Central Administrative Tribunal - Delhi
Jag Mohan vs The Secretary on 1 September, 2015
Central Administrative Tribunal Principal Bench OA No. 407/2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Order Reserved on: 23.07.2015 Order Pronounced on:01.09.2015 Jag Mohan, IPS, Deputy Director, Intelligence Bureau (MHA), IB Hqrs., New Delhi -Applicant (By Advocate: Shri K.S. Negi) VERSUS 1. The Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 2. The Chief Secretary, Govt. of Bihar, Patna, Bihar 3. The Principal Secretary, Department of Home (Police) Govt. of Bihar, Patna Bihar. 4. The Director General of Police Bihar Patna, Bihar 5. The Accountant General (A&E) Bihar, Patna, Bihar 6. Shri Pankaj Kumar Darad, IPS, The Inspector General of Police, Muzaffarpur, Bihar -Respondents (By Advocates: Shri Rajeev Kumar for respondent no.1 Shri Rudreshwar Singh and Sh. Gopal Jha for respondent nos. 2 to 4. ORDER By Dr. B.K. Sinha, Member (A):
The applicant in the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, is aggrieved by the notification of the respondents dated 02.02.2009 whereby he had been granted the Selection Grade w.e.f. 02.02.2009 in place of the due date, i.e. 01.01.2008, in violation of IPS (Pay) Rules, 2007, when he had completed 13 years of service as an IPS officer. The applicant is further aggrieved by the notification dated 20.08.2010 whereby he had been promoted to the rank of Deputy Inspector General of Police in Super Time Scale w.e.f. 18.04.2010 in place of 01.01.2009, in violation of IPS (Pay) Rules, 2007, when the he had completed 14 years of service on 01.01.2009. The applicant is also aggrieved by the order dated 25.03.2013 promoting the officers of 1995 batch to the rank of Inspector General of Police in Bihar cadre inter alia including his immediate junior - respondent no.6 without including his name in the said notification. The applicant was subsequently promoted to the rank of Inspector General of Police vide notification dated 11.04.2013. As a consequence thereof, his pay had been fixed at lower level of Rs. 44,790/-+ 10,000/- w.e.f. 27.03.2013, while pay of his immediate junior - respondent no.6 had been fixed at Rs. 46,400/- + 10,000/- (Grade Pay) as on 27.03.2013 and subsequently fixed at Rs. 49,770+10,000/- (Grade Pay) w.e.f. 1.7.2013.
2. The facts of the case, in brief, are that the applicant is a member of Indian Police Service of 1995 batch allocated to Bihar cadre. The applicant was transferred and posted as Superintendent of Police, City, Patna, which is a Senior Time Scale Post of SP Patna. The respondents had fixed the pay of the applicant in the Senior Time Scale w.e.f. 15.12.2001. The applicant being aggrieved with this fixation of pay, filed OA No. 2206/2004 for grant of pay of the Senior Time Scale w.e.f. 22.08.1998 date of joining in the said scale post after failing to get requisite relief from the respondents. The Tribunal allowed the said OA vide order dated 07.03.2006 relying upon the Fundamental Rules which provide that an officer, who performs the duty of a post, is entitled to payment of salary of the scale attached to the post. Review Application No. 66/2006 filed by the respondent no.2 in OA No. 2206/2004 was turned down. The respondents challenged the decision of the Tribunal in OA No. 2206/2004 in WP (C) No. 18712/2006 which was disposed of on 12.08.2009 with orders that the matter would be taken up for consideration only after the amount involved in dispute was deposited in the court. It is the case of the applicant that his main dispute relates to the respondent no.6, who admittedly also belongs to 1995 batch allocated to J&K cadre and was transferred on inter-cadre deputation from the state of J&K to Bihar for a period of three years vide order dated 25.04.2008. Subsequently, the respondent no.1 transferred the respondent no.6 from J&K to Bihar on grounds of extreme hardships on a permanent basis vide notification dated 22.02.2011. The applicant, on the other hand, being on central deputation, was granted proforma promotion from the date his junior assumed the charge i.e. 18.04.2010.
