Himachal Pradesh High Court
Union Of India vs Ram on 29 November, 2021
Author: Sabina
Bench: Sabina
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF NOVEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
CIVIL WRIT PETITION No.3702 of 2015
Between:-
1. UNION OF INDIA,
THROUGH ITS SECRETARY,
MINISTRY OF DEFENSE,
GOVT. OF INDIA, NEW DELHI.
2. COMMANDER WORKS ENGINEER,
MILITARY ENGINEERING SERVICE,
MILITARY OF DEFENSE,
SHIMLA HILLS, JUTOGH (SHIMLA), HP
3. GARRISON ENGINEER,
MILITARY ENGINEERING SERVICE,
SHIMLA HILLS, KASAULI,
DISTRICT SOLAN, H.P.
.... PETITIONER
(BY MR. BALRAM SHARMA, ASSISTANT
SOLICITOR GENERAL OF INDIA)
AND
SHRI DWAR PAL (MES 367024)
SON OF SHRI BISHAMBER DAS,
MASTER CRAFTSMAN
O/O ASSISTANT GARRISON ENGINEER,
E/M MILITARY ENGINEERING SERVICE,
SUBATHU, DISTRICT SOLAN, H.P.
....RESPONDENTS
(BY MR. KARAN SINGH PARMAR,
ADVOCATE )
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This petition coming on for order this day, Hon'ble
Mr. Justice Mohammad Rafiq, passed the following:
.
ORDER
We have heard learned Assistant Solicitor General of India, who has assailed the judgment of Central Administrative Tribunal Chandigarh Bench. The Tribunal, by the impugned judgment, has allowed the original application filed by the respondent. The respondent in the original application prayed for a direction to the petitioners herein to fix his pay at par with his juniors namely Kuldeep Singh and Dev Raj w.e.f. 7.6.2002 and release him all the service benefits as well as the consequential benefits including arrears of pay etc., along with interest 18% per annum.
2. The facts of the case are that the respondent joined service in the petitioner-Department as Mazdoor on 22.06.1974 and was appointed as Motor Pump Attendant on 23.02.1978, which post was re-designated as Fitter General Mechanic in 1994 and he was promoted as Fitter General Mechanic Gr.ll on 11.12.1995. On restructuring of the cadre the respondent was placed in the Grade/ Category of FGM (HS) to FGM (MCM) in the pay scale of Rs.4500- 7000 (now revised to Rs.9300-34800+4200 GP) w.e.f. 01.08.2006 vide order dated 19.12.2008 (Annexure A-1 to the original application). A large number of persons, who were appointed as Motor Pump ::: Downloaded on - 31/01/2022 23:21:29 :::CIS 3 Attendants (re-designated as Fitter General Mechanic) in the pay scale of Rs.210-290 (revised to Rs.260-330 w.e.f. 01.01.1982 and Rs.950- 1500 w.e.f. 01.01.1986) were given the 2 nd ACP in the pay scale of .
Rs.5000-8000 of the post of Fitter General Mechanic (HS) Gr.ll by the petitioners vide order dated 18.01.2004 (Annexure A-3 to the original application). Resultantly, Shri Kuldeep Kumar and Shri Dev Raj were junior to the respondent in the cadre of Fitter General Mechanic (HS) Gr.ll as is evident from Seniority List dated 27.09.2006 (Annexure A-4 to the original application), in which name of the respondent appears at Sl. No.42 whereas names of Shri Kuldeep Kumar and Shri Dev Raj figure at Sl. Nos. 48 and 49 respectively. These persons were junior to the respondent also as per the Seniority List circulated vide letter dated 09.04.2013 (Annexure A-5 to the original application). Hence, an anomaly had been created in the pay structure as the respondent, who was senior, was getting lesser pay than his Juniors. The respondent submitted a representation on 02.08.2004 requesting the petitioners to grant him also the 2nd ACP in the pay scale of Rs.5000-8000 w.e.f.
07.06.2002 at par with his juniors (Annexure A-6 to the original application). The request of the respondent was declined vide order dated 24.08.2004 (Annexure A-7 to the original application) on the ground that he was not eligible for 2nd ACP as he was initially appointed as Mazdoor on 28.01.1974 and got two promotions after appointment ::: Downloaded on - 31/01/2022 23:21:29 :::CIS 4 and thus was not entitled to ACP benefit. Shri Kuldeep Kumar and Dev Raj, who were admittedly junior to the respondent, were appointed as .
Motor Pump Attendants by way of direct recruits so they were granted 2nd ACP in the pay scale of Rs.5000-8000 w.e.f. 07.06.2002 since by that time they had earned only one promotion.
