Shri Mahendra Pal Singh T No.2754 S.o Late Sh. Amrit Lal v. Union of India (Through Secretary) Ministry of Defence - Case No. 4203.2010 2012 INCAT 1 (1 January 2012)
Shri Mahendra Pal Singh T No.2754 S/o Late Sh. Amrit Lal v. Union of India (Through Secretary) Ministry of Defence - Case No. 4203/2010 [2012] INCAT 1 (1 January 2012)
Central Administrative Tribunal
Principal Bench
OA NO. 4203/2010
New Delhi this the 9th day of January, 2012
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member (A)
Shri Mahendra Pal Singh T No.2754
S/o Late Sh. Amrit Lal,
Presently working as Highly Skilled Grade�
Tradesman in Gp.C Post of
Mechonist� in 510 Army Base Workshop,
Meerut under DGEME, MGOs Branch
AHQ Ministry of Defence
R/o Village and Post Jatoli,
Distt. Meerut (U.P.) . Applicant
(By Advocate: Sh. V.P.S.Tyagi)
Versus
Union of India
(Through Secretary)
Ministry of Defence,
South Block, New Delhi.
The Director General of EME (Civ.)
MGOs Branch AHQ
DHQ PO New Delhi-110011.
The Controller General of Defence Accounts
Ulan Batar Marg,
Palam, Delhi Cantt.
The Controller of Defence Accounts (Army)
Belvadier Complex,
Meerut Cantt. (U.P.)
The Commandant
510 Army Base Workshop
Meerut Cantt. (U.P.)
Shri Subhash Chand T No.2876
Mechonist Highly Skilled
510 Army Base Workshop
Meerut Cantt. (U.P.) .. Respondents
(By Advocate: Sh. K.R.Sachdeva)
O R D E R
Honble Shri George Paracken:
The short question raised in this OA is whether an employee who has opted for fixation of pay after grant of his annual increment and thereby got pay less than his junior will have to draw less pay than him throughout even after a subsequent revision of pay.
2. The applicant In this case was initially appointed as a Welder Skilled Grade w.e.f. 26.4.1983 in the scale of Rs.260-400. Thereafter, he was appointed as Mechanist w.e.f. 4.11.1984, which was also in the same grade. Later, his pay was fixed at Rs.1010/- in the replacement scale of Rs.950-20-1150-25-1500 w.e.f 1.1.1986. Then, he was promoted as Mechanist (Highly Skilled) w.e.f 30.1.1996 in the pre-revised scale of pay of Rs.1200-1800 and his pay was fixed at Rs.1230/- from that date. He opted for the revised pay scale of Rs.4000-6000 as recommended by the 5th Pay Commission with effect from 1.1.1996 but after grant of the next increment due for him in the earlier scale of Rs.12�1800. Accordingly, his pay was refixed at Rs.1290/- w.e.f. 26.4.1996. Consequently, his pay fixation in the scale of Rs.4000-6000 was postponed from 1.1.996 to 1.4.1996 and his pay was fixed at Rs.4000/- in the integrated merged pay scale of Rs.4000-6000 w.e.f. 26.4.1996. He was elevated as MCM w.e.f. 1.10.2003 in the scale of pay of Rs.4500-7000 and his pay ws fixed at Rs.5000/- w.e.f. 1.4.2004. His junior Subhash Chand, T.No.2876 was also promoted as Mechanist in the scale of Rs.4000-6000 w.e.f. 30.1.1996 and he has opted for the same scale of pay from the same date and accordingly his pay was fixed at the minimum of the scale i.e. Rs.4000/- from that date. Since his aforesaid junior was drawing more pay than him, he made the Annexure A-3 representation on 11.2.2004 and the Annexure A-4 representation dated 27.2.2008 requesting the respondents to remove the anomaly but the respondents did not consider them. He submitted that both he and Sh. Subhash Chand were promoted on 30.1.1996 and his increment
was due from 1.4.1996, he opted to grant pay scale of Rs.1200-1800 w.e.f. 1.1.1996. As a result, he continued to receive the earlier basic pay of Rs.1225/- for the months of February 1996 and March 1996 also. In April 1996, he was granted one increment of Rs.25/- raising his pay to Rs.1250/-. Thereafter, his pay was raised to Rs.1320/- from 1.4.1997 and so on. The 5th Pay Commission merged the scale of Rs.1200-1800 and Rs.1320-2040 into the scale of Rs.4000-6000 and Shri Subhash Chands pay in the said scale was fixed at Rs.4000/- w.e.f. 1.1.1996. Applicant has, therefore, claimed that his pay also should be fixed at Rs.4000/- w.e.f. 1.1.1996 by granting him the same scale of pay as was done in the case of Sh. Subhash Chand. However, the respondents have fixed the applicants pay as on 1.1.1996 at Rs.3800/- and that of his junior Sh. Subhash Chands pay at Rs.4000/- from the same date.
