Central Administrative Tribunal - Patna
Ips Pay Anomaly Asso Bihar vs Indian Police Service on 8 March, 2022
1. OA/050/00131/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00131/20
/2018
Reserved on: 24.01.2022
.01.2022
Pronounced on:
CORAM
Hon'ble Shri M.C. Verma, Judicial Member
Hon'ble Shri Sunil Kumar Sinha, Administrative Member
1. IPS [SPS] Pay Anomaly Association, Bihar, Office - 3/67, Officers'
House, Near Beltron Bhawan, Shastri Nagar, Patna, through its
General Secretary Sri Jitendra Mishra, IPS, at present posted as
S.P.Rail, Patna.
2. Nawal Kishore Singh, IPS, at present posted as AIG, Training, Bihar,
Patna.
3. Prakash Kumar Sinha, IPS [Retd.], S/o Late Manindra Kishor Sinha,
52-C,
C, Sri Krishnapuri, P.S
P.S.. S.K. Puri, Patna -1.
.......... Applicants
By Advocate : Shri Abhinav Shrivastava and J.K.Karn
Versus
1. The Union of India through the Secretary, Ministry of Personnel,
Public Grievances & Pensions, Department of Personnel & Training,
North Block, New Delhi
Delhi-110001.
2. The Secretary, Government of India, Ministry of Home Affairs, North
Block, New Delhi - 110001.
3. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna
- 800001.
4. The Principal Secretary, Home Department, Government of Bihar,
Main Secretariat, Patna - 800001.
5. The Principal Accountant General, Bihar, Patna - 800001.
6. The Accountant General [A&E],, Bihar, Patna - 800001.
......... Respondents
By Advocate: Shri H.P. Singh, Sr. SC for UOI
Shri Kumar Shanu and Shri K. K. Singh for State of Bihar
Shri Bindhyachal Rai for A.G.
2. OA/050/00131/2018
ORDER
[Heard through Video Conferencing] Per Sunil Kumar Sinha, A.M. :- Instant OA has been preferred jointly by IPS (SPS) Pay Anomaly Association, Bihar and two other promoted IPS officers praying for following reliefs:
reliefs:-
"(A) Paragraph Paragraph-2
2 (iii) of Office Memorandum No. 11030/4/2011-AIS-II 11030/ II dated the 11th January 2012, issued under the signature of Director (Services), Department of Personnel and Training, under the Ministry of Personnel, Public Grievances and Pensions, Government of India, North Block, New Delhi, as contained iin Annexure-A/1, A/1, may be declared ultra vires and the same be quashed and set aside, being violative of Article Article-14 14 of our Constitution."
(B) The respondent authorities may be directed to allow the applicants their stepping up of pay at par with their juniors with all consequential benefits.
(C) Any other relief(s) as the applicants are entitled to and Your Lordships may deem fit and proper in the ends of justice."
2. The nub of instant OA lies in the issue of some State Police Service (SPS) officers of Bihar on promotion to IPS getting less pay than some other officers who were junior to them in SPS and also promoted to IPS after them. Pay of SPS officers on promotion to IPS is fixed under the IPS (Pay) Rules and Fundamental Rule 22(I) (a) (1) and as per these rules , the initial pay of an SPS officer on promotion to IPS is fixed in Senior Scale one stage above his actual pay in SPS. The IPS (Pay) Rules also permits re re-calculation calculation of the initial pay to incorporate any enhancement in his pay either as a result of a pay revision or on becoming eligible for an increment or in the event of confirmation in the higher scale of the
3. OA/050/00131/2018 SPS during the period of probation probation. Fixation of initial pay, pay, in accordance with these rules, leads in some cases to junior officers getting higher initial pay than the officers who were senior to them in SPS and also promoted to IPS before them. To resolve the pay disparity between the junior and senior officers promoted from state service to All India Services the DOP&T issued a guideline vide their OM dated 11.01.2012 (Annexure A/1) to all the Chief Secretaries laying down the conditions for 'stepping tepping up of pay of senior members of All India Service vis vis-a-vis vis pay of their juniors iin the cadre' as under.