3. It is the case of the applicant that the applicant became eligible under Rule 3 of IPS (Pay) Rules, 2007 for grant of Selection Grade w.e.f. 1.1.2008 and should have been granted the same from this date. Consequent upon grant of selection grade w.e.f. 2.2.2009 vide impugned notification, the pay of the applicant was fixed in the Pay Band; Rs. 37,400-67,000 with Grade Pay of Rs. 8700/-. The respondent nos. 2 and 3, vide notification dated 20.08.2010, promoted the applicant to the rank of DIG of Police in Super Time Scale w.e.f. 18.04.2010 in place of due date, i.e. 1.1.2009 on completion of 14 years of service when he was entitled for promotion.
4. The applicant also submits that as per the gradation list of the IPS officers of the rank of DIG in Bihar cadre as on 01.01.2013 (available on the website of Govt. of Bihar), his name is shown at SI. No. 61, while his immediate junior is placed at SI. No. 62. The applicant submits that though the respondent no.6 was promoted as Inspector General of Police vide notification dated 25.03.2013, the applicants name had been whimsically and arbitrarily excluded in the said notification despite being senior to the aforesaid respondent. The applicant submitted a representation dated 2.4.2013 enclosing the seniority list of IPS officer of DIG as on 31.1.2013 where he is shown at SI. No. 7 while the respondent no.6 at SI. No. 8 (Annexure A/8). The Intelligence Bureau, in response to the representation of the applicant, requested the respondent no.3 for grant of Selection Grade to the applicant w.e.f. 1.1.2008 instead of 2.2.2009 (Annexure A/9) which was followed by another representation dated 31.07.2013. On 1.04.2013, the respondent no.2 granted the proforma promotion to the applicant to the rank of IG with effect from the date his immediate junior respondent no.6 was promoted to the rank of IG but not from the due date i.e. 1.1.2013 in the pay scale of Pay Band-4; Rs. 37400-67000+Grade Pay Rs. 10,000/-. For the sake of clarity, the notification in respect of the applicant is reproduced as below:-
Shri Jag Mohan IPS (1995) Central Appointment (in the Category of DIG Police) is being given proforma promotion in the grade of Inspector General of Police from the date of joining in the pay scale of Pay Band-4; Rs. 37400-67000+Grade Pay Rs. 10,000/- as his junior Shri Pankaj Kumar Darad IPS (1995) was promoted.
By the Order of the Governor Sd/- (Illegible) (Rajiv Ranjan Sinha) Joint Secretary to the Government Memo. No. 1/P5-10-01/2008 Gri.Aa./Patna Dated April, 2013 However, as stated, while his immediate junior respondent no.6 had been fixed at Rs. 46,400+ 10,000/- (GP) on 27.03.2013 and re-fixed at Rs. 49,770+70000/- on 01.07.2013, the notional pay of the applicant had been fixed at Rs. 44,790+10,000/- (GP).
5. The applicant also contests the statement of the respondent no.5 that as per their records, one Anupama Nilekar Chandra (BH-94) is the immediate senior and one Amit Kumar Jain (BH-1196) is the immediate junior by stating that one R.Malar is his immediate senior at SI. No. 26 while the respondent no.6 is his immediate junior as per the seniority list of IPS officers of the rank of Inspector General. The applicant submits that the respondent no.5 was not the competent authority to decide the seniority of the applicant. The applicant vide Annexure A/16 requested the respondent no.5 to correct the mistake.
6. The applicant has adopted the following grounds for his Application:-
7. In the first place, the applicant being senior to the respondent no.6 should have been promoted to the Selection Grade w.e.f. 1.1.2008 on completion of 13 years of service; in the rank of DIG of Police w.e.f. 01.01.2009 on completion of 14 years of service; and in the rank of Inspector General of Police w.e.f. 1.1.2013 on completion of 18 years of service as provided in IPS (Pay) Rules. In the second place, the pay of the applicant has been fixed lower than that of the respondent no.6 contrary to all rules and regulations and to the general principles that senior cannot get less salary than his immediate junior. In the third place, the applicant has also referred to the decision of the Tribunal dated 07.03.2006 in OA No. 2206/2014 which was decided in his favour and has attained finality, as respondents have implemented the order.
