Central Administrative Tribunal - Delhi
Kailash Chand Sharma vs Cabinet Secretariat on 25 November, 2024
1
C-3/Item-60 OA-1790/2016
Central Administrative Tribunal
Principal Bench, New Delhi
O.A./1790/2016
M.A./1757/2016
Reserved on: 07.11.2024
Pronounced on: 25.11.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Kailash Chand Sharma (age 56 years),
S/o Late Shri H.S. Sharma
Senior Research Officer (Imagery Analysis)
(Group A Officer)
O/o Aviation Research Centre
Directorate General of Security
Cabinet Secretariat, East Block V,
R.K. Puram, New Delhi-66
2. Naresh Kumar (age 52 years),
S/o Shri Tek Pal Singh
Senior Research Officer (Imagery Analysis)
(Group A Officer)
O/o Aviation Research Centre
Directorate General of Security
Cabinet Secretariat, East Block V,
R.K. Puram, New Delhi-66
3. Ugam Singh (age 53 years),
S/o Shri Pirojan Singh
Senior Research Officer (Imagery Analysis)
(Group A Officer)
O/o Aviation Research Centre
Directorate General of Security
Cabinet Secretariat, East Block V,
R.K. Puram, New Delhi-66
4. Paryag Singh (age 62 years),
S/o Shri Gharat Singh
Senior Research Officer (Imagery Analysis) (Retired)
House No.91, Indra Colony, Jaiselmer,
Rajasthan-345001
5. Balbir Singh Chauhan (age 63 years),
S/o Late Shri Mahipat Singh Chauhan
Senior Research Officer (Imagery Analysis) (Retired)
2
C-3/Item-60 OA-1790/2016
House No. GI - 1004, Sarojini Nagar,
New Delhi-23
6. Dhirendra Singh (age 63 years),
S/o Late Shri Bhim Singh Rawat,
Senior Research Officer (Imagery Analysis) (Retired)
House No. GI - 1005, Sarojini Nagar,
New Delhi-23 ...Applicants
(Through Shri U. Srivastava, Advocate)
VERSUS
1. Union of India through
the Cabinet Secretary,
Govt. of India, New Delhi-110004
2. Director,
Aviation Research Centre,
Dt. General of Security,
Block-V (East), R.K. Puram,
New Delhi-110066 ...Respondents
(Through Shri Pradeep Kumar Sharma, Advocate)
ORDER
Hon'ble Dr.Chhabilendra Roul, Member (A):-
The applicants were originally working as Subedar Major with the Indian Army. After superannuation from the Indian Army, they were subsequently re-employed with the respondents on different dates as Field Officer (Imagery Analysis Support) [in short, FO (IAS)], as confirmed vide order dated 03.08.2009 placed at Page No. 44 of the OA.
Accordingly, their pay was fixed by the respondents on different dates as reflected in a tabular format as para 4.7 in Page No. 5 of the present OA.3
C-3/Item-60 OA-1790/2016
2. Each of the applicants joined prior to 01.01.2006 and one Shri Mahaveer Singh Choudhary joined on 04.05.2006 i.e., after implementation of 6th CPC on 01.01.2006. The pay of the applicants were fixed lower than Shri Mahaveer Singh Choudhary. Accordingly, the applicants preferred the representation, after considering the representation by an order dated 03.08.2009, the pay of the applicants were stepped up at par with their junior, Shri Mahaveer Singh Choudhary, FO (IAS) and thereafter, confirmed vide subsequent communication dated 05.01.2012. However, with the intervention of the Department of Expenditure, the pay of the applicants were re-fixed downwardly vide order dated 01.04.2016. Aggrieved by the same, the applicants have filed the OA, seeking the following reliefs.:-
"(a) Quash and set aside the impugned letter No. ARC/Pers VI/3/2008(05) Vol-I-595 dated 01.04.2016 and/or
(b) Direct respondent step up the pay of the applicants at par with their junior Shri Mahavir Singh Choudhary who was appointed with effect from 04.05.2006 and/or
(c) Direct respondents to pay the due arrears after fixing of the pay of the applicants at par with their juniors with effect from the date they have been paid less with interest @ 12% p.a.
(d) Any other relief may deem fit and proper by the Hon'ble Tribunal in a given circumstances."
