Union Of India And Ors. vs R.K. Jain
2014 Latest Caselaw 3053 Del

    * IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Decided on : 11.07.2014
+                   W.P.(C) 3325/2014, C.M. NO. 6853/2014
     UNION OF INDIA AND ORS.             ..... Petitioners
                   Through : Sh. Ruchir Mishra and Sh.
                   Mukesh Kumar Tiwari, Advocates.
                         versus
     R.K. JAIN                                 ..... Respondents

Through : Sh. Padma Kumar. S., Advocate. CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. In these proceedings, the Union of India questions a decision of the Central Administrative Tribunal (CAT) by which the respondent's application for stepping-up of pay was allowed.

2. The facts are that the respondent was promoted to the post of Scientist-F from Scientist-E on 01.07.2004. He continued to hold that post when the recommendations of the Sixth Pay Commission were implemented with effect from 01.01.2006. The implementation was in terms of a Notification issued at that time, and subsequently governed by the Central Civil Service (Revised Pay) Rules, 2008, made effective from 01.01.2006, and framed under proviso to Article 309 of the Constitution of India. On 01.07.2008, one Sh. J.K. Varshney,

W.P.(C)3325/2014 Page 1 who was junior to the respondent in the cadre of Scientist-E was promoted as Scientist-F. His pay was fixed at `56030/- The respondent's pay at that time was `54700/-. The respondent complained that though he was senior in the cadre of Scientist- E, and was promoted as Scientist-F earlier to Sh. J.K. Varshney, the pay anomaly in that he was fixed in a pay scale at a stage earlier and was drawing lower pay than one junior to him, persisted. He represented against this unsuccessfully. The Controller General of Defence Accounts which dealt with the respondent's service conditions rejected his representation on 17.03.2011. He, therefore, approached the CAT.

3. Before the CAT, the respondent relied upon Rule 7 of the CCS Revised Pay Rules, especially Note 10 to it. The UOI which contested the proceedings, contended firstly that the respondents could not be treated as senior because Sh. Varshney had been recruited on 27.02.1981 as Scientist-B where as the respondent joined that post much later on 18.02.1984. It was also urged that the successive promotions to the post of Scientist-C and Scientist-D also followed a similar pattern. In these cadres, the respondent was promoted later. Therefore, argued the Union, the respondent could not be treated as senior. The Union also relied upon an Office Memorandum dated 04.11.1993 and argued that he was not entitled to fixation at a stage higher than of the junior. The CAT which considered the submissions of the parties considered the seniority list published

W.P.(C)3325/2014 Page 2 by the DRDO for Scientists-E and F. It found that in terms of the seniority position of the respondent vis-a-vis Sh. Varshney the latter was shown as his junior at the relevant time and consequently, as senior to Varshney. It was also held that the pay anomaly arose on account of implementation of the Sixth Pay Commission recommendations and, therefore, directed the relief sought for by the respondent.

4. It was argued by the Union that the findings of the CAT are not sustainable. Reliance is placed upon the Office Memorandum dated 04.11.1993 of the Department of Personnel and Training, Govt. of India. It was further contended that even in terms of Fundamental Rules-22 (FR-22), his case for stepping-up of the scales cannot be acceded to.

5. Note 10 to Rule 7 of the Central Civil Service (Revised Pay) Rules states as follows:

"In cases where a senior Government servant promoted to a higher post before the 1st day of January, 2006 drawn less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day of January, 2006, the pay in the pay band of the senior Government servant should be stepped up to an amount equal to the pay in the pay band as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfilment of the following conditions, namely:

(a) Both the junior and the senior Government servants should belong to the same cadre and the posts

W.P.(C)3325/2014 Page 3 in which they have been promoted should be identical in the same cadre.

(b) The pre-revised scale of pay and the revised grade pay of the lower and higher posts in which they are entitled to draw pay should be identical.

(c)The senior Government servants at the time of promotion should have been drawing equal or more pay than the junior.

(d) The anomaly should be directly as a result of the application of the provisions of Fundamental Rule 22 or any rule or order regulating pay fixation on such promotion in the revised pay structure. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, provision of this Note need not be invoked to step up pay of the senior officer.