3. It is further stated that though the respondent may not be entitled to any benefit under the ACP Scheme after having availed two promotions/financial upgradation, but his pay cannot be less than his juniors since as per law, pay of senior employee cannot be less than his juniors working in the same cadre/posts. The respondent submitted numerous requests and ultimately served legal notice dated 28.01.2013 (Annexure A-9 to the original application) but till date his pay had not been refixed/ revised at par with his juniors nor he was given a response in the matter. Further, the impugned action of the respondents in paying lesser salary every month since 07.06.2002 to the respondent was arbitrary and illegal and violative of Articles 14 & 16 of the Constitution of India.
4. The petitioners contested the case of the respondent before the Tribunal by contending that as per para 8 of the conditions for grant of benefits under the ACP Scheme, dated 9.8.1999, the financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. It ::: Downloaded on - 31/01/2022 23:21:29 :::CIS 5 was, therefore, contended that there would be no senior employee on the ground that the junior employee in the grade has started getting .
higher pay scale under the ACP Scheme.
5. Learned Tribunal has proceeded to allow the original application relying on the judgment of Hon'ble Supreme Court in Commissioner and Secretary to Govt of Haryana & Ors, Vs. Ram Sarup Ganda & Ors. 2007 (30 RSJ 154), wherein it was held as under:
"Haryana Civil Services (Assured Career Progression) Rules, 1998, Rules 5 and 9- ACP scales - Stepping up of pay Group 'D' employees promoted on Group 'C' post Given ACP scale after completion of 20 years meant for Group 'D' though promoted as Group 'C' employee - Junior group 'C' employees who were recruited direct given ACP scale meant for Group 'C' which was higher Claim for stopping up of pay by Senior group 'C' employees promoted from Group 'D' at par with juniors allowed by High Court - Held that Rule 9 of the Rules not applicable to the respondents who joined the service as Group 'D' employees and later got promotion to Group 'C' post by selection - If there is any anomaly to the effect that the senior Government servants are receiving lesser pay than their juniors, who entered the service from a different source of recruitment, certainly such senior Government servants are entitled stepping up of their pay In order to bring them on par with the salary which is being received by their juniors - The respondents are entitled to fixation of the ACP scales as applicable to Group 'D' employees- If the employees who, on fixation of ACP scales, are in receipt of lesser salary than their Juniors In same cadre / post, then their salary shall be stepped up accordingly."::: Downloaded on - 31/01/2022 23:21:29 :::CIS 6
6. The Tribunal has also placed reliance on the judgment in T.R. Bansal Vs. Punjab State Electricity Board, 2005 (3) RSJ 143, .
wherein it was held as under :
"Constitution of India, Articles 14 and 16- Classification - Pay revision - Pay fixation - Anomaly In - Pay of the petitioner fixed at a stage lower than that of his juniors - Sought to be justified on the mode of their entering into the feeder cadre, namely, the petitioner coming as a promotee whereas his juniors as direct recruits - Order of fixation of pay quashed- Respondents directed to re-fix the pay of the petitioner in the revised pay scale at par with his juniors and to grant him the consequential arrears."
7. Reliance was also placed on the judgment of Supreme Court in Punjab State Electricity Board & Ors. Vs. Gurmail Singh 2008 (3) RSJ 309, wherein it was held as under:
"Although the order of the Board cannot be said to be wholly illegal and without jurisdiction warranting interference at the hands of the High Court but, we are of the opinion that the respondents should be put at the same scale of pay from the same day which was being paid to the employee who was next below him in the post of LDC."
8. The Tribunal also relied on the judgment passed by it earlier on 17.11.2009 in OA No.842/JK/2007, Madan Gopal Sharma & Ors. Vs. UOI & Anr. and in OA No.156/JK/2008, Ashok Kumar Vs. UOI & Ors., dated 19.01.2010, where similar reliefs as sought by the original applicant was granted and their pay was ordered to be stepped up at par their juniors ::: Downloaded on - 31/01/2022 23:21:29 :::CIS 7
9. Having heard the learned Assistant Solicitor General of India and learned counsel for the respondent and considering that the .
factum of the juniors of the respondent getting more pay than him, not being in dispute, coupled with the ratio of the aforesaid judgments, we do not find any infirmity in the approach taken by the Tribunal.
Therefore, there is no merit in the writ petition and the same is accordingly dismissed. Pending application(s), if any, also stand disposed of.
(Mohammad Rafiq)
r Chief Justice
(Sabina)
November 29, 2021(ps) Judge
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