3. Learned counsel for the applicants submits that the applicants never received any salary in hands at par with Shri Mahaveer Singh Choudhary in terms of the order dated 03.08.2009 and 05.01.2012. Hence, these orders 4 C-3/Item-60 OA-1790/2016 were never implemented in favour of the applicants. On the contrary, the respondents withdrew these two orders vide subsequent communication dated 01.04.2014.
4. Learned counsel for the applicants submits that each of the six applicants were initially working as Subedar Major with the Indian Army and thereafter, Applicants No. 1 and 2 joined the respondents on re-deployment as FO (IAS) on 25.10.2005 and 18.11.2005. While the remaining four applicants, i.e., Applicants No. 3 to 6, initially joined as DFO (IAS) and were subsequently promoted to the post of FO (IAS) with effect from 01.04.2006, i.e., after the implementation of the 6th CPC. Learned counsel for the applicants submits that when Shri Mahaveer Singh Choudhary was inducted, i.e., on 04.05.2006, all the six applicants were already in position of FO (IAS). He submits that the respondents had stepped up the pay vide order dated 03.08.2009, in light of the relevant rules, i.e., Note 10 below rule 7of the CCS (Revised Pay) Rules, 2008 and this has been reiterated by the respondents themselves in para 3 and 4 of the communication dated 05.01.2012. According to him, the respondents, on the advice of Department of Expenditure, has withheld the implementation of the order dated 05.01.2012 incorrectly.
5. Drawing attention to the impugned order dated 01.04.2016, learned counsel for the applicants submits 5 C-3/Item-60 OA-1790/2016 that the relevant rules have not been detailed while passing the said order. Further, the parity was sought by the applicants is with respect to Shri Mahaveer Singh Choudhary, who is not just similarly but identically placed to the applicants except for cut-off date of 01.01.2006 i.e., to clarify that the applicants were re-deployed before 01.01.2006 whereas Shri Mahaveer Singh Choudhary was re-deployed after 01.01.2006. He submits that the applicants were not only senior to Shri Mahaveer Singh Choudhary in the Indian Army but date of joining with the respondents as FO (IAS) itself reflected that they are senior to Shri Mahaveer Singh Choudhary and the fact that the applicants are drawing lesser salary than Shri Mahaveer Singh Choudhary, they are entitled for stepping up of pay. For the sake of better appreciation, the table with respective joining dates of the applicants is reproduced as below:-
NAME D.O.J. as RO BASIC PAY + MODE OF
(IA) 4800 (G.P.) AS APPOINTMENT
ON
04.05.2006
Naresh Kumar 18.11.2005 12090 Re-employment
K.C. Sharma 25.10.2005 12090 Re-employment
Ugam Singh 01.04.2006 10890 Promotion
Dhirendra 01.04.2006 11210 Promotion
Singh
B.S. Chauhan 01.04.2006 11210 Promotion
Prayag Singh 01.04.2006 12090 Promotion
M.S. 04.05.2006 13350 Re-employment
Choudhary
6. Learned counsel for the respondents vehemently opposed the OA. He submits that the in the present facts and circumstances, the DoPT OM dated 05.04.2010 is applicable to determine pay and allowances to which the applicants were entitled. Interpreting the DoPT OM and the 6 C-3/Item-60 OA-1790/2016 rules as mentioned in Note 10 below Rule 7 CCS (Revised Pay) Rules, 2008 would determine that the applicants' pay was to be fixed. For the sake of better appreciation, the relevant portion of the DoPT OM dated 05.04.2010 is reproduced as under:-
"3 (iv) Fixation of pay of personnel/officers re-employed prior to 1.1.2006 and who were in employment as on 1.1.2006: In the case of personnel/officers who were re- employed before 1.1.2006 and who were working in the Central Government organisations on re-employment basis as on 1.1.2006, their pay will be fixed in accordance with the provisions of DOPT OM No. 3/13/2008-Estt. (Pay II) dated 11.11.2008. This OM stipulates that re-employed persons who become eligible to elect revised pay structure shall exercise option in the manner laid down in Rule 6 of CCS (RP) Rules, 2008 and their pay shall be fixed in accordance with the provisions of Rule
7 of CCS (RP) Rules, 2008. In this context, it is clarified that in accordance with the provisions of Rule 7 of CCS (RP) Rules, 2008, Department of Expenditure issued fitment tables corresponding to each pre-revised pay scale vide O.M. No. 1/1/2008-IC dated 30.08.2008. In the case of those personnel/officers as well, who were re-employed before 1.1.2006 and who were working in the civilian organisations on re-employment basis as on 1.1.2006, their pay will be fixed with reference to the fitment table of the pre-revised civilian pay scale in which they were re- employed and corresponding to the stage in the pre-revised pay scale as on 1.1.2006."