(2) Subject to the provisions of Rule 5, if the pay as fixed in the officiating post under sub-rule (1) is lower than the pay fixed in the substantive post, the former shall be fixed at the same stage as the substantive pay.

6. The relevant part of the Office Memorandum dated 04.11.1993 reads as follows:

"2. Instances have come to the notice of this department requesting for stepping up of pay due to the following reasons:

(a) where a senior proceeds on extra ordinary leave which results in postponement of date of next increment in the lower post, consequently he starts drawing less pay than his junior in the lower grade itself. He, therefore, cannot claim pay parity on promotion even though he may be promoted earlier to the higher grade;

(b) If a senior forgoes/refuses promotion leading to his junior being promoted/appointed to the higher

W.P.(C)3325/2014 Page 4 post earlier, junior draws higher pay than the senior. The senior may be on deputation while junior avails of the ad-hoc promotion in the cadre. The increased pay drawn by a junior either due to adhoc promotion in the cadre. The increased pay drawn by a junior either due to adhoc officiating/regular service rendered in the higher posts for periods earlier than the senior, cannot therefore, be as anomaly in strict sense of the term.

(c) If a senior joins the higher post later than the junior for whatsoever reasons, whereby he draw less pay than the junior, in such cases senior cannot claim stepping up of pay at par with the junior.

(d) If a senior is appointed later than the junior if the lower post itself whereby he is in receipt of lesser pay than the junior, in such cases also the senior cannot claim pay parity in the higher post though he may have been promoted earlier to the higher post.

(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 FR 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 a UDC on promotion to the post of Assistant gets his pay fixed under FR-22C with reference to the pay drawn in the post of UDC, whereas the pay of Assistant (DR) is fixed normally at the minimum under FR-22B(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) Where a junior gets more pay due to additional increments earned on acquiring higher qualifications.

3. In the instances referred to in paragraph 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.

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7. The Union's contention in this case is that there is no pay anomaly because the respondent cannot be treated as Varshney's senior. This argument is unmerited. Whilst Varshney undoubtedly joined the DRDO as Scientist-B at a point of time earlier than the respondent and was subsequently promoted to the post of Scientist-D, the findings of fact reveal that in the post of Scientist-E and subsequently in the post of Scientist-F, it was the respondent who was senior. He was promoted earlier than Sh. Varshney. In these circumstances, it cannot be said that Sh. Varshney had to be treated as senior. The reference to senior in Note 10 is in the concerned grade with reference to the point of time when the incumbents joined the post. Both in the grades of Scientist-E and Scientist-F, the respondent was undoubtedly senior to Sh. Varshney. The Union's contention is, therefore, without merit.

8. The second - and more important - issue is whether the Office Memorandum dated 04.11.1993 applies. As a textual reading of the conditions in that Memorandum suggests, paras 2(c) and 2(d) clearly speak of situations where the senior is appointed later than the junior. In the present case, the respondent was appointed in the post of Scientist-E as well as Scientist-F earlier to Sh. J.K. Varshney. Therefore, the said Office Memorandum - which is merely clarificatory in regard to the application of FR-22C, is not attracted.

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9. Note 10 to Rule 7, in the opinion of this Court, clearly applies to anomalies which arise upon implementation of the Sixth Pay Commission recommendations. In the present case too, the respondent - as required by that provision - was promoted prior to 01.01.2006. He is drawing less pay in the revised pay structure than his junior - Sh. J.K. Varshney (who was promoted after 01.01.2006 in the pay band of the respondent). The application of Note 10 is dependent upon four conditions (a to d) spelt-out in Note 10. The facts and findings recorded by the CAT disclose that the respondent was drawing higher pay than Sh. Varshney till the latter's promotion. Having regard to this conspectus of facts, it is held that there is no error in the order of the CAT impugned in the present case. The writ petition is accordingly dismissed along with the pending application.

(S. RAVINDRA BHAT) JUDGE

(VIPIN SANGHI) JUDGE

JULY 11, 2014

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