Common Order: (Bilal Nazki, J.)

All these writ petitions are disposed of by this common order as common question is involved.

W.P.No. 23554 of 2005

For facts, this writ petition is taken. The petitioner in this writ petition was initially appointed as Junior Assistant in the A.P. Judicial Ministerial Service in the year 1974. He was promoted as Senior Assistant (Deputy Nazir) with effect from 9.1.1985. Thereafter he was promoted as Head Clerk (Category-III) with effect from 23.3.1995 in the pay scale of Rs.2315-4880 and his pay was fixed at Rs.3640/-. Thereafter he was promoted as Sheristedar (Superintendent, Category-II) with effect from 30.6.2000 in the pay scale of Rs.5000-10600. He further submitted that one Mr. P. Kumaraswamy came to be appointed as Steno-Typist with effect from 17.7.1974 in the A.P. Judicial Ministerial Service. According to the petitioner, Junior Assistant, Typist and Steno Typist belong to one common cadre i.e., Category-V of the service. The seniority list in this category includes Junior Assistants, Typist and Steno Typists. From this common seniority, further promotions would be made to Senior Assistant Category-IV. Kumaraswamy came to be promoted as Senior Assistant with effect from 21.12.1988 in the pay scale of 1100-40-1500-50-2050 and he was further promoted as Head Clerk with effect from 1.6.1996 in the pay scale of 2315-4880 and at present he was working as Superintendent in the pay scale of 5000-10600 with effect from 11.9.2003. The case of the petitioner was that Kumaraswamy was junior to him in all the categories as the petitioner had been promoted earlier to Kumara Swamy as Senior Assistant and Head Clerk, but Kumara Swamy was drawing more pay than him in the category of Senior Assistant. This was because there was a special pay of Rs.85/- attached to the post of Steno-Typist and this special pay was treated as pay while fixing his pay in the category of Senior Assistant and Head Clerk. The petitioner further submitted that since his junior Kumaraswamy was drawing more pay than him in the category of Senior Assistant, he had made a representation on 16.8.1999 to the 1st respondent bringing to his notice the judgment of the Supreme Court in Union of India Vs. P. Jagadish (1997 (3) SCC 378) wherein it held that the pay of senior should be stepped up equal to the pay of his junior from the date his junior was promoted. After considering the petitioners representation, the 1st respondent issued an order on 23.10.1999 wherein he fixed the petitioners pay to the level of his junior Kumaraswamy in the category of Senior Assistant with effect from 21.12.1988. The petitioner was granted difference of pay and allowances from the said date. The arrears of salary from 21.12.1988 consequent to refixation of pay were also paid to him. While so, the 1st respondent issued proceedings on 3.8.2002 informing the petitioner that stepping up of his pay on 23.10.1999 was wrong and the petitioner was not entitled to the benefits granted to him on 23.10.1999. The Drawing and Disbursing Officer was requested to recover the amount drawn in accordance with the proceedings dt. 23.10.1999 and refixation of the petitioners pay was also ordered. The Drawing and Disbursing Officer was directed to recover and refix the pay after giving opportunity to the petitioner to offer his explanation and hearing to him. The 1st respondent also made it clear in the order dt. 3.8.2002 that the judgment of the Supreme Court in Union of India Vs. Sri Jagadish was not applicable to the petitioners case. The petitioner submitted a representation on 26.8.2002 to the 1st respondent. In his representation the petitioner again relied on the judgment of the Supreme Court quoted above. It was also stated that once the pay has been fixed on par with his junior, it was not open to the 1st respondent to review his own decision and reverse the decision passed in favour of the petitioner. A committee of four District Judges, known as Administrative Committee, also considered the matter. The Committee considered the matter and after taking into consideration the petitioners representation and legal position, passed a resolution on 8.11.2002 recommending dropping of orders dt. 3.8.2002 and found that the orders dt. 23.10.1999 were perfect. The 1st respondent issued orders on 12.11.2002 dropping all further proceedings and the petitioner continued to draw salary on par with his junior. The petitioner, in the meanwhile, had been promoted as Superintendent (Category-II) on 30.6.2000 and his pay was fixed at Rs.9600/-. The 1st respondent again on 9.11.2004 issued a show cause notice asking the petitioner as to why his pay should not be stepped down since the pay fixation made earlier on 23.10.1999 was erroneous. The petitioner again submitted a reply informing the 1st respondent that a committee had been appointed of four District Judges who had dropped the earlier notice issued for the same purpose. The petitioner, in the mean time, attained the age of superannuation and he was allowed to retire from service on 10.6.2005, but it was noted that the processing of pensionary benefits would be subject to result of the proceedings relating to stepping down of pay. Although the petitioner retired from service, he did not receive any orders regarding sanction of pension till 31.7.2005. The petitioner submitted a representation on 1.8.2005 to the 3rd respondent. Thereafter the 2nd respondent received intimation from 3rd respondent on 29.7.2005. Since he had not heard anything from the respondents, he submitted a representation on 15.9.2005 to the 1st respondent informing him that he had submitted an explanation on 29.11.2004 to the show cause notice. He had also in the meantime come to know that the 1st respondent had asked the 3rd respondent to keep pending the orders relating to the pensionary benefits of the petitioner. The 1st respondent, therefore, was requested to forward the service register and LPC to the 3rd respondent to release the pending benefits. Instead, the 1st respondent issued the impugned proceedings on 7.10.2005 stating that the explanation to the show cause notice was not accepted and on the basis of the report given by the Superintendent, Accounts Section, District Court, Warangal and after perusing the Government Circular Memo dt. 17.5.1993, the petitioners pay was directed to be stepped down from the post of Senior Assistant and to recover the differential amount and directed the re-fixation of the pay and then forward the revised LPC along with service register to Accountant General, A.P., Hyderabad. This writ petition was filed against the proceedings dt. 7.10.2005 issued by the 1st respondent.

