Central Administrative Tribunal - Delhi
Sh. Bhopal Singh Dhaka S/O Sh. Khacheru ... vs Director Of Education, Govt. Of Nct Of ... on 26 March, 2007
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought direction to the official respondents to step up his basic pay w.e.f. 01.10.1997, i.e. the date from which his junior was granted a higher basic pay, and to fix his next date of increment accordingly.
2. The brief facts of the case are that the applicant joined the official respondents as TGT on 06.09.1982, whereas respondent No. 4 joined the official respondents as TGT subsequently, i.e. on 18.02.1983. Both were placed in the scale of pay of Rs. 440-750 at the time of joining. The applicant was straightaway promoted as PGT on 29.10.1992 and subsequently regularized as such on 06.01.1994, whereas respondent No. 4 was promoted as PGT on 13.07.1996 and regularized as such on 14.07.2000. However, in the interregnum, i.e. on 18.02.1995, respondent No. 4 was granted senior scale on completion of 12 years of service. As regards the pay drawn, as on 01.01.1986, the applicant was drawing salary @ Rs. 1520/- p.m. whereas respondent No. 4 was drawing the pay @ Rs. 1480/- p.m. both being in the same pay scale of Rs. 1400-2600. As PGT, the applicant was placed in the pay scale of Rs. 1640-2900 on 29.10.1992 and his pay was fixed at Rs. 1940/-. Respondent No. 4 was also given the same pay scale of Rs. 1640-2900 on being placed in the senior scale and his pay, as on 18.02.1995, was fixed at Rs. 2000/- p.m. The applicant, on the other hand, at that time was drawing salary @ Rs. 2060/- p.m., which was subsequently increased to Rs. 2120/- p.m. as on 01.10.1995. Upon implementation of recommendations of the 5th Pay Commission w.e.f. 01.01.1996, the pay of the applicant as well as respondent No. 4 was fixed at Rs. 6900/- in the same pay scale of Rs. 6500-10500. However, when respondent No. 4 was subsequently promoted as PGT on 13.07.1996, his pay was fixed at Rs. 7500/- and at that point of time the applicant's pay was at Rs. 7100/-. Thus, the applicant started drawing Rs. 400/- less than respondent No. 4 and that difference has continued since then. The applicant made a representation to his Principal on 17.07.2004, which was duly forwarded to the Education Officer on 06.09.2004. Several submissions/representations were made subsequently but to no effect. Hence the OA.
3. The applicant has stated that the comparative statement showing date of entry, date of promotion and the pay scales of both the employees at the Junior level and also at promoted level shows that a genuine anomaly has arisen in case of the applicant out of application of FR 22(I)(a)(1). For an anomaly, which may arise at the time of fixation of pay, due to promotion, the Hon'ble Supreme Court, in Union of India and Anr. v. R. Swaminathan and Ors. has held as follows:
the stepping up is subject to three conditions : (1) Both the junior and the senior officers should belong to the same cadre and the posts in which they have been promoted should be identical and in the same cadre; (2) the scales of pay of the lower and higher posts should be identical and; (3) anomaly should be directly as a result of the application of fundamental Rule 22-C which is now Fundamental Rule 22(I)(a)(1).
According to the applicant, in his case all the three conditions are satisfied and, therefore, he is eligible to get the relief prayed for.
4. The applicant has further stated that this application is made against the inaction and failure on part of the official respondents, who have failed to discharge their statutory duties and functions in the matter. It is the prerogative of the official respondents to consider the case of the applicant for stepping up of his basic pay on par with respondent No. 4 or reject the case, if the rules, on the subject, do not allow stepping up of the basic pay of the applicant. The applicant has been representing the matter since 17.07.2004 and requesting the respondents through his Head of the School to step up his basic pay. The Head of the Department has also been requested by the Head of the School, where respondent No. 4 works, but nothing has come out and no progress has been made in the case. The first representation made by the applicant is dated 17.07.2004 and the other letter from Head of the School to his counterpart and to respondent No. 3 is dated 07.02.2005. The applicant also wrote to his Head of School, vide his representation dated 21.06.2005.
5. The applicant has cited a catena of cases to argue that the anomaly of junior drawing a higher pay than the senior has to be set right [Union of India and Ors. etc. v. Mohd. Haroon Rashid and Ors. etc. 1997 (2) SCC (L&S) 1151; Union of India v. P. Jagdish ; R.K. Sethi and Anr. v. Oil & Natural Gas Commission and Ors. ; Employees' State Insurance Corpn. and Ors. v. Gunvantri Umedrai Bhat and Ors. 1995 (30) ATC 323; Ram Asrey v. Municipal Corporation of Delhi and Ors. 1988 (36) DLT (SN) 44; and R. Jayaraman and Anr. v. The General Manager and Anr. 1988 (2) AISLJ 349].
