Central Administrative Tribunal - Ernakulam
T.M. Somarajan vs Union Of India (Uoi) And Ors. on 22 February, 2002
Equivalent citations: 2003(2)SLJ225(CAT)
JUDGMENT T.N.T. Nayar, Member (A)
1. The grievance of the applicant in this O.A. is with regard to the unresolved anomaly in his pay fixation on appointment by promotion to the Indian Police Service (IPS for short) Cadre from the Kerala State Police Service (SPS for short). The applicant, therefore prays, inter-alia, for the following reliefs:
(i) Call for the records leading to Annexures A1 and A2 and set aside the same.
(ii) Issue a direction to the respondents to fix the basic pay of the applicant in the post of Superintendent of Police (IPS Cadre) at Rs. 4500 + personal pay of Rs. 400 with effect from 9.12.1995 and disburse the arrears of salary due to the applicant,
(iii) To declare that the applicant is entitled to have his pay fixed in the IPS Cadre on the basis of the pay drawn by him in the non-IPS Cadre as a confirmed Superintendent of Police applying the provisions contained in Section I of Schedule II of the Indian Police Service (Pay) Rules without giving effect to the unreasonable definition of higher scale of pay contained in Clause (iii) of Schedule II of the said Rules.
(iv) To declare that the definition of higher scale of pay contained in Clause (iii) of Schedule II of the Indian Police Service (Pay) Rules is unreasonable and unworkable and hence should not be enforced for fixation of the pay of the applicant in the IPS Cadre with effect from 9.12.1995.
(v) To declare that the definition of higher scale of pay contained in Clause (iii) of Schedule II of the Indian Police Service (Pay) Rules is unconstitutional and abinitio void.
(vi) To call for the records leading to Annexure A16 and Letter No. 20015/17 2000-AIS(II) dated 27.3.2000 of the Government of India, Ministry of Personnel, Public Grievances and Pensions referred to in Annexure A16 and set aside the same.
In short, the applicant wants to get his basic pay fixed in the post of Superintendent of Police (IPS Cadre) at Rs. 4500 + Personal Pay of Rs. 400 with effect from 9.12.95 with all consequential benefits including arrears of salary.
2. The applicant was holding the post of Superintendent of Police (Non-IPS) in the Kerala Police Service. He was selected and appointed in the IPS Cadre under Rule 9 of the IPS (Cadre) Rules as per G.O. dated 30.11.95. He joined duty in the IPS Cadre as Superintendent of Police, CB CID, Kannur on 8.12.95 (AN). Later, by another G.O. dated 22.1.96, the applicant was appointed in the IPS Cadre with effect from 31.12.95. His basic pay in the State Police Service at the time when he joined duty in the IPS Cadre was Rs. 4650/- + Special Pay of Rs. 100/- (vide A-4). His pay enjoining IPS Cadre was fixed at Rs. 4125/- in the place of Rs. 4650/- + Special Pay of Rs. 100/- which he had been drawing in the State Police Service immediately prior to his appointment to the IPS (A-5). The applicant was confirmed as Superintendent of Police (Non-IPS) as per G.O. dated 5.7.97 with retrospective effect from 4.5.94. On confirmation in the Non-IPS post of Superintendent of Police, the applicant's pay was fixed at Rs. 4250/- with effect from 9.12.95, as per A-6 order dated 5.8.97. The applicant made a representation dated 16.8.97 to the second respondent, viz, the Accountant General (A & E), Kerala, Trivandrum (A-7) for the purpose of removal of the anomaly consisting in the reduction of pay in the IPS Cadre visa-vis the pay in the State Police Service which the applicant was drawing at the time of promotion. In reply to this, the applicant received the impugned A-1 communication dated 2.9.97 from the second respondent saying that the fixation of pay was made placing reliance on Clauses (iii) and (iv) of Schedule II of the IPS (Pay) Rules, 1954 and hence there was no anomaly at all. The applicant's detailed representation dated 16.10.97 (A-10) wherein the applicant had very elaborately explained the facts and the relevant rules with regard to pay fixation on his appointment to the IPS Cadre on promotion from the State Police Service and the provisions regarding the power of relaxation conferred on the respondents under Rule 6 of Section III of Schedule II of the IPS (Pay) Rules, 1954 also met with no success. Apparently, the said representation was rejected for the same reasons stated in A-1 as is evident from A-2 communication dated 4.2.98 received from the second respondent. It is mainly against these orders that the applicant has filed the present O.A. Apart from the pleadings in the O.A. the applicant has filed rejoinders and Miscellaneous Applications from time to time on the basis of the reply statement of the respondents and have filed further evidence in order to support his plea that the pay fixation allowed to him on his appointment from State Police Service to the IPS Cadre was unjustified and hence not maintainable.
