Madhya Pradesh High Court
S.C. Saxena And Ors. vs Union Of India (Uoi) And Ors. on 22 January, 2003
Equivalent citations: 2003(2)MPHT355
Author: Dipak Misra
Bench: Dipak Misra, A.K. Shrivastava
ORDER Dipak Misra, J.
1. The petitioners by this writ petition preferred under Article 226/227 of the Constitution of India, have called in question the legal propriety of the order dated 25-6-1999 passed in O.A. No. 75/91 by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur. It is pertinent to state here the aforesaid original application was decided along with two other original applications, but the present writ petition being confined to the aforesaid original application we shall only refer to the facts in the aforesaid original application and deal with the merit of the said case.
2. The petitioners three in number, were applicants before the Tribunal in O.A. No. 757/91. It is relevant to state here that in the aforesaid O.A. there were 32 applicants. Their case before the Tribunal was that they were working on the post of Head Clerks and Superintendents-II. A scheme was floated by the respondents on 11-7-1979 stipulating that a person who was discharging onerous duties would be paid at the rate of Rs. 35/-. This amount was to be added as the personal pay of each of the petitioners holding the post of senior clerks. The aforesaid amount was payable only to 10% of the total strength of Senior Clerks/Head Clerks who were performing their duties which are of arduous nature. Each of the applicants after issuance of the aforesaid circular dated 11-7-1979 was performing the duties of Senior Clerks (UDC) and as responsibilities were of arduous nature they were rewarded by being paid the amount as personal pay to them. Subsequently, the respondent-Department issued yet another letter-circular on 27-11-1987 in which it was notified that 10 per cent of the senior clerks who have been performing onerous duties getting the amount of Rs. 35/-, the said amount would be merged in the basic pay at the stage of fixation of pay on promotion to the post of Head Clerks from Senior Clerks. It was putforth by the applicants that as they were performing the same nature of work, i.e., onerous duties they were receiving Rs. 35/- as personal pay and were promoted earlier to those who were juniors to them, vide Annexure-D, their basic pay could not be fixed below the juniors. It was pleaded before the Tribunal that the juniors had been given the benefit whereas the senior persons who were promoted already earlier to the juniors from the post of Senior Clerks to the post of Head Clerks have been ignored, though they were receiving the special pay when they were working in the post of Senior Clerks, and discharging onerous duties.
3. The respondents before the Tribunal resisted the claims of the applicants therein on two counts viz., the cause of action had arisen in the year 1984 as upgradation had taken place during the year with effect from 1-1-1984 and, therefore, the application was barred by limitation and special pay was given to such senior clerks who came within the zone as stipulated under the OMS and none of the applicants was working in 10% posts of senior clerks on that day they were not entitled to the special pay of Rs. 35/- and hence, the applicants cannot claim special pay as matter of right. The Tribunal addressed to the aforesaid facets and formulated the issue that the claim is based on the fact that the applicants have been receiving Rs. 35/- as personal pay, but the same had not been added to their pay on promotion. The Tribunal appreciating the correctness of the factum pertaining to receipt of Rs. 35/- as special pay came to hold that the petitioners were not in receiving special pay as has been claimed by them. However, the Tribunal relying on the decisions of the Apex Court rendered in the cases of Union of India and Anr. v. R. Swaminathan, (1997) 7 SCC 690 and Union of India and Ors. v. M. Suryanarayana Rao, (1998) 6 SCC 400, came to hold that the applicants did not satisfy the conditions laid down therein and accordingly rejected the application.
4. We have heard Mr. M.R. Chandra, learned Counsel for the petitioners and Mr. S.P. Sinha, learned Counsel for the respondents.
5. It is submitted by Mr. Chandra that the Tribunal has failed to appreciate the facts in proper perspective inasmuch as it has denied the benefit of stepping up of pay, though the petitioners are entitled to the same. It is further urged by him that the Tribunal has arrived at the conclusion, on the foundation that no special pay was received by any of the applicants but assuming such finding is correct, still then the applicants arc entitled to the same. It is canvassed by him that the law laid down in the case of Union of India and Ors. v. P. Jagdish and Ors., (1997) 3 SCC 176, would apply on full fours to the case and other decisions placed reliance upon by the Tribunal are distinguishable.
