HONBLE DrK.B.S.RAJAN, JUDICIAL MEMBER

1. The applicants in this case joined the Railways as Diesel Assistants in 1984 and were promoted to the grade of Goods Drivers in 1989. They were further promoted as Loco Inspectors in 1995-96 in the erstwhile pay scale of Rs 6500 - 10500. Applicants 1 to 3 were further promoted to the grade of Sr. Loco Inspectors in the erstwhile scale of Rs 7450 - 11500 on or around 31-12-2005.

2. Pay scales of the above posts underwent upward revision w.e.f. 01.01.2006. The post of Loco Inspector and Sr. Loco Inspector were merged together with a single broad band pay scale of Rs 9300 - 38400 plus GP of Rs 4,200/-.

3. It is pertinent to point out here that the post of Loco Inspector and Sr. Loco Inspector are stationary posts and as such they do not carry any running allowance. When a person from the Loco Running Service moves on promotion to the stationary posts in the same hierarchy, 30% of the running allowance is reckoned as pay for the purpose of pay fixation. Thus, the applicants had, as early as in 1995 - 96 on promotion to the stationary posts fixed their pay taking into account the said 30% of the running allowance, which was low at that time compared to subsequent periods.

4. One Shri Bhuvanendran junior to the applicants joined the post of Diesel Assistant and later on promoted on 18-01-2008 to the post of Loco Inspectors after enjoying the promotions such as goods driver and Mail Driver. The case of the applicants is that since the said junior has been drawing more pay than the applicants, their pay should be stepped up. Accordingly they have prayed for the following reliefs:

(a) Direct the respondents to step up the pay of the applicants on par with their common junior Shri Bhuvanendran with effect from 18.01.2008/01.07.2008 under Note 10 of Rule 7 of the RS(RP) Rules, 2008, read with A-1, with all its consequential benefits emanating therefrom.

5. Respondents have contested the O.A. According to them, the conditions attached to stepping up of pay have not been fulfilled by the applicants and hence, no stepping up of pay could be granted to them. They have highlighted that the posts held by the applicants in the feeder grades and those of the so called juniors were not identical in that from Goods Drivers, they were promoted as Loco Inspectors, while the juniors were promoted first as Mail Drivers and then only to the post of Loco Inspectors. Paragraph 4 and 10 of the counter in detail explains the reason for not affording the stepping up. Thus, referring to the following decisions of the Apex Court, the respondents submitted that the claim of the applicants cannot be acceded to:-

(a) ESI Corporation & Another vs P.K. Srinivasamurthy and Others (JT 1997 (7) SC 111)

(b) Union of India vs O.P. Saxena (CA No. 8852 of 1996) wherein it has been held "whereas the respondents were projmoted as Loco Supervisors from Driver Grade C, Shri Kareer on the other hand was placed in the cadre of Loco Supervisor after being proomoted from the post of Driver Grade A. When the feeder posts of Shri Kareer and that of the other respondents were different, the applicability of the principle of stepping up cannot apply. The pay of Shri Kareer had to be fixed with reference to what he was last drawing as Driver A, a post which was never held by any of the respondents."

(c) Surendra Kumar vs UOI (CA No. 1023 of 2001) on the ground of source of recruitment being different, stepping up of pay was not approved.

6. Counsel for the applicants, after succinctly explaining the facts of the case, submitted that the principle of stepping up of pay has been based on the fact that no junior should draw more pay than his senior. He has submitted that seniority unit is based on the entire cadre of a particular division and in this case, the same is fulfilled. Again, all that is to be seen is whether the individuals and their juniors were holding earlier posts of comparable pay scales and if so, the designation does not count. For example, both the applicants as well as the juniors were holding identical pay scales upto promotion as Goods Drivers. The applicants then drew the next higher pay scale of Rs 6,500 - 10,500/-, while the juniors were drawing Rs 6,000- 9,800 (which is less than the scale held by the applicants). Again, both the seniors and juniors were placed in the pay scale of Rs 7,450 - 11,500 and thus, it cannot be said that the applicants were not the pay scales drawn by the juniors.

7. Counsel for the applicants also drew our attention to the following decisions of the Apex Court in support of the case of the applicants:-

(a) Gurcharan Singh Grewal v. Punjab State Electricity Board, (2009) 3 SCC 94 [LQ/SC/2009/37] , :

(b) Union of India vs P. Jagdish (1997) 3 SCC 176 [LQ/SC/1996/2220] ) Commissioner and Secretary to Government of Haryana and Others vs Ram Sarup Ganda & Ors (2006) 12 scale 440

Ms. Sikki counsel for respondents indeed very neatly, with due articulation and precision, presented the case and highlighted that the Apex Court has in the cases referred to the counter drew the distinction between promotion from one particular stage to another and promotion from another particular stage to another and held that such cases cannot be considered as fulfilling the conditions attached to the stepping up of the pay.