3. The respondents have resisted the O.A. by filing reply statements and additional reply statements countering the applicant's pleadings. We have heard Mr. C.P. Sudhakara Prasad, Counsel for the applicant, Mr. George Joseph, ACGSC and Mr, Renjit A, G.P. for respondents 2 & 3.
4. Reiterating the pleadings in the application and the rejoinders filed by the applicant, learned Counsel for the applicant took us through the rules and Government Notifications pertaining to the fixation of pay of officers of the State Service on promotion and induction to All India Services, particularly, with reference to the State Police Service and the IPS cadre. As per Rule 4 (5) of the IPS (Pay) Rules, 1954, the initial pay of the officer of State Police Service appointed to hold a cadre post in an officiating capacity in accordance with Rule 9 of the Rules shall be fixed on the basis of the principles enunciated in Section I of Schedule II, according to learned Counsel. It is submitted that the applicant was holding a post in a substantive capacity in the higher scale in the State Police Service at the time of his appointment to IPS and that therefore his pay ought to have been fixed at the stage of the Senior Time Scale of the IPS i.e., Rs. 3000-100-125-4500, next above his actual pay in the higher scale as per Clause 2 of Section I of Schedule II of the Rules and proviso thereto. His actual pay as on 8.12.95 was Rs. 4650 + Special Pay of Rs. 100. So his initial pay in the IPS Cadre ought to have been fixed at Rs. 4650 + Rs. 150 being one increment in the IPS scale admissible for every 3 years of service in the State Police Service subject to a minimum of Rs. 150 + Special Pay of Rs. 100/- i.e., total Rs. 4900/-. Since the maximum pay in the IPS Cadre is Rs. 4500/-, according to Counsel, the applicant's pay should have been fixed at Rs. 4500 + Rs. 400 being Personal Pay, subject to the condition that the personal pay would be adjusted against future increments. It has been contended by Counsel for the applicant that the respondents' stand that on the basis of definition of the expression 'higher scale' given in Definition Clause (iii) of Schedule II, pay fixation effected for the first time after 1 st January, 1986 should be the criterion for fixation of pay in the IPS Cadre is unreasonable, illegal, untenable and discriminatory.The applicant's confirmation as Superintendent of Police (Non-IPS) came after two revisions of pay, first with effect from July, 1988 and the second with effect from March, 1992. The induction to IPS Cadre on 9.12.95 was after the date of his retrospective confirmation as Superintendent of Police (Non-IPS), i.e., 4.5.94. Thus, recourse taken to definition of 'higher scale' contained in Clause (iii) of Schedule II is legally incorrect. Counsel would draw our attention to Clause 6 of Schedule III of the Rules which confers on the Central Government powers to remove unreasonableness in the rules. The respondent plea that the Special Allowance of Rs. 300/- and Rs. 500/- respectively sanctioned to the Junior Scale and the Senior Scale officers of IAS, IPS and IPS cadres as per A-8 order dated 25.7.95 and A-9 order dated 16.7.96 in order to rectify the disparity arising out of the implementation of the Central scales of pay for State Government employees would have the effect of removing the anomaly, is erroneous, according to applicant's Counsel. He would maintain that the purpose of A-8 and A-9 is different from the purpose of pay fixation deal with in the provisions of Section I Schedule II. The rejection of the applicant's representation (A-10) by means of A-2 order is, therefore, legally unsustainable, urges the Counsel. The learned Counsel would further plead that the anomaly pointed out as per the applicant's D.O. letter dated 13.12.99 (A-14) was recognised by the 2nd respondent as is clear from the A-15 communication dated 3.12.99. Though the same was brought to the notice of the first respondent (Government of India) for further action, the impugned A-16 communication dated 22.5.2000 received from the 2nd respondent would betray total lack of application of mind with regard to the rectification of the anomaly. The applicant's Counsel would submit that pay fixation allowed in the case of applicant's juniors like Shri M. Sethuraghavan (promoted to IPS on 17.4.97) and Shri K.G. Somasundara Menon and Shri R. Shamsudeen, (both selected to IPS in 