Himachal Pradesh High Court
Ajit Singh Dhanjal vs The Himachal Pradesh State Electricity ... on 5 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Civil Writ Petition (Original Application)
Nos. 3837 and 3843 of 2019
Date of Decision: 05.12.2022
_____________________________________________________________________
1. CWPOA No. 3837 of 2019
Ajit Singh Dhanjal
.........Petitioner.
Versus
The Himachal Pradesh State Electricity Board and Anr.
.......Respondents
2. CWPOA No. 3843 of 2019
Ramesh Chand Katoch
.........Petitioner.
Versus
The Himachal Pradesh State Electricity Board and Anr.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner(s): Mr. Onkar Jairath and Mr. Piyush,
Advocates.
For the respondents: Mr. Tara Singh Chauhan, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Since both the petitioners in the above captioned cases are similarly situate and they are claiming similar relief from the same respondent-board, both the matters were heard together and are now being disposed of vide common judgment.
::: Downloaded on - 09/12/2022 20:31:13 :::CIS -2-2. For having bird's eye view, relevant facts, which may be .
necessary for adjudication of the cases at hand are that petitioners namely Ajit Singh Dhanjal and Ramesh Chand Katoch were appointed as Tracer Draftsman in the respondent-board on 1.8.1970 and 19.11.1973, respectively and thereafter, both the petitioners were promoted as Draftsman on 12.9.1977 and 12.2.1980, respectively.
Both the petitioners were promoted as Head Draftsman on 3.11.1983.
Thereafter, both the petitioners were promoted as Circle Head Draftsman (CHDM) on 10.5.1990 and 28.3.1990 (respectively) in the pay-scale of Rs. 2130-3700/-, which was further revised to Rs.7500- 12500/- at Rs. 9100 on 1.1.1997 and at Rs. 11050/- as on 2.6.2003.
Both the petitioners after there being promoted as Circle Head Draftsman though were sent to deputation to SJVNL, but during their deputation, they were promoted to the post of Assistant Engineer.
3. Respondent No.2 Mr Vipan Chand, who at the time of filing of the petition also working as Assistant Engineer like the petitioners in SJVNL, Jhakri, was appointed as Junior Draftsman on 20.11.1973 in the respondent-board and as such, he was junior to the petitioners in the seniority list of Draftsman. Similarly, respondent No.2 was promoted as Draftsman on 19.2.1980 i.e. also after promotion of the petitioners to the post of draftsman. In the year 1985, respondent No.2 was promoted as Head Draftsman and in November, 1996, he was given two promotional increments on ::: Downloaded on - 09/12/2022 20:31:13 :::CIS -3- completion of 23 years service under FR 22(I) (a) (i), as a consequence .
of which, he came to be granted higher pay scale than the petitioners, who were admittedly senior to him in each category, be it Draftsman, head Draftsman and Circle Head Draftsman. On account of being given benefit under FR 22(I) (a) (i), pay scale of respondent No.2 came to be fixed as Rs.7500-12500/- and he reached basic pay @ Rs.11750/- as CHDM on 2.6.2003, whereas on 2.6.2003, petitioners were getting basic pay @ Rs.11050/-.
4. Being aggrieved and dissatisfied with aforesaid pay anomaly, petitioners filed repeated representations to the department, praying therein to step-up their pay to bring them on parity with respondent No.2, who despite being junior was drawing higher pay than the petitioners, however, fact remains that representations filed by the petitioners were paid no heed, but subsequently rejected on the ground that anomaly in the pay of senior and junior officials has occurred due to availing the benefit of proficiency step-up by junior official Sh. Bipan Kumar, CHDM (now AE) and also availing benefit of 23 years promotional increments during November, 1996 and these benefits have not accrued to senior officials. Besides above, respondents also observed in the order dated 31.12.2009 (Annexure P10) that junior official has drawn pay w.e.f. 1.1.1997 @ 9700 pm, whereas senior officials have drawn lesser pay as on that date.