7. Furthermore, drawing attention to para 2 of Para 4(b)(i) of the DoP&T OM dated 05.04.2010, the position, is further clarified to the fact that the incumbents, who were re-employed prior to 01.01.2006 would be governed by different set of rules than the persons joined on or after 01.01.2006. Therefore, he submits that since the applicants had joined before 01.01.2006, the pay was fixed in terms of Note 10 below Rule 7 of the CCS (Revised Pay) Rules, 2008. He submits that while interpreting the OM as well as rules, the Bangalore Bench of the Tribunal has explained in detail the case of re-deployment prior to 7 C-3/Item-60 OA-1790/2016 01.01.2006 and how the pay would be fixed in light of Note 10 below Rule 7 of the CCS (Revised Pay) Rules. He draws strength from the decision of the Bangalore Bench of this Tribunal in OA No. 1724/2015 decided on 17.08.2017, particularly para nos. 10, 11 and 12, which are reproduced as under:
"10. We have carefully considered the facts of the case and submissions made by either side. It is an admitted fact that the applicant retired from military service and is getting pension from the service rendered by him while in military service. Subsequent to his retirement, he was re-employed as Postal Assistant under the ex- servicemen quota in the Postal Department. On his selection, he was asked to undergo induction training from 27.9.2005 to 10.12.2005. After successful completion of induction training, he was formally appointed as Postal Assistant vide order dated 5.1.2006. After implementation of the 6th Pay Commission, his pay was fixed at PB-1 i.e. Rs.5200-20200 with Grade Pay Rs.2400 and with initial pay of Rs.7510+2400(GP). There are two issues involved in this case i.e whether the applicant's pay will be fixed in terms of Rule 7 or Rule 8 of CCS(RP)Rules 2008 and whether his pay will be fixed based on last pay drawn at the time of retirement from military service.
11. The applicant claims that his appointment should be reckoned from September, 2005 when he was sent for training and hence his pay should be fixed under Rule 7 of CCS(RP) Rules 2008. The respondents, on the other hand, claim that the applicant is appointed on 5.1.2006 and hence his pay should be fixed under Rule 8 of the CCS(RP) Rules, 2008. Rule 7 of CCS(RP) Rules 2008 reads as follows:
"7. Fixation of initial pay in the revised pay structure. (1) The initial pay of a Government servant who elects, or is deemed to have elected under sub-rule (3) of Rule 6 to be governed by the revised pay structure on and from the 1st day of January, 2006, shall, unless in any case the President by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds alien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely:- (a) in the case of all employees:- (i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1-1-2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10. (ii) if the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale.
12. As mentioned above, the Rule 7 stipulates fixation of initial pay by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and if the minimum revised pay is more than the amount arrived at, the pay shall be fixed at the minimum of the revised pay band. Rule 7 does not stipulate that the pay of a re-employed person should be fixed based on the last pay drawn at the time of his retirement in his previous service. If theoretically the applicant's date of joining is taken in September 2005 i.e. prior to revised pay rules, it need to be seen the basic pay he will be entitled to by applying Rule 7 of the CCS(RP) 8 C-3/Item-60 OA-1790/2016 Rules 2008. His appointment was in the scale of Rs.4000-100-6000 and initially it was fixed at Rs.4000. On multiplication by a factor of 1.86, the basic pay of Rs.4000 would come to Rs.7440 in the revised pay structure which is less than the minimum basic pay in which his pay was fixed in the revised pay scale i.e. Rs.7510. Therefore, even if the pay of the applicant is fixed under Rule 7 of CCS(RP) Rules 2008 then also he will only get the minimum pay fixed for that post in the revised pay structure which is Rs.7510. Therefore, in his case, it does not make any difference that whether his pay is fixed as per Rule 7 of the CCS(RP) Rules or Rule 8 of CCS(RP) Rules 2008 which stipulate fixation of pay in the revised pay structure of pay of the direct recruits to a particular post at the entry level."
