Ramswaroop Sharma & Ors. v. The State of Rajasthan & Ors.

Order

7th November, 2012 HON’BLE MR. JUSTICE ALOK SHARMA Mr. Rakesh Kumar Sharma, for the petitioner. Mr.   S.Zakawat   Ali,   Addl.   Government   Counsel,   for   the respondent. The petitioners were appointed as Amin on various dates ranging from 8th January, 1979 to 27th July, 1979 under the Rajasthan Sub- ordinate Services (Recruitment and other Service Conditions) Rules, 2001 (hereinafter ’the Rules of 2001’). The next higher post under the aforesaid Rules of 2001 is that of Inspector (Land Record). The petitioners however, were stagnating on the post of Amin owing to the structure of their service with few promotional posts, as such the petitioners became entitled to three selection scales at the end of 9-18-27 years of service on the post of Amin under the circular dated 25th January, 1992 issued by the Government of Rajasthan. It is an admitted fact that all the petitioners availed the last of the 3rd selection scale under the circular dated 25th January, 1992 on the post of Amin between 8th January, 2006 to 27th March, 2006. The salaries of the petitioners were re-fixed at the time of commencement of the Sixth Pay Commission effective 1st September, 2006 at Rs. 18150/-. Thereafter, effective 1st July, 2007, the petitioners were getting a salary of Rs. 18,700/-. 2 S.B. CWP No. 1136/2011

2. The petitioners’ case is that Sukha Ram Sharma, Babu Lal Meena, Gulab Chand Mahawar and Satya Narain Namdev all juniors to them (hereinafter ’Juniors’) were appointed on the post of Amins between 8th January, 1980 to 12th March, 1980. They similarly availed the benefit of circular dated 25th January, 1992. However, before coming into force of the Six Pay Commission effective 1st September, 2006, the aforesaid Juniors had availed only of the 2nd selection scale and not the 3rd selection scale as they had not completed 27 years of service on the post of Amin. They were fixed at the relevant time on the implementation of the Six Pay Commission effective 1st September, 2006 at Rs.17090/-. Thereafter, on completing 27 years of service between 8th January, 2007 to 12th March, 2007, benefit of 3rd selection scale was granted to the Juniors, who effective 1st July, 2007 were granted pay of 18760/-. This was higher than Rs.18700/- which was the pay fixed for the petitioners.

3. It is submitted that in these circumstances, representations were made by the petitioner to the Settlement Officer, Kota for setting right the pay anomaly aforesaid praying that it be set right under Rule 16 of the Rajasthan Civil Services (Revised Pay) Rules, 2008 (hereinafter ’the Rules of 2008’). On receipt of the representation of the petitioners, since grievance of the petitioners was in conformity with Rule 16 of the Rules of 2008, vide order 30th October, 2009, the petitioners’ pay was stepped up by Rs.60/- making their pay equivalent to that of Juniors. Consequently, the petitioners were fixed on the pay of Rs. 18760/- as of 1st July, 2007 equivalent to the juniors and the arrears as computed thereupon paid to the petitioners.

4. However, vide order dated 5th January, 2011, the order dated 3 S.B. CWP No. 1136/2011 30th October, 2009 earlier passed stepping up the pay of the petitioners equivalent to the Juniors was cancelled. The order dated 5th January, 2011 is

the order fundamentally challenged in this writ petition.

5. In reply to the writ petition, the case of the State Government is that the Juniors of the petitioners on the post of Amins were given the benefit, aside of selection scale, of ACP (Assured Career Promotion) under rule 19 of the Rules of 2008 on completion of 27 years of service on the post of Amins. It is submitted that ACP is granted to employees based on their personal performance and not on the basis of seniority and consequently, the petitioners were not entitled to equal pay with their Juniors by resort to Rule 16 of the Rules of 2008. It has been submitted that consequent differential in the pay of the petitioners and that of the Juniors was therefore justifiable and legal. It was submitted that even though on the representation of the petitioners the pay was first stepped up and equated with that of Juniors, the decision was erroneous and therefore subsequently withdrawn under order dated 5th January, 2011. It was submitted that the decision of the withdrawal of the order dated 30th October, 2009 stepping up the pay of the petitioners equal to that of the Juniors, was with reference to the memorandum of the State Government, Finance Department (Rules Division) dated 31st December, 2009, wherein it was provided that financial upgradation consequent to the benefit of ACPs would be purely personal to the employee and would have no relevance to his seniority position. In the aforesaid context, it has been submitted that the order dated 5th January, 2011 impugned under this writ petition, is wholly legal and liable to be sustained by this Court entailing the dismissal of the writ petition. 4 S.B. CWP No. 1136/2011