(i) Both junior and senior should belong to the same cadre both in lower and higher grade. In the case of anomaly in the pay of officers promoted from State service to IAS/IPS/IFS in a State cadre, both b junior and senior should belong to same cadre in the State Service (lower grade).
(ii) Anomaly must have arisen as a result of fixation of pay either on promotion from one grade to another in IAS/IPS/IFS or on pr promotion omotion from State service to IIAS/IPS/IFS, as the case may be.
(iii) Posts in higher and lower grade must be identical and in lower grade senior must not be drawing less pay than junior for whatsoever reasons. For example if the junior officer draws higher rate of pay than the senior in the lower post or State servic service e post by virtue of advance increments or on any other account, the above provisions will not be invoked to step up the pay of the senior officer."
2.1 In past, representations for stepping up the pay at par with juniors by some promoted IPS officers officers, who were aggrieved with the aforesaid pay disparity, was examined by the respondent authorities.
authorities. The authorities rejected the their request as these the officers did not meet the conditions stipulated under para 2 (iii) of the DoPT guidelines that the junior and senior officers must be holding identical posts in higher or
4. OA/050/00131/2018 lower grade and senior must not be drawing less pay than junior for whatsoever reasons reasons. Aggrieved with the decision, decision a few of these officers approached this Tribunal praying for direction to step up their pay vis-a-- vis their juniors juniors. However, the Tribunal also rejected their prayer on the same ground that the third condition for stepping up as stipulated in para 2(iii) of the Do DoPT OM was not being fulfilled.
fulfilled The Tribunal'ss decision was upheld by Hon'ble le Patna High Court in a writ filed by the applicants and Hon'ble Apex Court further dismissed the SLP challenging the decision of Hon'ble High Court; thus settling the law in the matter. In this background of facts, the he applicants have preferred the instant OA praying to declare para 2(iii) of the OM as ultra vires and to direct the respondents for stepping up the pay of applicants vis-à-vis vis their juniors.
2.2 While hile considering the pay anomaly between Shri Prakash Kumar Sinha, IPS--2001,, applicant no.3 in the instant case and Shri Anil Kumar Singh, IPS--2003, the Home (Police) Department, Bihar Government had initially ordered to step up the pay of Shri Prakash Kumar Sinha at par with Shri Anil Kumar Singh and requested the AG to issue revise pay slip. The AG Office Bihar, Patna sought advice from the DoP&T who referred the matter to MHA. The MHA directed Government of Bihar to examine the matter in terms of the said DoP&T guidelines and the Home Department requested the AG office to issue revised pay slip withdrawing their earlier stand favouring stepping up of pay.
5. OA/050/00131/2018 2.3 The applicants in view of the said sequence of events have challenged para 2 (iii) of DoP&T guidelines (Annexure A/1) as being in violation of Article 14 of the Constitution guaranteeing "Equality before Law" and also not being in consonance with the directive principle under Article 39 of the Constitution rela relating ting "Equal pay for Equal Work".
Work". The applicants have further claimed that the condition stipulated under para 2(iii) of the guideline was unreasonable, ambiguous and liable to be misinterpreted. They have pleaded that though though the guideline was issued to remove anomalies arising on account of fixation of pay pay, including the cases of promotion of State Serv Service ice officers to All India Service, it was not serving the intended objective because of the condition stipulated at Para 2 (iii). Applicants have further pleaded that as a the pay anomaly was arising on account of fixation of pay under FR 22(I)(a)(1) 22(I)(a)(1), the guideline for stepping up the pay should be in agreement with this FR and as the impugned guideline is not in conformity with the said FR it is liable to be struck down.