1996) and still later to a junior like Shri D. Vijayan, inducted in IPS Cadre on 21.3.2000, would show that injustice having the effect of reducing his due remuneration has been perpetrated against him. Learned Counsel would invite our attention to A-12 and A-13 Pay slips to show that the applicant's junior gets higher basic pay than himself inspite of his getting the promotion to IPS much earlier. The applicant's Counsel has endeavoured to meet the arguments put forward on behalf of the respondents to the effect that if the restrictive definition of higher scale were not pressed into service, it would have led to the State Service Officers drawing inordinately higher basic pay as compared to officers directly entering into All India Services. In this connection, A-11 notification dated 14.7.95 of the DOPT is relied on by the applicant's Counsel to show that the pay fixation requested for would not, as alleged by the respondents, lead to fixation of maximum pay to SPS officers on the basis of each and every pay revision ordered by States. It is contended that the DOPT's notification No. GSR 437(E) dated 9.5.94 seeks to amend the IPS (Pay) Rules 1954 so as to provide for the protection of the State Service Officers pay to the extent of Rs. 5700 i.e., the then prevailing maximum of the Selection Grade being the third and last component of the Senior Scale of the IPS. With that amendment, effective from 9.5.94, the concept of 'Personal Pay' was done away with according to applicant's Counsel. However, in order to remove the continuing hardship of the SPS officers appointed to IPS, the amendment contained in GSR 437(E) dated 9.5.94 was, by A-1 notification dated 14.7.95 made notionally effective from 1.1.86 with no arrears upto 8.5.94. Learned Counsel for the applicant would vehemently contend that the impugned A-16 communication dated 22.5.2000 turning down the request for removal of anomaly is factually and legally unsustainable in view of the facts and circumstances explained.
5. The learned A.C.G.S.C. would try to rebut the applicant's objection to thedefinition of 'higher scale' as given in Schedule II of the IPS (Pay) Rules, 1954 by stating that the same has never been challenged by the applicant and hence it would remain unassailable now. When pay is fixed in accordance with the provisions i.e., Clause 2 of Section 1 of Schedule II, the applicant's pay consequent to the revision of the pay scale of SPS Officers with effect from 1.7.88 i.e., Rs. 4195 should be taken as the basis and pay when fixed at the appropriate stage of promotion to IPS cadre would be Rs. 4250. Counsel for the respondents would vehemently contend that the pay so fixed cannot be compared to the pay the applicant was getting in the SPS as per the pay revision effected in 1992. Similar pay fixation has been done in all similar cases and there cannot be a case where the applicant is signed out. The disparity that arises on account of IPS pay scales vis-a-vis the SPS pay scales after the pay revision of 13.92 is removed by the grant of allowance of Rs. 500 to the IPS officers including the applicant, it is pointed out. Counsel for the respondents would state that there is no net loss of pay on the applicant's induction into IPS cadre. The definition of higher pay is sought to be justified by the learned Counsel for respondents by stating that if such a definition were not given, State Civil/Police Service officers would have gained under monetary advantage by drawing DA etc., as per the Central Rules on the basis of revised pay which already includes part of DA etc., on account of merger thereof in the pay scales. But on account of the Special Allowance of Rs. 500 there would, in fact be no drop in the applicant's emoluments on his induction into the IPS, Counsel for the respondents would contend. Learned Counsel would reiterate the first respondent's submission in the reply statement to the effect that if the applicant wanted to revert to State Service on account of the alleged pay disparity, the Government would consider relaxation of the rules and allow him to revert to the SPS if this Tribunal so directs. The applicant, being an IPS officer, who has willingly severed his connection with the SPS and accepted his induction into the IPS, is governed by the IPS (Pay) Rules and cannot claim that he is eligible for more pay than what is admissible under the IPS scale, Counsel would urge.
