013

+                         W.P.(C) 6153/2012

       GOVT. OF NCT OF DELHI & ORS.             ..... Petitioners
                Represented by: Ms.Avnish Ahlawat and Ms.Latika
                                Chaudhary, Advocates.

                                        versus

       KRISHNA MOHAN TIWARI                      ..... Respondent
                Represented by: Mr.S.S.Tiwari, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. Not for the reasons given by the Central Administrative Tribunal, the writ petition has to be dismissed and the final direction issued by the Central Administrative Tribunal vide impugned order dated February 09, 2012 has to be upheld. The reason is OM No.F.2(78)-EIII(a)/66 dated February 04, 1966 which reads as under:-

"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 office 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 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. 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."

(Emphasis underlined)

2. The principle of „stepping up‟ of pay has to be applied across the board in all cases where a person who is senior draws salary less than his junior; requiring the salary of the senior to be stepped up and brought at par with that of the junior as held by the Supreme Court in the decisions reported as 2009 (3) SCC 94 Gurcharan Singh Grewal & Anr. v. P.S.E.B. & Ors., 2008 (7) SCC 245 P.S.E.B. & Ors. v. Gurmail Singh and 2006 (12) SCALE 440 Commissioner & Secretary to Government of Haryana vs. Ram Swarup Ganda.

3. We only have to note the facts. Succeeding in OA No.3258/2001, the respondent was not only given appointment but also seniority above his batch mate Pramod Kumar and in the seniority list name

of petitioner is above that of Pramod Kumar.

4. The Tribunal has granted relief as claimed by the respondent but on the principle of retrospective pay fixation on notional basis. A reasoning which is wrong and has therefore given birth to the instant writ petition, where the plea of the petitioner is that when the respondent succeeded in the earlier litigation he was not granted any back wages. The direction was to appoint him and fix his seniority above Pramod Kumar. Thus, the petitioner states that back wages, actual or notional, being denied to the respondent, in any case not being expressly granted and hence deemed to be refused, the impugned order has to be set aside.

5. Stepping up of pay has nothing to do with notional fixation of salary, much less back wages. Though its effect may be akin to notional pay fixation, but as a concept „stepping up‟ of pay is an entirely different concept. We have used the expression 'akin' for the reason the person's salary is increased, but it is not the same as notional fixation for the reason a person's claim for appointment relating to the year 1980 on being decided in the year 1985, if back wages or benefit of notional pay fixation is granted, would require pay to be fixed in the initial scale of pay as of the year 1980 and annual increments granted. But if no such benefit is accorded, save and except seniority is required to be maintained with respect to a person who joined in the year 1983, the pay of said person would have to be fixed in the year 1985, at par with the junior, who having joined in the year 1983 would have earned two increments. The stepping up of pay would give benefit of only two notional increments. We have noted as aforesaid by way of illustration.

6. It only means that the senior has his pay fixed at par with the junior from the date he joins. No back wages are to be paid.

7. The writ petition is dismissed and the final direction issued by the Tribunal is upheld, as clarified above, not on the reasoning of the Tribunal, but upon the application of the principle of „stepping up‟ of pay.

8. No costs.

CM No.16571/2012 Since the writ petition stands disposed of, instant application seeking ad-interim stay of operation of the impugned order till disposal of the writ petition is disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 21, 2013 dk