8. The respondent nos.2,3 and 4 have filed counter affidavit jointly wherein they submit that the respondent no.6 had been granted promotion to the rank of DIG (Rs. 16,400-20,000) by the Government of J&K w.e.f. 1.1.2009; whereas the applicant had been granted proforma promotion to the same post w.e.f. 18.4.2010. The respondent no.6 was permanently transferred to the State of Bihar vide OM dated 22.02.2011 of the respondent no.1. The respondent no.6 was granted promotion to the post of IG w.e.f. 25.3.2013 whereas the applicant being on deputation with the Central Government was granted proforma promotion w.e.f. 11.04.2013 i.e. the date of assumption of charge of his immediate junior.
9. The applicant has submitted a rejoinder application wherein he alleges that failure of the respondents to make a para-wise reply to the averments in his OA would tantamount to its acceptance. The applicant further submits that order of promotion of the respondent no.6 as DIG was issued on 28.02.2009 but his promotion had been given effect from retrospective date, i.e., 1.1.2009, the due date of promotion, as provided in the IPS Service Rules. Likewise, the Government of Bihar should have also followed a similar practice. The applicant has been granted Selection Grade w.e.f. 2.2.2009 instead of 1.1.2008 and rank and pay of DIG w.e.f. 18.04.2008 instead of 1.1.2009, the due date of promotion as per IPS Service Rules. This has had a cascading effect upon the entitlement of the applicant in Government of India. The applicant further submits that the respondents have stated that his promotion to the Selection Grade was made w.e.f. 2.2.2009 because of availability of vacancies with effect from 1st January of the relevant year, in addition to the qualifying period but however, have concealed the number of vacancies in the Selection Grade on as 1.1.2008 and the vacancies in the rank of DIG of Police as on 01.10.2009 from the Tribunal. The respondents have also not replied to any representations made by the applicant.
10. We have carefully examined the pleadings of the parties as also the documents submitted by them and also listened oral submissions made by their respective counsels.
11. The only issue to be considered here is that whether the applicant is entitled to the reliefs he has prayed for. We start by examining the provisions as contained in different rules and regulations governing the Indian Police Service. Admittedly, the Indian Police Service (Regulation of Seniority) Rules, 1988 have been framed under the powers conferred by the sub-section (3) of section 3 of All India Services Rules, 1951. Rule 3(3) of the Rules provides as under:-
(3) The year of allotment of an officer appointed to the service after the commencement of these rules shall be as follows:-
(i) The year of allotment of a direct officer shall be the year following the year in which the competitive examination was held:
[Provided that if a direct officer, other than an exempted probationer within the meaning of Clause (ee) of Rule 2 of the Indian Police Service (Probation) Rules, 1954, who is permanent to joint probationary training under Sub-rule (1) of Rule 5 of the Indian Police Service (Probation) Rules, 1954 with the direct recruit offices of subsequent year of allotment, then he shall be assigned that subsequent year as the year of allotment. Rule 4 of these Rules provides as under:-
4. Inter-se Seniority of the Officers. The inter-se Seniority of the officers who are assigned the same year of allotment shall be in the following order and in each category the inter-se seniority shall be determined in the following manner: -
(i) direct recruit officers shall be ranked inter-se in the order of merit as determined in accordance with rule 10 of the Indian Police Service (Probation) Rules, 1954;
(ii) Promotee officers shall be ranked inter-se in the order in which their names are arranged by the Commission for the purpose of appointment to the Service by promotion Rule 10 of Indian Police Service (Probation) Rules, 1954 provides as under:-
10. Seniority of probationers.-(1) The Central Government shall prepare a list of all probationers who are recruited to the Service under Sub-rule (1) of Rule 3 and are assigned the same year of allotment. Such list shall be arranged in order of merit, which shall be determined in accordance with the aggregate marks obtained by each probationer-
(a) at the competitive examination;
(b) in respect of his record in the Lal Bahdar Shastri National Academy of Administration and in the State; and
(c) at the final examination, or the special examination in the circumstances mentioned in Rule 8;
[Provided that in determining such order of merit no account shall be taken of marks awarded to a probationer in any subject specified under Regulation 4 of the Indian Administrative Service (Probation Final Examination) Regulation, 1955 in which he is not able to obtain the minimum number of marks determined by the Director with the previous approval of the Central Government appear to be redundant.
Provided further that if two or more proabtioners have secured equal number of marks in the aggregate, their order of merit shall be the order of their dates of birth.
(2) The seniority inter se of the probationers, who are assigned the same year of allotment, shall be determined in accordance with the list prepared under Sub-rule (1).