6. Mr. S.P. Sinha, learned Counsel for the respondents, sounding a contra note, has contended that conferral of benefit of special pay is not a matter of right and the railway administration had the authority to extend the said benefit taking into consideration the security as well as the nature of work. The learned Counsel for the respondents has submitted that the order passed by the Tribunal is absolutely sustainable inasmuch as the case in question is covered by the decisions rendered in the cases of R. Swaminathan and Others (supra) and M. Suryanarayana Rao (supra) and Union of India and Ors. v. O.P. Saxena, AIR 1997 SC 2978.
7. Two questions emerge if rival contentions raised at the Bar are appreciated in proper perspective, namely, (i) whether the applicants are entitled to the special pay; and (ii) whether the benefit of stepping up of pay should be extended to them. As far as the first aspect is concerned the claim that it was given to them has been disbelieved by the Tribunal. It is a question of fact. It has not been pointed out that the applicants were any point of time conferred the benefit of the said special pay. Such a special pay cannot be claimed as a matter of right. Hence, in our considered view the claim of special pay is not allowable and accordingly we repel the aforesaid submission of the learned Counsel for the petitioners.
8. The second limb of argument relates to stepping up of pay. Submission of Mr. Chandra, learned Counsel for the petitioners is that the decision rendered in the case of P. Jagdish and others (supra) would govern the field. Per contra, Mr. Sinha, learned Counsel for the respondents contended the decisions relied upon by the Tribunal would be applicable.
9. In the case of O.P. Saxena (supra) a three Judge Bench of the Apex Court dealt with the case of special pay that related to staff category of staff called 'running staff which is involved in the running trains. It was the case that the locomotive drivers were eligible for promotion amongst other posts, to those of Loco Supervisors. One Shri Kareer and O.P. Saxena, at one time, were holding the running post of Driver Grade C. Kareer was promoted on the said post on 29-8-1961 and the O.P. Saxena had been promoted and appointed as Drivers Grade C from a date subsequent to 29-8-1961. Kareer was senior to O.P. Saxena, Thereafter O.P. Saxena opted to be promoted to the 'stationary post' of Loco Supervisor directly from the post of Driver Grade C which they were holding. Their promotion was made prior to 1st January, 1986. Sh. Kareer chose to remain in the running staff and thereafter he was promoted as Driver Grade-A. The pay of running staff on promotion to Loco Supervisor's post is fixed under Rule 1316 of Indian Railway Establishment Code after fixation of an additional component of thirty per cent of basic pay last drawn in the running cadre, which represents the pay element in the running allowance. O.P. Saxena was stepped up but later on when it was realised recoveries were directed to be made and the action was assailed before the Tribunal which lanceted the order passed by the Department. Thereafter the Union of India came before the Apex Court. Their Lordships referred to Rule 1316 of Indian Railway Establishment Code. In Paragraph 12 the Apex Court held as under :--
12. It is not in dispute that as Driver Grade-C Sh. Kareer was senior to and was drawing more salary than the respondents. Thereafter while Sh. Kareer remained in the cadre of running staff the respondents by choice opted for being promoted to the supervisory cadre and posted as Loco Supervisors. Thereafter Sh. Kareer on the one hand and the respondents on the other belonged to two different cadres having their own seniority list. The pay of Sh. Kareer was fixed according to the scales which were approved for the running staff including the running allowance. Sh. Kareer was drawing more salary as Driver Grade-A, just before his appointment as a Loco Supervisor, than the respondents. With the revision of pay-scales with effect from 1st January, 1986 Sh. Kareer's pay was fixed at Rs. 2,360/- as on 1st January, 1986 while the salary of respondent-O.P. Saxena on the stationary post which he was holding was Rs. 2,300/-. The sources of the recruitment to the post of Loco Supervisor in the case of Sh. Kareer vis-a-vis the respondents being different the principle of stepping up of pay would not arise. Whereas the respondents were Grade C, Sh. Kareer on the other hand was placed in the cadre of Loco Supervisor after being promoted from the post of Driver Grade-A. When the feeder posts of Sh. Kareer and that of the other respondents were different the applicability of the principle of stepping up cannot apply. The pay of Sh. Kareer had to be fixed with reference to what he was last drawing as Driver Grade-A, a post which was never held by any of the respondents. In our opinion, therefore, the Tribunal was not justified in applying the principle of stepping up and in directing the relaxation of the pay of the respondents."