The order was passed on 23.10.1999 by the District and Sessions Judge, Warnagal refixing the pay of K. Satyanarayana-petitioner on the basis of judgment of the Supreme Court, as he understood it. The petitioner was given benefit of enhanced salary with effect from 21.12.1988 on the ground that Kumaraswamy who was junior to him was drawing more salary. Kumaraswamy was a typist, therefore he had special pay of Rs.85/- as typist. For fixing his pay on his promotion this special pay of Rs.85/- was taken into account and, therefore the difference arose. After the order was passed on 23.10.1999, nothing happened till 3.8.2002. After three years of passing of the order dt. 23.10.1999, which had been given retrospective effect, an order was passed on 3.8.2002 by the District and Sessions Judge, Warangal. In this order he came to the conclusion that the benefit had been wrongly given to the petitioner without issuing notice to him. He directed,

Therefore, the concerned Drawing and Disbursing Officers are requested to recover the amount drawn due to erroneous fixation vide District Court Proceedings Dis.No. 8068, dt. 23.10.1999 (in respect of Sri K. Satyanarayana) Dis.No. 8215, dt. 9.11.99 (in respect of Smt. C. Jayamma) Dis.No. 8191, dt. 9.11.99 (in respect of Sri Khaja Ghouse Mohiuddin) and to refix their pay and to verify their subsequent fixations as per their Service Registers as per Rules, after giving opportunity to offer their explanation and also hearing. The compliance of the above orders shall be submitted to the undersigned within (30) days from the date of issuance of this proceeding.

This order was passed by the District Judge directing the Drawing and Disbursing Officer to recover the amount drawn, but in the same breath he had asked the Drawing and Disbursing Officer to do so after giving opportunity to the petitioner of offering his explanation and hearing to him. One fails to understand if the Drawing and Disbursing Officer had been ordered to recover the amount, what opportunity of hearing could he have given to the petitioner. But still, this matter somehow was not decided by the District Judge and thereafter it appears that the committee of four District Judges was framed to consider the issue. In the counter-affidavit it had been accepted that such an administrative committee considered the issue. But it is not known as to how it was constituted. However, the District Judge, following the directives of the Administrative Committee, had, on 12.11.2002, withdrawn the order dt. 3.8.2002. So the benefit which was granted to the petitioner by order dt. 23.10.1999, and which was withdrawn on 3.8.2002, was again restored to him by the order of District Judge on the basis of report of the Administrative Committee of District Judges, on 12.11.2002. So the matter was concluded at this stage, but again a notice came to be issued on 9.11.2004. This notice was issued to show cause why the petitioners pay should not be stepped down within one week from the date of receipt of this notice. It refers to thorough verification and review of the pay fixations of the employees in the unit, but it does not refer to the proceedings dt. 12.11.2002 by which the earlier order dt. 3.8.2002 of lowering down the pay was withdrawn. If the District Judge had made a thorough verification and review of the pay fixations of the employees, then he would have come across the order passed on 12.11.2002, which was based on the report of committee of District Judges. In the absence of any challenge to the order of the Judges committee, we do not think that this order could have been passed. The petitioner gave his reply to the show cause notice explaining all the circumstances, but no order was passed, and on 10.1.2005 another order was passed permitting the petitioner to retire from service on attaining the age of superannuation, but with a rider. The order states,

