1. By way of instant petition, the petitioners have prayed for following substantive reliefs:
“(A) That this original application may kindly be allowed and impugned order dated 7.11.2015 may be quashed and set aside.
(B) That the respondent department may kindly be directed to remove the pay anomaly in respect of the applicants which arose on 28.04.2012 at par with the respondent No.3.”
2. Petitioners had filed original application No. 2066 of 2016 before the erstwhile H.P. State Administrative Tribunal. On abolition of H.P. State Administrative Tribunal, the original application filed by the petitioners came to be transferred to this Court and has been registered as CWPOA No. 7322 of 2019.
3. Brief facts necessary for adjudication of the petition are that petitioners No. 1 to 3 were appointed as Junior Auditors on 27.03.1998, 26.03.1998 and 30.03.1998 respectively in the respondent department. Respondent No.3 was junior to petitioners in the cadre of Junior Auditors. Accordingly, petitioners were promoted as Section Officers on 30.07.2010, 17.07.2006 and 09.02.2007 respectively, whereas respondent No.3 was promoted as Section Officer on 28.04.2012.
4. Grievance of the petitioners is that on promotion as Section Officer, respondent No.3 drew higher emoluments than the petitioners. As per petitioners, such anomaly was required to be removed by granting benefit of step up to the petitioners w.e.f. the date respondent No.3 was promoted as Section Officer. Petitioners place reliance on provisions of Rule 22 (1)(a) (i) of Fundamental Rules. It is further submitted that the representations made by petitioners were rejected on untenable grounds.
5. Respondents No.1 and 2 have contested the claim of the petitioners, justifying its action on the basis of department letter dated 09.08.2012, especially clauses 4(g) and 4(h) thereof, which read as under:
“(g) The progressions granted under this scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, the senior employees shall have no claim of parity of pay on the ground that the junior employee working on the same post has got higher pay or grade pay under this scheme. While implementing this scheme, the difference in pay scales on account of grant of financial upgradation under the old ACP Scheme (15.12.1998) and under this scheme within the same cadre shall not be construed as an anomaly.
(h) No stepping up of pay in the pay band and grade pay would be admissible with regard to junior getting more pay than the senior on account of pay fixation under this scheme.”
It is submitted that the petitioners were not entitled to benefit under Fundamental Rule (22(1)(a)(i) as it applied only to the cases of fixation on promotion. According to respondents No.1 and 2, the scale drawn by respondent No.3 even in the cadre of Junior Auditor was higher than the petitioners and as such, the petitioners were having no right to claim step up in pay.
6. I have heard Mr. Kulbhushan Khajuria, Advocate, for the petitioners and Mr. Desh Raj Thakur, learned Additional Advocate General for the State and have also gone through the record carefully.
7. There is no dispute on facts that respondent No.3 was junior to the petitioners in the cadre of Junior Auditors and was also promoted as Section Officer much later. It was only by virtue of longevity of tenure of respondent No.3 in the cadre of Junior Auditor that he got the benefit of Assured Career Progression Scheme (ACPS) and started drawing pay higher than the petitioners, who had been promoted as Section Officers. As a result, when respondent No.3 was promoted as Section Officer, his pay became higher than his seniors i.e. the petitioners. It clearly created an anomalous situation.
8. Petitioners who were promoted as Section Officers from the cadre of Junior Auditors were being paid less than their junior only because they got a chance to be promoted by putting lesser years of service in the cadre of junior auditors. They cannot be blamed for such situation. It was not in their hands that they could get the promotion at their will. The promotion to the post of Section Officer was regulated by relevant service rules, therefore, their promotions were dependent upon the availability of vacancies on the higher post of Section Officer.
9. The Hon'ble Supreme Court in Gurcharan Singh Grewal and another vs. Punjab State Electricity Board and others, reported in (2009)3 SCC 94 , has observed that it is well settled principle of law that senior cannot be paid lesser salary than his junior and, in such circumstances, even if, there was difference in incremental benefits in the scale given to government servant, such anomaly should not have been allowed to continue and ought to have been rectified by fixing the pay in parity with the junior officers.
10. Thus, the continuation of anomaly, as noticed above, defies all logic and rationale.
11. With regard to removal of anomaly by stepping up of pay of senior on promotion drawing less pay than his junior, it is apt to notice note Note18 of Swamy's Compilation of FRSR 20th Edition 2010 as under:
“(18) 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 22C. [Now FR 22 (1) (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 promoted or appointed subsequently to another identical post, it has been decided that 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 FR 22C. 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 in accordance with the above provisions shall be issued under FR 27. 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.
[GI, M.F, OM. No. F. 2 (78)E, III (A)/66, dated the 4th February, 1966]
(b) As a result of FR 22 (1) (a) (1) application in the revised scales of CCS (RP) Rules, 2008.In cases, where a 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 1 st 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 fulfilment of the following conditions, namely:
(a) both the junior and the 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 prerevised 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 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 prerevised 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.
Subject to the provisions of Rule 5, if the pay as fixed in the officiating post under subrule (1) is lower than the pay fixed in the substantive post, the former shall be fixed at the same stage as the
substantive pay.[Note 10 below Rule 7 of CCS (RP) Rules, 2008]”
12. The contention of respondents that benefit of FR22(1)(a)(i) was not available to the petitioners as they did not fulfill the condition viz. “anomaly not being the direct result of fixation on promotion”, deserves rejection as the petitioner got the cause of action only when respondent No.3 was promoted on 28.04.2012. Their grievance arose only when respondent No.3 was placed in higher scale than the petitioners in the same cadre.
13. Objection of respondents on the basis of departmental letter dated 09.08.2012 also deserves rejection for the reasons that firstly, respondent No.3 was promoted on 28.04.2012 and the subsequent notification dated 09.08.2012 could not have retrospective application and secondly, the benefit otherwise available to the petitioners under statutory Fundamental Rules could not be taken away by departmental instructions or executive orders.
14. A coordinate Bench of this Court while dealing with an identical situation has upheld the claim of similarly situated person as the petitioners, vide judgment dated 30.08.2022, passed in CWPOA No.5846 of 2019, titled Bipan Chand vs. State of H.P. & Anr, and has held as under:
“17. In view of Government instructions, referred supra, and considering the facts of present case, narrated hereinabove, and discussion hereinbefore, I am of considered opinion that petitioner is entitled for fixing his pay at par with his junior from the date of promotion of his junior w.e.f. 9.4.2004 with all consequential benefits including pensionary benefits and, therefore, respondent department is directed to take all necessary steps accordingly and to extend benefits to petitioner as expeditiously as possible latest by 30th October, 2022, failing which respondent department shall also be liable to pay interest at the rate of 5% per annum and interest component shall be recovered by Government from the Officer In charge responsible for delay in complying the aforesaid direction.”
15. Respondents have placed reliance of Union of India & Another vs. R. Swaminathan & Others, reported in (1997)7 SCC 690 in support of their contention but the ratio of said judgment cannot help their cause as the fact situation of that case was different. In the facts of said case, the junior employee had got opportunity of local adhoc promotion prior to the promotion of seniors on all India Basis and it was in these circumstances that the junior got placed in higher pay scale.
16. In view of above discussion, the petition deserves to be allowed and the order dated 07.11.2015 whereby the claim of petitioners was rejected is set aside. The respondents are directed to remove the pay anomaly of the petitioners by placing them at par with respondent No.3 w.e.f. 28.04.2012. Needless to say that, consequential benefits shall also follow. Petition is accordingly disposed of, so also, the pending applications, if any.