3. Applicant has relied upon Note 6 below Rule 7 of CS (Revised Pay) Rules, 1997 which reads as under:
Wherein the fixation of pay under sub-rule (1) pay of a Govt. servant who in the existing scale was drawing immediately before the 1st day of January 1996 more pay than another government servant junior to him in the same cadre gets fixed in the revised scale at a stage lower than that of such junior his pay shall be stepped upto the same stage in the revised scale as that of the junior.�
He has also relied upon Rule 5 of CCS (Revised Pay) Rules, 1997 which reads as under:
Drawal of pay in the revised scales Save as otherwise provided in these rules, a Government servant shall draw pay in the revised scale applicable to the post of which he is appointed.
Provided that a Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.�
4. Applicant has also relied upon the judgment of Apex Court in Gurcharan Singh Grewal vs. Punjab State Electricity Board and others, <a href="http://www.liiofindia.org/cgi-bin/LawCite?cit=%282009%29%203%20SCC%2094" title="View LawCiteRecord">(2009) 3 SCC 94.</a> The relevant part of the judgments reads 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 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 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.
19. We, accordingly, allow the appeals and set aside the judgment of the High Court. Consequently, the writ petition is also allowed and the respondents are directed to extend the benefits of pay parity with Shri Shori to the appellant No.1, as was done in the case of the appellant No.2.�
5. The respondents in their reply has submitted that applicant was appointed as Welder w.e.f. 26.4.1983 in the pay scale of Rs.260-400. He was re-mustered as Machanist w.e.f. 4.11.1984 in the same pay scale of Rs.260-400. His pay was fixed at Rs.1010/- w.e.f. 1.1.1986 in the revised pay of Rs.950-1500. He was promoted as Machanist (HS) w.e.f. 30.1.1996 in the revised pay scale of Rs.4000-6000 but his pay was already fixed at Rs.1230/- w.e.f 30.1.1996. On exercising the option his pay was refixed at Rs.1290/- w.e.f . 26.4.1996. He was promoted as MCM w.e.f. 1.10.2003 in the scale of pay of Rs.4500-7000 and his pay was fixed at Rs.5000/- w.e.f. 1.7.2004. On exercising option, his pay was fixed at Rs.5125/- and at Rs.9540/- plus Grade Pay of Rs.4200/- (Total Rs.13740/-) w.e.f. 1.1.2006. His pay has been fixed after granting annual increments as under:
3% Annual Increment Rs.420 - Rs.14160/-w.e.f. 01/7/06
3% Annual Increment Rs.430 - Rs.14590/-w.e.f. 01/7/07
3% Annual Increment Rs.440 - Rs.15030/-w.e.f. 01/7/08
3% Annual Increment Rs.460 - Rs.15490/-w.e.f. 01/7/09
3% Annual Increment Rs.470 - Rs.15960/-w.e.f. 01/7/10
They have also submitted that they have considered his representation on 11.2.2004 pointing out the difference in his emoluments compared to that of his junior Subhash Chand. However, according to the audit party, once an individual exercised an option the same will be treated as final. He was, therefore, informed accordingly vide letter dated 5.8.2010. Respondents have also given a comparative statement showing the fixation of pay and increments granted to both the applicants as well as Subhash Chand which is as under:
Shri M.P.Singh Shri Subhash Chand
30 Jan 1996 Rs.3800/-Mach HS 01 Jan 1996 Rs.4000/- Mach HS
26 Apr 1996 Rs.4000/-Mach HS 30 Jan 1996 Rs.4000/- Mach HS
01 Apr 1997 Rs.4100/- 01 Jan 1997 Rs.4100/-
01 Apr 1998 Rs.4200/- 01 Jan 1998 Rs.4200/-
01 Apr 1999 Rs.4300/- 01 Jan 1999 Rs.4300/-
01 Apr 2000 Rs.4400/- 01 Jan 2000 Rs.4400/-
01 Apr 2001 Rs.4500/- 01 Jan 2001 Rs.4500/-
01 Apr 2002 Rs.4600/- 01 Jan 2002 Rs.4600/-
01 Apr 2003 Rs.4700/- 01 Jan 2003 Rs.4700/-
Elevated MCM w.e.f.01 Oct 03 Elevated MCM w.e.f.01 Oct 03
01 Apr 2004 Rs.4800/- 01 Jan 2004 Rs.4800/-
01 Apr 2004 Rs.5000/- 01 Jan 2004 Rs.5000/-
01 Apr 2005 Rs.5125/- 01 Jan 2004 Rs.5125/-
Rs.9540+4200 RPR-2008
01 Jan 2006 Rs.13740/- 01 Jan 2006 Rs.13970/- on grant
Of A/I Pay raised to Rs.5250/-
w.e.f. 01 Jan 2006
01 Jul 2006 Rs.14160/-
01 Jul 2007 Rs.14590/-