8. Learned counsel for the respondents states that precisely, in the identical facts, where that the applicants were appointed prior to 01.01.2006,the decision of the coordinate bench could be applicable and following the details in the said order, the pay of the applicants have been rightly fixed.
9. In rejoinder, learned counsel for the applicants submits that the pay of the applicants were fixed Rs. 6500/10500 and Shri Mahaveer Singh Choudhary was also fixed on the same pay scale at the time of re-employment. Inspite of being senior to Shri Mahaveer Singh Choudhary, the applicants have been fixed at lower pay scale. He draws attention to para 4.7 of the OA, wherein the details of the pay fixed with respect to all the applicants and Shri Mahaveer Singh Choudhary are explained along with date of joining in a tabular form. For the sake of better 9 C-3/Item-60 OA-1790/2016 appreciation, the table is reproduced as under:-
Sl Name Pay as on Pay on Pay re- Mode of
31.12.2005 promotion fixed appointment
as FO/RO after
6th CPC
1. Kailash Rs. 6500/- Not Rs. Re-
Chandra applicable 12090/- employment
Sharma (Ex being + GP as FO/RO on
Sub Maj) already 4800/- 25.10.2005
FO/RO
2. Naresh Rs. 6500/- Not Rs. Re-
Kumar (Ex applicable 12090/- employment
Sub Maj) + GP as FO/RO on
4800/- 18.11.2005
3. Ugam Singh Rs. 6025/- Rs. 6500/- Rs. Re-
(Ex Sub) w.e.f. 11350/- employment
01.04.2006 + GP as DFO and
4800/- promoted as
FO/RO w.e.f.
01.04.2006
4. Prayag Rs. 6500/- Rs. 6500/- Rs. Re-
Singh (Ex- w.e.f. 12090/- employment
Sub (Hony 01.04.2005 + GP as DFO and
Capt) as FO 4800 promoted as
FO/RO w.e.f.
01.04.2005
5. Balbir Singh Rs. 6025/- Rs. 6500/- Rs. Re-
Chauhan w.e.f. 11540/- employment
01.04.2006 + GP as DFO and
4800/- promoted as
FO/RO w.e.f.
01.04.2006
6. Dhirendra Rs. 6025/- Rs. 6500/- Rs. Re-
Singh w.e.f. 11540/- employment
01.04.2006 + GP as DFO and
4800/- promotion as
FO/RO w.e.f.
01.04.2006
7. MS NA Rs 6500/- Rs. Re-
Choudhary w.e.f. 13350/- employment
(Ex Sub Maj) 04.05.2006 + 4800 as FO/RO
w.e.f.
04.05.2006
10. Learned counsel for the applicants placed reliance on the judgement dated 06.03.2017 passed by a coordinate bench of this Tribunal in OA No. 1456/2015 titled Shashi Kant Jha & Ors. vs. Union of India & Anr., a copy of 10 C-3/Item-60 OA-1790/2016 which is placed on record via MA No. 3581/2022. The relevant para nos. 2, 3, 6 and 9 are reproduced as under:-
"2. The applicants were appointed as Assistant Accounts Officer (AAO) (earlier called Junior Accounts Officer) under the 90% quota in different panel years. Their grievance is that on such appointment their pay has been fixed treating them as promotees and denying them the benefit of minimum entry pay as applicable to direct recruits.
3. As per the Recruitment Rules for the post (Annexure-A3) 90% posts of Junior Accounts Officer are filled by non selection method and 10% by selection-cum-seniority. As far as 90% quota is concerned, this is filled by promotion failing which by deputation failing which by direct recruitment. The Rules further provide that 90% of the posts of the Junior Accounts Officer shall be filled by promotion on seniority-cum-fitness bases from a common seniority list to be drawn up and maintained by Controller General of Accounts of persons who have passed the Junior Accounts Officer (Civil) Examination. The direct recruits were also to be selected on the basis of entrance examination to be conducted by Controller General of Accounts. The contention of the applicants was that they have come through an examination conducted by Controller General of Accounts and, therefore, should be treated as direct recruits. It was argued on their behalf that to appear in such examination, persons of various cadres were eligible and there was no common seniority list. As such, the appointment of the applicants should be regarded as direct recruitment and on their appointment their pay should accordingly be fixed treating them as direct recruits.