8. Arguments were heard and documents perused. Facts relating to the service particulars of the applicants as also of the other individuals with whom comparison had been sought are not in dispute.

9. As regards the cases relied upon by the counsel for the respondents, it is to be highlighted here that in those cases, promotion from Driver Grade A to the post of Loco Inspector and promotion from Driver Grade C to the post of Loco Inspector was the subject matter. In such cases, the individual who had claimed stepping was never in the grade as the junior. This situation is not there in the case of the applicants herein. Though the applicants had not enjoyed the pay scale of Rs 6000 - 9800 which the junior did enjoy, the fact is that for a substantial period, the applicants did enjoy a higher pay scale of Rs 6500 - 10500/- and as such, these two pay scales could be considered as one for the purpose of stepping up of pay. It would have been a different case if the claim of the applicant happens to be when the did not enjoy comparable pay scales and even before promotion the junior was getting higher pay than the seniors. It is in such a case only stepping up could be denied. Instead, where the seniors did enjoy all the pay scales as enjoyed by the juniors or pay scales of seniors were higher than those of juniors, and if all along the seniors have been drawing more pay than the juniors and the junior draws more pay only due to the fact that on promotion of the junior now, due to increase in the rate of running allowance, the pay is fixed more than that of the seniors then the seniors do justify their claim for stepping up of pay.

10. Admittedly, initially all the individuals joined the Railways as diesel assistants The hierarchy of Diesel Assistants cadre included Goods Driver as well as Mail Drivers. Loco Inspector is the next post, followed by Sr. Loco Inspector and these are stationary posts and element of running allowance which was available for the lower posts is not available. The applicants got the post of Loco Inspector as early as 1995-96. The pay attached to this post was Rs 6,500 - 10,500/-. Admittedly, at that time, the junior was in a pay scale as well as pay which were lower than those of the applicants. That the junior was drawing pay scale of Rs 6,000 - 9,800/- which was not drawn by the applicants does not make any striking difference to deny the applicants the stepping up for, at that time, the applicants were in a higher pay scale of Rs 6,500 - 10,500/-.

11. A look at the rule position at this stage is essential. The following are the rules of the 2007 Pay Rules, relied upon by the applicants:-

(b) Note 10 below Rule 7 of the RS(RP) Rules, 2008 read as under:

"In cases where a senior 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 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 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 should 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 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, provision of this Note need not be invoked to step up the pay of the senior officer. "

Note 10 of Rule 7 relates to stepping up of pay when junior is promoted to a higher post which the senior is already holding and if there be pay difference and if the conditions to stepping up are fulfilled, then the seniors pay shall be raised to equalize the pay of the junior. Isakki the junior, got his promotion only on 18-01-2008 to the post of Sr. Loco Inspector and his pay had thus been fixed at Rs 24,690/- plus GP of Rs 4600/-. At this point of time, the applicant was drawing pay less than the aforesaid Isakki in the same post of Sr. Loco Inspector. The This difference occurs due to reckoning certain portion of running allowance as pay for the purpose of fixation of pay at the time of promotion, when the promotional post does not have the benefit of running allowance. The extent of running allowance is more for any later period compared to earlier periods and thus, 30% thereof would also be more than the corresponding portion in the earlier period. Thus, a person, promoted earlier would have the benefit of lower rate of 30% of running allowance to be reckoned as a part of his pay in the promotional post compared to his junior who secures his promotion at a later point of time. Such a situation arose in the past also and the Railways have removed the anomaly by bring up the pay of the seniors by way of stepping up. In this regard, the following Railway Board Circulars are relevant:-

Railway Board circular dated 20.07.2004:

"It has been decided that the anomaly be resolved by granting stepping up of pay to the seniors at par with the juniors in terms of Note 9 below Rule 7 of RSRP Rules, 1997.

The benefit of stepping up of pay will be subject to the following conditions:

(a) The stepping up of pay will be allowed to running staff only appointed as loco supervisors in whose cases 30% of basic pay is taken as pay in the running allowance. The stepping up of pay will not be admissible to non-running staff of Mechanical Deptt. Appointed as Loco running supervisors as in their cases the question of pay element in the running allowance does not arise.