(3) The provisions of sub-rules (1) and (2) shall not apply to probationers appointed to the Service in accordance with the Indian Administrative Service (Special Recruitment) Regulations, 1956 and Rule 76-A of the Indian Administrative Service (Recruitment) Rules, 1954.
Rule 3 of the Indian Police Service (Pay) Rules, 1954 provides as under:-
3. Time scale of Pay.-(1) The scales of pay admissible to a member of the Service and the dates of effect from which the said time scales shall be deemed to have come into force shall be as follows:
Junior Scale Rs. 2200-75-2800-EB-100-4000 with effect from the 1st day of January, 1986.
Senior Scale
(a) Time Scale Rs. 3000 [* * *]-100-3500-125-4500 with effect from the 1st day of January 1986.
(b) Junior Administrative Grade-Rs.3700-125-4700-150-5000 with effect from the 1st day of January, 1986 Provided that a member of the Service shall be appointed to the senior scale on his completing 4 years of service, subject to the provisions of Sub-rule (2) of Rule 6-A of the Indian Police Service (Recruitment) Rules, 1954 and to the Junior Administrative Grade on completing 9 years of service.
Note.-the four years and nine years of service in this rule shall be calculated from the year of allotment assigned to him under Regulation 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954.
Selection Grade-Rs. 4500-150-5700 with effect from the 1st day of January, 1986.
Explanatory Memorandum The Central Government had decided to implement the decision taken on the recommendations made by the Fourth Central Pay Commission relating to revision of scales of pay in respect of the All India Services and the Central Civil Services Group A with effect from 1st January, 1986. While amending the Indian Police Service (Pay) Rules, 1954 t he restriction of not granting an increment in the Senior Time Scale till entry into the seventh year of service had been inadvertently added even though at the stage of consultation with the Stage Governments, this restriction had not been envisaged. The present amendment to these rules is being made so as to remove the said restriction in order to allow the first increment on completion of one years service in the Senior Time Scale of the Indian Police Service and annually thereafter. It will bring the rules in line with the amendment as drafted in consultation with the State Government.
It is certified that no member of the Indian Police Service is likely to be adversely affected by this notification being given retrospective effect.
Supertime scale [DIG - Rs. 5100-150-5400 (18th year or later) with effect from the 1st day of January, 1986.
IG Rs. 5900-200-6700 with effect from the 1st day of January, 1986.
Above Supertime Scale [DG-Rs. 7300-100-7600/600-100-8000 with effect from the 1st day of January, 1986.
12. It is evident from Rule 3 that the scale of pay admissible to the members of the Service shall be deemed to come into force w.e.f. 1.1.1986 in respect of Junior Scale, Senior Time Scale and Junior Administrative Grade, DIG, IG and DG. Thus, once rules provide that the scales are to be given from 1.1.1986 as per the stipulation above, there is no other way that promotion can be given in regular course.
13. In the case of Association of Management of Private Colleges v. All India Council of Technical Education & Ors. (2013) 7 SCC 271, the Honble Supreme Court has clearly laid down the ratio that statute prescribes a particular procedure to do an act in a particular way that act may be done in that manner, otherwise it is not at all done. Their Lordships held as under:-
31. It is further contended by the learned counsel that this Court has held in number of cases that the courts cannot add or delete words or punctuations in a statute. It is also well settled proposition of law that the court shall gather the meaning of the statute by its simple and plain reading specially where there is no ambiguity in the language used in the definition provision and it should be construed in its literal sense.
32. It is further urged by him that the High Court has failed to take into consideration that the amendment dated 16.8.2000, i.e. deletion of Regulation No. 2(2) and addition of 8(c) and 8(iv) of Regulations of 1994 could not take effect unless the same was placed before the Parliament as required under Section 24 of the AICTE Act, wherein the amended Regulations have been framed. The amendments must be laid before both the Houses of the Parliament which is mandatory as provided under the aforesaid provision of the Act. The authority which frames Regulations as provided under Section 23 could not be validly exercised unless such Regulations are laid before both the Houses of the Parliament at the earliest opportunity. The very amendment dated 16.8.2000 of Regulations 2(2), 8(c) and 8(iv) has been kept ignoring the mandatory provision of Section 24 and therefore the impugned amendment to the aforesaid Regulations has been rendered invalid and void ab initio in law. This aspect of the matter has not been considered by the High Court while interpreting the said provisions in holding that as a result of the amendment of the aforesaid Regulations, the provisions of AICTE Act will be applicable to the courses which are being conducted by the colleges affiliated to the University/Universities. This approach of the High Court is erroneous and therefore the same cannot be allowed to sustain in law. This position has been reiterated in the case of Pramati Educational & Cultural Trust & Ors. v. Union of India & Ors., (2014) 8 SCC 1. Therefore, we find that there is no escape from the situation that the procedures and the binding stipulations in rules have to be followed to the letter of the rule.