This would entitle them to the minimum entry level pay prescribed for direct recruits under the CCS (RP) Rules.
6. In reply, the respondents have submitted that the National Anomaly Committee had recommended that wherever there was provision for direct recruitment in the Recruitment Rules, pay on promotion in case of promotees should be fixed at the prescribed minimum of the entry pay as provided for the direct recruits in the Revised Pay Rules, irrespective of the fact whether direct recruitment has actually taken place or not. This recommendation of the National Anomaly Committee had, however, not been accepted by the Government and it was decided to allow stepping up of pay only in cases when a junior direct recruit is actually drawing more pay than his senior promotee. The following conditions were laid down:-
"(i) Stepping up of the pay of seniors can be claimed only in the case of those cadres which have an element of direct recruitment and in cases where a directly recruited junior is actually drawing more basic pay than the seniors. In such cases, the basic pay of the seniors will be stepped up with reference to the pay of the directly recruited junior provided they belong to the same seniority list for all purposes.
(ii) Government servants cannot claim stepping up of their revised basic pay with reference to the entry pay in the revised structure for direct recruits appointed on or after 1.1.2006, as laid down in Section II of Part A of the First Schedule to the RS(RP) Rules, 2008, if their cadre does not have an element of direct recruitment or in cases where no junior is drawing basic pay higher than them.11
C-3/Item-60 OA-1790/2016
(iii) Stepping up of pay of the seniors shall not be applicable in cases where direct recruits have been granted advance increments at the time of recruitment."
9. We, therefore, allow this O.A. to the extent that the applicants would be entitled to pay fixation at the level of minimum entry pay applicable for direct recruits to the post of Assistant Accounts Officer along with Grade Pay of Rs. 4800 from the date of their appointment on promotion. They shall also be entitled to arrears arising out of pay fixation. We, however, decline their prayer to treat them as direct recruits to the post of Assistant Accounts Officer. We are also not inclined to allow any interest on payment of arrears considering the facts and circumstances of this case. The above benefits may be granted to the applicants within a period of eight weeks from the date of receipt of a certified copy of this order. No costs."
11. The aforesaid judgement of the Tribunal was upheld by the Hon'ble High Court of Delhi in W.P. (C) No. 7379/2017 decided on 26.09.2017 and the relevant para nos. 13 to 15 are reproduced as under:-
"13. We have also considered the judgment of Govt. Of NCT of Delhi (supra) on which reliance has been placed by the learned counsel for the Respondents noted hereinabove and find that the Division Bench after considering of the Rules and the clarification dated 13.03.2009 issued by the Government held that the same post cannot have two pay scales, one for the promotees and other for direct recruits. The provision for two different pay scales for promotees and direct recruits is clearly violative of the principle of `equal pay for equal work'.
14. We have also considered the judgments relied upon by learned counsel for the petitioner and find that the said judgments only reiterate the well settled legal position that the State cannot be compelled to give pay scale contrary to the statutory rules.
15. Before we deal with this aspect of the matter it would be appropriate to reproduce Rule 13 (1) as in our view the same, in itself, provides for stepping up of pay of the promotees of the minimum of the higher pay band to which post promotion has taken place. Rule 13 reads as under:-
"13. Fixation of pay on promotion on or after 1.1.2006 - In the case of promotion from one grade pay to another in the revised pay structure, the fixation will be done as follows:-
(i) One increment equal to 3% of the sum of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This will be added to the existing pay in the pay band.
The grade pay corresponding to the promotion post will thereafter be granted in addition to this pay in the pay band. In cases where promotion involves change in the pay band also, the same methodology will be followed. However, if the 12 C-3/Item-60 OA-1790/2016 pay in the pay band after adding the increment is less than the minimum of the higher pay band to which promotion is taking place, pay in the pay hand will be stepped to such minimum."
Having examined Rule 13(1) we find that the rule itself caters to situations where pay of the promotee after using the methodology prescribed in Rule 13 (1) is found to be lesser than the minimum of the higher pay band of the promotional post, the same needs to be stepped up to the minimum of the pay scale of the promotional post. We find that the judgments in the cases of UOI vs Malbika Deb Gupta (supra) and Dasrath & Ors v. UOI (supra), on which reliance has been placed by the learned counsel for the Respondents also while dealing with Rule 7 (A) clause 1 and 2 also take the same view. Thus it is clear to us that, Rule 13 itself provides for such a contingency for stepping up of the pay of the promotee to the minimum of the pay band of the promotional post and thus we see no violation of any Rule, in the directions given by the Tribunal to fix the pay of the Respondent Promotees at the level of minimum entry pay applicable for direct recruits."
