Central Administrative Tribunal - Delhi
Padma Jain vs M/O Culture on 7 February, 2023
1 OA No. 1402/2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1402/2016
Order reserved on: 11.01.2023
Order pronounced on: 07.02.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Smt. Padma Jain,
Retired Assistant (Senior Citizen)
Aged 63 years
W/o Sh. Subhash Chand Jain,
D-332, Gali No.12, Laxmi Nagar,
Delhi-110092.
....Applicant
(By Advocate: Mr. Tushar Jorwal with Mr. Anurag Soan)
Versus
Union of India through
1. Secretary,
Ministry of Culture,
Shastri Bhawan,
New Delhi-110001.
2. Lalit Kala Akademi through
Secretary,
35, Ferozshah Road,
Rabindra Bhawan,
Mandi House,
New Delhi-110001.
3. Deputy Secretary (A&A),
Lalit Kala Akademi
35, Ferozshah Road,
Rabindra Bhawan,
Mandi House,
New Delhi-110001.
... Respondents
(By Advocate: Mr. Gyanendra Singh)
2 OA No. 1402/2016
ORDER
By Hon'ble Manish Garg, Member (J)
1. The applicant is aggrieved by the inaction of the respondents to implement the office order dated 27.12.2011, which is a step up order passed by respondent no.2 for removal of pay anomaly by stepping up of pay equal to Mr. Bhisham Mirani, who was junior to applicant. It was mentioned in the step up order that the applicant is required to give an undertaking to refund the amount if any directive is received by the Audit or any court of law. Accordingly, the applicant gave an undertaking on 04.05.2012 in this behalf. Despite that the stepping up order was never implemented qua the applicant. The applicant has written several letters in this behalf to the respondents but of no avail. Left with no alternative, she has filed the instant OA, praying for the following reliefs:
"(a) To declare the action of respondents in not implementing Office Order Part II No.202 dated 27.12.2011 giving benefit of stepping up of her pay equal to the pay of her junior viz. Shri Bhisham Mirani, and not paying her the arrears of pay due to her because of the aforesaid stepping up of pay even after three years and seven moths of her retirement as illegal, arbitrary and discriminatory.
(b) To declare the non-speaking letter No.LK/3496/Admn.
dated 10.11.2014 issued by Respondent No.2 as non est ( non existing in the eyes of Law) in so far as the matter of stepping up of the pay of the applicant is concerned.
(c) To direct the respondents to issue forthwith Orders regarding implementation of the pay- stepping-up order as done by the Respondents in the case of Smt. Shashi 3 OA No. 1402/2016 Malhotra, and make payment of arrears on this account within a period of one month
(d) To direct the respondents to issue forthwith Orders regarding revision of her all pensionary benefits on the basis of the stepped up pay and pay all the arrears within a period of one month
(e) To pass such other and further orders which their lordships of this Hon 'ble Tribunal deem fit and proper in the existing facts and circumstances of the case.
(f) To allow the O.A. with exemplary cost."
2. It is submitted by the applicant that originally the step up order dated 27.12.2011 was issued to extend the benefit to three persons including the present applicant. One such person Mrs. Shashi Malhotra had been extended the benefit vide office order dated 31.01.2014 passed by 2 nd respondent. However, vide the same very order, the step up order passed earlier in favour of the applicant was cancelled without assigning any reason or extending an opportunity of hearing to her. No provision of any rule was cited to justify such action. On 10.11.2014, the 2nd respondent informed the applicant that the Grievance Committee has perused her various requests and have decided to reject her request and while conveying the said decision no provision of the applicable rules/guidelines have been quoted.
3. It is further submitted by the applicant that step up order which was issued after considering the settled fact that the applicant is senior to Mr. Bhisham Mirani and cannot be cancelled without any legal basis. The order dated 4 OA No. 1402/2016 31.01.2014 is a clear reflection of arbitrariness wherein one person Mrs. Shashi Malhotra was extended the benefit and step up order was unilaterally cancelled by Grievance Committee thereby denying the step up pay to the applicant. There was no application of mind or reasoning which can be read into the order dated 31.01.2014. It is further submitted that once a decision has been taken under the step up order to extend pay parity to the applicant with respect to her junior then the respondent nos.2&3 are bound by such position. The applicant cannot be singled out as there had been precedents within respondent no.2‟s organisation where various senior employees have been extended the benefit of pay parity as compared to the junior employee Mr. Bhisham Mirani. The respondents‟ contention that the rules for promotion of applicant and Mr. Bhisham Mirani were different, is without any basis. They have failed to point out the difference and the consequential effect of any difference in the rule. On perusal of the rules annexed by the respondents in their counter affidavit (pages 7 & 8) and the rules annexed by the applicant (at pages 21 & 22) have no material difference. Hence, the contention of the respondents is baseless and misleading in nature. It is not disputed that both Shashi Malhotra‟s order cancelling the step up order and letter of grievance cell rejecting the applicant‟s request are non-speaking and without any basis. It is well settled that a 5 OA No. 1402/2016 senior is always entitled for pay parity, if the junior is getting higher pay.