14. We have also noted from the pleadings that the respondent nos. 2,3 an 4 have taken shelter behind the fact that the anomalies in the pay scale have arisen because the respondent no.6 was granted promotion as DIG w.e.f. 1.1.2009 while the applicant had been granted promotion as DIG w.e.f. 18.04.2010.
15. Here the applicant has invoked the next below rule and has relied upon the judgment of this Tribunal in R.N. Ravi v. Union of India & Anr. (OA No. 823/2012 decided on 10.05.2012). In the said case, the applicant was an IPS officer of 1976 batch allocated to Kerala cadre, and came on deputation to Intelligence Bureau as Deputy Inspector General in November, 1991. The applicant was due to retire on 30.04.2012 and holding the post of the rank of Director General of Police. Services of the applicant were governed by the guidelines dated 15.01.1999 issued by the respondent no.1 as regards promotion to Senior Scale, Junior Administrative Grade, Selection Grade, Super Time Scale and above Super Time Scale. The said guidelines provided for formation of a specialized screening committee to evaluate the ACRs and service records. There were no further provisions for promotion in the Service of the applicant beyond Super Time Scale Post. This exercise was done at all India level for all the eligible IPS officers of the batch, and this is independent of the State carrying out exercise for promotions at cadre level for its officers. The applicant was empanelled and promoted along with some other officers of his batch under different cadres to the rank of Director General of Police on 27.04.2010 in the pay scale of RS. 75000-80000 (HAG+). It was pleaded that it had been the consistent practice of the respondent no.1 for years together to give apex pay scale to an officer the moment his junior is appointed to a post carrying the apex pay in order to avoid arbitrariness in pay scale, if a junior happens to get higher pay without undergoing the selection process, and due to the past conduct of the respondent no.1, the applicant had a legitimate expectation for being granted the apex pay scale. In the case of Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 616], the Honble Supreme Court had held that it is an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice. In R.K. Sethi & Anr. Vs. Oil & Natural Gas Commission & Ors. [(1997) 10 SCC 616], the Honble Supreme Court had held that protection of pay is to be given to eligible senior once it has been given to a junior under the next below rule. In the case of Union of India & Ors. Vs. O.P. Saxena & Ors., (1997) 6 SCC, 360 the Honble Supreme Court held as under:-
10. In our opinion, the decision of the Tribunal directing stepping up of the pay of the respondents herein was not correct. It had been clarified by the Ministry of Railways in its letter dated 14th September, 1990 that the principle of stepping up referred to in its earlier letter of 16th August, 1988 was "subject to codal conditions being fulfilled". The principle of stepping up of pay is contained in Rule 1316 of Indian Railway Establishment Code, Vol. II which also contains conditions which have to be followed while ordering stepping up. Two of the conditions contained therein are :
(a) Both the senior and junior officers should belong to the same cadre and the post in which they have been promoted on a regular basis should be identical in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw should be identical.