3. Contesting the OA separate written statements were filed on behalf of Union of India and the State of Bihar.
4. The Union of India have maintained in their WS that the provision of DoP&T guidelines dated 11.01.2012 has no ambiguity in its terms and conditions. The pay anomaly in the instant case has arisen as the junior officers had already been promoted in the State Police Service and at the time of induction to IPS were drawing awing more pay as compared to the pay
6. OA/050/00131/2018 of their seniors serving as Additional SP when inducted to IPS. On induction into IPS,, the pay of junior officer offi was automatically fixed in higher scale than their seniors who were drawing less pay in the SPS.. Further, Rule 2 of Schedule Schedule-1 1 of IPS (Pay) Rules, 2007 provides that the initial pay of an SPS officer promoted to IPS may be recalculated if during the probation per period the officer's actual/assumed assumed pay in SPS is enhanced on account of pay revision or an increment due to confirmation in higher scale. However, u under nder the IPS (Pay) Rules the benefit enefit of enhancement in pay in IPS is not given vis vis-a-vis vis promotion of juniorss in State cadre even during the lien in State service. The DoP&T guidelines dated 11.01.2012 has been issued after carefully considering various aspects with the objective of removing the anomaly in the pay of senior members of All India Service vis vis-a-vis pay of their juniors in the cadre. The respondents have referred to the OM dated 16.06.1989 (Annexure R/1) issued by the Department of Expenditure laying down that there can be no stepping up of the pay of the senior government servant equal to his junior when there was no anomaly because the senior had no occasion to draw more or equal pay pay.
5. The State Government in their written statement have provided a detailed chronology of the case of applicant no. 3 Shri Prakash Kumar Sinha, for stepping up of pay vis vis-a-vis vis his junior Shri Anil Kumar Singh.
The respondent State have also shared that earlier two IPS officers of 2005 batch, namely, Shri Shiv Kumar JJha ha and Birendra Narayan Jha had
7. OA/050/00131/2018 approached the Tribunal with OA No. 315/2016 for stepping up the pay vis-a-vis vis their juniors. The Tribunal in its order dated 29.07.2016 had dismissed the OA. Subsequently, Shiv Kumar Jha had filed a Review Application No. RA/050/00096/2015 arising out of OA/050/00315/2016 OA 050/00315/2016 and that too was dismissed by the Tribunal. In view of the earlier decision of the Tribunal, th the e State respondents have pleaded to dismiss the OA.
6. During admission stage hearing, counsel for respondents objected to maintainability of the OA stating that the applicant no.1 i.e. IPS (SPS)) Pay Anomaly Association was not a registered association and hence, could not be a valid juristic person. However, as applicant no. 2 and applicant no. 3 are individual officers promoted from State Police Service to IPS and the prayers made in the OA directly relate to their case, case the OA was admitted and heard.
7. After admission, we heard the parties.
parties
8. Shri Abhinav Shrivastava, learned counsel appearing on behalf of applicants argued that disparity in pay between senior and junior officers of SPS promoted to IPS was being perpetuated because of the DoP&T OM dated 11.01 11.01.2012.
.2012. Learned counsel submits that it is not the case of applicants that they are being paid lesser salary than their juniors in the Indian Police Service of Bihar cadre. The applicant's case is that while in SPS the applicants were drawing more or equal salary to their juniors colleagues and under no circumstances less salary than their
8. OA/050/00131/2018 juniors and also they got promotion to higher grade (i.e. to IPS) from earlier dates than their juniors and yet they were subjected to detriments in terms of fixation of pay in comparison to their junior colleagues.
8.1 Learned counsel for applicant mentioned that SPS officers in Bihar appointed as Dy. SP, have three promotional posts viz. (i) Sr. Dy. SP (ii) Additional SP and (iii) Staff Officer. Normally, a SPS officer gets inducted into IPS while holding the post of Sr. Dy. SP or Additional SP, but in some ccases ases the officers get promoted to the post of Staff Officer before induction into IPS. When an SPS officer gets promoted to the post of Staff Officer before induction into IPS his initial pay in IPS becomes higher than the seniorss in SPS got inducted to IPS from the post of Sr. Dy. SP or A Addl. SP before him. To remove such like anomalies DoPT issued OM dated 11.01.2012 laying down three conditions for stepping up the pay. The third condition under para 2(iii), 2(iii) however, prevents stepping up the pay of promoted senior IPS officers at par with the juniors in the instant and similar other cases and hence, makes kes the OM redundant and futile.
8.2 Learned counsel for applicants referred to the judgement of Hon'ble Supreme Court in Randhir Singh Vs Union Of India (AIR 1982 SC
879) in support upport of 'Equal Pay for Equal W Work' ork' , Hon'ble Kerala High Court in Madhavan Assan vs KSSID & Employees Corporation Ltd. [1992(2) LLJ 341] favouring higher or at least equal salary to a senior as his similarly
9. OA/050/00131/2018 situated junior and the decision of Hon'ble Supreme Court in Union of India vs Hansoli Devi ( AIR 22002 02 SC 3240) on the issue of rejecting the surplus words which make a statute ineffective.