6. Basing his arguments on the reply statements furnished by the second respondent, the learned Government Pleader would contend that when the applicant was inducted into the IPS cadre from the SPS with effect from 9.12.95, his confirmation in the higher scale of STS had not come and that therefore, his initial pay was fixed as provided under Clause (1) of Section 1 of Schedule II. It is stated that on his confirmation as Superintendent of Police (Non-IPS) with effect from 4.5.94 as per communication dated 5.7.97, his pay had to be refixed as per Clause (2) based on the scale of pay applicable to the SPS revised for the first time after 1.1.86. Counsel would point out that the pay scale was revised for the first time after 1.1.86, on 1.7.88 and that the scale that came into effect from 1.3.92 had to be treated as a second revision. The Government of India had duly considered the applicant's case regarding removal of the alleged disparity, vide Ministry of Personnel & Public Grievances and Pensions letter No. 11030/4/94-AIS.II dated 23.6.94. The admissibility of protection of pay drawn in the revised scale with effectfrom 1.3.92 was examined as is clear from Government of India's letter No. 11030/4/94-AIS.II dated 23.11.94 and the grounds of rejection of the applicant's claim as communicated in the letter dated 23.6.94 were reiterated. The applicant's pay was to be fixed as per Clause 2 of Section 1 of Schedule II and therefore, his claim that it should have been fixed as per Clause 3 of Schedule III was inadmissible, the Counsel would maintain.
7. We have examined the enormous bulk of pleadings made by the rival parties. The main question is how the pay of the applicant, a State Police Service officer, is to be fixed on his induction on promotion into the All India cadre, viz, IPS, before his confirmation in the State cadre came and after his confirmation orders with retrospective effect were issued. Admittedly, the applicant was yet to be confirmed in the post of Superintendent of Police (Non-IPS), when he was selected to and joined the IPS on 8.12.95 (Afternoon). So it was necessary to fix his pay with effect from 9.12.95 with reference to his actual pay on that date in the State cadre at the appropriate stage in the IPS as applicable at the relevant point of time. He was permanently appointed to the IPS cadre with effect from 31.12.95. More than 18 months thereafter, by order dated 5.7.97, the applicant was confirmed in the State Police Service with retrospective effect from 4.5.94, Thus, the applicant's pay was required to be recalculated from 9.12.95 taking note of the fact that he was confirmed in the post of Superintendent of Police (Non-IPS) with effect from 4.5.94. That takes us to the rules regarding pay fixation relevant to the applicant's case. Indian Police Service (Pay) Rules, 1954 (referred to as Rules) governed these matters. Rule 4 (5) is the relevant Rule that deals with the type of eases under which the applicant comes. Rule4 (5) states as under:
"The initial pay of an officer of a State Police Service who has been appointed to hold a cadre post in an officiating capacity in accordance with Rule 9 of the Indian Police Service (Cadre) Rules, 1954, shall be fixed in the manner specified in Section III of Schedule II.
Now, one has to see Section III of Schedule II of the Rules to understand the manner in which the applicant's initial pay in the IPS is to be fixed. Section III of Schedule II reads as follows:
"The initial pay of a member of the State Police Service appointed to officiate in a cadre post shall be fixed in accordance with the principles enunciated in Section I of the Schedule.
Thus it becomes necessary to fix the initial pay of the applicant by going back to Section I of Schedule II. Section I of Schedule II of extracted below:
"Section 1 : Fixation of initial pay of promoted officers falling under Rule 4(3).
(1) The initial pay of a promoted officer shall be fixed at the stage of the senior time-scale of the Indian Police Service equal to his actual pay in the lower scale or his assumed pay in the lower scale, as the case may be, increased at the rate of one increment in the senior time-scale of the Indian Police Service for every three years of service in the State Police Service. The resultant increase shall be subject to a minimum of Rs. 150 and a maximum of Rs. 200 over his pay in the State Police Service:
Provided that:
(i) Where, however the amount arrived at after the addition of such minimum or maximum increase corresponds to a stage in the senior time-scale of the Indian Police Service, the initial pay shall be fixed at that stage; and where it does not correspond to a stage in the senior time-scale of the Indian Police Service, the initial pay shall be fixed at the next higher stage of the scale; and
(ii) for the purpose of this clause, service in the State Police Service shall include such service in a former State, now merged in the State concerned, as may be equated to service in the State Police Service by the Central Government in consultation with the State Government concerned.
