1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No..262 of 2006 Reserved on: 28th May,2007 Date of Decision: 22-6-2007 ____________________________________________________________ Bharat Sanchar Nigam Limited Petitioner. Versus P.D. Vashista Respondent. Coram Hon’ble Mr Justice Deepak Gupta, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the petitioner : Mr Ratish Sharma, Advocate. For the respondents : Ms Jyotsna Rewal Dua, Advocate. _________________________________________________________ Surinder Singh, J The present petition has been filed by the Bharat Sanchar Limited (BSNL), feeling aggrieved by and dis-satisfied with the orders (Annexure- P1) dated 6.9.2005 passed in OA No. 785 H.P. The factual matrix of the case is that the respondent had filed an O.A. before the Central Administrative Tribunal (CAT) Chandigarh Bench for issuance of a direction to the petitioner to release the grade of Rs. 18000-22400 of the post of Chief Engineer (Civil) w.e.f. 26-12-2001, i.e. the date it has granted to S/Shri S.S. Goel and S.C. Misra who were junior to him and had been holding the charge of Chief Engineer (Civil), with all consequential benefits. Whether reporters of the Local papers are allowed to see the judgment? Yes 2 In fact the respondent had initially joined on 9.9.1975, the erstwhile Posts and Telegraph Department as an Assistant Engineer (Civil) a general group B post on the basis of a Combined Engineering Services Examination conducted through UPSC in the year 1973. Subsequently the respondent was promoted on adhoc basis as Executive Engineer on 30.3.1982 and was given the charge of the post of S.E. (Civil) on charge holding basis on 28.12.1994 and was promoted as adhoc S.E. (Civil) on 1.7.1995 in the grade of Rs. 14300-18300. The next channel of promotion from the post of S.E. (Civil) to the post of Chief Engineer (Civil). According to the petitioners herein, no promotion to the post of S.E. (Civil) or Chief Engineer (Civil) was being made and the incumbents who were holding the post of S.E. (Civil) were being given additional charge of the post of the Chief Engineer (Civil). There was also a dispute of seniority in the cadre of Assistant Engineers also, which was finalized on 20.6.94. The D.P.C. was convened in February 1997 for the promotion of Assistant Engineers to Executive Engineers, on its recommendations the regular promotions were made on 20.3.1997. Along with others the respondent was also promoted as the Executive Engineer w.e.f. 20.3.1997 along with others. On 11.1.1999 a seniority list of Executive Engineers (Civil) was issued. The respondent was shown junior to S/Shri S.S. Goel and Sh. S.C. Mishra. On 26.12.2001 S/Shri S.S. Goel and S.C. Mishra, were asked to look after independent and full fledge charge of the post of Chief Engineer (Civil), however, they continued in the same pay scale as that of S.E. (Civil). On 25.11.2002, the another seniority list contained the name of the respondent in the same seriatim. Vide order dated 24.2.2003 (Annexure-P4) S/Shri S.S. Goel and S.C. Mishra who were holding the full fledges charge of Chief Engineer (Civil) were granted the pay scale of Rs. 18400-22400 as that of the post of 3 Chief Engineer. The case of the respondent is converse. He was working on adhoc basis as Superintending Engineer (Civil). He was given the additional current duty of charge of Chief Engineer (Civil) vide order dated 4.9.1993 (Annexure-P5) but he was never given the full fledged independent charge to exercise statutory functions of Chief Engineer like Shri Goel and Shri Mishra aforesaid and the said order also made clear that the respondent and others who are finding mention in the list Annexure-P5, would not get extra remuneration for the additional charge (as provided in F.R. 49 (U)). They were also asked to exercise administrative and financial powers attached to the posts of Chief Engineer (Civil). Rule 49 (V) of F.R. says as under:- “No additional pay scale shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the direction of the additional charge”. The respondent is said to have accepted the additional charge without any protest and no representation was made by him against Annexure-P5 supra. According to the petitioner, DOPT OM No. 4.7.92-Estt. (page-I) dated 4.11.93 para 2 (c ) states that if a senior joins the higher post later on, than the junior, for whatsoever reasons, whereby he draws less pay than the junior, in such cases senior cannot claim stepping up of pay at par with the junior’. When the seniority list dated 12.4.2004 of Executive Engineers (C) was circulated, the respondent figured for the first time above Shri S.S. Goel & Shri S.C. Mishra, it was only then the respondent had filed the O.A. No. 784/HP/04 on 9.9.2004 before the Central Administrative Tribunal Chandigarh Bench just before his retirement which was due on 30.9.2004, seeking the relief of higher scale at par with Shri Goel & Shri Mishra aforesaid which was allowed. The matter regarding the finalization of the seniority list is stated to be pending in the Supreme Court in SLP arising from the order of High Court of 4 Bangalore passed in W.P. No. 34599 of 2000 dated 7.4.2004 between Union of India v. P.V. Damodran. Now the