9. Shri H.P. Singh, Sr. Standing Counsel appearing on behal behalff of Union of India (respondent no. 1 and 2) mentioned that the applicants plicants have no case for step up. The pay of SPS officers on induction into IPS is fixed in terms of their last pay drawn in SPS in accordance with the Fundamental Rulee 22(I) (a) (1). The applicants have challenged the conditions set in the DoP&TT OM for stepping up of pay without paying heed to the principle of pay protection ensured through the FR 22(i)(a)(1) and the IPS Pay Rules. Disparity in pay arises when two SPS officers join join IPS at different times and junior holding a higher post in the lower grade than the senior. Ld. Sr. Standing Counsel mentioned there could be several factors which may not warrant application of the princi principle ple of equal pay for equal work.
Hence, nce, the OA is not maintainable and deserves to be dismissed.
10. Learned counsel Shri Bindhyachal Rai appearing on behalf of AG office, Bihar har submitted that applicants of OA No. 315/2016, after its dismissal, had challenged the decision of Tribunal on the file of Patna High Court in CWJC No.149 of 2017 which was also dismissed. An SLP filed before the Supreme Court in the matter by the applicant was also dismissed. As the law in this matter has been settled through the orders of this Tribunal and the decisions of tthe he High Court and Supreme Court, Court, the OA deserves to be dismissed.
10. OA/050/00131/2018
11. Shri Kumar SShanu, anu, learned counsel appearing on behalf of State Government stated that the main prayer in this OA is to declare the para 2(iii) of DoP&T OM supra as ultra vires, which h has as been issued by DoP&T, GOI. The State Govt. abides by the rules and orders of the Central Government. The State Government has provided the factual details relating the applicants' case in their written statement and the State has no views in this OA beyond those details.
12. Considering the ab above ove submissions and materials on record, we note that the pay disparity which the applicants have been seeking to remove arises on account of the promotional post of Staff Officer for SPS in Bihar with higher pay than Sr. Dy. SP and Additional SP and provisions of FR 22(I) (a) (1) and the IPS Pay Rules which ensure protection of pay of SPS officer getting promoted to IPS. Para 2(iii) of DoPT guideliness dated 11.01.2012 (Annexure A/1), which requires that p posts in higher and lower grade must be identical and in lower grade senior must not be drawing less pay than junior for whatsoever reasons reasons, does not permit stepping up of pay in the instant and such like cases as the senior and junior officers held non-identical tical posts ( Additional SP /Sr. /Sr Dy. SP and Staff Officer) in the lower grade (i.e. in SPS) and the pay of junior officer was higher than the senior .
13. The applicants have impugned para 2(iii) supra on the ground that it was against the principle of equal pay for equal work and in violation of Article 14 and Article 16 of the Constitution. The applicants have also
11. OA/050/00131/2018 argued that the para was as not in consonance with the intended objective of the DoPT of removing the anom anomalies alies arising on account of promotion.
14. The principle of "equal pay for equal work" is not one of the fundamental rights expressly guaranteed by our Constitution. The principle was incorporated only under Article 39(d) of the Constitution as a Directivee Principle of State Policy. Learned earned counsel for applicant has referred to the judgment of Hon'ble Supreme Court in the case of Randhir Singh cited supra which held that equal pay for equal work is a constitutional goal capable of being achieved through constitutional remedies. Relevant elevant observation of Hon'ble Court reads as under:-
under "It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundament fundamental al rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay pay.. ........................
................................
Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle 'Equal pay for Equal work' is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classi classification fication or irrational classification though these drawing the different scales of pay do identical work under the same employer."