Explanation : In the case of a promoted officer whose actual pay in the lower scale of the State Police Service is equal to or above the minimum of the senior time-scale of the Indian Police Service, the rates of increment shall be equal to the rates admissible in the senior time-scale of the Indian Police Service at the stage to which the actual pay corresponds or if there is not such stage, the next lower stage.
(2) The initial pay of a promoted officer who is substantive in the higher scale of the State Police Service shall be fixed at the stage of the senior time-scale of the Indian Police Service next above his actual pay in the higher scale.
Provided that in a case where the pay in the senior time-scale of the Indian Police Service calculated in accordance with Clause (1) is higher than that admissible under this clause, the promoted officer shall be entitled to such higher pay.
(3) A promoted officer, who, at the time of his appointment to the Indian Police Service was officiating in the higher scale of the State Police Service and whose initial pay in the senior time-scale of the Indian Police Service is fixed in accordance with Clause (1), shall, in case his officiating pay in the higher scale is higher than the initial pay so fixed in the senior time-scale of the Indian Police Service, be entitled to a personal pay equal to the difference provided that the State Government certifies that the promoted officer would have continued to officiate in the higher scale but for his appointment to the Indian Police Service. The personal pay shall be absorbed in future increments and increases in his pay, if any, including special pay, additional pay and any other form of pay."
8. It is quite clear that the applicant became a confirmed Superintendent of Police in the State Police Service (i.e Non-IPS) with effect from 4.5.94. There cannot be any controversy about the position that when the applicant was appointed to the cadre of IPS with effect from 8.12.95 afternoon, he was holding the substantive post of Non-IPS Superintendent of Police. His substantive pay as Superintendent of Police (Non-IPS) as on 9.12.95 was Rs. 4650 per month plus Special pay of Rs. 100/-. Needless to say, he was drawing pay in the higher scale of the State Police Service as on 9.12.95, when he was appointed to the All India Cadre (IPS). In Accordance with Clause 2 of Section I of Schedule II, the applicant's pay should be fixed at the stage of the senior time-scale of the IPS next above his actual pay in the higher scale. Actual pay in the higher scale is Rs. 4650/- plus Special Pay of Rs. 100/- as has already been seen. However, the pay calculated as per Clause 1 is higher than that admissible under Clause 2. Therefore, in accordance with the proviso to Clause 2 of Section I of Schedule II, the applicant should be entitled to such higher pay as is calculated in terms of Clause 1. In other words, the applicant would be entitled to get his initial pay in IPS fixed at Rs. 4900/- per month in accordance with the proviso to Clause 2 Section I of Schedule II. 'Actual pay' is defined as tbe pay whether in the lower scale or in the higher scale to which a member of the State Police Service is entitled by virtue of his substantive position in the State Police Service. In view of the above, the applicant's pay in his substantive post being Rs. 4650/- plus Special Pay of Rs. 100/- has to be reckoned for purpose of pay fixation. The claim of initial pay at Rs. 4900/ to be fixed in the light of the above, therefore appears to have reasonable basis.
9. Now turning our attention to the restriction taken recourse to by the respondents, apparently, in view of the definitions of the expressions "higher scale" and "lower scale" contained in definition Clauses (iii) and (iv) of Schedule II of the IPS (Pay) Rules, we find that the meanings attributed to these two expressions as appearing in the definitions need to be taken as such unless the context otherwise requires, (emphasis supplied). In our considered opinion, the context in which the applicant's pay fixation is to be considered does require the expression "higher scale" to be understood in its most natural and unrestricted meaning.