16. This Tribunal, after going through the aforesaid decisions and considering all the facts, in the case of R.N. Ravi versus Union of India & Ors (supra) held as under:-
11. After considering the facts of the case, we are of the opinion that the applicant belonging to 1976 batch of IPS, in the rank of DGP in IB in the HAG+ scale of Rs.75000-80000 w.e.f. 27.04.2010, is entitled to the apex scale of Rs.80000/-. It is admitted and undisputed that Shri P. K. Mehta and Shri Ajay Chadha are junior to the applicant. Both belong to 1977 batch, although Shri P. K. Mehta is holding the post of DG, RPF and Shri Ajay Chadha has been appointed on the post of Special Secretary (Internal Security), and both are getting the apex scale of Rs.80000/-. As in the past, the apex scale of Rs.26000/- (fixed), which is at present equivalent to Rs.80000/- (fixed), was granted to senior officers of IPS, if this apex scale was granted to junior officers, with retrospective effect. Hence, following the principle of next below rule, the applicant is entitled to the apex scale of Rs.80000/- with retrospective effect from the date Shri P. K. Mehta and Shri Ajay Chadha were granted the apex scale of Rs.80000/- w.e.f. 19.05.2011. The applicant is also entitled for the apex scale of Rs.80000/- w.e.f. 19.05.2011. OA deserves to be allowed. OA is allowed and the respondents are directed to grant the apex scale of Rs.80000/- to the applicant w.e.f. 19.05.2011. The order passed by this Tribunal shall be complied with by the respondents within a period of two months from the date of communication of the order. In case the applicant has retired, then he is entitled for this scale and his pension shall also be revised accordingly. There shall be no order as to costs.
17. The next below rule has been defined in the communication dated 2.4.1947 of the Ministry of Finance, which reads as under:-
2. The working rule subjoined to this paragraph may be taken to express the convention with is commonly known as the next below rule, as originally approved, and its provisions, the modifications, made from time to time by the Secretary of State. The intention underlying the rule is that an officer out of this regular line should not suffer by forfeiting the officiating promotion which he would otherwise have received had he remained in his original line. The so-called rule is not a rule of any independent application. It sets out only the guiding principles for application in any case in which the Governor-General in Council, or the Governor exercising his individual judgment in virtue of the powers conferred on him by the Secretary of States rule of the 14th April, 1942 (published with Home Department Notification No. 195/40-Ests, dated the 19th June, 1942) proposes to regulate officiating pay by special orders under the second proviso to Fundamental Rule 50(1). The condition precedent to the application of the next below rule must therefore, be fulfilled in each individual case before action may be taken under this proviso. It also follows that the benefit of officiating promotion is to be given only in respect of the period or periods during which the conditions of the next below rule are satisfied. These conditions have been provided in para 3 of the aforesaid communication.
18. In the case of Raj Mal v. Department of Telecommunication & Ors. (OA No. 688/2014 decided on 28.04.2015), MANU/CA/0260/2014, the claim of the applicant was for a salary that his immediate junior had been getting. Relying on the judgment of the Apex Court in the case of UOI & Ors. Vs. P. Jagdish & Ors., 1997(3) SCC 176, the applicant stated that in the aforesaid case it has been ruled that Article 39(d) of the Constitution was a guiding factor for interpreting FR-22 regarding stepping up of pay of a senior when his junior is getting more pay than him. Apex Court in this case also observed that the principle of stepping up prevents violation of the principle of equal pay for equal work. Thus, all the Rules and Provisions, which allow existence of said anomaly, would be violative of Article 39(d) of the Constitution of India. The applicant further relied on Apex Court judgment in Civil Appeal Nos. 65-67/2007 arising out of S.L.P.(C) Nos. 12522-12514 of 2007 decided on 09.01.2009 (Er. Gurcharan Singh Grewal and Anr. Vs. Punjab State Electricity Board and Ors.) wherein their Lordships held as under:-
13. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still 10 contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2.
19. The applicant in that case also relied on the judgment of Apex Court in the case of Commissioner and Secretary to Government of Haryana and Ors. Vs. Ram Sarup Ganda and Ors., 2006(12)SCALE 440 in which the following has been held:-
15. In the result, all the appeals are partly allowed. The appellants shall revise the pay scales of the respondents. In case of any anomaly, if the employees who, on fixation of ACP Scales, are in receipt of lesser salary than their juniors in the same cadre/posts, then their salary shall be stepped up accordingly.
20. Further, the applicant relied on the judgment of Honble High Cout of Delhi in UOI and Anr. Vs. Chandra Veer Jeriya in W.P.(C) No. 2884/2010 decided on 25.10.2010 in which the following has been observed:-
8. We agree with the findings arrived at by the Tribunal in view of the law laid down by the Supreme Court in the decision reported as 1997 (3) SCC 176 UOI and Ors vs. P.Jagdish and Ors.. It may be highlighted that the respondents did not claim any pay parity with officers junior to them but in the Combatized Cadre till as long the officers remained in their respective streams. They claimed parity when the two streams merged in the same reservoir i.e. when they reached the post of Administrative Officer/Section Officer and that too from the date persons junior to them, but from the Combatized Cadre, became Administrative Officer/Section Officer. The anomaly which then arose was that persons junior in the combined seniority list of Administrative Officer/Section Officer started receiving a higher wage. With reference to FR-22, in P.Jagdishs case (supra) the Supreme Court held that Article 39(d) of the Constitution was the guiding factor in interpreting FR-22, the principle of stepping up contained in the Fundamental Rules comes into play when a junior person in the same post starts receiving salary more than his senior on the same post.