15. Hon' Hon'ble ble Apex Court, however, in several subsequent judgments deviated from the above law to permit consideration of justifiable
12. OA/050/00131/2018 grounds and factors which could warrant differential pay for same work. In State of Andhra Pradesh &Ors vs. G Sreenivasa Rao &Ors &Ors., ., reported in 1989 SCR (1) 1000 1000, Hon'ble Supreme Court examined the question whether payment of less salary to a senior than his junior in the same cadre having the same scale of pay is violative of the principle of "equal pay for equal w work"
ork" enshrined in Article 39(d) read with Article 14 and 16 of tthe Constitution. Hon'ble Court observed as under.
"Equal pay for equal work does not mean that all the members of a cadre must receive the same paypay-packet packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex ex-facie facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when Pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre o orr a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar, when advance increments are given for experience/passing a test/ acquiring higher qualifications or as incentive for efficiency; are some of the eventual eventualities ities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieve achieved.
d. We do not therefore find any goodgood ground to sustain the judg judgments ments of the High Court/Tribunal."
16. Hon'ble Supreme Court in State Of Haryana &Ors vs Charanjit Singh &Ors &Ors. while examining the eligibility date for minimum wage in the scale payable to a Class IV employeess in Appeal (civil) 6562 of 2002 observed in its order dated 5 October, 2005 as under:-
"19.
19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article e 14 permits reasonable classification based on qualities or characteristics of persons
13. OA/050/00131/2018 recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doct doctrine rine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of phy physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by tthe he mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal wo workrk has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court ha hass blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors."
17. In S.C. Chandra & Ors. vs State Of Jharkhand &Ors.
&Ors [Civil Appeal No. 1532 of 2005 & Ors.] Ors.], Hon'ble Supreme Court on 21 August, 2007 observed that ffor or application of the principle of equal pay for equal work there should be total identity between both groups. Unless there is wholesale identity between two groups, parity in the pay pay-scale scale cannot be claimed.
14. OA/050/00131/2018
18. Hon Hon'ble Supreme preme Court in Union Of India & Ors. Vs. Dineshan K.K in Appeal (civil) 25 of 2008 in its decision on 4 January, 2008 observed as under:-
"13. Yet again in a recent decision in State of Haryana & Ors. Vs. Charanjit Singh &Ors. , a Bench of three learned Judges, while affirming the view taken by this Court in the cases of State of Haryana &Ors. Vs. Jasmer Singh &Ors., Tilak Raj (supra), Orissa University of Agriculture &Technlogy & Anr. Vs. Manoj K. Mohanty and Government of W.B. Vs. Tarun Roy &Ors. has re reiterated iterated that the doctrine of equal pay for equal work is not an abstract doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal pay must be for equal work of equal value and that the principle of equal pay for equal work has no mathematical application in every case, it has been held that Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together together,, as against those who are left out. Of course, the qualitqualities ies or characteristics must have a reasonable relation to the object sought to be achieved. Enumerating a number of factors which may not warrant application of the principle of equal pay for equal work, it has been held that since the said principle requi requires res consideration of various dimensions of a given job, normally the applicability of this principle must be left to be evaluated and determined by an expert body and the Court should not interfere till it is satisfied that the necessary material on the ba basis sis whereof the claim is made is available on record with necessary proof and that there is equal work and equal quality and all other relevant factors are fulfilled."
19. Based on the above and several similar judgements judgements, it is now settled that equal pay for equal work has no mechanical application and several factors could be enumerated justifiably which may not warrant equal pay for equal work. To illustrate, when Pay fixation is done under valid statutory rules/executive instructions, when persons recr recruited uited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar, when advance increments are given for experience/passing a test/ac test/acquiring quiring higher qualifications or as incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of
15. OA/050/00131/2018 equal pay for equal work. A higher pay scale to avoid stagnation or resultant ant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. Further, for or application of the principle of equal pay for equal work there should be total identity between both groups groups. If there are justifiable grounds for granting higher pay the seniors cannot invoke the equality doctrine. Hon'ble Supreme Court has further held Pay fixation is essentially an executive function and Court should not interfere with the same as to decide the w wholesale holesale identityy for applying the doctrine of ""equal equal pay for equal work".
work
20. Learned counsel for applicants has referred to the judgment of Hon'ble Kerala High Court in the case of Madhavan Assan cited supra favouring higher or at least equal salary to a senior as his similarly situated junior junior. This case was filed by a staff of KSSIDC who was promoted as Charge Chargehand in 1978 but was getting less pay than his junior colleagues who were promoted as Charge Chargehand in 1981 and 1982. The junior unior colleagues colleagues, before promotion, were paid variable dearness allowance aafter a wage revision in 1980 causing a steep rise in their total emolument and as the post of Chargehand hargehand had no variable dearness allowance, their pay was protected by enhancing their basic pay which became higher than the petitioner. Hon'ble Kerala High Court, while directing the State to enhance the pay of the petitioner to an amount higher or at least equal to the junior colleagues observed as under.
