Himachal Pradesh High Court
Naresh Dutt Sharma vs State Of H.P. & Ors on 22 May, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.2650 of 2020
Reserved on: 27th April, 2023
Date of Decision : 22nd May, 2023
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Naresh Dutt Sharma .....Petitioner
Versus
State of H.P. & Ors. .....Respondents
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Coram
Ms. Justice Jyotsna Rewal Dua, J.
Whether approved for reporting? 1 Yes For the Petitioner:
r to Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rajesh Kumar, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Y.P.S. Dhaulta, Mr. Navlesh Verma, Mr. Rupinder Singh, Additional Advocates General with Ms. Leena Guleria, Deputy Advocate, General, for the respondents.
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Jyotsna Rewal Dua, Judge The petitioner is with the grievance that his pay needs to be stepped up at par with that of his Junior Sh.
Jagdev Singh Thakur. The respondents have opposed this plea.
2. Simple case projected by the petitioner is that:-
1Whether reporters of print and electronic media may be allowed to see the order?::: Downloaded on - 22/05/2023 20:31:05 :::CIS 2
2(i) Petitioner was appointed as Clerk on 15.06.1983 in the respondent-Education Department. He was promoted as Senior Assistant in the year 1998. He was further promoted as Superintendent Grade-II in December, 2004.
.
2(ii) One Jagdev Singh Thakur was junior to the petitioner. Jagdev Singh Thakur was appointed as Clerk on 13.03.1985 in the respondent- Education Department. He was promoted as Superintendent Grade-II in the year 2007.
2(iii) State of Himachal Pradesh revised the pay scales of its employees w.e.f. 01.01.2006. Pay of the petitioner as on 20.07.2007 was fixed at Rs.19430/-, whereas pay of Jagdev Singh Thakur, on the same day i.e. 20.07.2007 was fixed at Rs.19,830/-. The pay of the petitioner became less by Rs.400/- as compared to that of his junior Jagdev Singh Thakur. This difference in their pay scale crept in the year 2007 multiplied with the passage of time causing financial losses and harassment to the petitioner.
2(iv) With the above submissions, the petitioner has prayed for grant of following substantive reliefs:-
" (i) That the respondents may very kindly be directed to grant the same and similar pay of Rs. 19,830/- to the applicant w.e.f. 20.07.2007 as was being granted to the junior person namely Shri Jagdev Chand Superintendent Grade-II (now retired) on the ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 3 principle of 'equal pay for equal work', since the applicant is much senior to Shri Jagdev Chand from the initial dates of their appointment as Clerk upto the post of Superintendent Grade-II, but the respondents have placed the applicant in the pay of Rs. 19,430/-
per month after the revision of pay scale w.e.f. 01.01.2006, whereas the juniors to the applicant Shri Jagdev Chand was getting Rs. 19,830/- per month .
which is Rs. 400/- in excess as compared to the pay of the applicant.
(i) That the respondents may kindly be directed to release the arrears of difference of pay of the applicant and junior person Shri Jagdev Singh Thakur in favour of the applicant from the due date i.e. 20.07.2007 alongwith interest @ 12% per annum".
3. I have heard learned senior counsel for the petitioner and learned Additional Advocate General for the respondents.
Pursuant to the order passed in this matter on 03.04.2023, the respondents have placed on record following comparative statement pertaining to the dates of appointments, dates of promotions, pay scales in different posts, dates of retirements, other relevant particulars of the petitioner and Jagdev Singh Thakur (not a party to the petition).
"
Sr. Description Sh. Naresh Dutt Sharma (Senior) Sh. Jagdev Singh Thakur (Junior) Pay Scales No. As on Pay DNI As on Pay DNI 1 Apptt. 15.06.1983 400 01.06.1984 13.03.1985 400 01.03.1986 400-600 Clerk 2 Revision of 01.06.1986 1025 01.06.1987 01.01.1986 1000 01.01.1987 950-1800 Pay Initial 1000/-
3 Awarded 15.06.1988 1200 01.06.1989 13.09.1990 1200 01.03.1991 1200-2100 Senior Scale ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 4 4 Placed as 15.06.1993 1500 01.06.1994 13.03.1995 1500 01.03.1996 1500-2700 Junior Assistant 5 Revision of 01.01.1996 5000 01.06.1997 01.01.1996 5000 5000-8100 Pay (Initial) (Initial) 6 Promoted 18.11.1997 5800 01.11.1998 16.03.1998 5800 01.03.1999 5800-9200 as senior Assistant .