::: Downloaded on - 09/12/2022 20:31:13 :::CIS -4-5. Being aggrieved and dissatisfied with order dated .
31.12.2009, thereby rejecting of their representations, petitioners have approched this court in these proceedings, praying therein for following reliefs:-
"i) That the orders dated 31.12.2009 vide Annexure P-10, returning/denying the benefit of stepping up of pay as Circle Head Draftsman (CHDM) w.e.f. 2.6.2003 may kindly be quashed and set-aside.
ii) That the respondent Board may be directed to reconsider the orders dated 31.12.2009 vide Annexure P-10 in view of the facts in the representation dated 26.3.2010 vide Annexure P-11 and to allow stepping up of pay as Circle Head Draftsman (CHDM) w.e.f. 2.6.2003 forthwith.
iii) That the Respondent Board may be directed to give the benefit of stepping up of pay as Circle Head Draftsman w.e.f.
2.6.2003 at par with the pay of Respondent No.2-Junior with all consequential benefits forthwith."
2. Pursuant to notice issued in the instant proceedings, respondents have filed reply to petitions, wherein facts as have been noticed herein above, have not been disputed, rather stand admitted.
It has been stated by the respondents that anomaly in the pay of senior and junior officials has occurred w.e.f. 20.11.1996 due to application of provision of FR-22(I) (a) (i) after completion of 23 years regular service to junior Sh. Bipan Kumar (respondent No.2).
Respondent Board has further stated that benefit of 23 years advance promotional increment(s) could not accrue to senior official i.e. Ajit Singh Dhanjal (petitioner), as he had got third promotion as CHDM ::: Downloaded on - 09/12/2022 20:31:13 :::CIS -5- and joined as such on 10.5.1990 before completion of 23 years .
service. Besides above, respondent also placed reliance upon the instructions circulated vide No. HPSEB(SECTT)/Scale-1/2004-60075- 295 dated 16.9.2004 (Annexure RA-1), wherein it has been envisaged that where pay of junior has become more than his senior after 1.1.1996 as a result of application of the provisions of FR-22, pay of the senior board servant be stepped up equal to the pay of his junior subject to the following conditions:-
"(a) Both the junior and the senior Board servant 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 scales and revised scales of pay of the lower and the higher posts in which they are entitled to draw pay should be identical;
(c) The senior board servant at the time of promotion have been drawing equal or more pay than the junior.
(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 scale. If 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, provision of these instructions shall not be invoked to step-up the pay of the senior officer."
3. Placing reliance upon the aforesaid instructions, it has been claimed by the respondents that anomaly in the pay of senior and junior officials has arisen due to availing the benefit of proficiency step-up by junior official Sh. Bipan Kumar, CHDM (respondent No.2), ::: Downloaded on - 09/12/2022 20:31:13 :::CIS -6- which benefit did not accrue to Senior officials as they got third .
promotion as CHDM and joined as such on 10.5.1990 and 28.3.1990, respectively i.e. before completion of 23 years service. It has been further claimed by the respondents department that on 20.11.1996 neither posts nor pay-scale of Senior and junior officials were identical and moreover, the anomaly also cropped up due to availing the benefit of proficiency step up by the junior official which benefit did not accrue to senior official. Ground of limitation has also been raised by the respondents for denying the benefit as is being claimed through instant petitions.
4. Having heard learned counsel for the parties and perused material available on record, this Court finds that there is no dispute that there is anomaly in the pay scale of petitioners and respondent No.2, who throughout remained junior to the petitioners. Both the petitioners were inducted in the respondent-board as Tracer Draftsman prior to respondent No.2 and both of them got promoted to the post of CHDM prior to respondent No.2. Respondent No.2 came to be promoted as Head Draftsman on 22.7.1985 and on completion of 23 years of service, he was given two increments on 20.11.1996 under FR 22(I) (a) (i). On account of being conferred the aforesaid benefit to the benefit of respondent No.2 under FR 22(I) (a) (i), in the cadre of head Draftsman, his basic pay came to be increased as compared to the petitioners, who after being promoted as Head Draftsman were ::: Downloaded on - 09/12/2022 20:31:13 :::CIS -7- getting lesser pay scale than respondent No.2 in the year, 1985. On .