10. On a perusal of Paragraph 12 it is perceptible that Kareer remained in the cadre of running staff, but the respondent by choice opted for being remained in Supervisor cadre and posted as Loco Supervisor. Thus Kareer in one hand and O.P. Saxena on the other belonged to two different cadres having their own seniority list. The pay of Kareer was fixed according to the scales which were approved for the running staff including the running allowance. The Apex Court took note of the sources of recruitment to the post of Loco Supervisors in the case of Kareer vis-a-vis the respondent being different and came to hold that the principle of stepping up would not arise. Their Lordships further took note of the fact that O.P. Saxena was promoted as Loco Supervisor from Driver Grade-C, whereas Kareer was placed in the cadre of Loco Supervisor after being promoted from the post of Driver, Grade-A, and when the feeder posts were different the applicability of principles stepping up pay could not apply. In that background the Apex Court overturned the order passed by the Tribunal.
11. In the case of Suryanarayana Rao (supra) a two Judge Bench of the Apex Court dealt with the concept of stepping up of pay. In that case Suryanarayana Rao visited the Central Administrative Tribunal for quashment of the order of the Government rejecting his representation for stepping up his pay to be on par with his juniors. The Tribunal accepted the contentions and granted relief. Before the Apex Court the Union of India placed reliance on the decision rendered in the case of R. Swaminathan (supra). In the case of R. Swaminathan (supra) the Bench pointed out that in that case, the higher pay was fixed for the juniors not because of any promotion under FR 22 but because of earlier ad hoc promotions given to the juniors for certain periods. In the aforesaid case Their Lordships opined that the decision rendered in the case of R. Swaminathan (supra) did not require reconsideration. While dealing with the case of P. Jagdish (supra) in Paragraph 9 Their Lordships expressed the view as under :--
"9. The learned Counsel suggests that the Bench has failed to take note of an earlier judgment of a Bench of two Judges in Union of India v. P. Jagdish. Subsequent to the promotion of the respondents in that case as Head Clerks from the posts of Senior Clerks, some of the posts of Senior Clerks were given a special pay of Rs. 35 per month. Though the respondents had not worked on such posts, they claimed relaxation of their pay in the cadre of Head Clerks on a notional basis that they were drawing such special. That claim was negatived by the Bench. But the Bench held that the respondents therein were entitled to have their pay stepped up to he on a par with that of their juniors who had worked in posts carrying such special pay and were promoted later than the respondents as Head Clerks. The Bench look care to say that such stepping up would be only prospective from the date of promotions of the juniors. The facts of the present case are entirely different and the said ruling will not apply."
12. It is apparent that Their Lordships distinguished the said case on grounds of facts. In the case of R. Swaminathan (supra) which has been referred to in that case the Apex Court took note of the ad hoc promotion which ensued because of ad hoc local promotion against certain vacancies. Their Lordships opined the local officiating arrangement, docs not adversely affect seniority of regular promotion of senior employee on the basis of All India seniority. Their Lordships referred to Fundamental Rule 22 and thereafter in Paragraphs 7 and 8 held that for the fixation of pay on promotion, one has to first look at the pay being drawn by the promotee in the lower post. This pay in the lower post must be increased by one increment in that pay scale. Thereafter Their Lordships in Paragraph 8 held as under :--
"8. The fixation of this pay in the higher post is, however, subject to the proviso. If the person so promoted has earlier officiated in that higher post or substantively held that higher post for short or long duration , then, (1) his initial pay which is fixed under Rule 22 (I) (a) (1) shall not be less than the last pay which he drew when he last held the higher post. (2) The period during which he drew that pay on such last and any previous occasions shall count for increments in, the time-scale of the pay for the higher post. For example, if the promotee had previously, on various occasions, officiated in that higher post for different periods, and if the sum total of periods for which he so officiated is more than 12 months, he would he entitled to an increment in that higher pay scale. His initial pay, therefore, on his regular promotion will he fixed taking into account not merely his entitlement on the basis of his notional pay in the pay scale of the lower post, but also taking into account the last pay drawn by him while he was officiating in the higher post and also counting the previous periods during which he so officiated for his increment in the higher pay scale. The Department has also, in this connection, drawn our attention to Fundamental Rule 26 which, inter alia, provides as follows :--
'FR 26. (a) All duty in a post on a time-scale counts for increments in that time-scale:
Provided that, for the purpose of arriving at the date of the next increment in that time-scale, the total of all such periods as do not count for increment in that time-scale, shall be added to the normal date of increment'."
