Delhi High Court
Nandan Singh Mahalwal And Ors. vs Municipal Corporation Of Delhi ... on 23 July, 2014
Author: S.Ravindra Bhat
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23.07.2014
+ W.P.(C) 7257/2013
NANDAN SINGH MAHALWAL AND ORS...... Petitioners
Through: Sh. B.C. Pandey, Advocate.
versus
MUNICIPAL CORPORATION OF DELHI AND ORS.
..... Respondents
Through : Sh. R.V. Sinha, Sh. R.N. Singh and Sh.
A.S. Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The petitioner is aggrieved by an order of the Central
Administrative Tribunal (CAT) dated 01.11.2012 in O.A. 2136/2011.
2. The CAT upheld the denial of the claim for stepping-up of pay
scale under Fundamental Rule-22(I)(a) [hereafter referred to as FR-
22(I)(a)].
3. The brief facts are that the petitioner is the legal representative
of late Ms. Prem Mahalwal. She was initially appointed as an
W.P.(C) 7257/2013 Page 1
Assistant Teacher in the year 1965 in Gandhi Harijan Vidyalaya,
Madangir Camp, an aided school. Her services were transferred to the
Municipal Corporation of Delhi in the year 1972. She was enjoying
selection grade scale in the post with effect from 01.01.1998 and her
pay was fixed in the scale of `6500-200-10500/-. After approaching
the CAT on a previous occasion, Ms. Mahalwal was promoted
consequent upon CAT's directions, to the post of Senior Scale
Headmaster, with effect from 09.02.1999. She represented that her pay
scale should have been fixed after giving her the benefit of stepping-
up contemplated under FR22(I)(a)(1). This representation was
rejected. Aggrieved by the denial, she approached the CAT; during
pendency of her application, Ms. Mahalwal died and in the
proceedings she was substituted by her legal representative.
4. The impugned order of the CAT relied almost exclusively on
some clarifications said to be issued by the Central Government as to
the applicability of FR 22(I)(a)(1). The sum and substance of these
clarifications was that the employee promoted to a higher post would
be entitled to the benefit of stepping-up under FR 22 only if he/she
fulfilled all the conditions : (i) that the promotion entailed shouldering
of higher responsibility, and (ii) that the promotion was to a higher
pay scale. The CAT's conclusions are premised upon the following
observations:
"13. In the instant case, while the deceased applicant had
already been promoted as Selection Scale Primary Teacher
in the pay scale of Rs.1640-2900/- w.e.f. 01.01.1998, on the
date of her promotion as Head Mistress on 10.11.2009, she
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fulfilled only the first of the two conditions precedent
requisite for the applicability of FR 22(1)(a)(i), that the
employee should shoulder higher responsibilities. On the
other hand, as the deceased applicant was already drawing
exactly the same pay scale as Selection Scale Primary
Teacher, which is the pay scale of the Head Mistress also,
the post which she got to occupy on 10.11.2009, there was
no movement to any new higher pay scale as compared to
the earlier pay scale, which is the second condition
precedent, both of which have to be necessarily satisfied for
the applicability of FR 22 (1)(a)(i)."
5. It was urged by the petitioner's counsel that the CAT fell into
error in insisting upon a condition which is not embodied in the text of
FR 22(I)(a)(1). Learned counsel relied upon a judgment of this Court
dated 02.08.2011 in W.P.(C)5562/2000 in Nandan Singh v. GNCTD
and Ors. where in an almost identical circumstances, learned Single
Judge was of the opinion that FR 22 applied and that stepping-up of
pay was mandated even where there was an identity between the pay
scales of lower and promotional posts.
6. Learned counsel for the respondents submits that the twin
requirements which found favour with the CAT, have been supported
by clarifications of the State Government issued as far back as in
1994. It was submitted that these clarifications were construed in the
context of a claim by a senior that his junior had been given the
benefit and that he was denied the same, in a ruling of this Court in
UOI v. R. Swaminathan 1997 (7) SCC 690.
7. FR 22(I)(a)(1) to the extent relevant is extracted below:
W.P.(C) 7257/2013 Page 3
"F.R.22 (I) The initial pay of a Government servant who is
appointed to a post on a time-scale of pay is regulated as
follows:-
(a) (1) Where a Government servant holding a post, other than a
tenure post, in a substantive or temporary or officiating capacity
is promoted or appointed in a substantive, temporary or
officiating capacity, as the case may be, subject to the fulfilment
of the eligibility conditions as prescribed in the relevant
Recruitment Rules, to another post carrying duties and
responsibilities of greater importance than those attaching to the
post held by him, his initial pay in the time-scale of the higher
post shall be fixed at the stage next above the notional pay
arrived at by increasing his pay in respect of the lower post held
by him regularly by an increment at the stage at which such pay
has accrued or rupees twenty-five only, whichever is more."
8. As is apparent from a plain reading, the rule necessitates
promotion of the employee from one substantive post to another one
and that the incumbent should not be holding a tenure post. It also
underscores that the incumbent should, as a result of the progression,
shoulder higher responsibility. However, the rule nowhere mandates
that there cannot be identity in the pay scales. In the absence of such a
requirement, the CAT's order that the pay scale in respect of
promotion has to be higher than the one held by the incumbent, is a
condition not borne out by the Rule. No amount of clarification or
supplementary conditions spelt-out by the Government in such
matters, would limit the operation of the Rule which is plain and
unambiguous. To that extent, we are of the opinion that the view
adopted by the learned Single Judge is correct. The CAT, therefore,
clearly fell into error in holding that Ms. Mahalwal was not entitled to
W.P.(C) 7257/2013 Page 4
stepping-up of her salary immediately upon her promotion with effect
from 09.02.1999 in terms of FR 22(I)(a)(1). Consequently, a direction
is issued to the respondents to take necessary consequential action and
redetermine the pay and emoluments that the deceased employee was
entitled to, till the date of her death and release the differential pay
arising out of such determination, including the arrears of increments
payable and arrears of fixation of payment and other terminal benefits
etc. The family pension too shall be revised upwards, keeping in mind
the present direction. The entire procedure shall be completed within
two months from today. The MCD is also directed to pay 9% interest
on the difference from 01.01.2003 till the date of her death. The
compliance report shall be filed immediately upon expiry of eight
weeks from today.
9. List for reporting compliance on 14.10.2014.
10. The writ petition is allowed in the above terms.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
JULY 23, 2014
W.P.(C) 7257/2013 Page 5