2.6.2003, respondent No.2 was promoted as CHDM in the pay-scale of Rs. 7500-12500 and reached the basic pay of Rs. 11750/-. Though petitioners herein were promoted to the post of CHDM much prior than respondent No.2, but on revised pay scale of Rs. 2130-3700, which came to be revised to 7500-12500 on 1.1.1997 and at Rs.
11,500/- in 2003. Admittedly, on 2.6.2003, respondent No.2, who was junior to the petitioners from day one started getting higher pay than the petitioners, despite their being working against the post of CHDM. Though respondents in their reply have admitted factum with regard to anomaly in the pay scale of the petitioners and respondent No.2, but have claimed that anomaly cropped up on account of availing the benefit of proficiency step-up by the junior official, which benefit did not accrue to senior officials, but such explanation does not seem to be justifiable because benefit of proficiency step-up came to be awarded in favour of the junior official i.e. respondent No.2, for the reason that for 23 years, he was unable to get the promotion to the higher post, by which time, petitioners stood promoted to the post of CHDM, may be in the lesser pay scale. In fact, respondent No.2 got double benefit because at the time of promotion to the post of Head Draftsman, he was given two promotional increments on completion of 23 years service under FR 22(I) (a) (i), as a consequence of which, his pay in the category of Head Draftsman became higher than the ::: Downloaded on - 09/12/2022 20:31:13 :::CIS -8- petitioners, who while working as Head Draftsman were drawing lesser .
pay than respondent No.2, who was promoted to that post in the year, 1985, as a result of grant of aforesaid benefit, respondent No.2 reached basic pay of Rs. 11750/-, which is higher than the basic pay of the petitioners, who though were promoted to the post of Draftsman in the year, 1990, but till date, getting lesser pay than respondent, who was promoted to CHDM after 13 years of the promotion of the petitioners to the post of CHDM. There was no occasion, if any, in the petitioners to avail benefit of proficiency step-up because admittedly before completion of 23 years they stood promoted to the higher post.
It is only respondent No.2, who despite having completed 23 years failed to get the promotion to the post of Head Draftsman, was given benefit of FR 22(I) (a) (i) i.e. proficiency step-up, as a consequence of which, his pay was increased in the category of Head Draftsman itself.
Benefit of proficiency step-up given to respondent No.2 cannot be a ground to deny prayer made on behalf of the petitioners for stepping up, especially when there is no dispute that respondent No.2 is junior to petitioners and he was promoted to the post of CHDM 13 years after the petitioners. Leaving everything aside, as of today, it is not in dispute that petitioners are senior to respondent No.2, who is getting higher pay than the petitioners and as such, pay of the petitioners needs to be stepped-up to bring the same in parity with respondent No.2. Though respondents have admitted factum with regard to ::: Downloaded on - 09/12/2022 20:31:13 :::CIS -9- anomaly in the pay-scale as has been discussed above but have .
denied the benefit of step-up to the petitioners from 2.6.2003, when pay of respondent No.2 against the post of CHDM came to be fixed as Rs. 11750/-.
5. Leaving everything aside, where there is no dispute that respondent No.2 remained junior through out to the petitioners and even at the time of superannuation though petitioners and respondent No.2 were working as Assistant Engineer, but petitioners were senior to him and as such, respondent-board is not justified in not granting step-up to the petitioners on the ground that pay of respondent No.2 came to be enhanced on account of his having accrued the benefit of FR 22(I) (a) (i). Reliance in this regard is placed upon Union of India and Ors v. C.R. Madhava Murthy and Anr., (2022) 6 SCC 183, relent para whereof reads as under:
"10. 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 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 141961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and ::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 10 -
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;
(c) The anomaly should be directly as a result of the application of FR22C. 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 I accordance with the above provisions shall be issued under FR27. 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.
[G.I., M.F., 0.M. No.F.2 [78)E. III (A)/66, dated the 4th February, 1966)".
11. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and ::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 11 -
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."
6. Mr. T.S. Chauhan, learned counsel for the respondent-
board placed heavy reliance upon the instructions dated 16.9.2004 (Annexure RA-1) to state that 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 scale. He submitted that if in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increment granted to him, provision of these instructions shall not be invoked to step-up the pay of the senior officer. However, having carefully perused aforesaid instructions, this court finds that it has no application in the case of the petitioners as aforesaid instructions clearly reveal that when pay of junior becomes more than his senior on account of extension of benefit of FR 22, senior drawing lesser pay than junior will be entitled to higher pay step-up as a result of the application of the provisions of Fundamental Rule 22. In the present case, admittedly pay anomaly accrued on account of extension ::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 12 -
of benefit of FR-22 in favour of respondent No.2 while he was .
promoted to the post of Head Draftsman. No doubt, on account of grant of benefit of FR-22 at the time of the promotion to the post of Draftsman, respondent No.2 started getting higher pay against the post of Draftsman, by which time petitioners already stood promoted to the post of CHDM and as such, there was no occasion for them to raise dispute, if any, because for the first time, they became aggrieved on account of higher pay scale given to respondent No.2 when he joined the cadre of the petitioners as CHDM on 2.6.2003. It is only on 2.6.2003, petitioners became aggrieved on account of their being getting lesser pay-scale than their junior-respondent No.2. Moreover, this Court finds that instructions dated 16.9.2004, which have been heavily relied upon cannot be applied in the case of the petitioners because pay-anomaly in the case of the petitioners accrued in the year, 2003, when respondent No.2 was promoted to the post of CHDM and his pay came to be fixed as Rs. 11750/- whereas at that relevant time, petitioners despite their being senior to respondent No.2 were getting basic pay of Rs. 11050/-, which is Rs.700/- less than respondent No.2 is getting. In the year, 2003, instructions dated 17.8.1990 (Annexures P12) placed on record alongwith the rejoinder filed by the petitioners were in force. It would be apt to take note of the aforesaid instructions:-
"Sir, ::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 13 -
I am directed to refer to the subject cited above and to say that the matter regarding the stepping up of the pay of a senior .
employee drawing pay less than his junior employee as a result of grant of one or two proficiency step(s)-up, has been engaging the attention of the Govt. for some time past. With a view to remove hardship to the senior employees, the Governor, is pleased to decide that the pay of the senior employees should be stepped up if they opt for the same in the following cases:-
1) In cases where a Govt. employee is promoted to a higher post without availing of the benefit of one proficiency step (s) and draws a lower rate of pay in that higher post than a Government employee who is junior to him in the lower post and who has been granted proficiency step-up or promoted to another identical post after availing the benefit of said proficiency step up, the pay of the government employee who is senior shall be stepped up to an amount equal to the pay drawn by the Government employee who is junior to him or fixed for the Government employee who junior to him in that higher post and the proficiency step(s)-up as so granted in this process shall be deemed to be given notionally in the lower post which he would have otherwise drawn on completion of eight years and eighteen years regular service had he not been promoted to the higher post. The aforesaid stepping up shall be done with effect from the 1st May, 1990, in respect of the cases pertaining to the period prior to the 1st May, 1990, and in respect of the cases falling on or after the 1st May, 1990 shall be done with effect from the date the Government employee who is junior starts drawing more pay than that of a Government employee who is senior or from the date of promotion of Government employee who is junior, subject to the following conditions, namely:-::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 14 -
a) Both the aforesaid Government employees should belong to the same cadre and the posts in which they have .
been promoted should be identical in the same cadre;
b) Both the aforesaid Government employees should be in the same scales of pay in the lower as well as in the higher posts in which they are entitled to draw pay;
c) The Government employee who is senior is promoted to the higher post without availing one or two proficiency step(s)-up and had been drawing equal or more pay than that of the Government employee who is junior;
d) The promotions of both the aforesaid Government remployees are regulated by the provisions of the same rules; and
e) The anomaly should be directly as a result of grant of one or two proficiency step(s)-up or as a result of promotion to a higher post after the grant of one or two proficiency step(s)-up on account of completion of eight years or eighteen years regular service in the same cadre. If in the lower post, the Government employee who is junior, draws from time to time a higher rate of pay than the Government employee, who is senior by virtue of fixation of pay under the normal rules of if any advance increment is granted to him, the provisions contained in these instructions shall not be invoked to step up the pay of the Government employee.