01 Jul 2008 Rs.15030/-
01 Jul 2009 Rs.15490/-
01 Jul 2010 Rs.15960/-
6. The learned counsel for respondents Sh. K.R.Sachdeva has relied upon the judgment of the Apex Court in Union of India & Anr. Vs. R.Swaminathan etc. etc., JT <a href="http://www.liiofindia.org/cgi-bin/LawCite?cit=1997%208%20SC%2061" title="View LawCiteRecord">1997 (8) SC 61</a> wherein it has been held that increased pay drawn by junior was due to ad hoc officiating or a regular short period of service. It has been held that the pay does not depend upon the seniority alone. As such, there was no anomaly in the matter and the respondents therein was not entitled to have pay stepped up. The relevant part of the said judgment reads as under:
12. The aggrieved employees have contended with some justification that local officiating promotions within a circle have resulted in their being deprived of a chance to officiate in the higher post if such chance of officiation arises in a different circle. They have submitted that since there is an All India seniority for regular promotions, this All India seniority must prevail even while making local officiating appointments within any circle. The question is basically of administrative exigency and the difficulty that the administration may face if even short-term vacancies have to be filled on the basis of All India seniority by calling a person who may be stationed in a different Circle in a region remote from the region where the vacancy arises and that too for a short duration. This is essentially a matter of administrative policy. But the only justification for local promotions is their short duration. If such vacancy is of a long duration there is no administrative reason for not following the all India seniority. Most of the grievances of the employees will be met if proper norms are laid down for making local officiating promotions. One thing, however, is clear. Neither the seniority nor the regular promotion of these employees is affected by such officiating local arrangements. The employees who have not officiated in the higher post earlier, however, will not get the benefit of the proviso to fundamental Rule 22.
13. The employees in question are, therefore, not entitled to have their pay stepped up under the said Government Order because the difference in the pay drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly; nor is it a result of the application of Fundamental Rule 22(I)(a)(1).
14. The appeals are, therefore, allowed and the impugned orders of different Benches of the Central Administrative Tribunal which have held to the contrary are set aside. There will, however, be no order as to costs.�
We have heard the learned counsel for the parties. Admittedly, situation in the case of the applicant vis-`-vis his junior Sh. Subhash Chand is an anomalous one. The applicant, who was promoted as Mechanist in the pay scale of Rs.4000-6000, on his own opted for the said scale for April 1986. However, his junior Sh. Subhash Chander who was also promoted to the same post opted for the aforesaid scale w.e.f. 30.1.1996 itself. Therefore, there was disparity in the pay between them from 30.1.1996 itself. As the disparity was due to the applicants own option, there is no question of any relief of equal pay at this belated stage. But with the recommendation of the 6th Pay Commission, the pay has been revised w.e.f. 1.1.2006 and the option given by the applicant has lost its relevance with the introduction of revised pay scale w.e.f. 1.1.2006. Applicant being senior to Shri Subhash Chand, he cannot be granted less pay in the revised scale w.e.f. 1.1.2006.
We, therefore, quash and set aside the impugned Annexure A-1 order dated 5.8.2010. The respondents shall step up the pay of the applicant at par with his junior Sh. Subhash Chand w.e.f. 1.1.2006 and fix his pay accordingly. Consequently, the department shall also work out the arrears accruing to the applicant w.e.f. 1.1.2006 and pay him the same. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
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