PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
M. SURYANARAYANA RAO
DATE OF JUDGMENT: 07/08/1998
BENCH:
M. SRINIVASAN, S.RAJENDRA BABU
ACT
HEADNOTE
JUDGMENT
THE 7TH DAY OF AUGUST, 1998 Present:
Hon’ble Mr. Justice M.Srinivasan
Hon’ble Mr. Justice S.Rajendra Babu P.P.Malhotra, Sr.Adv., A.B.Sharma, Ms. Anubha Jain, C.V.S. Rao, Advs. with him for the appellants J. Ramamurthy, Sr.Adv., L.K.Pandey and S.Nanda Kumar, Advs. with him for the Respondent
JUDGMENT The following Judgment of the Court was delivered: SRINIVASAN,J. leave granted.
The respondent herein applied before the Central Administrative Tribunal, Hyderabad for quashing an order of Government rejecting his representation for stepping up his pay to be on par with the pay of his juniors N.S. Shah and P. Panjiara who were promoted to the cadre of Telegraph Traffic Service Group ’B’. The grievance of the respondent was that though he was promoted above his pay was fixed at a lesser scale, namely, Rs.2000-3500 whereas the pay of the said persons was fixed on a higher scale.
2. The Tribunal accepted the contention of the respondent and held that he is entitled to get his pay stepped up to be on par with that of P. Panjiara who was his junior. as regards Shah, the Tribunal held that the respondent had not made a representation to the Government and therefore, he could not seek stepping of his pay on par with Shah. However, the respondent is satisfied with the order of the Tribunal. The Tribunal has limited the relief of stepping up for a period of three years prior to the filing of his application was filed four years after his junior P. Panjiara was promoted.
3. The judgment of the Tribunal is assailed by the appellant on the ground that principle of stepping up will not apply in the case where junior had been promoted earlier to a higher post on adhoc basis and on account of such adhoc promotion the junior got his pay fixed at a higher scale. In support of this contention reliance is placed by the appellant on a judgment of this Court in Union of India vs. R.Swaminathan & Ors. [1997 (7) SCC 690.]. A bench of three Judges considered F.R. 22(1) and also the Government office memorandum dated 4.11.93 which sets out various instances where stepping up of pay cannot be done. The Bench pointed out that in that case the higher pay was fixed for the juniors not because of any promotion under FR 22 but because of an earlier ah-hoc promotions given to the juniors for certain periods. The following observation of the Bench will be relevant:
"The memorandum makes it clear that
in such instances a junior drawing
more pay than his senior will not
constitute an anomaly and,
therefore, stepping up of pay will
not be admissible. The increased
pay drawn by a junior because of ad
hoc officiating or regular service
rendered by him in the higher post
for periods earlier than the senior
is not an anomaly because pay does
not depend on seniority alone nor
is seniority alone a criterion for
stepping up of pay.
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 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 it 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 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. Learned counsel for the respondent contends that the aforesaid decision does not apply in the present case as the Bench had considered only a short term ad-hoc promotion of the junior and not a long term adhoc promotion. It is pointed out that in the facts of this case P.Panjiara had been promoted on adhoc basis for long terms. The said fact is admitted in the counter statement filed by the Government before the Tribunal. It was contended that whenever a long term adhoc promotion had been given to junior and by virtue thereof his pay was fixed on a higher level, his senior must get his pay stepped up and the principle laid down by the Bench in the aforesaid case would apply only to cases of promotion for short term. From the passage extracted above from the aforesaid judgment it is clear that the question of stepping up did not depend upon the fact that the promotion was short term adhoc promotion or long term adhoc promotion. The government memorandum which has been referred to in the judgement does not make a distinction between short term adhoc promotion and long term adhoc promotion. The relevant part of the Government Memorandum which is extracted in the judgment itself reads as follows:
"It a senior foregoes/refuses
promotion leading to his junior
being promoted/appointed to the
higher post earlier, the junior
draws higher pay than the senior.
The senior may be on deputation
while the junior avails of the ad
hoc promotion in the cadre. The
increased pay drawn by a junior
either due to ad hoc
officiating/regular service
rendered in the higher posts for
periods earlier than the senior,
cannot, therefore, be an anomaly in
strict sense of the term."
5. The second contention of the learned counsel is that the Central Administrative Tribunal has in several case taken the view that if a junior had been promoted on adhoc basis on long terms and his pay is fixed at a higher scale, the senior is entitled to get his pay stepped up on par with the junior. He has placed reliance on the judgment of the Tribunal in T.Atchutaramaiah vs. Regional Director, Employees’ State Insurance Corporation, Hyderabad [1992 (21) Administrative Tribunal Cases 78]. It is stated by the Tribunal in para 4 as follows:
"We have examined the case and
heard rival sides. In an exactly
similar case like this, this Bench
had ordered stepping up of pay in
allowing O.A. No.607 of 1990 by
order dated 3.9.1991 (This order
has subsequently been upheld by the
Hon’ble Supreme Court by orders
dated 31.1.1992 in SLP No.645 of
1992). We had held that where the
pay of a junior is fixed on regular
promotion at higher stage than his
seniors on account of his having
earned increments by virtue of his
earlier ad hoc promotions the pay
of the senior should be stepped up
while fixing his pay in this case
also from 1.1.1986."
When the matter was brought up by way of a special leave petition the petition was dismissed in limine by this Court with the following observation:
"Since in the present case the
Respondent was superseded at the
time of the adhoc appointment
petitioner that the adhoc
appointment was offered to him and
he had refused it we are not
inclined to interfere with the
impugned order."
6. Learned counsel has also drawn our attention to the orders of this Court dismissing in limine similar special leave petitions in other cases. It is contended by learned counsel that none of these decisions had been considered by the Bench in R.Swaminathan’s case and, therefore, the decision in R.Swaminathan’s case requires re-consideration. We are unable to agree. In none of the cases cited by the learned counsel there is any reference to the relevant fundamental rules or the Government Memorandum. On the other hand, the Bench has considered all the relevant rules and has laid down the principle clearly. We find no justification to have the matter re-considered.
7. The learned counsel suggests that the Bench had failed to take note of an earlier judgment of a Bench of two Judges in Union of India vs. P.Jagdish [1997 (3) SCC 176]. Subsequent to the promotion of respondents in that case as Head Clerks were given a special pay of Rs. 35/- per month. Though the respondents had not worked on such posts they claimed re-fixation of their pay in the cadre of Head Clerks on a national basis that they were drawing such special pay. That claim was negatived by the Bench. But the Bench held that the respondents therein were entitled to have their pay stepped up to be on par with that or their juniors who had worked in posts carrying such special pay and were promoted later than the respondents as Head Clerks. The Bench took care to say that such stepping up would be only prospective from the date of promotions of the juniors. The facts of the present case are entirely different and the said ruling will not apply.
8. One of the reasons given by the Tribunal in support of its order is that when adhoc promotion were made, the respondent was not considered therefor or offered the same and it was not as if he refused to take up higher responsibility. The reasoning is highly fallacious. As pointed out by learned counsel for the appellant adhoc promotions are made within the circles where vacancies arose and the respondent who was working in a different circle could not have been considered for such adhoc promotion or offered the same. The fact that ad hoc promotions are made within the circles has been noticed by the Bench in R.Swaminathan’s case.
9. We respectfully agree with the ratio in Union of India vs. R.Swaminathan & Ors. [1997 (7) SCC 690] and allow this appeal. The order of the Tribunal in OA 913/96 filed by the respondent is set aside and the said application is dismissed. No costs.