12. Learned counsel for the applicants further relies upon the judgment dated 22.08.2022 passed by Hon'ble High Court of Delhi in W.P.(C) No. 8257/2015 titled Sanjay Gupta vs. High Court of Delhi through its Registrar General and the relevant para nos. 29 to 33 are reproduced as under:-
"29. The law laid down by the Hon'ble Supreme Court in State of Madhya Pradesh v. Ramesh Chandra Vajpayee (supra) and Union of India v. O.P. Saxena (supra), in our opinion, is not contrary to the case set up by the petitioner but, in fact, supports it. An employee carrying increments by a longer length of service or due to the emoluments being attached to the service would continue to carry such benefits at the higher post and would be entitled for a higher salary. Such criterion, as is apparent, is missing in the facts of the present case.
30. The petitioner, in the present case, is not claiming a negative right of equality but is claiming an affirmative relief of equality under Article 14 of the Constitution. As noted earlier such anomaly was, in fact, also noticed by the Ministry of Finance and was removed by taking out a corrective notification dated
13.05.1992. Thus, the principle of parity at workplace in the same cadre, as enshrined in the principles governed by Article 14, 16 and 39 of the Constitution would entitle the petitioner for stepping up of his pay to atleast that of his junior.
31. It is true that no one has any inherent right of pay dehors the rules governing the appointments and the salaries, however, a person definitely has a constitutional right to be treated equally. 13
C-3/Item-60 OA-1790/2016
32. In view of the above, the petitioner, who is senior to Smt. Usha Rawat in the cadre of Delhi High Court, and has been drawing higher salary since the day of joining till such time Smt. Usha Rawat was appointed as a reader on 20.12.2008, is entitled for stepping up of pay to the level of Smt. Usha Rawat w.e.f. 20.12.2008.
33. The present petition is, therefore, allowed and, the respondent is directed to step up the pay of the petitioner equal to the pay level of Ms. Usha Rawat w.e.f. 20.12.2008."
13. The learned counsel for the respondents was directed to place the relevant basis of fixing the pay scale of Shri M.S. Choudhary vide order dated 7.11.2014. Shri Pradeep Kumar Sharma, learned counsel for the respondents furnished the copy of Section-II under Part-A of Rules 3 and 4 of the CCS (Revised Pay) Rules, 2008. According to this Section, the corresponding pay in PB-2 in Pay Band Rs.9300-34800 for Grade Pay of Rs.4800/- is Rs.13,350/-. This is the basis on which pay scale of Shri M.S. Choudhary, who joined as FO (IAS) on 4.05.2006 was determined.
14. We have heard both the learned counsels and perused the records of the case.
15. The basic issue in the instant case is whether the stand taken by respondent no.2 vide their communication dated 1.04.2016 that the applicants in the present OA and Shri M.S. Choudhary are governed by two separate rules for fixation of their pay though they belong to the same cadre i.e. R.O. (IA)/FO(IAS). The pay fixation of a person re- employed in government service after retirement, after the 14 C-3/Item-60 OA-1790/2016 recommendations of the 6th CPC were accepted by the government, is governed by the DoP&T OM dated 5.04.2010. The said OM states that after the introduction of the system of running pay bands and grade pays, the government decided to revise the relevant provisions of CCS (fixation of pay of re-employed pensioners) Orders, 1986 as indicated in para 2 and 3 of the same. Para 4(b)(i) of the aforementioned order deals with the re-employment on or after 1.01.2006. As per Section II Part A of the first Schedule to CCS (Revised Pay) Rules, 2008, notified by the Ministry of Finance, Department of Expenditure vide OM dated 29.08.2008, the pay in Pay Band 2 is Rs.9300-34800 and in the running grade pay, the corresponding Pay Band for Grade Pay Rs.4800/- is Rs.13,350/-. In other words, any government servant re-employed on or after 1.01.2006 in any position carrying Pay Band 2 with Grade Pay Rs.4800/- will get the Pay Band of Rs.13,350/-. Adding the grade pay, the total pay will be Rs.18,150/-.