2. The order relating to re-fixation of pay of the senior Government employee on account of the stepping up of pay shall be issued under F.R. 27 and such a Government employee shall be granted the next increment on the date it is admissible to the Government employee junior to him. The pay so refixed shall neither be reduced at the time of reversion of the Government employee who is junior nor shall it be stepped up ::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 15 -
again when the Government employee who is junior is re- promoted.
.
3. The benefit of stepping up will be admissible only when the Government employee exercises option in this behalf. In respect of the cases pertaining to the period prior to the issue of these instructions, the option may be exercised by the 31st October, 1990, and in respect of the cases where the anomaly arises on or after the issue of these instructions, the option may be exercised within four months from the date which the anomaly arises.
4. The above instructions may kindly be brought to the notice of all concerned."
7. Bare reading of the aforesaid instructions, which subsequently came to be reiterated by way of issuance of fresh instructions dated 29.10.1991 (Annexure P-13), clearly reveals that where the pay of junior as a result of grant of proficiency becomes higher, the senior employee is entitled to the step up. It has been further stated in the aforesaid instructions that where pay of the junior becomes higher as a result of grant of proficiency as against senior, who has not been granted proficiency step-up due to strict application of instructions contained in office letter dated 14.6.1989 read with letter of even number dated 6.4.1990, the pay of senior should be stepped up equal to the pay of junior from the date the junior begins to draw higher pay as a result of grant of proficiency increment. Subsequently, communication dated 5.3.2003 (Annexure P-14) placed on record alongwith rejoinder further clarifies that where an official is promoted to the higher post without taking the benefit of ::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 16 -
one or two proficiency step ups and drawing a lower rate of pay in .
higher post and other official who is junior to him in the lower post and granted proficiency step up or promoted another identical post after availing the benefit of said proficiency step up, the pay of the employee who is senior to him shall be stepped up at par with the pay drawn by their junior. Having carefully perused the aforesaid instructions, which were in vogue at the time of promotion of respondent No.2, this court has no hesitation to conclude that stand taken by the respondents in reply to the petition thereby rejecting the claim of the petitioners is not tenable and as such, same deserves outright rejection.
8. Mr. T.S. Chauhan, learned counsel, vehemently argued that present petition is barred by limitation, but having regard to the nature of controversy and its consequences i.e. recurring loss, plea of limitation as attempted to be raised by Mr. Chauhan, may not be available to respondent-Board on account of denial of step-up to the petitioners to bring them at par with respondent No.2, which is legally permissible in the case of the petitioners herein, who are suffering recurring losses, which have not only caused them financial loss while they were in service, but in pension also. Reliance is placed upon judgment passed by the Hon'ble Apex Court in M.R. Gupta v. Union of India, AIR 1996 SC 669, relevant para whereof reads as under:
::: Downloaded on - 09/12/2022 20:31:13 :::CIS- 17 -
"5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter.
.
The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."
9. Consequently, in view of the detailed discussion made herein above, this court finds merit in the present petitions and accordingly, same are allowed and impugned order dated 31.12.2009 is quashed and set-aside and respondents are directed to grant benefit ::: Downloaded on - 09/12/2022 20:31:13 :::CIS
- 18 -
of step-up to the petitioners w.e.f. 2.6.2003 till the time they remained .
in service with the electricity board within four weeks from today. In the aforesaid terms present petitions are disposed of alongwith pending applications, if any.
December 05, 2022 (Sandeep Sharma),
manjit Judge
r to
::: Downloaded on - 09/12/2022 20:31:13 :::CIS