Avtar Singh Saini v. State of Himachal Pradesh & Ors.

I have heard the learned counsel for the parties 6 and also perused the record carefully.

7. It is not in dispute that the petitioners were admittedly senior to Sh. Ashok Kumar. It is also not in dispute that the petitioners No.1 & 2 have been promoted to the post of Assistant Engineer on 20.10.2011 and

19.10.2011 respectively, whereas Sh. Ashok Kumar was promoted to the post of Assistant Engineer vide Notification dated 05.11.2013. The plea which has been taken by the respondents in the reply as well as while rejecting the claim of the petitioners to remove the anomaly is only that Sh. Ashok Kumar, who was not promoted to the post of Assistant Engineer was granted the benefit of grade pay of Rs.6600/-, after completion of 20 years’ service and since the petitioners were earlier promoted to the posts of Assistant Engineer, they were not entitled to the said benefit, more particularly when as per the instructions/ Notification dated 09.08.2012 (Annexure R-1), the benefit was to be granted only w.e.f. 01.10.2012, whereas the petitioners were already promoted to the post of Assistant Engineers. The said plea cannot be countenanced for the simple reason that as per the instructions which have been issued on 26.08.2009 (Annexure A-7), as per note 6, clause 7 7 clearly stipulates that in case where a senior employee promoted to higher post before 01.01.2006, draws less pay in the revised pay structure than his junior, who is promoted to a higher post after the first day of January, 2006, the pay in the pay band of the senior Government employee will be stepped-up to an amount equal to the pay of the pay band as fixed for his junior in that higher post. No doubt the said stepping up will be done with effect from the date of promotion of the junior Government employee subject to the fulfillment of the following conditions :- (a) both the junior and senior Government employees 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 post in which they are entitled to draw pay should be identical; (c) the senior Government employees at the time of promotion should have been drawing equal or more pay than the junior; and (d) the anomaly should be directly as a result of application of the provisions of these rules or any 8 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 pay than his senior by virtue of any advance increment(s) granted to him, the provisions of this note shall not be invoked to step up the pay of the senior employee.

8. Admittedly in the present case, as per note 6 above, both the petitioners and Ashok Kumar were belonging to the same cadre and the posts in which they have been promoted are in the same cadre. Before promotion of the petitioners to the post of Assistant Engineer, they were getting the same pay scale as granted to their junior namely Ashok Kumar and they were getting more pay than their junior. Ashok Kumar was given the benefit of ACPS after completion of 20 years’ service and due to this reason, he started drawing more pay than the petitioners. He was granted this benefit only for the reason that he was not promoted to the post of Assistant Engineer. However, later on he was promoted to the said post and once the petitioners being senior at the time of promotion 9 were drawing more pay than Sh. Ashok Kumar, were entitled to be granted the benefit of step-up and respondent No.2 has wrongly rejected their claim, which is not sustainable in law. It is settled law that the senior cannot be paid less than his junior and it can be only if the junior acquired additional qualification, which entitled him to get more pay than his senior, that too, if specifically provided in the R&P Rules and not otherwise.

9. The Hon’ble Supreme Court in Gurcharan Singh Grewal and others vs. Punjab State Electricity Board & others, (2009) 3 SCC 94, took note of settled principle of law that a senior cannot be paid lesser salary than his junior and has held as under:- “15. Mr. Chhabra also attempted to justify the disparity in the pay of Shri Shori and the appellant No.1 by urging that the appellant No. 1 had been granted the promotional scale with effect from 1st January, 1996, where the benefits of increment in the scale were lower. On the other hand, Shri Shori who joined the services of the Board in 1974, was granted the promotional scale on 17th May, 2006, with effect from 1st September, 2001, when the increments and the pay-scales were higher. Mr. Chhabra submitted that it is the disparity in the incremental benefits that led to the anomaly of the appellant No.1 getting a lower salary in the promotional scale.

16. Having regard to the submissions made on behalf of the respective parties, we have little hesitation in 10 accepting Mr. Gupta's submissions that since the writ petition had been jointly filed on behalf of the appellants, whose interest was common, the prayer therein should not have been confined to the appellant No.2 alone and that the High Court should have granted relief to the appellant No.1 also by directing that his pay also be stepped up to that of his junior, Shri R.P. Shori. Although, this question does not appear to have been gone into by the High Court for the simple reason that the writ petition was disposed of only on the averments contained in paragraph 7 of the written statement filed on behalf of respondents that the grievance of the appellant No.2 duly addressed, there ought to have been at least some discussion in the judgment of the High Court regarding the claim of the appellant No.1. Unfortunately, the case of the appellant No.1 was not considered at all by the High Court.

17. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.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 the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2.

18. We are unable to accept the reasoning of the High Court in this regard or the submissions made in support thereof by Mr. Chhabra, since the very object to be achieved is to bring the pay scale of the appellant No.1 at par with that of his junior. We are clearly of the opinion 11 that the reasoning of the High Court was erroneous and the appellant No.1 was also entitled to the same benefits of pay parity with Shri Shori as has been granted to the appellant No.2.”

10. Not only this, the Hon’ble Supreme Court had again the occasion to deal with the similar proposition of law in Union of India and others vs. C.R. Madhava Murthy and another, (2022) 6 SCC 183, wherein the senior employees were denied step-up on the ground that the employee junior to the petitioner had been granted upgradation under the ACP scheme, and had started drawing higher pay. The Hon’ble Supreme Court while considering the import of FR 22, which provides stepping-up of pay and removal of anomaly by stepping-up the pay of the senior, on promotion drawing less pay than his junior, held that the senior cannot be granted less pay. The relevant paras of the judgment read as under:- “9. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, 12 it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.

10. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under: "(22) 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 22 C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 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-22-C. 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 I 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. 13 [G.I., M.F., 0.M. No.F.2 [78)E.III (A)/66, dated the 4th February, 1966)".

11. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for.”

11. In the present case, the law propounded by the Hon’ble Supreme Court is squarely applicable for the reason that the petitioners herein too have been denied the same pay as granted to their junior only for the reason that their junior was granted the benefit under ACPS. Once the petitioners being senior in the feeder category of Junior Engineers and were drawing more pay than their junior namely Sh. Ashok Kumar, they could not have been denied the benefit of step-up, especially when their junior, even after his promotion to the post of Assistant Engineer to which posts the petitioners were earlier promoted was getting and paid more pay. 14

12. Consequently, in view of the discussions made herein above, the present petition is allowed and the impugned order dated 24.10.2017 (Annexure A-9) is quashed and set aside and the respondents are directed to pay same pay-scales to the petitioners from the day when the aforementioned employee namely Sh. Ashok Kumar was granted, on notional basis and on actual basis three years prior to filing of the present petition. In case the arrears of step-up are not released and paid to the petitioners within three months from today, it shall carry interest @6% per annum from the due date till its actual payment. However, no orders as to cost.

13. The petition is accordingly disposed of and pending applications, if any, also stand disposed of. th May 27 (Anurag) , 2026 ( Jiya Lal Bhardwaj ) Judge