21. The applicant in that case had also placed reliance on the judgment of Honble Punjab & Haryana High Court reported in SCT 2008(3) HC 557 in which the Honble Court had observed that If juniors get more pay, then the seniors are also given stepping up in their pay so as to maintain parity & equity. Based on the above arguments, the applicant has prayed that his O.A. be allowed.
22. In that case, the respondents relied upon the DoP&T OM dated 4.11.1993 which inter alia provides:-
The respondents have further stated that the policy governing the stepping up of scales is regulated under FR-22 and Govt. of India orders contained therein. In the present case, the DoP&T O.M. No. 4/7/92-Estt. (Pay-I) dated 04.11.1993 is relevant, which, inter alia, provides as follows:-
If a senior joins the higher post later than the junior, for whatsoever reasons, whereby he draws less pay than the junior in such cases, senior cannot claim stepping up of pay at par with the junior.
If a senior is appointed later than the junior in 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 they may have been promoted earlier to the higher post.
23. The respondents had also relied upon the case of Union of India v. Sushil Kumar (1998) 5 SCC 268 wherein it has been held as follows:-
5. But, what the Tribunal has failed to take into consideration is the Circular dated 4-11-1993 issued by the Government of India, Department of Personnel and Training which clearly provides that the anomaly for granting benefit of stepping up of pay should be directly as a result of the application of Fundamental Rule 22-C and that if a junior officer draws a higher pay in the lower post either because of advance increments or on any other account then the provision of stepping up would not apply in such a case. Moreover in paragraph 2(c) of the Circular it is, further, provided that if a senior joins the higher post later than the junior, for whatsoever reason, whereby he draws less pay than the junior, in such a case senior cannot claim stepping up of pay at par with the junior. However, this Bench of the Tribunal had held that the instructions relied upon by the respondents only related to such places where the senior has joined the post after his junior on his own volition or other reasons. In the case under consideration, the Tribunal allowed the prayer for giving notional promotion to the applicant from the same date when his immediate junior had been promoted.
24. In conclusion, in the instant case, we find that IPS (Pay) Rules and IPS (Regulation of Seniority) Rules, have clearly been violated; the respondents have not followed the practice of giving promotion with effect from the due date as per the IPS Service Rules, though in practice it might have been given from the later date; the respondent nos. 2 to 4 had not replied any representations of the applicant; FR Rule 22 (C) provides for a stepping up of pay, but the respondents have not taken care to remove the anomalies created by late promotion of the applicant. Therefore, finding merit in the arguments of the applicant, we dispose of the instant OA with the following directions:-
(i) The impugned notification dated 02.02.2009 is quashed to the extent of not granting Selection Grade to the applicant w.e.f. 01.01.2008 with all consequential benefits, including payment of full arrears of pay as per rule;
(ii) The impugned notification dated 20.08.2010 also stands quashed to the extent promoting the applicant to the rank of DIG of Police in Super Time Scale w.e.f. 18.04.2010 in place of the due date of eligibility i.e. 01.01.2009 and pay him the arrears of pay & allowances as per rule;
(iii) The respondents are directed to issue orders for promotion to the applicant in the rank of Inspector General of Police w.e.f. due date i.e. 01.01.2013 when he had completed the qualifying service of 18 years in place of 27.03.2013 as per IPS (Pay) Rules, 2007 and pay him the arrears of pay & allowances as per rule;
(iv) The respondents are directed to modify the impugned notification dated 25.03.2013 vide which 1995 batch IPS officers were promoted to the rank of IG, by including the name of the applicant, who also belongs to the same batch; further modify notification dated 11.04.2013 by re-fixing his pay in the rank of IG of Polcie from the due date i.e. 01.01.2013 at par with his immediate junior; and pay the arrears of pay & allowances as per rule.
(v) There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/