4. In support of her contention, the applicant has relied on the decision of Hon‟ble Gujarat High Court in P.N.Patel vs. State of Gujarat and others, SCA No.2022 of 2013, judgment dated 15.09.2016, decision of Hon‟ble High Court of Delhi in Govt. of Delhi vs. Vandana Pawar, WP (C) No.7149/2018 and decision of Hon‟ble Punjab and Haryana High Court in Balbir singh vs. State of Haryana and ors., CWP No.20032 of 2015 decided on 22.11.2019.
5. Pursuant to the notices issued by the Tribunal the respondents have filed their reply wherein they have submitted that her junior Mr. Bhisham Mirani who joined in May, 1981 as LDC was promoted to the post of Assistant on 01.01.1989 whereas the applicant who joined in June, 1981 as UDC was promoted as Assistant on 03.08.1990. It is further stated that the system of promotion as applicable to the post of Assistant at the time of applicant is different as that of Mr. Bhisham Mirani. Further, it is submitted that the applicant has falsely stated before this Tribunal that the case of Mrs. Shashi Malotra is under consideration as the same was verified by applicant by filing RTI and found the same to be false and incorrect.
6 OA No. 1402/2016
6. Heard Mr. Tushar Jorwal with Mr. Anurag Soan, learned counsel for the applicant and Mr. Gyanendra Singh, learned counsel for respondents and perused the material on record and written submissions of the applicant.
7. Analysis:
7.1 Indisputably, step up order was issued after considering the settled fact that the applicant is senior to Mr. Bhisham Mirani and cannot be cancelled without any legal basis. The order dated 31.01.2014 is a clear reflection of arbitrariness wherein one person Mrs. Shashi Malhotra was extended the benefit and step up order was unilaterally cancelled by Grievance Committee thereby denying the step up pay to the applicant. There was no application of mind or reasoning which can be read into the order dated 31.01.2014. Once a decision has been taken under the step up order to extend pay parity to the applicant with respect to her junior then the Respondents are bound by such position. The applicant cannot be singled out as there had been precedents within respondents organisation where various senior employees have been extended the benefit of pay parity as compared to the junior employee Mr. Bhisham Mirani.
7.2 We further find that the contention of the respondents that the rules for promotion of applicant and Mr. Bhisham Mirani were different is without any basis. They have failed to 7 OA No. 1402/2016 point out the difference and the consequential effect of any difference in the rule. From perusal of the rules annexed by the respondents in their counter affidavit and the applicant, we do not find any material difference therein. Hence, this contention of the respondents is baseless and misleading. It is not disputed that both, Shashi Malhotra‟s order cancelling the step up order and letter of grievance cell rejecting the applicant‟s request, are non-speaking and without any basis. 7.3 It is well settled that a senior is always entitled for pay parity, if the junior is getting higher pay and they cannot be meted out indifferently. Our view is fortified by the decision of Hon‟ble High Court of Delhi in the case of Vandana Panwar (supra), where the similar plea of the petitioners/respondent - department was turned down and it was held as under:
"9. We have heard learned counsel for the petitioner and carefully perused the impugned judgment, the documents and pleadings before the Tribunal. We are of the opinion that the view expressed by the Tribunal in the impugned judgment to the effect that where the salary of the junior is higher than that of the senior, the senior is also entitled to fixation of salary at par with her junior, is a logical conclusion backed by several decisions of the Supreme Court and High Court on the aforesaid aspect. In any case, the respondent cannot be held responsible for the delay in verification of her age as she had taken all necessary steps to submit the requisite documents to the petitioner in time. It is only fortuitous that the documents of Ms.Mamta Meena were got verified earlier due to which a letter of appointment was issued to her on 07/08.11.2007, whereas it took some time to verify the documents submitted by the respondent and resultantly, the letter of appointment was issued to her on 04.03.2008. The respondent cannot be held responsible for the said delay. Further, in the seniority list drawn by the petitioner, the respondent's seniority has been fixed over 8 OA No. 1402/2016 and above that of Ms.Mamta Meena. This being the position, the respondent was justified in claiming that she is entitled to stepping of pay at par with that of her junior.
10. For the aforesaid reasons, we do not see any merit in the present petition. The impugned judgment is affirmed and the petition is dismissed in limine along with the pending applications.
8. Conclusion:
In view of the aforesaid discussion, the OA is allowed. Respondents are directed to implement the office order dated 27.12.2011 qua the applicant at par with her junior Mr. Bhisham Mirani, as given to Smt. Shashi Malhotra.
Respondents are further directed to refix the pay and pension of the applicant and grant payment of arrears thereof, as a result of such refixation within a period of three months from the date of receipt of a certified copy of this order. It is made clear that applicant shall not be entitled to any interest thereon. No order as to costs.
(Manish Garg) (Tarun Shridhar) Member (J) Member (A) „SD‟