7 Promoted 27.12.2004 7660 01.12.2005 - 7000 01.03.2005 6400-10640 as Supdt.
G-II (Sh.
Naresh
Dutt
Sharma)
Option not
exercised
8 Revision of 01.01.2006 14660 01.12.2006 - - - 10300-
Pay +4200 34800+4200
= 18860 GP
- - - 01.01.2006 13430+3800 01.03.2006 10300-
=17230 34800+3800
GP
9 ACPS - 14660 01.12.2006 16.03.2006 14490+4200 01.03.2007 10300-
benefit (8 +4200 =18690 34800+4200
years) (Sh. = 18860 GP
Jagdev
Singh
Thakur)
10 Promoted - 15230 01.12.2007 20.07.2007 15050+4200 - 10300-
as Supdt. +4200 =19250 34800+4200
G-II (Sh. =19430 GP
Jagdev
Singh
Thakur)
11 Opted - 15820 01.12.2008 01.03.2008 16230+4200 01.03.2008 ---Do---
benefit of +4200 =20430
FR-22 on =20020
promotion
w.e.f.
01.03.08
(Sh. Jagdev
Singh
Thakur)
12 ACPS 27.08.2009 17040 01.12.2009 - 16850+4200 01.03.2010 10300-
benefit (4 +4400 =21050 34800+4400
years) (Sh. = 21440 GP
Naresh
Dutt
Sharma)
13 Grade Pay 01.10.2012 19050 01.12.2012 01.10.2012 18810+4800 01.03.2013 10300-
enhanced +4800 =23610 34800+4800
(Revision) =23850 GP
30.04.2014 20510 01.12.2014 30.03.2014 20250+4800 D.O.R. -----do-----
+4800 =25050
=25310
14 Revision of 01.01.2016 69800 01.12.2016 - - - Level 12
Pay
15 Promoted 26.02.2020 82900 01.02.2021 - - - Lever 16
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5
as Suptd
Gr-I
30.11.2022 88000 D.O.R. - - - -----do---
The above table shows that:-
3(i) Petitioner was promoted to the post of
.
Superintendent Grade-II on 27.12.2004. At that stage, he had not received the benefit of Assured Career Progression Scheme (ACPS). Petitioner did not exercise option for pay fixation upon his promotion to the post of Superintendent Grade-II under Fundamental Rules-22. He got his promotional increment from the date of his promotion. (Sr. No.7 of table).
3(ii). The Junior official Jagdev Singh Thakur got the benefit of Assured Career Progression Scheme (ACPS) on completion of eight years of service on 01.12.2006. He accordingly became entitled to next higher grade pay and one increment. He was, thereafter, promoted to the post of Superintendent Grade-II on 20.07.2007. Sh. Jagdev Singh Thakur exercised his option for pay fixation under FR-22(1) a(i). He postponed his promotional increment and got the same after getting annual increment of the lower post i.e. w.e.f. 01.03.2008. Jagdev Singh Thakur bore loss of one increment upto approximately eight months w.e.f. date of promotion i.e. 20.07.2007 to 01.03.2008 (Sr. No.9, 10 & 11 of table). The petitioner did not bear the loss of any ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 6 increment as he had availed the increment from the date of promotion.
3(iii) The petitioner got benefit of ACPS on completion of 4 years of service on 27.08.2008. (Sr. No. 12 of table) .
On the strength of above table, learned Additional Advocate General submitted that matter would have been different had the two officers exercised similar options, as there would have been no anomaly. Both the officials exercised different options on their promotions as Superintendent Grade-II, therefore, they cannot be said to be similarly situated. There cannot be any stepping up of pay for the petitioner at par with that of his junior Jagdev Singh Thakur.
4. Observations.
According to the respondents, pay anomaly arose due to grant of ACPS benefit to Jagdev Singh Thakur.
Prior to grant of ACPS benefit, Jagdev Singh Thakur was drawing less pay than the petitioner. If the benefit of ACPS would not have been granted to Jagdev Singh Thakur then his pay would be less than the petitioner. Since Jagdev Singh Thakur was promoted after getting the benefit of old ACPS on completion of 8 years of service in revised pay band on 20.07.2007 and since he opted for fixation of pay from the next date of increment i.e. 01.03.2008, due to ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 7 these two reasons, pay of Jagdev Singh Thakur became higher than the petitioner. Further stand taken by the respondents is that petitioner's pay cannot be stepped up at par with Sh. Jagdev Singh Thakur in view of Finance .
Department's instructions dated 10.09.2013.
