A. Chandra Mouli vs The State Of Telangana And 2 Others
2023 Latest Caselaw 4080 Tel

         THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI

                WRIT PETITION No.16933 of 2021

ORDER:

This Writ Petition is filed seeking a writ of mandamus

declaring the order passed by respondent No.3 vide proceedings

dated 18.06.2021, as illegal and arbitrary and consequently to set

aside the same and direct the respondents to grant the step-up of

pay to the petitioner on par with his junior in the interest of

justice and to pass such other order or orders.

2. Brief facts leading to the filing of the present Writ Petition

are that the petitioner was appointed as a Secondary Grade

Teacher on 05.01.1984 through 1983 DSC and was promoted to

the post of P.G.H.M. on 30.01.2009. It is submitted that his

junior namely Smt.Usha Rani, who was also appointed along with

him in the same DSC, had taken a special promotion on

01.02.2010 after taking a special grade on 01.02.2005 and she

also got promoted as P.G.H.M. on 09.11.2010. Therefore, she was

a step ahead of the petitioner insofar as getting an increment. In

view of the same, the petitioner submitted a representation to

respondent No.3 on 24.05.2021 requesting to forward his

application to respondent No.2 to grant stepping up of pay on par

with his juniors as respondent No.2 is the competent authority to PMD,J W.P.No.16933 of 2021

pass orders in respect of P.G.H.M. category of candidates. The

petitioner also referred to G.O.Ms.No.52 dated 25.02.2010 in

which certain concessions were given to the employees who were

drawing less pay than to their juniors in the existing scales and

their pay has to be stepped up and brought on par with juniors in

the existing scales with certain conditions. He also relied upon

the G.O.Ms.No.93, Finance (Pay Commission-II) Department,

dated 03.04.2010 and Rule 3 (c) thereunder wherein it is stated

that if the senior was drawing less pay than the junior, the pay of

the senior should be stepped up with effect from the date of

promotion to the junior, to a figure equal to the pay as fixed for

the junior in the higher post to which he/she is promoted on or

after 01.07.2008 subject to certain conditions. Therefore, the

petitioner expected that his case would be considered. However,

respondent No.3 has rejected his request vide letter dated

18.06.2021 by observing that the application of the petitioner for

stepping up of pay is made after a gap of ten years and not within

the time limit prescribed in the Government Circular Memo

No.5476-A/137/FR.II/07 dated 12.03.2007. Challenging the

same, the present Writ Petition is filed.

PMD,J W.P.No.16933 of 2021

3. Learned counsel for the petitioner submitted that the

government circular memo, the respondents are relying upon, is

not binding on the authorities and is not referred to in any of the

subsequent G.Os. He submitted that it is only a circular and not

a Government Order and therefore, it cannot be relied upon to

deny the benefit to the petitioner. Learned counsel for the

petitioner has referred to G.O.MS.No.93 dated 03.04.2010 and

also subsequent proceedings dated 14.03.2012 and 23.02.2013

wherein the benefit of stepping up of pay of the senior on par with

the junior is provided. He therefore submitted that the reason

given by respondents for denying the request of the petitioner is

not sustainable. Learned counsel for the petitioner also relied

upon the judgment of the Hon'ble Supreme Court in the case of

M.R.Gupta v. Union of India and others 1 in support of his

contentions that pay fixation was a continuing cause of action

and therefore, there can be no period of limitation attached to it.

4. Learned Government Pleader for Services-I appearing for the

respondents, relied upon the averments made in the counter

affidavit and submitted that the government circular memo

No.5476-A/137/FR.II/07 dated 12.03.2007 clearly prescribed

AIR 1996 SC 669 PMD,J W.P.No.16933 of 2021

that the representations of the senior government servants must

be received up to a period of five years after promotion of their

juniors and under no circumstances such representations,

beyond five years after promotion of their junior, can be allowed.

5. Having regard to the rival contentions and the material on

the record, this Court finds that the only issue in this Writ

Petition is whether the period of limitation fixed in the

government circular memo dated 12.03.2007 was applicable to

this case. As rightly pointed out by the learned counsel for the

petitioner, the benefit of stepping up of pay of the senior on par

with his junior has been extended from time to time vide G.O's

issued from the year 2010 onwards and there is no reference to

the government circular memo dated 12.03.2007 in any of those

G.Os. Further, the circular cannot override the provisions under

G.O. As rightly pointed out by the learned counsel for the

petitioner, the petitioner may not have knowledge about the

salary of his junior being more than that of the petitioner and

therefore, prescribing the period of five years from the date of

promotion of the junior for stepping up of pay may not be

reasonable. Further, it is noticed that the petitioner was

promoted in the year 2009 whereas his junior Ms.Usha Rani, was PMD,J W.P.No.16933 of 2021

promoted as P.G.H.M. in the year 2010 but her pay was higher

than the petitioner only because she took the special grade on

01.02.2005 and a special promotion post on 01.02.2010. Further,

the Hon'ble Supreme Court in the case of M.R.Gupta (cited

supra) has held as under:

"Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified, Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 01.08.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."

PMD,J W.P.No.16933 of 2021

In view of the above judgment of the Hon'ble Supreme Court, the

petitioner has continuous cause of action/grievance since the pay

of the junior was fixed higher than the petitioner and therefore

the period of limitation of five years which is not mentioned in

any of the G.Os. granting stepping up of pay of the seniors on pay

with his juniors is not applicable. In view of the same, the

impugned order is set aside and the respondents are directed to

reconsider the case of the petitioner in accordance with

G.O.Ms.No.93 dated 03.04.2010 and also proceedings dated

23.02.2013 and the circular memo dated 14.03.2012.

6. Accordingly, the Writ Petition is allowed. There shall be no

order as to costs.

Miscellaneous applications, if any pending, shall also stand

closed.

_____________________________ JUSTICE P.MADHAVI DEVI Date: 17 .11.2023 PRN PMD,J W.P.No.16933 of 2021

THE HON'BLE SMT. JUSTICE P. MADHAVI DEVI

WRIT PETITION No.16933 of 2021

Date: .11.2023 PRN