16. The respondents have categorically stated that Shri M.S. Choudhary, RO (IAS) was employed on 4.05.2006 and accordingly his pay has been fixed at Rs.13,350/- with Grade Pay Rs.4800/-. In view of this, it is our considered view that the pay of Shri Choudhary has been correctly fixed.
15
C-3/Item-60 OA-1790/2016
17. Now the question arises that in the RO (IAS) cadre, whether the applicants are senior to Shri Choudhary and whether their pay scale should be stepped up to that of Shri Choudhary, who is junior to them. The dates of joining of the applicants as RO (IAS) are prior to 4.05.2006, the date on which Shri M.S. Choudhary joined as RO (IAS). Shri Naresh Kumar joined on 18.11.2005, Shri K.C. Sharma joined on 25.10.2005 and Shri Ugam Singh, Shri Dhirendra Singh, Shri B.S. Chauhan and Shri Prayag Singh joined on 1.04.2006. In view of this, all these six applicants are senior to Shri M.S. Choudhary in the cadre of RO (IAS). It is a fact that all of them were re-employed in government service on different dates. Applicants no.1 and 2 joined the respondents on re-deployment as FO (IAS) on 25.10.2005 and 18.11.2005, respectively. The remaining four applicants namely applicants no. 3 to 6 initially joined as DFO (IAS) and were subsequently promoted to the post of FO (IAS) with effect from 1.04.2006, after the implementation of the 6th CPC.
18. When we come to the case of applicants no.3 to 6, they have joined in the promotion cadre of FO (IAS) after 1.01.2006. The respondents have incorrectly categorized them with those who have joined in the cadre of FO (IAS) prior to 1.01.2006 and accordingly incorrectly applied clause 3 (iv) of DoP&T OM dated 5.04.2010. They deserve 16 C-3/Item-60 OA-1790/2016 to the equated as RO (IAS) after 1.01.2006 and need to be given the revised Pay Band - 2 at Rs.9300-34800 with Grade Pay Rs.4800/- at par with Shri Choudhary who got similar Pay Band and grade pay. Accordingly, applicants no.3 to 6 who got revised pay in Pay Band - 2 at Rs. 13,350/- with Grade Pay Rs.4800/-, their revised basic pay should be Rs.18,150/- as on 1.01.2006.
19. Applicants no.1 and 2 joined as FO (IAS) before the implementation of 6th CPC recommendations i.e. before 1.01.2006. Hence, ordinarily their pay fixation will be governed by Clause 3 (iv) of the DoP&T OM dated 5.04.2010. Particularly, it states that "In the case of those personnel/officers as well, who were re-employed before 1.1.2006 and who were working in the civilian organizations on re-employment basis as on 1.1.2006, their pay will be fixed with reference to the fitment table of the pre-revised civilian pay scale in which they were re- employed and corresponding to the stage in the pre-revised pay scale as on 1.1.2006."
20. The respondents have applied clause 3 (iv) of DoP&T OM dated 5.04.2010 independently without referring to FR 22 which refers to stepping up of pay of seniors drawing less pay than juniors. The respondents have taken the stand in respect of applicants no.1 and 2 because they were already in the rank of FO (IAS) before 1.01.2006. They 17 C-3/Item-60 OA-1790/2016 were in the pre-revised pay scale of Rs.6500-200-10500 at S-12 level. Hence, their pay in the revised Pay Band-2 as per the Department of Expenditure OM dated 30.08.2008 is Rs.12090/-. Adding the Grade Pay of Rs.4200/-, their revised basic pay is Rs.16,290/-. In view of this, the pay fixation by the respondents in respect of applicants no.1 and 2 is as per the Department of Expenditure OM dated 30.08.2008.
21. Learned counsel for the applicants has relied upon the principle of stepping up of pay of seniors when a junior gets more pay. The stepping up guidelines issued by the DoP&T after the recommendations of 6th CPC were issued as Note 10 below Rule 7 of CCS (RP) Rules, 2008, which read as follows:
"(b) As a result of FR 22 (1) (a) (1) application in the revised scales of CCS (RP) Rules, 2008 - In cases, where a Government servant promoted to a higher post before the 1st day of January, 2006, draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day of January, 2006, the pay in the pay band of the senior Government servant should be stepped up to an amount equal to the pay in the pay band as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfilment of the following conditions, namely:
(a) both the junior and the senior Government servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre.