impugned order (Annexure-P1) of CAT passed in favour of the respondent is under challenge in this writ. We have heard the learned counsel for the parties and have examined the rival contentions. Shri Ratish Sharma ld. Counsel for the petitioner has supported his contentions made in the petition and forcefully argued that the respondent was neither given independent nor full fledged charge of Chief Engineer, he was only given an additional charge in addition to his post. He never worked independently against the said post and therefore, he could not have been granted the relief sought for. On the other hand, Ms. Jyotsna Dua, learned counsel for the respondent has supported the impugned order and strongly contended that the seniority list dated 11.1.1999 was quashed by Central Administrative Tribunal (Bangalore Bench) in OA No. 887/99 dated 3.8.2000. Thus, it was not in existence when S/Shri Mishra and Goel were given the charge of Chief Engineer. Even Central Administrative Tribunal (Delhi Bench) in OA No. 3020 of 2001 dated 22.11.2001 had directed not to implement the seniority, aforesaid. Whereas, the seniority list of Assistant Engineers (Civil) issued on 25.11.92 was quashed by Central Administrative Tribunal (Mumbai Bench). In the seniority list issued on 12.4.2004, the respondent ranked senior to Shri Goel which is not under challenge in S.L.P. Since the respondent performed his duties at par with the duties as were performed by said officers, therefore, he was entitled to equal pay for equal work, which was rightly granted. We have bestowed our best consideration to the respective contentions raised by the counsel for the parties and have carefully examined the record and the law applicable in the present case. 5 It is a fact that the seniority of the officers of the Department of Telecommunication Officers has not yet been settled which was also observed by the learned Tribunal. The main argument which weighed with the Central Administrative Tribunal was that the respondent was shown senior to Shri S.C. Mishra and Shri S.S. Goel in the seniority list dated 12.4.2004. Therefore, denying the benefit to the respondent would be discriminatory. But, as noticed above, Shri Mishra and Shri Goel both were figuring senior to the respondent when they were given the independent and full-fledged charge of the post of Chief Engineer (Civil). Though they continued in their own scale of Superintending Engineers but later w.e.f. 24.2.2003, they were granted the pay scale of the Chief Engineers on the ground that they were holding the independent charge of the said post. Whereas, on the other hand, the respondent was an adhoc Superintendent Engineer and he was given the additional charge of Chief Engineer (Civil) and not independent and full fledged charge like Shri Mishra and Geol that too in addition to his own duties as Superintending Engineer, therefore, under F.R. 49 (V) the respondent is not entitled for the additional pay scale or the scale of the said post which he had held in the circumstances aforesaid. Moreso, in Annexure-P5 dated 4.9.2003, whereby the additional charge was being given in addition to his own duties without any extra remuneration as provided in FR 49 (V) supra, which he had gladly accepted without any whisper against it. Further, the respondent cannot claim the scale of the higher post with effect from the date when Shri Mishra and Goel were given independent charge as aforesaid because he had never worked against that post at all. In any case, if for the arguments sake, the respondent was senior and due to the local arrangement Shri Mishra and Goel were given the full fledged charge by ignoring the respondent, but no challenge was made to it for a long time and now this plea cannot be entertained. Further, circular of Govt. of India, 6 Department of Personnel and Training dated 4.11.1993, in para 2 (c ) clearly provides that anomaly for granting of stepping up of pay should be directly as a result of the application of F.R. 22-C and that if a junior officer draws higher pay in the lower post either because of advance increment or on any other account, then the provision of stepping up would not apply in such a case. Moreover, in para 2 (c ) of the circular, it is further provided that if a senior joins the higher post later than the junior, where by he draws less pay than his junior, in such a case, the senior cannot claim stepping up of pay at par with the junior (Please see: Union of India v/s Swami Nathan (1997) 7 SCC 690, Union of India v/s Sushil Kumar Paul and others AIR 1998 SC 1925: (1998) 5 Supreme Court Cases 268). Therefore, in our opinion, for reasons aforesaid, the orders (Annexure-P1) dated 6.9.2005 passed by learned Central Administrative Tribunal in O.A. No. 784/HP/04 granting pay scale of the post of Chief Engineer to the respondent w.e.f. 26.12.2001 when Shri Mishra and Shri Goel were given independent and full-fledged charge is absolutely wrong and illegal. Therefore, we set-aside and quash the same. No costs. CMPs No. 396 of 2006 & 59 of 2007. No order in view of disposal of the writ petition. Both these applications are also disposed of. (Deepak Gupta), Acting Chief Justice. (Surinder Singh), Judge. June 22, 2007. (bm)