10, In the case of State Government officers, the first pay revision after 1.1.86 took place with effect from 1.7.88. However, it was only after the next pay revision which was brought into force with effect from 1.3.92 as per G.O. (P) No. 600/93/Fin. dated 25.9.93 that the applicant became a confirmed Superintendent of Police (Non-IPS) and then got into the All India Cadre (IPS) on 9.12.95. We are inclined to agree with the applicant's view that if the definition of 'higher scale' contained in the rules is taken as the basis for fixation of the applicant's initial pay in the IPS cadre on 9.12.95, it would bring about unreasonable result and cause unintended hardship to the applicant. It is in this connection that Clause (6) of Section III of the Rules whereby specific power is conferred on the Central Government for removing the unreasonableness in the rules is expected to be called in aid. Clause (6) of Section III of Schedule II is as follows:
"Notwithstanding anything contained in any clause in the section, where the Central Government is satisfied that the operation of any clause or clauses of this section causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that clause or clauses, as the case may be, to such an extent and subject to such exceptions and conditions it may consider necessary for dealing with the case in a just and equitable manner."
The respondents stand that the Special Allowance of Rs. 500 sanctioned by the State Government to the promoted IPS officers like the applicant was intended to remove the pay disparity is incorrect as it is clear from A-8 and A-9 that the Special Pay of Rs. 500 was by way of rectifying the disparity arising out of the implementation of the Central scale for the State Government employees with effect from 1.3.92, and not as a protection against the drop in the basic pay of Non-IPS officers of the State Police Service appointed to IPS after 1.3.92 and that it had no bearing on the fixation of pay in the IPS post based on the principles mentioned in Schedule II of the rules. We have also examined the applicant's submission that the maximum basic pay that could be drawn by a promotee IPS officer could be pegged at Rs. 5700 p.m., being the maximum of the basic pay of the Selection Grade Superintendent in the IPS Cadre. The applicant relies on A-1 1 dated 14.7.95, which provides for protection of pay of officers belonging to the State Police Service appointed to the Indian Police Service under the IPS (Appointment by Promotion) Regulations, 1955. It would appear that the necessary amendment made to this effect in the Department's notification G.F.R. No. 437 (E) dated 9.5.94 provide for the protection of the State Police Officer's pay to the extent of Rs. 5700, i.e. the maximum of the Selection Grade which is the third and the last competent of the Senior Scale of the IPS and that the amendment would be effective from the date of its publication i.e. 9.5.94. However, the hardship that was caused from the date of effect of the said notification was taken note of and it was, accordingly, decided to make the amendments notionally effective from 1.1.86 on which date the revised pay scale in respect of All India Services came into effect on the recommendations of the Vth Central Pay Commission. One of the important aspects of the said notification is that while the promoted officers would get their pay fixed in the light of the amendment with effect from 1.1.86, no arrears of pay on account of the same period from 1.1.86 to 8.5.94 would be admissible. It would, therefore, be clear that the respondents averment in the reply statement to the effect that the definition of higher scale was necessary to limit the maximum pay to the State Police Officers on promotion to the IPS cadre vis-a-vis their direct recruit counterparts is unsound.
11. As has been observed earlier, there existed a serious anomaly. According to us, the anomaly in the fixation of initial pay of the applicant in the IPS is further accentuated by the higher basic pay allowed to be drawn by some of his juniors who were not found fit for promotion alongwith him and who were given promotion to the IPS cadre on subsequent date or dates. A-12 Pay Slip in respect of Shri M. Sethuraghavan inducted into the IPS in 1997 illustrates this. Pay fixations allowed to other juniors like S/Shri Somasundara Menon, Shamsudeen, Vijayan etc. who were inducted into the IPS much after the applicant are other cases in point. This anomalous situation was not lost even on the second respondent for in his communication dated 3.12.99 (A-I5), he admits that his office was not in a position to rectify the anomaly as pointed out by the applicant. The above communication (A-15) was in reply to the applicant's detailed representation in A-14 whereby he had highlighted not only the anomaly in his initial pay fixation in the IPS per se but also the anomalous position arising out of higher pay and allowances being given to his juniors who were promoted to the IPS cadre later than himself. In our considered opinion, the rules would have never intended to produce such a result. But the rules makers, we have reason to believe, have apprehended that in the implementation of the rules there might be inequities or anomalies. Wherever such unintended injustice is done and hardship is