6. Heard the learned counsel for the parties and perused the writ petition including the impugned orders.

7. Counsel for the petitioners submits that it is an admitted position that the petitioners as Amins were senior to Sukha Ram Sharma, Babu Lal Meena, Gulab Chand Mahawar and Satya Narain Namdev. He submits that by virtue of stagnation suffered by the petitioners and also by the Juniors on the post of Amins, they were admittedly entitled to the benefit of circular dated 25th January, 1992 and 3rd selection scale thereunder. It is further submitted that the petitioners were granted the benefit of 3rd selection scale between 8th January, 2006 to 27th March, 2006. The Juniors of the petitioners above mentioned were at the relevant time not granted the benefit of 3rd selection scale and had not completed 27 years of service on the post of Amins and before the Juniors of the petitioners could complete 27 years of service and be entitled to the 3rd selection scale, the Sixth Pay Commission was made effective commencing 1st September, 2006. These Juniors thereafter on completion of 27 years of service on the post of Amins were granted benefit of 3rd selection scale on the dates ranging between 8th January, 2007 to 12th March, 2007. Counsel submits that the fortuitous circumstance of the 3rd selection scale granted to the petitioners prior to the implementation of the Sixth Pay Commission could not entail the petitioners being put to a disadvantage and suffer a pay anomaly with their vis-a-vis Juniors in spite of the specific corrective mechanism provided for such a situation under rule 16 of the Rules of 2008. It has been submitted that the case of the respondent- State that the juniors to the petitioners were granted benefit of ACP under Rule 19 of the Rules of 2008 in view of their personal performance, is absolutely false, incorrect and unacceptable. It is submitted that rule 19 of the 5 S.B. CWP No. 1136/2011 Rules of 2008 clearly provides that ACP is to be granted only in lieu of selection grade. Counsel submits that such ACP could not have been conceivably granted to the Juniors to the petitioners in view of the specific admission in reply to the writ petition that the petitioners’ Juniors had been granted the benefit of the 3rd selection scale. It is submitted that as the petitioners’ Juniors were granted benefit of 3rd selection scale subsequent to 1st September, 2006 (coming into effective by Six Pay Commission) Rule 24 of the Rules of 2008 entitled them to additional 3% of the pay in their running pay band and grade pay. It is submitted that in view of the aforesaid, the higher pay was of the petitioners’ Juniors on the post of Amins was thus related not to their personal performance, but a mere consequence of the fortuitous circumstance of the differential date of grant of 3rd selection scale to the petitioners on the one hand and the Juniors on the other. This pay anomaly is thus liable to be corrected under Rule 16 of the Rules of 2008.

8. To my mind, the defence of the respondent-State to the case set up by the petitioners is absolutely mechanical and without substance. I do not find any substance in the defence set up by the State that the higher pay of the petitioners’ Juniors vis-a-vis petitioners was justifiable with reference to the grant of ACP under Rule 19 of the Rules of 2008. No material has been filed along with the reply to the writ petition, nor any averment made in the reply as to circumstances as the occasion under which the petitioners’ Juniors were purportedly granted personal pay for their undefined extraordinary performance in the discharge of duties. It has also been admitted in the reply to the writ petition that the petitioners’ Juniors were granted benefit of 3rd selection scale and in this view of the matter the language of Rule 19 of the Rules of 2008 would exclude the grant of ACP to them. From the material on 6 S.B. CWP No. 1136/2011 record, it appears that the petitioners’ Juniors were fixed in a higher pay merely consequent to their having been granted 3rd selection scale subsequent to 1st September, 2006.

9. Rules 16 of the Rules of 2008 provides that where a senior Government servant promoted to a higher post before the 1st day of September 2006 draws less pay in the running pay band than his junior who is promoted to the higher post on or after the 1st day of September, 2006, the pay in the running pay band of the senior Government servant should be stepped up to an amount equal to the pay in the running pay band as fixed for his junior in that higher post. It has been further provided that the stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfillment of the conditions detailed in rule 16 itself. It is not in dispute that the petitioners fulfill all the conditions for stepping up as given out in rule 16 of the Rules of 2008. Counsel for the petitioner has also relied upon the judgment of the Hon’ble Supreme Court in the case of Gurcharan Singh Grewal & Anr. versus Punjab State Electricity Board & Ors. reported in (2009) 3 SCC 94 to contend that the principle of stepping up a pay to remove an anomaly, where a senior is paid a lower pay than his junior without just cause has been upheld by the Hon’ble Supreme Court.

10. In the present case it is an admitted position that the petitioners are senior to Sukha Ram Sharma, Babu Lal Meena, Gulab Chand Mahawar and Satya Narain Namdev. The State on its part had earlier under order dated 30th October, 2009 stepped up the pay of the petitioners, which was inexplicably and arbitrarily withdrawn vide order dated 5th January, 2011 without as much as any notice or an opportunity of hearing to the petitioners. From 7 S.B. CWP No. 1136/2011 the record of the petition before me, I find no differentiation in the service of the petitioners and their Juniors on the post of Amins except the date of the grant of the 3rd selection scale, one before Six Pay Commission effective 1st September, 2006 and the other subsequent thereto. This was indeed earlier the view of the State in stepping up the pay of the petitioners equivalent to that of the Juniors under its order dated 30th October, 2009. I am also not impressed with the case of the State that the rights validly granted to the petitioners of equal pay with their Juniors under rule 16 of the Rules of 2008 could be withdrawn on the basis of a purported memorandum on the subject of grant of ACP by the State Government, Finance Department (Rules Division) dated 31st December, 2009. As aside of its irrelevance in view of Rule 19 of the Rules of 2008 not being applicable at all, a memorandum of the State Government issued in the exercise of administrative power cannot override statutory rule 16 of the Rules of 2008. The petitioners as seniors to Sukha Ram Sharma, Babu Lal Meena, Gulab Chand Mahawar and Satya Narain Namdev on the post of Amins are entitled to pay parity with their Juniors.

11. In view of the aforesaid, the writ petition is allowed and the order dated 5th January, 2011 is quashed and set aside with all consequential benefits. Mak/- 111 All Corrections made in the order have been incorporated in the order being emailed. Anil Makawana Jr. Personal Assistant (ALOK SHARMA),J.