4(i) The respondents, thus, have given following two reasons for not stepping up the pay of the petitioner at par with his junior Jagdev Singh Thakur:-
(a) Jagdev Singh Thakur was first granted benefit of old ACPS on completion of 8 years of service in the revised pay band on 02.07.2007. He opted for fixation of his pay from the next date of increment i.e. r 01.03.2008.
(b) Instructions issued by the Finance Department on 10.09.2013, do not permit stepping up of petitioner's pay at par with Jagdev Singh Thakur.
4(ii) At this stage, it would be appropriate to refer to relevant provisions of Fundamental Rule-22(i):-.
FUNDAMENTAL RULE F.R. 22 (I) The initial pay of a Government servant who is appointed to a post on a time scale of pay is regulated as follows:-
(a)(1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale shall be fixed by giving one increment in the level from which the Government servant is promoted and Part- A : Pay fixation on promotion and availability of option: Page 2 of 18 he or she shall be placed at a cell equal to the figure so arrived at in the level of the post to which promoted or appointed and if no such cell is ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 8 available in the level to which promoted or appointed, he shall be placed at the next higher cell in that level.
Save in cases of appointment on deputation to an ex cadre post or to a post on ad hoc basis or on direct recruitment basis, the Government servant shall have the option, to be exercised within one month from the date of promotion or .
appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the next higher cell in the level of the post to which he or she is promoted on regular basis and subsequently, on the date of accrual of next increment in the level of the post from which Government Servant is promoted, his pay shall be re-fixed and two increments (one accrued on account of annual Increment and the second accrued on account of promotion) shall be granted in the level from which the Government Servant is promoted and he or she shall be placed at a cell equal to the figure so arrived, in the level of the post to which he or she is promoted; and if no such cell is available in the level to which he or she is promoted, he or she shall be placed at the next higher cell in that level.
In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible from the date of initial appointment or promotion to he exercised within one month from the date of such regular appointment.
In cases where an officer has retired as ad hoc before being regularised to that post and later on has been assessed during the process of regularisation and found fit by the competent authority along with his or her juniors, who are still in service and are eligible to avail of the option facility from a date on which the retired employee was still in service, the same option facility shall also be extended to the retired employee, to be exercised within three months from the date when his or her junior became eligible to avail of option facility and in cases where such retired employee was himself the junior most, he or she may exercise the option facility within three months from the date when his or her immediate senior became eligible to avail of option facility.
Provided that where a Government servant is immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the level of the lower post, his initial pay in the level Page 3 of 18 of the higher post shall be fixed at the cell equal to the figure so ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 9 arrived at in the level of the post to which promoted or appointed by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the level of the lower post and if no such cell is available in the level to which he is promoted or appointed, he shall be placed at the next higher cell in that level".
.
The comparative statement drawn by the respondents (table extracted above) itself gives out that petitioner's junior Jagdev Singh Thakur opted for benefit of FR 22 from 01.03.2008. This was permissible for Jagdev Singh Thakur on account of clear & simple reading of FR
22. Jagdev Singh Thakur could have postponed his increment and he accordingly did so making use of FR 22.
4(iii) The instructions of Finance Department issued on 10.09.2013 relied upon by the respondents for denying the relief to the petitioner actually support the case of the petitioner. These instructions are in respect of Assured Career Progression Scheme introduced by the respondents w.e.f. 27.08.2009. The instructions, inter alia, provide that 'no step up of pay is admissible on account of implementation of ACP scheme w.e.f. 27.08.2009. After 27.08.2009, the step up of pay is admissible only in the cases where anomaly occurs due to operation of provisions of FR-22(1) a(i), on promotion from one post to another'.
Relevant paras from these instructions read as under:-
::: Downloaded on - 22/05/2023 20:31:05 :::CIS 10"2."The Rule 11-A of Himachal Pradesh Civil Services (Revised Pay) Rules, 2009, as inserted vide Notification No. Fin(PR)B(7)-1/2009 dated 13 October. 2009 regulates the protection of benefits under the old Assured Career progression Scheme, operation of which was stopped w.e.f. 27.08.2009. Accordingly, the benefits, drawn under the prevalent Assured Career Progression Scheme (8-16-24-32) have been protected .
in the revised pay scales upto 26.08.2009. A new Assured Career Progression Scheme after completion of 4, 9 & 14 years service in a cadre/post has been Introduced w.e.f. 27.08.2009 with an option that employees can retain the old Assured Career Progression Scheme after completion of 8, 16, 24 & 32 years' service vide this Department's letter No. Fin(PR)-9(7)-59/2010 dated: 09.08.2012. Para 4(9) and 4(h) of these instructions provide as under:-
4(g) The progressions granted under this scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, the senior employees shall have no claim of parity of pay r on the ground that the junior employee working on the same post has got higher pay or grade pay under this scheme. While Implementing this scheme, the difference in pay scales on account of grant of financial upgradation under the old ACP Scheme (15.12.1998) under this scheme within the same cadre shall not be construed as an anomaly.