caused, law provides for administrative remedy. If no such remedy is provided, Courts can interfere. It is this remedy is provided for in Clause (6) of Section III of Schedule II quoted supra. The applicant endeavoured to persuade, the respondents to remove the anomaly and as we have observed, the second respondent recognised at one stage that there indeed was an anomaly. We do not know why this anomaly was not removed. We are afraid, the respondents have failed in their duty to apply their mind judiciously in the matter of removing the anomaly. The applicant has been unjustly left in the lurch drawing less salary then those who received promotion later than himself in the same cadre. Dealing with a fairly similar situation, the Hon'ble High Court of Kerala, in the case of Madhavan Assan v. Kerala SSI & E. Corporation Ltd., 1990(2) KLT 871, after referring to the concept of equal pay for equal work being an aspect of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution, and surveying a body of case law including several Supreme Court decisions like those reported in AIR 1982 SC 879 and AIR 1988 SC 1504, made the following observations:
"7. The question involved is a fundamental one, in that a senior in a category is made to draw basic pay less than that drawn by his junior for the simple fortuitous circumstance that he stood promoted earlier than his junior and the pay revision for the junior was effected in the lower category in the interregnum. I should think that it is a fundamental principle of service law that when everything else is equal, a senior in service should receive a salary higher than, or atleast equal to, that drawn by his junior. To relegate him to a lower pay is arbitrary and negation of the rule of equality enshrined in Article 14 of the Constitution. It looks obnoxious and revolting to good sense that a senior should get lower pay merely because he was promoted earlier.
8. It is true that the principle adopted by the first respondent that the pay drawn in the lower category should be protected on promotion is valid, but then it is equally incumbent on them to see that the interests of the senior who was already in a higher category are protected by appropriate revision of his pay, so that he does not stand in a worse position than his junior in relation to the pay drawn by him. The payment of lesser salary for an admitted senior, who is similarly situated, than his junior, amounts to an unequal treatment meted out to equals, there by violating Article 14 of the Constitution. The fact that respondents 2 and 3 were promoted after the pay revision on 1.7.1980 does not put them in a separate or different category. Such a differentia between persons promoted before or after 1.7.1980 has no rational basis in so far as it relates to fixation of salary."
12. Respectfully following the ratio of the findings of the High Court's decision cited above, we are inclined to hold that the respondents erred in not judiciously examining the anomaly the really existed and highlighted by the applicant in his various representations, particularly, with reference to the provision of Clause (6) of Section III of Schedule II which are on the statute book precisely for the purpose of removing anomalies of this type.
13. Accordingly, we dispose of this application with the following orders/directions:
"(i) The impugned order A-1 dated 2.9.97 is set aside. (ii) The impugned order A-2 dated 4.2.98 which practically reiterates the interpretation of the Rules as given in A-1 and the conclusions drawn therein is set aside. (iii) The impugned order A-16 dated 22.5.2000 of the DOPT is set aside.
(iv) We declare that the applicant is entitled to have his initial pay fixed in the IPS cadre on the basis of the pay drawn by him in the Non-IPS cadre as a confirmed Superintendent of Police as on 9.12.95 without applying the restrictive definition of the expression 'higher scale' occurring in definition Clause (iii) of Schedule II of the Indian Police Service (Pay) Rules, 1954. We further declare that in the applicant's case the context requires such interpretation of the meaning of expression 'higher scale of pay' that should not cause the anomalous situation of the applicant deriving less pay and allowances than his juniors some of whom were not even found fit to be promoted to the IPS alongwith him and hence were considered for promotion on subsequent date or dates. We also declare that the anomaly in the applicant's initial pay fixation in the IPS is to be necessarily removed by applying the provisions of Clause (6) of Schedule II of the Indian Police Service (Pay) Rules, 1954. The first respondent is directed to pass appropriate orders and ensure removal of the anomaly in the applicant's initial pay fixation in the IPS by applying the provisions of Clause (6) and fixing the applicant's initial pay in the IPS on the basis of his actual pay in the higher scale of Superintendent of Police (Non-IPS) as on the date of his promotion to the IPS.
(v) The above orders and directions shall be carried out and the consequential benefits including arrears, if any, flowing therefrom granted to the applicant at an early date and in any case, within a period of four months from the date of receipt of copy of this order.
14. The parties shall bear their respective costs.