(b) If even in the lower post, revised or pre-revised, the junior was drawing more pay than the senior by virtue of advance increments granted to him or otherwise, stepping up will not be permissible.) Stepping up will be allowed only once, the pay so fixed after stepping up will remain unchanged.

(d) The next increment will be allowed, if due, on completion of the requisite qualifying service with effect from the date of refixation of pay."

Railway Board circular dated 20.07.2009:

"It has come to the notice of the Board that staff appointed prior to 1.1.2006 as Loco Running Supervisors in the pre-revised pay scales, whose pay has been fixed in the replacement pay structure for Loco Running Supervisors under the RS(RP) Rules, 2008, are drawing less pay than their juniors appointed as Loco Running Supervisor after 1.1.2006. The anomaly has arisen due to the fact that the benefit of element of Running allowance granted at the time of promotion of running staff to a stationary post has been granted to the junior in the revised pay structure, whereas, the same benefit granted to the senior is of lesser value as the same has been calculated on pre-revised pay scale.

2. It has been decided that the anomaly may be resolved by granting stepping up of pay in pay band to the seniors at par with the juniors in terms of Note 10 below Rule 7 of RS(RP) Rules, 2008.

3. The benefit of stepping up of pay in pay band will be subject to the following conditions:

(a) Both the junior and the senior Railway servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre and other conditions enumerated in Note 10 below Rule 7 of RS (RP) Rules, 2008 should also be fulfilled.

(b) The stepping up of pay will be allowed to running staff only appointed as Loco Supervisors in whose cases 30% of basic pay is taken as pay element in the running allowance. The stepping up of pay will not be admissible to the non-running staff of Mechanical Deptt. appointed as Loco Running Supervisors as in their cases the question of pay element in the running allowance does not arise;

(c) If even in the lower post, revised or pre-revised, the junior was drawing more pay than the senior by virtue of advance increments granted to him or otherwise, stepping up will not be permissible;

(d) Stepping up will be allowed only once, the pay so fixed after stepping up will remain unchanged;

(e) The next increment will be allowed on the following 1st July, if due, on completion of the requisite qualifying service with effect from the date of refixation of pay, as per the provisions of Rule 10 of RS(RP) Rules, 2008."

12. The above letters safeguard the interest of the applicants. Again, in the following cases, the Apex Court have stated as under:-

(a) Gurcharan Singh Grewal v. Punjab State Electricity Board, (2009) 3 SCC 94 [LQ/SC/2009/37] , :

... a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of Appellant 1 was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant 2.

(b) Union of India vs P. Jagdish (1997) 3 SCC 176 [LQ/SC/1996/2220]

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.

In addition to the above, the following decisions, which also relate to the stepping up of pay at par with juniors go in support of the applicants:

(d) WP No. 35910, 35911 of 2005 of the High Court of Judicature at Madras decided on 21-10-2008 which has not been disturbed by the Apex Court vide order dated 16-04-2010 in CC No. 19108 - 19109 of 2009 by which special leave petition filed by the Union of India against the aforesaid judgment was dismissed on the ground of delay as also on merits.

(e) Order dated 03-11-2010 in OA Nos. 623/2009 and connected matters, the finding whereof and the operative portion of which are as under:-

"17. In view of the settled law, principles of natural justice and equity as discussed above, the impugned orders cannot be sustained. The applicants, being seniors and paid less, are justified in seeking parity in pay with their juniors. Therefore, these O.As deserve to be allowed.

18. The impugned orders in these O.As to the extent they relate to the applicants are quashed and set aside. The respondents are directed to step up the pay of the applicants on par with their juniors who were promoted as Telecom Mechanics later than the applicants with effect from 01.10.2000 with all consequential benefits and to reimburse the amounts already recovered from them within a period of 60 days from the date of receipt of a copy of this order. It is made clear that this order will not stand in the way of the Anomaly Committee deciding the representations of the applicants referred to it."

The ratio in the abovesaid judgments/orders fully applies to the case of the applicants herein.

13. In view of the above, the OA is allowed to the extent that the pay of the applicants be stepped up at par with that of the junior Bhuvanendra from 18-01-2008 and the arrears of pay and allowances arising out of such stepping up be made available to the applicants. This benefit is in accordance with the provisions contained in note 10 under Rule 7 of the Pay Rules.

14. Respondents are directed to pass suitable orders stepping up the pay of the applicants and work out the arrears of pay and allowances due to the applicants and pay the same. This drill shall be performed within a period of four months from the date of communication of this order. No costs.