"9. Ordinarily grant of higher pay to a junior would be ex facie arbitrary , but if there were justifiable grounds for doing so, the seniors cannot invoke the eq equality doctrine.. I agree that the pay of the juniors, respondents 2 and 3,
16. OA/050/00131/2018 had to be protected, but that by itself does not afford a rational basis for classifying employees when otherwise they are unclassifiable. Such a classification based on the date of a pay pay-revision revision appears to me to run counter to the fundamental principles laid down in Nakra (D.S.) v. Union of India [198 I L.L.N. 1]. The illustration given in State of Andhra Pradesh v. G Sreenivasa enivasa Rao [1989-II L.L.N. 1],, of protection of pay of a promotee from a lower cadre as an eventuality when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work, has to be understood as referring to any individual case where the officer in the lower cadre had, for some reason or other peculiar to himself, been the recipient of benefits or increments in the lower grade, thereby resulting iin na higher pay on promotion than his seniors. A general revision of pay, as in this case, is according to me, out of the pale of illustration given by the Supreme Court."
Evidently,, Hon'ble Kerala High Court in this case has reiterated the observations of Hon'ble Supreme Court in State of Andhra Pradesh v. G Sreenivasa Rao that under justifiable grounds a junior could get higher pay than his seniors.
21. Learned counsel for applicant has argued that para 2(iii) of the guideliness is not in consonance with the intended objective of the department to solve the pay anomalies on account of fixation of pay on promotion. He refers to the observations of Hon'ble Supreme Court in Union of India Vs Hansoli Devi (AIR 2002 SC 3240) that the courts can reject surplus words to make a statue effective if the intention of legislature is found to be clear but unskilful drafting leads to ineffectiveness of language. This raises the issue whether the DoPT in issuing the impugned guidelines intend intended ed to step up the pay of senior officers at par with juniors getting higher pay on promotion for cases like one in the instant OA.
22. In order to ascertain the intended objective of the DoPT DoPT, we examined other guidelines on stepping up of pay issued by the
17. OA/050/00131/2018 Government of India. Respondents have referred to the 'clarifications larifications on stepping up of pay of seniors issued by Department of Expenditure, Ministry of Finance vide OM dated 16.06 1989 (Annexure R/1).
R/1 At para 3,, the OM enumerates three conditions for stepping up the pay of senior promoted before 1.1.86 equal to junior promoted on or after 1.1.86 as under.
"a) both the junior and the senior Government servants should should belong to the same cadre and the posts in which ich they have been promoted should be identical in the same cadre.
b) the pre-revised revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical, and
c) the senior Government servant promoted before 1.186 has been drawing equal or more pay than his junior promoted after 1.1.86."
23. The DoPT, vide their OM dated 26th October 2018 have issued consolidated guidelines regarding stepping up of pay for Central Civil Services which also stipulates three cconditions onditions at para 2 as under.
"(a) both the junior and the senior Government servants should belong the same cadre and the posts in which they have been promoted are identical in the same cadre;
(b) the Level in the Pay Matrix of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) the anomaly is directly as a result of the application of the provisions of Fundamental Rule 22(I) (a)(1) read with Rule 13 of CCS(RP) Rules, 2016. For example, if the junior officer office was drawing more pay in the existing pay structure than the senior by virtue of any advance increments granted to him, the provisions of this sub rule should not be invoked to step up the pay of the senior officer."
officer
24. A bare reading of the stipulated conditions above for stepping up the pay of senior at par with junior reveals reveal their similarity with the conditions defined in the impugned DoPT guidelines. The third condition in all these OMs requires that the junior should not be drawing more pay than the senior. As similar condit conditions ions have been prescribed by different
18. OA/050/00131/2018 departments of GoI at different times for steppi stepping up the pay it cannot be said that the third condition in the impugned guideline runs counter to the intended objective.
