IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2650 of 2000 DINESHWAR PRASAD SINGH Versus THE BIHAR STATE ELEC.BOARD & ORS ----------- 18 17.09.2008 Heard learned counsel for the petitioner and learned counsel for the Board. When the case was taken up on 6.11.2003, it was found that the petitioner had not been paid his gratuity and his pension has been fixed provisionally at 90%. Since his pension was not finally fixed, he had not been giving benefit of commutation also. It was noticed that in the counter affidavit the Board had taken a stand that the delay in finalization of pension of the petitioner was due to wrong fixation of his pay while he was in service on account of some wrong promotions. In the Counter affidavit, it was stated that the Board proposed to fix the petitioner’s pension after putting him in the lower scale of pay but pendency of the application was coming in way of the Board in taking a final decision. In the circumstances, the petitioner was directed to appear before Financial Controller (Pension) of the Board 2 and the Financial Controller were directed to fix up a date of hearing of the petitioner and pass final order within two months from the date of his appearance, and the case was adjourned for three months. In compliance of the said order, the petitioner appeared before the Financial Controller and was heard. After hearing, a final order was passed in this case, which was communicated to the petitioner vide letter no. 109 dated 14.12.2004. As per liberty granted by this Court by the earlier order, the petitioner filed an I.A. application namely, I.A. No. 797 of 2004, bringing that order on record as Annexure-13, and sought to challenge the same. In view of the liberty granted by this Court by the earlier order the said I.A. is allowed and the petitioner is given liberty to challenge the said order as contained in Annexure-13 to the I.A. application. The petitioner’s challenge to the said order of the Financial Controller is limited to the extent wherein, it has been 3 held that he was wrongly giving next higher scale w.e.f. 1.8.1988, whereas in terms of Board Standing Order No. 684 dated 1.9.1988, the petitioner could be given next higher scale after completion of ten years service on the post of Accountant which comes to 3.4.1991. The submission of the learned counsel for the petitioner is very limited. He submits that the order of the Financial Controller itself shows that eight Accountants have been given pay protection w.e.f. 1.8.1988, who were admittedly junior to the petitioner and as such he had represented the authorities for grant of pay protection to him also w.e.f. 1.8.1988. Specific pleading has been made by the petitioner in paragraph 6 of the I.A. giving the names of the persons junior to him, who were promoted to the post of Accountant from dates posterior to the date of the promotion of the petitioner. It is an admitted position that eight persons named in paragraph 6 of the I.A., were promoted to the post of Accountant 4 in 1983 and one person was promoted as late as in 1984. From the order of the Financial Controller itself, it is clear that the petitioner was promoted to the post of Accountant on 3.4.1981 i.e. much prior to the said eight persons promoted to the post of Accountant. In view of the specific pleadings made by the petitioner in his I.A., learned counsel for the Board was directed to seek instruction and file counter affidavit to the same. The counter affidavit has been filed today in which there is no denial of the fact that those eight persons were promoted much subsequent to the petitioner on the post of Accountant. There is also no denial of the fact that those eight Accountants, who were junior to the petitioner, are being given higher scale of pay of 900-1600 w.e.f. 1.8.1988. In the counter affidavit respondents have not given reply to the specific pleadings made by the petitioner in paragraph no. 12 and 13 of the I.A., and there is no denial also to the pleadings made in paragraph no. 6 to 12 of the I.A. 5 application. Learned counsel for the petitioner in this context has relied upon two orders of this Court, namely, order dated 24.11.1995 passed in C.W.J.C. No. 1902 and order dated 26.2.1998 passed in C.W.J.C. No. 1294 of 1997. Learned counsel for the petitioner has relied upon the observations made by the Apex Court in the case of UNION OF INDIA & OTHERS VERSUS P. JAGDISH AND OTHERS reported in 1997 (3) SCC 176 and has particularly referred to the following passage from paragraph 7:- “Under the provisions of Fundamentals Rules to remove the anomaly of a government servant promoted or appointed to a higher post earlier 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 the higher post, the principle of stepping up of the pay is applied. In such cases the pay of the senior officer in the higher post is required to be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up is required to be done with effect 6 from the date of promotion or appointment of the junior officer. On re-fixation of the pay of the senior officer by applying the principle of stepping up, the next increment of the said officer would be drawn on completion of the requisite qualifying service with effect from the date of the re-fixation of pay. This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay”. It is well settled principles of equity that among the officers of same grade if the senior is being given a lower pay scale and juniors are being given the higher pay scale, the anomaly has to be removed to avoid any embarrassment to the senior. On the equitable principles, the senior has to be put at least in the same scale and from the same date his juniors are getting in the grade. The said principle has been acknowledged by the Court as a principle of stepping up of pay as noticed by the Apex 7 Court in the above passage. In that view of the matter, the impugned order of the Financial Controller putting the petitioner in the higher scale only w.e.f. 3.4.1991, while his juniors are getting higher scale from 1.8.1988 is not sustainable in law, and hence, the order of the Financial Controller to that extent is quashed. The respondents are directed to allow the next higher scale to the petitioner w.e.f. 1.8.1988 itself i.e. from the date his juniors are admittedly getting the scale and calculate his all benefits on that account and pay him the same as expeditiously as possible preferably within a period of two months from the date of receipt/production of a copy of this order. Learned counsel for the petitioner submits that pursuant to the impugned order of Financial Controller the differences of salary paid to the petitioner between the period of 1.8.1988 to 3.4.1991, has been recovered from this gratuity. In the circumstances, the respondents are directed to refund the amount 8 deducted from his gratuity on this account within the same time. In the result, the writ application is allowed with above observations and directions. Arvind/ ( J. N. Singh , J. )