6. The respondents have stated that the applicant has himself admitted in the comparative statement that he was promoted as PGT on 29.10.1992 whereas respondent No. 4 was granted senior scale on 18.02.1995. Thereafter, respondent No. 4 was promoted to the post of PGT on 13.07.1996. Therefore, the difference in the pay is correct and no stepping up can be granted in such cases. The applicant was promoted as PGT without getting the benefit of senior scale.
7. It has been further averred that the applicant, being shown senior in the tentative seniority list, does not by itself entitle him to stepping up of pay. In view of the 5th Pay Commission's recommendation, certain scales were merged and the pay of the applicant as well as respondent No. 4 was fixed at Rs. 6900/- (in the pay scale of Rs. 6500-10500). It is pertinent to mention here that respondent No. 4's pay got increased due to the fact that respondent No. 4 was promoted as PGT after the 5th Pay Commission on 13.07.1996.
8. The respondents have argued that the judgments cited by the applicant are in their favour and not in favour of the applicant. Further, in the case of Union of India and Anr. v. R. Swaminathan and Ors. (supra), the Hon'ble Supreme Court has held that the juniors were rightly given higher pay than their seniors and further held that the seniors, therefore, are not entitled to stepping up of their pay with reference to their juniors pay under FR 21(1) proviso and 26 (a). Moreover, stepping of pay cannot be granted to the applicant also in view of Full Bench (Hyderabad) judgment in the case of B.L. Somayajulu and Ors. etc. v. The Telecom Commissioner and Ors. etc. 1997 (1) ATJ 1, wherein it was held:
5. To our mind, every claim must be based on an enforceable legal right. A right arises by conferment, not by comparison. Broad notions of equity cannot be equated or assimilated to legal rights. There is also the further question whether the Tribunal can exercise a jurisdiction in equity. We are inclined to think that a jurisdiction in equity does not inhere in the Tribunal. If authority is needed for this proposition, it is found in Joginder Singh v. Union of India 1989 (11) ATC 474, Union of India v. Deokinandan Aggarwal (1992) 19 ATC 219 (SC). The Tribunal is to be guided by law in its adjudicatory process, and not by considerations of equity alone. It cannot travel into regions of equity and innovate remedies. Perhaps the observation of Benjamin Cardozo that a Judge is not free to seek his own ideal, it is more appropriate in the cases of Tribunals.
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7. If a junior gets a higher pay that does not mean that the senior also should necessarily get it without a foundation for such a claim in law. Fortuitous events are part of life. Fixation of pay is generally with reference to an individual. Various reasons may account for the grant of a higher pay to a junior. For example undergoing a vasectomy operation or achieving excellence in sports or belonging to a certain community or even a wrong fixation of pay may bring about a situation where a junior gets a higher pay. If a junior is granted a higher pay for any of those reasons, that will not confer a corresponding right in a senior to get the same. If, for example, wrong fixation of pay in the case of a junior is to bring about a corresponding fixation in the case of a senior by applying the principle of equality, that would be an instance of using Article 14 to perpetuate illegality. If a senior is denied what he is entitled to get, he must challenge that denial or that preferment extended to a junior. He cannot acquiesce in a wrong, and make a gain from that wrong by a comparison. Without disguise the attempt of the senior, is to get the benefit of a higher pay, by comparison. Without challenging the wrong, he cannot claim a remedy from a wrong. Such collatoral reliefs are alien to law. The decision of the Supreme Court in Chandigarh Administration v. Jagjit Singh supports this view.
9. In his rejoinder, the applicant, apart from reiterating and elaborating on the various averments made in the main application, has denied the averment of the respondents that the anomaly, inter alia, has arisen on account of merger of certain pay scales.
10. In the course of oral arguments, Shri S.K. Shukla, learned Counsel for the applicant reiterated the arguments relating to three ingredients for stepping up of the pay of the senior on par with his junior. Shri Vijay Pandita, learned Counsel for the respondents, on the other hand, stated that there is no illegality in the fixation of pay and he invited attention to the averments relating to the judgment of the Hon'ble Supreme Court in Union of India and Anr. v. R. Swaminathan and Ors. (supra) and of Full Bench (Hyderabad) of this Tribunal in B.L. Somayajulu and Ors. etc. v. The Telecom Commissioner and Ors. etc. (supra).