25. The counsel for applicant has submitted that it is not the applicant's case that a senior in IPS is getting less pay than his junior. The initial pay of SPS officers on promotion to IPS may be higher than the directly recruited IPS officers senior to them due to their longer length of service before promotion to IPS.. Thus, the pay of senior IPS officers may be less than juniors. To protect the interest of promoted SPS officers, the he IPS Pay rules provides for recalculation of the initial pay of a promoted SPS officer if during his probation there is an enhancement of his actual pay in the State Police Service as a result of a pay revision or increment or confirmation in the higher scale.
scale
26. Hon'ble Supreme Court in Union Of India & Anr Vs. R. Swaminathan [1997(7) SCC 690], raising the issue of stepping up to remove pay anomaly, held on 12 September, 1997 that the employees in question were not entitled to have their pay stepped up under the said Government Order because the difference in the pay drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly or application of Fundamental Rule 22(I)(a)(1). The relevant observation of the Hon'ble Court reads as under:-.
"As As the order itself states, the stepping up is subject to three conditions: (1) Both the junior and the senior officers should belong to the same cadre and the posts in which they have been promoted should be identical and in the same cadre; (2) the scales of pay of the lower and higher posts should be
19. OA/050/00131/2018 identical and ; (3) anomaly should be directly as a result of the application of Fundamental Rule 22 22-cc which is now Fundamental Rule 22(I) (a) (1). We are concerned with the last condition. The difference in the pay of a junior and a senior in the cases before us is not a result of the application of Fundamental Rule 22(1) (a) (1). The higher pay received by a junior is on account of his earlier officiation in the higher post because of local officiating promo promotions tions which he got in the post post.. Because of the proviso to Rule 22 he may have earned increments in the higher pay pay--scale scale of the post to which he is promoted on account of his past service and also, his previous pay in the promotional post has been taken int into o account in in fixing his pay on promotion.
Itt is these two factors which have increased the pay of the juniors. This cannot be considered as an anomaly requiring the stepping of the pay of the seniors."
27. In light of above discussions , it is clear that principle of equal pay for equal work cannot be applied mechanically in every case and if there are justifiable grounds, a junior may continue with higher pay than seniors. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together which could be used for differential treatment in the matters of pay. Ordinarily grant of higher pay to a junior would be ex facie arbitrary, but if there were justifiable grounds for doing so, the seniors cannot cannot invoke the equality doctrine.
28. Further, Para 2(iii) of the impugned DoPT guidelines (Annexure A/1) is not in dissonance with its intended objective. A junior official may get higher pay than the senior before promotion to the higher grade for a variety of reasons such as promotion to a higher post, performance based increments increments, higher pay in the feeder channel etc. The IPS pay rules protects the interest of promoted senior SPS officers against a general revision of pay or enhancement by providing for recalculation of the initial pay if the enhancement is during the probation period. However, a senior cannot claim benefit of the higher pay to the junior which is
20. OA/050/00131/2018 personal to h him.
im. Also, if officials are joining a cadre through several channels, their pay needs to be protected and there may not be exact correspondence between the seniority and the pay pay. If the higher pay of junior official is on account of his earlier officiation offic or promotion to a higher post its benefit cannot accrue to a person just because he is a senior.
29. Based on above discussions, we are inclined to hold that the impugned DoPT guideline dated 11.01.2012 (Annexure A/1) is not against any provision of the C Constitution.
tion. The applicant's prayer to declare para 2(iii) of the guidelines as ultra vires is not supported by the settled law. Further, the impugned guidelines is held as formulated with careful consideration to protect the interest of officials joining a cadre from different feeder channels and the benefits that may accrue to an individual officer on account of his performance, capability etc. Thus,, there is no disagre disagreement between the objective of guidelines and its formulation.
30. In view of legal and factual scenario, discussed above, we find that the OA is devoid of merit and deserves dismissal. Accordingly, the OA stands dismissed dismissed. No order as to cost.
Sd//- sd/- [Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.