3. Sri K. Satyanarayana, Superintendent, I-Additional District and Sessions Judges Court, Warangal is permitted to retire from the service on attaining the age of superannuation on 30.6.2005 A.N. Processing of his pensionary benefits will be subject to the result of pay fixation in the step up proceedings.

Thereafter the impugned order was passed on 7.10.2005. In the impugned order also there is no reference to the order dt. 12.11.2002. Only a reference is made to order dt. 3.8.2002. But this order of 3.8.2002 was withdrawn, and the factum of this order being withdrawn has not even been noted in the impugned order. Therefore, in our view, since the matter had been closed by an order dt. 12.11.2002, it could not have been reopened and if it could have been reopened, then a chance had to be given to the petitioner to defend the order of 12.11.2002. But, neither this order was mentioned in the show cause notice nor in the final impugned order, whereas all along the petitioner had pleaded this order having been passed by the District Judge. Therefore, on this ground alone, we feel that the writ petition deserves to be allowed.

Now coming to the Government Order being G.O.Ms.No. 27, Finance & Planning Department, dt. 17.1.1978, the Government laid down that Typist/Steno-Typist/SC Stenos and P.As. to Secretaries would to be entitled to special pay and in case of their promotion, this special pay should be protected for the purpose of fixation of pay in the higher post. It is submitted that this order further clarified that protection of special pay in the cases of these categories of employees would not apply to the employees holding other posts. Therefore, it is the contention of the petitioner that Kumaraswamy was in receipt of special of Rs.35/- because he was a steno-typist and because of this G.O. the special pay had to be protected and given effect while fixation was made when he was promoted to higher category. Although he was junior to the petitioner, his pay would be exceeding the pay of the petitioner because of his having received special pay, as he was a steno-typist.

Though the respondents have submitted many decisions, those decisions laid down certain principles of law as to whether a junior can draw more salary than the senior and these judgments are reported in Govt. of A.P. and others Vs. V. Veera Raghavan (1999) 9 Supreme Court Cases 266) [LQ/SC/1999/175] , Calcutta Municipal Corporation and another Vs. Sujit Baran Mukherjee and others (1997) 11 Supreme Court Cases 463) [LQ/SC/1997/273] , State of Haryana and others Vs. Jasmer Singh and others (1996) 11 Supreme Court Cases 77) [LQ/SC/1996/1921] and State of Andhra Pradesh and others Vs. G. Sreenivasa Rao and others 1989) 2 Supreme Court Cases 290) [LQ/SC/1989/153] . But there is also a judgment of the Supreme Court reported in Union of India and others Vs. P. Jagdish and others (1997) 3 Supreme Court Cases 176) [LQ/SC/1996/2220] on which reliance has been placed by the petitioner and that judgment needs a detailed mention and after that judgment is mentioned, we will revert back to the judgments just mentioned. This case was also in identical circumstances and the question falling for consideration before us was considered by the Supreme Court. Out of total posts of senior clerks, 10% posts were identified as posts involving arduous nature of work and these identified posts were carrying special pay of Rs.35/- per month and rest of them i.e. 90% of the senior clerks were not drawing this special pay of Rs.35/-. The incumbents who were not working against the identified posts of senior clerks were promoted as Head Clerks and while fixing of the pay in the category of Head Clerks, the pay which they were drawing as senior clerks was taken into account, whereas their juniors who were working against the identified posts of senior clerks who were promoted as Head Clerks were given protection of special pay of Rs.35/- in the fixation of their pay in the category of Head Clerks. Consequently the seniors who were promoted as Head Clerks before them were drawing salary less than their juniors. They claimed that their pay should be fixed notionally giving the benefit of Rs.35/- in the category of senior clerks and after promotion as Head Clerks, their salary should be fixed on par with their juniors from the date the juniors had been given higher salary in the category of Head Clerks. The Supreme Court framed two questions, which are reproduced below,