(b) the pre-revised scale of pay and the revised grade pay of the lower and higher posts in which they are entitled to draw pay, should be identical.
(c) the senior Government servants at the time of promotion have been drawing equal or more pay than the junior.18
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(d) the anomaly should be directly as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation on such promotion in the revised pay structure. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, provisions of this Note need not be invoked to step up the pay of the senior officer.
Subject to the provisions of Rule 5, if the pay as fixed in the officiating post under sub-rule (1) is lower than the pay fixed in the substantive post, the former shall be fixed at the same stage as the substantive pay."
This clarification regarding stepping up rule has arisen from FR 22 (I) (a)(1), which is reproduced below:
"FR.22(1) 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 fulfilment 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 of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only), whichever is more."
22. A plain reading of the Fundamental Rules and Note 10 below Rule 7 of CCS (RP) Rules, 2008 shows that these stepping up clarifications are given for two categories of promoted employees. One, who were promoted prior to 1.01.2006 and the other, who were promoted after 1.01.2006. As we have discussed earlier, the applicants no.1 and 2 were promoted prior to 1.01.2006 and there is no claim of stepping up by these two applicants in view of 19 C-3/Item-60 OA-1790/2016 any junior to them who had got higher pay scale prior to 1.01.2006.
23. We agree with the contention of the learned counsel for the applicants that the State cannot be compelled to give pay scale contrary to the statutory Rules. The ratio of judgment of Hon'ble Delhi High Court in WP(C) No.7379/2017, Union of India Vs. Shashi Kant and ors. is fairly applicable in this case.
24. We also agree with the averment of the learned counsel for the applicants that the ratio of the judgment of Hon'ble Delhi High Court in Sanjay Gupta (supra) case is also fairly applicable in the instant case. The applicants in the instant case are not claiming a negative right of equality but are claiming an affirmative relief of equality under Article 14 of the Constitution of India. As we have already discussed that the pay scale of Sh. Choudhary has been correctly fixed. Hence, seeking parity with the pay scale of the junior i.e. Shri M.S. Choudhary is not the same as seeking negative equality. Even if, Sh. M.S. Choudhary is considered direct recruit and the applicants are promotees, the ratio of judgment of Hon'ble Delhi High Court in Sanjay Gupta (supra) is applicable. The principle of parity in work place is governed by Articles 14 and 16 which would entitle the applicants for stepping up of their pay to at least that of his junior. It is admitted by both the parties that the 20 C-3/Item-60 OA-1790/2016 applicants and Sh. M.S. Choudhary belong to the same cadre of FO (IAS). The applicants were promoted to the rank FO (IAS) earlier than Sh. M.S. Choudhary to the same cadre of FO (IAS).
25. The issue of parity of pay of seniors with that of the juniors when both the senior and junior belong to the same cadre and post has been succinctly dealt by the Apex Court in Union of India and ors. Vs. Shri C.R. Madhava Murthy and anr., Civil Appeal Nos.2087-2088/2022, decided on 6.04.2022. Referring to the provisions under FR 22, the Apex Court held:
"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.
7. In view of the above and for the reasons stated above, the present appeals deserve to be dismissed and the same are dismissed, accordingly."
26. In view of the above, applicants no.1 & 2 are also entitled for stepping up their pay to the minimum of Pay Band PB-2, Rs.13,350 with grade pay of Rs.4800/- w.e.f. 1.01.2006 at par with Sh. M.S. Choudhary and (as now decided) with applicants no.3 to 6.
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Conclusion:
27. In view of the above analysis the following orders are passed:
(i) The order dated 01.04.2016 issued by the respondents (impugned order) is hereby quashed.
(ii) The respondents are directed to step up the pay scales of all the six applicants to Rs.13,350/- with grade pay Rs.4800/- w.e.f.
01.01.2006 for applicants no.1 & 2 and w.e.f. 01.04.2006 for applicants no.3 to 6 respectively.
(iii) The above orders in (ii) above be complied with within a period of 8 weeks from the date of receipt of certified copy of this order. No order as to costs.
All pending MAs, if any, are disposed off accordingly.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
/dkm/