IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 13348 of 2008 Date of Decision: 30.12.2010 J.K.Mohindru …Petitioner. Versus. State of H.P. and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. For the petitioner: Ms. Ranjana Parmar, Advocate. For the Respondents: Mr. Ramesh Thakur, Assistant Advocate General. Deepak Gupta, J.(Oral) 1. By means of this petition, the petitioner has prayed that his pay be stepped up to make it equivalent to that of Shri Gurunath Vashist, who is admittedly his junior in the cadre of Executive Engineers. The petitioner claims benefit of Fundamental Rules and the relevant instructions issued by the State Government from time to time. 2. The admitted facts are that the petitioner as well as Shri Gurunath Vashist were initially appointed as sectional officer, which post was later renamed as Junior Engineer. In this cadre, 2 the petitioner was senior to Shri Gurunath Vashist. However, since Shri Gurunath Vashist belong to the scheduled castes he was promoted earlier as Assistant Engineer on adhoc basis and continued to function as such. Later the petitioner was also promoted as Assistant Engineer. 3. As far as promotion to the post of Executive Engineer is concerned, it is not disputed that the petitioner was promoted as Executive Engineer prior to Shri Gurunath Vashist but is being paid salary less than that of Shri Gurunath Vashist. He, therefore, claims stepping up of his salary in terms of FR-22. 4. The stand of the State is that the case of the petitioner is not covered under FR and the instructions issued by the State Government from time to time. The instruction relied upon by the State are annexure R-1. We are concerned with instructions No. 2 and 6, which reads as follows:- “2. The matter relating to removal of anomalies in such cases where pay of junior has become more than his senior after 1/1/1996 as a result of application of 3 the provisions of F.R. 22, was receiving the attention of the Government and after due consideration / examination, and in partial modification of this Department’s Office Memorandum No. Fin( C)A(3)-8/88. dated 7.3.1991, it has been decided that the pay of senior Government servant be stepped up equal to the pay of his junior subject to the following conditions:- (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 pre-revised scale and revised scales of pay of the lower and the higher posts in which they are entitled to draw pay should be identical. (c) The senior Government servant 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 scale. If in the lower post, the junior was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, provision of these 4 instructions shall not be invoked to step up the pay of the senior officer. xxx… xxx.. xxx… xxx… xxx… xxx… 6. Stepping up of pay shall however not be allowed in following type of cases. (a) Where a senior proceeds on Extraordinary Leave which results in postponement of date of next increment in the lower post, consequently he starts drawing less pay than his junior in the lower grade itself. He, therefore, cannot claim pay parity on promotion even though he may be promoted earlier to the higher grade; (b) If a senior forgoes/refuses promotion leading to his junior being promoted/appointed to the higher post earlier, junior draws higher pay than the senior. The senior may be on deputation while junior avails of the adhoc promotion in the cadre. The increased pay drawn by a junior either due to adhoc officiating/regular service rendered in the higher posts for period earlier than the senior, cannot, therefore, be an anomaly in strict sense of the term; (c) If a senior joins the higher post later than the junior, for whatsoever reasons, whereby he draws less pay than the junior, in such cases senior cannot claim stepping up of pay or par with the junior; 5 (d) If a senior is appointed later than the junior in the lower post itself whereby he is in receipt of lesser pay than the junior, in such cases also the senior cannot claim pay parity in the higher post though he may have been promoted earlier to the higher post; (e) Where a person is promoted from lower to a higher post, his pay is fixed with reference to the pay drawn by him in the lower post under the FR 22 and he is likely to get more pay than a direct appointee whose pay is fixed under different set of rules. In such cases, the senior direct recruit cannot claim pay parity with the junior promoted from a lower post to higher post as seniority alone is not a criteria for allowing stepping up; (f) Where a junior gets more pay due to additional increments earned on acquiring higher qualifications, etc.” 5. Under clause 2 of the aforesaid instructions a senior is entitled to stepping up of his pay so that it is equivalent to that of junior where both the junior and senior belong to the same cadre and the post to which they have been promoted are identical and in the same cadre. There is no dispute that this condition is fulfilled. 6 6. The next condition is that the pre-revised and revised scales of the lower and higher posts should be identical. There is no dispute with regard to this condition also. As per sub clause(c) of clause 2 the senior Government servants at the time of promotion have been drawing equal or more pay than the junior. This condition is not fulfilled because admittedly Shri Mohindru was getting less pay than Shri Gurunath Vashist at the time when he was promoted. Sub clause (d) of clause 2 only applies when the junior officer was drawing more pay in the pre revised scale than the senior by virtue of any advance increment granted to him. This condition is not applicable here since Shri Gurunath Vashist was not given any advance increment but was promoted earlier since he was a member of the scheduled castes. 7. Clause 6 deals with those cases where benefits of stepping up of pay under FR22 are not to be allowed. None of the conditions mentioned in clause (a) to (f) are applicable. 7 “FR 22(I)(a)(1) reads as follows:- (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 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; 8 (c) The anomaly should be directly as a result fo the application of FR22-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 in accordance with the above provisions shall be issued under FR27. 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. 8. FR 22 (a)(1) deals with fixation of the salary of an employee on his promotion to a higher post. Instruction issued by the Government of India, Ministry of Finance on 4th February, 1966 provides that in order to remove the anomaly of a Government servant promoted or appointed to a higher post but drawing a lower rate of pay in the post than a Government servant junior to him and promoted or appointed subsequently to another identical post, such official would be entitled to stepping up of his pay to make it 9 equal to the pay of the junior. This instruction clearly envisages that when two persons are in the same grade and doing identical work then the senior cannot get pay less than that of the junior except in the circumstances specifically mentioned in the order, such as, having higher qualifications, etc. 9. In view of the above discussion, the claim of the petitioner is justified. He is entitled to having his pay stepped up to equal the pay of his junior Shri Gurunath Vashist. The petition is accordingly allowed in the aforesaid terms. The respondents are directed to step up the pay of the petitioner and make it equal to his junior Shri Gurunath Vashist and pay all consequential benefits to the petitioner latest by 31st May, 2011. In case, this amount is not paid by the said date respondent-State shall be liable to pay 12% interest from the date when the amount fell due to the petitioner. Petition is disposed of accordingly. No order as to costs. 30th December, 2010 ( Deepak Gupta ) ™ Judge.