(1) Whether the respondents who had not been posted against the identified posts carrying a special pay of Rs. 35/- per month can even claim fixation of their pay with Rs. 35/- per month in the cadre of Senior Clerk even on notional basis.

(2) Whether the respondents can claim for stepping up of their pay in the promoted cadre of Head Clerks when their juniors who were later promoted were fixed up at a higher slab in the cadre of Head Clerks taking into account the special pay which they are drawing in the lower category of Senior Clerks.

We are not concerned with the fist question. The second question was replied to by the Supreme Court in para-7 of the judgment,

7. So far as the second question is concerned it depends upon the applicability of the principle of stepping up. Admittedly, the respondents had been promoted earlier to the category of Head Clerks and some of their juniors who were continuing as Senior Clerks against the identified posts carrying special pay of Rs. 35/- per month on being promoted to the post of Head Clerks later than the respondents got their pay fixed at a higher level than the respondents. Under the provisions of Fundamental Rules to remove the anomaly of a Government servant promoted or appointed to a higher post earlier drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to the higher post, the principle of stepping up of the pay is applied. In such cases the pay of the senior officer in the higher post is required to be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up is required to be done with effect from the date of promotion or appointment of the junior officer. On refixation of the pay of the senior officer by applying the principle of stepping up, the next increment of the said officer would be drawn on completion of the requisite qualifying service with effect from the date of the refixation of pay. This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay. This being the principle of stepping up contained in the Fundamental Rules and admittedly the respondents being seniors to several other Senior Clerks and the respondents having been promoted earlier than many of their juniors who were promoted later to the post of Head Clerks, the principle of stepping up should be made applicable to the respondents with effect from the date their juniors in the erstwhile cadre of Senior Clerks get promoted to the cadre of Head Clerks and their pay was fixed at a higher slab than that of the respondent. The stepping up should be done in such a way that the anomaly of juniors getting higher salary than the seniors in the promoted category of Head Clerk would be removed and the pay of the seniors like the respondents would be stepped up to a figure equal to the pay as fixed for their junior officer in the higher post of Head Clerk. In fact the Tribunal by the impugned order has directed to apply the principle of stepping up and we see no infirmity with the same direction subject to the aforesaid clarifications. This principle of stepping up which we have upheld would prevent violation of equal pay for equal work but grant of consequential benefit of the difference of salary would not be correct for the reason that the respondents had not worked in the post to which 35% special pay was attached in the lower cadre. But by reason of promotion the promotee-juniors who worked on the said posts, in fact, performed the hard duties and earned special pay. Directions to pay arrears would be deleterious to inculcation of efficiency in service. All persons who were indolent to share higher responsibilities in lower posts, on promotion would get accelerated arrears that would be deleterious to efficiency of service. Therefore, though direction to step up the pay on notional basis is consistent with Article 39(d) of the Constitution, it would be applicable only prospectively from the date of the promotion and the fixation of the scale stepping up of the scale of pay would be prospective to calculate future, increments on the scale of pay in promotional post only prospectively. The appeal is dismissed but in the circumstances there would be no order as to costs.

Therefore, in our view, the Supreme Court directly settled the question and therefore the writ petitions have to be allowed.

Now coming to the judgments cited by the respondents, in Calcutta Municipal Corporation and another Vs. Sujit Baran Mukherjee and others (2nd supra) the question was different and even in this case it was held that the senior was entitled to stepping up of pay with reference to the juniors pay if the senior as well as the junior discharge the same duties under the same responsibility and not in different circumstances. It may be true that the petitioner in the present case and his juniors were discharging different responsibilities as senior clerks, but after promotion as Head Clerks they were discharging the same responsibilities. In our view, this judgment would not be applicable to the facts of the present case.