4(h) No stepping up of pay in the pay band and grade pay would be admissible with regard to junior getting more pay than the senior on account of pay fixation under this scheme.
3. From the plain reading of above provisions of the Assured Career Progression Schemes effective from 27.08.2009, it is crystal clear that no step up of pay is admissible on account of implementation of this scheme w.e.f. 27.08.2009.
The harmonious construction of all the instructions referred to above is that after 27.08.2009 the step up of pay is admissible only in the cases where anomaly occurs due to operation of provisions of FR-22, on promotion from one post An to another that too subject to fulfillment of conditions contained in the rules ibid. other words, it is clear that the protection of pay, if any, on account of grant of benefits under the old Assured Career Progression Schemes ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 11 was admissible only upto 26.08.2009, the date upto which protection under the Assured Career Progression Scheme was allowed under Rule 11- A of the Himachal Pradesh Civil Services (Revised Pay) Rules, 2009".
The above instructions themselves provide .
stepping up of pay in cases, where anomaly in pay has occasioned because of operation of FR22 on promotion from one post to another. In the instant case, Jagdev Singh Thakur exercised his option for pay fixation under FR22 and got promotional increment after getting the annual increment of the lower post. He got benefit of ACPS on completion of 8 years of service on 01.12.2006 and got annual increment of the lower post on 01.03.2008. This was done by opting for pay fixation under FR22. The anomaly which resulted in Jagdev Singh Thakur getting higher pay than his senior (the petitioner), therefore, was required to be removed as it had occurred due to operation of FR22.
4(iv) Insofar as a junior drawing more pay on account of upgradation under the ACPS Scheme and removal of resultant anomaly in the pay scale of senior is concerned Hon'ble Apex Court in (2022)6 SCC 183 (Union of India and others vs. CR Madhav Murti and another) has held that where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 12 anomaly then the pay of senior was required to be stepped up. Relevant part of the judgment read as under:-
4. "Having heard Ms. Madhvi Divan, learned ASC and considering the facts and circumstances of the case, which has emerged from the impugned .
judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.
5 The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under: -
"(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior - (a) As a result of application of FR 22 -C. [Now FR 22 (1) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 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 another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:-
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre:
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;::: Downloaded on - 22/05/2023 20:31:05 :::CIS 13
(c) The anomaly should be directly as a result of the application of FR-22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer."
The orders refixing the pay of the senior officers in .
accordance with the above provisions shall be issued under FR-27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.
6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for."
5. Conclusion.
Viewing from any angle, the pay of the petitioner is required to be stepped up at par with his junior Sh.
Jagdev Singh Thakur. The latter had started enjoying higher pay than the petitioner on two counts i.e. having been granted the benefit of ACPS Scheme and his opting for pay fixation under FR 22 w.e.f. 1.3.2008.
On both the above counts, the pay of the petitioner is required to be stepped up at par with that of his junior. Hon'ble Apex Court in CR Madhava Murthi's case (supra) has already held that where a junior was ::: Downloaded on - 22/05/2023 20:31:05 :::CIS 14 drawing more pay on account of upgradation under the ACPS Scheme, then the pay of his senior was required to be stepped up. The instructions issued by the respondents-
State on 10.09.2013 relied upon by the respondents clearly .
provide that step up of pay is admissible where anomaly occurs due to operation of FR22. In the instant case, the junior got higher pay on account of ACPS and his opting for pay fixation under FR22. For all these reasons, the pay of petitioner is required to be stepped up at par with that of his junior. This petition is accordingly allowed. The respondents are directed to step up the pay of the petitioner at par with that of his junior. This exercise be carried out within six weeks. However, an important aspect that cannot be lost sight of is that the petitioner has preferred instant petition only on 01.08.2017 without cogently explaining the delay in moving the Court. In the interest of justice, equity is required to be balanced. It is, therefore, ordered that financial benefits accruing to the petitioner as a consequence of this decision shall be admissible to him only from three years prior to the date of filing of this petition and onwards.
Jyotsna Rewal Dua
May 22nd 2023 Judge
tarun
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