13. After due scrutiny the Apex Court in Paragraph 9 expressed the view that in the case at hand the junior employees who have got higher pay on promotion than their seniors, had officiated in the promotional post for different periods on account of local ad hoc promotions granted to them. Their Lordships in the said backdrop came to hold that Fundamental Rule 22 (I) (a) (1) is not applicable inasmuch as difference in the pay of juniors and seniors in the cases before the Apex Court was not the result of the deviation of that fundamental rule. In our opinion the said case relates to conferral of benefit on a junior on the basis of promotion and hence, the Apex Court in that case while relying in the case of Suryanarayana Rao (supra) distinguished the law laid down in the case of P. Jagdish and others (supra). We also perceive that the facts in the case of Jagdish and others are absolutely the same as in the case at hand. In the said case the respondent, P. Jagdish was not working against identified post carrying special pay in cadre of Senior Clerks but his juniors were carrying special pay were promoted later but their pay was fixed at a higher slab taking into account the special pay which was received by them in the lower post. In that context while denying the grant of special pay in Paragraph 7 Their Lordships held as under:--
"7. So far as the second question is concerned, it depends upon the applicability of the principle of stepping up. Admittedly, the respondents had been promoted earlier to the category of Head Clerks and some of their juniors who were continuing as Senior Clerks against the identified posts carrying special pay of Rs. 35/-per month on being promoted to the post of Head Clerks later than the respondents got their pay fixed at a higher level than the respondents. Under the provisions of Fundamental Rules to remove the anomaly of a Government servant promoted or appointed to a higher post earlier drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to the higher post, the principle of stepping up of the pay is applied. In such cases the pay of the senior officer in the higher post is required to be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up is required to be done with effect from the date of promotion or appointment of the junior officer. On refixation of the pay of the senior officer by applying the principle of stepping up, the next increment of the said officer would be drawn on completion of the requisite qualifying service with effect from the date of the relaxation of pay. This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay. This being the principle of stepping up contained in the Fundamental Rules and admittedly the respondents being seniors to several other Senior Clerks and the respondents having been promoted earlier than many of their juniors who were promoted later to the post of Head Clerks, the principle of stepping up should be made applicable to the respondents with effect from the date their juniors in the erstwhile cadre of Senior clerks get promoted to the cadre of Head Clerks and their pay was fixed at a higher slab than that of the respondent. The stepping up should be done in such a way that the anomaly of juniors getting higher salary than the seniors in the promoted category of Head Clerk would be removed and the pay of the seniors like the respondents would be stepped up to a figure equal to the pay as fixed for their junior officer in the higher post of Head Clerk. In fact the Tribunal by the impugned order has directed to apply the principle of stepping up and we sec no infirmity with the same direction subject to the aforesaid clarifications."
14. In our considered opinion, the decision rendered in the case of P. Jagdish and others (supra) squarely applies to the present case. It is submitted by Mr. Sinha, learned Counsel for the respondents that juniors were given special pay and were promoted later than the petitioners and hence, have been given higher pay than the petitioners. The learned Counsel for the petitioners has drawn attention to certain documents which were filed before the Tribunal. We are not inclined to enter into that arena we will only record that if any junior has received higher pay solely on the basis of grant of special pay in the feeder cadre the three petitioners will be entitled to stepping up of pay as per ratio laid down in the case of P. Jagdish and others (supra). The department shall work out the aforesaid facet and take a decision within a period of three months from the date of receipt of the order passed today. It will be open to the petitioners to produce the order passed by us before the respondents. We would like to clarify that this order is confined to the present writ petitioners.
15. The writ petition is accordingly disposed of without any order as to costs.