Similarly in State of Haryana and others Vs. Jasmer Singh and others (3rd supra) the principle of equal pay for equal work was considered by the Supreme Court and it was a case of persons who were working in regular service vis--vis daily-rated workmen and the Supreme Court held that equal pay for equal work will have to be evaluated on the basis of work performed by the persons holding different jobs. It said,

There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same.

In Govt. of A.P. and others Vs. V. Veera Raghavan (1st supra) also the Supreme Court considered the principle of equal pay for equal work and it held that ordinarily grant of higher pay to a junior would ex facie be arbitrary; but if there are justifiable grounds for doing so, the senior cannot invoke the doctrine of equality. This judgment is not applicable to the facts of the present case and it was given in a different circumstances.

In State of Andhra Pradesh and others Vs. G. Sreenivasa Rao and others (4th supra) the Supreme Court held that higher pay was not per se bad, but if it was not based on justifiable grounds, doctrine can be invoked. This was a case for altogether different relief and it was concerning different grades of services. One of the batches in this judgment relates to petitioners before the Tribunal whom were junior assistants working in different departments and they were promoted as senior assistants on various dates between 1976 and 1978. They opted to be absorbed as auditors in the Pay and Accounts Office, Hyderabad, where they were finally absorbed with effect from July 12, 1978. One Swaminathan who was recruited as typist, was promoted as senior assistant on January 11, 1978. He also opted to work as auditor in the Pay and Accounts Office, Hyderabad and he was absorbed on 4.9.1978. The writ petitioners and Swaminathan came to Pay and Accounts Office, Hyderabad from different departments. Since Swaminathan was absorbed as auditor in the Pay and Accounts Department later in time than the petitioners, he ranked junior to them. But in view of his length of service and grant of selection grade, he had been drawing higher pay in his parent department. On his joining the Pay and Accounts Office his pay was fixed on a higher basic pay as compared to the petitioners as the last pay drawn by him had to be protected under the Fundamental Rules. Thus though he was junior to the petitioners, he started drawing higher pay than them. In this case the Supreme Court considered equal pay for equal work, but the question of junior getting a higher pay scale than the senior was not directly considered in this case although a passing reference was given in para-15,

Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal.

But we have a difficulty in accepting the principle laid down in this judgment in view of the judgment of the Supreme Court reported in Union of India and others Vs. P. Jagdish and others (5th supra), which directly considered the question.

Now a few words about the G.O.Ms.No. 27, Finance & Planning (Fin. Wing. FR. II) Department, dt. 17.1.1978. Certain classes of employees who had special qualifications in typewriting or stenography were given special pay while they were working as Typists, Steno Typists, S.C. Stenos and P.A. to Secretaries, perhaps because of their special skills. Once they were promoted as senior assistants, this special pay was not hitherto calculated for the purpose of fixation of pay in the higher grade and in some of cases, even after promotion, these employees would get salary reduced than the one they were getting before promotion. Therefore, they represented the Government and the Government passed a G.O. and directed that for fixation of pay in the higher post, the special pay should be added to the basic pay and the total sum should be treated as basic pay. This resulted in an anomaly that the seniors who were working as Senior Assistants and who were not entitled to any special pay were getting less salary than their juniors who were getting special pay in the lower grade. It is understandable that when the persons were working as junior assistants or typists or steno typists, there would be a difference of pay between the two because typists or steno typists possess special skills. But when they were promoted to the same category of senior assistant or later to superintendent, there should not be any difference between the two. Therefore, the seniors should not be forced to take a salary, which was lower than their juniors. G.O.Ms.No. 27, Finance & Planning (Fin. Wing. FR. II) Department, dt. 17.1.1978 has been issued for the benefit of those who were drawing special pay before promotion and it cannot be construed detrimental to the interest of seniors.

For these reasons, the writ petition is allowed and the impugned order is quashed. No costs.

W.P.NOs. 21475 of 2004, 21545 of 2004 & 25190 of 2005

For the reasons given in W.P.No.23554 of 2005, these writ petitions are also allowed and the impugned orders are quashed. No costs.