11. We have heard the learned Counsel for the parties and perused the material on record.
12. The undisputed facts of the case are that the applicant is senior to respondent No. 4. They were both recruited as TGT by the official respondents in the same scale of pay and hence belong to the same cadre and seniority unit. The post of PGT, to which both of them were promoted, also carries the same scale of pay. The anomaly, in our view, has primarily arisen on account of the fact that the applicant got his promotion as PGT before completing 12 years of service and hence was not entitled to the senior scale, whereas respondent No. 4, having not got any promotion upto 12 years of service, was first given the senior scale and was subsequently promoted as PGT after the date of implementation of the recommendations of V Central Pay Commission. In this context, the following Government of India (GOI, for short) Order No. (23), below FR 22, needs to be taken into account:
(23) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior.-
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(b) As a result of FR 22(I)(a)(1) application in the revised scales of CCS (RP) Rules, 1997.- In cases, where a Government servant promoted to a higher post before the 1st day of January, 1996, draws less pay in the revised scale than his junior who is promoted to the higher post on or after the 1st day of January, 1996, the pay of the senior Government servant should be stepped up to an amount equal to the pay 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 fulfillment of the following conditions, namely:
(a) both the junior and 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 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 Government servants 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 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.
2. The order relating to refixation of the pay of the senior officer in accordance with the above provisions should be issued under FR 27 and the senior officer will be entitled to the next increment on completion of his required qualifying service with effect from the date of refixation of pay.
[Note 9 below Rule 7 of CCS (RP) Rules, 1997.] [Swamy's Compilation of FRSR, Part-I: General Rules, 18th Edition (2006); pages 69-71]
13. The ratio of the above GOI Order is that if a junior starts drawing a higher pay, the senior's pay has also to be stepped up if he satisfies the criteria mentioned above. Same is the ratio of the judgment of the Hon'ble Supreme Court in Union of India and Anr. v. R. Swaminathan and Ors. (supra).
14. We again note that the contention of the applicant mentioned in para 6 (c) of his application that the anomaly has arisen as a result of application of FR 22(I)(a)(1), which is within the ambit of GOI Order No. (23) (supra) and the judgment of the Hon'ble Supreme Court in Union of India and Anr. v. R. Swaminathan and Ors. (supra), has not been specifically rebutted by the respondents. Moreover, the problem with the respondents in the case of Union of India and Anr. v. R. Swaminathan and Ors. (supra) was that the anomaly in their case did not arise as a result of application of FR 22 (I)(a)(1), which is apparently not the case in the present application. Moreover, it is also not a case of juniors officiating in promotional post on account of their local ad hoc promotion while seniors not so officiating before their regular promotion. Further, unlike the earlier Government Order dated 04.02.1966 quoted in the case of Union of India and Anr. v. R. Swaminathan and Ors. (supra), where the third condition makes a reference to FR 22-C [now FR 22(I)(a)(1)] only, the latest GOI Order No. (23) (supra) refers to 'Fundamental Rule 22 or any other rule or order.' Similarly, as regards the order of the Full Bench (Hyderabad) in B.L. Somayajulu and Ors. etc. v. The Telecom Commissioner and Ors. etc. (supra) cited by the respondents, the applicant is not claiming relief on the basis of wrong fixation of pay of his junior and hence the ratio of that order is not relevant to the present case. In any case, in that case, inter alia, it was held that stepping up can be granted if there is a provision in law in that behalf.
15. As regards the order of this Tribunal in the case of Gyan Singh, T.G.T. v. Director of Education, Govt. of NCT of Delhi and Ors. in OA No. 1990/2005 decided on 29.01.2007, a copy of which has been supplied by the learned Counsel for the respondents, the applicant therein was transferred from one unit (MCD) to Directorate of Education and hence that case too is distinguishable from the present one.
16. We also do not find any substance in the argument of the respondents regarding the problem having been caused due to merger of scales, in view of its specific denial from the applicant as well as on account of the fact that the respondents have not provided complete details thereof. Again the averment of the respondents that in the present case there is no 'impugned order' also is without merit because the case of the applicant is that the respondents have failed to respond to his representations and, therefore, it can be said that the applicant has been denied the benefit of the so-called 'impugned order'.
17. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that the applicant's case is covered by GOI Order No. (23) (supra) read with judgment of the Hon'ble Supreme Court in the case of Union of India and Anr. v. R. Swaminathan and Ors. (supra). The applicant, in our opinion, satisfies the conditions laid down for stepping up of pay of the senior in the GOI Order No. (23) (supra) as aforementioned.
18. In the result, the OA is partly allowed and is disposed of with a direction to the official respondents to consider the prayer of the applicant to step up his pay on par with his junior (respondent No. 4), with consequential benefits, in terms of the GOI Order No. (23) (supra) and pass a reasoned and speaking order in that regard within a period of three months from the date of receipt of a certified copy of this order. There will be no order as to costs.