CWP No.1684-CAT of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.1684-CAT of 2007 DATE OF DECISION: February 12, 2009 UNION OF INDIA & OTHERS ...PETITIONERS VERSUS CENTRAL ADMINSTRATIVE TRIBUNAL ...RESPONDENTS AND OTHERS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. AMAN CHAUDHARY, ADVOCATE FOR THE PETITIONER. MR. R.K. SHARMA, ADVOCATE FOR RESPONDENT NO.2. ASHUTOSH MOHUNTA, J. The challenge in the writ petition is to the order dated 11.11.2005 (Annexure P-4) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal'), whereby Original Application filed by respondent No.2, Sh. R.K. Sood has been allowed and anomaly in the matter of pay fixation of Sh. R.K. Sood vis-a-vis his junior Sh.P.P. Makkar in the cadre of Inspector of Income Tax, has been ordered to be removed. The factual matrix of the case relating to Sh. R.K. Sood, respondent No.2 (hereinafter referred to as 'applicant') and his junior Sh. P.P.Makkar is that the applicant joined as LDC on 23.1.1973. He passed Departmental examination for promotion as UDC in 1965. He got benefit of two advance increments in terms of the departmental instructions. He was promoted as UDC and joined as such on 15.4.1966. He qualified the Departmental Examination for promotion to the post of Inspector of Income Tax (for short 'Inspector') in the year 1968 and was promoted as such w.e.f CWP No.1684-CAT of 2007 -2- 31.12.1977. Sh. P.P. Makkar joined as LDC on 2.2.1963, as UDC on 5.3.1966, as Tax Assistant on 1.3.1978 and then as Head Clerk w.e.f. 6.9.1978. He had passed the examination for promotion to the post of Inspector in the year 1970 and was promoted as such w.e.f. 26.6.1982. The pay fixation of both the Applicant and Sh. P.K.Makkar from time to time right from the post of LDC has been given in the chart attached as at Annexure A-3 with the Original Application at pages 61-65 of the paper book which shows that as LDC the pay of Applicant was at par with Shri Makkar. However, though the Applicant is senior as UDC but joined later than Shri Makkar due to departmental reasons and there was a difference of pay by one month in the said cadre. However, both of them were drawing same pay i.e. at the stage of Rs.476/- in the scale of Rs.330-560 as on 31.12.1977, the date on which Sh. Sood was promoted as Inspector. On promotion of the Applicant on 31.12.1977, his pay was fixed at Rs.500/-. On the other hand Shri P.P.Makkar who was junior in the cadre of LDC & UDC to Applicant, sought promotion from the post of UDC to Inspector of Income Tax through different channels, i.e. he was promoted as Tax Assistant on 1.3.1978 and his pay was fixed at Rs.488/- and he was further promoted as Head Clerk on 6.9.1979 and his pay was fixed at Rs.560/- and the pay of Sh. Sood remained higher than Shri Makkar till Shri Makkar was promoted as Inspector on 26.6.1982 and on the said date, pay of Sh. Makkar was fixed at Rs.620/- and that of Sh. Sood was fixed at Rs.660/-. However, anomaly further arose w.e.f 1.9.1982, when Sh.Makkar got one additional increment after his promotion and his pay was fixed at Rs.600/- whereas petitioner was drawing pay of Rs.600/- In the normal circumstances, the anomaly in the matter of pay fixation of senior and junior is dealt with under FR 22 and the instructions CWP No.1684-CAT of 2007 -3- issued by the Government of India and those are the cases where both junior and senior are promoted from the same feeder cadre to the same higher post. However, in the present case the applicant was promoted as Inspector directly from UDC and Sh. Makkar was promoted as such firstly after promotion from UDC to Tax Assistant and then Tax Assistant to Head Clerk and ultimately from Head Clerk to Inspector and anomaly in their pay arose only after promotion of Shri Makkar as Inspector when his pay exceeded the pay of applicant. In order to resolve the controversy arising out of such anomaly, the Central Board of Direct Taxes, New Delhi, issued the Instructions dated 13.5.1992 (Annexure A-4) in consultation with the Department of Personnel and Training. These instructions relate only to cadre of Inspector because of peculiar situation that two incumbents remain in one cadre and come to higher cadre one directly and another by circuitous route, i.e. by seeking promotion in different posts. A decision was taken that such anomaly in fixation of pay may be removed by stepping up the pay of a senior person equal to the level of junior person provided (i) the compared junior should have been qualified fully for the post of Inspector at the time when the senior is promoted directly as Inspector and (ii) the junior should have been promoted in the intermediate grades in the intervening period. Both these conditions in the present case are fulfilled, i.e. applicant had qualified examination of Inspector in the year 1968 while working as UDC and Shri P.P. Makkar qualified said examination in 1970 and he was junior to applicant in the cadre of UDC. Shri Sood applicant was promoted as Inspector and Shri Makkar was firstly promoted as Tax Assistant from UDC, then Head Clerk, and thereafter as Inspector and thus clarification issued by the CBDT fully applies to the case of the applicant. The learned Tribunal has recorded specific findings that CWP No.1684-CAT of 2007 -4- Fundamental Rules are applied where there are no specific rules or decisions/instructions issued by a particular department. If specific rules are framed for governing the rights of employees of a particular department, those rules will prevail over the Fundamental Rules. Thus decision dated 13.5.1992 taken by CBDT would prevail over the instructions issued by DOPT under FR22. Instructions of CBDT takes care of special circumstances in which a junior has been promoted in the intermediate grades before reaching to the post of senior, thereby creating anomaly. Such specific circumstance has not been dealt with under General Rules of FR22. Since Shri Makkar had qualified the examination on 31.7.1970 while applicant did so in 1968 itself and was directly promoted as Inspector on 31.12.1997, and as such order at Annexure A-1 was declared as illegal and was quashed as Annexure A-1 had failed to take into consideration the provisions of Annexure A-4. Ultimately, the O.A. was allowed and applicant was held entitled to benefit of Annexure A-2, i.e. stepping up of pay at par with his junior with arrears thereon and interest @ 6% per annum w.e.f. 22.1.2004. In the back drop of above, this writ petition has been filed by the petitioners. The questions to be determined in the present writ petition are (1) whether a specific policy decision would prevail over a general decision? (2) Is there an anomaly in the pay of the Applicant (Sh. R.K. Sood) vis-a-vis his junior Sh.P.P. Makkar in the cadre of Income Tax Inspector? And if yes, (3) Whether such an anomaly falls within the purview of the specific circular dated 13.5.1992, issued by the Central Board of Direct Taxes, New Delhi in consultation with the Government of India, Department of Personnel & Training, New Delhi (Annexure A-4) Or under general decision No.27 dated 4.11.1993, below Fundamental Rule-22. CWP No.1684-CAT of 2007 -5- The petitioner department has relied upon the decision No.27 dated 4.11.1993, below FR 22. A perusal whereof shows that it is general in nature and it governs only cases where promotion is from one cadre to another involving no promotion to an intermediate cadre. Whereas case in hand is a special case where junior has also been promoted as Inspector but after promotion as Tax Assistant and then Head Clerk. In the present case though there is no reference to pay in the cadre of UDC in the instructions dated 13.5.1992, yet for the sake of arguments if we see the position as on 31.12.1977, when applicant was promoted as Inspector he had been drawing same pay i.e. 476/- at par with Shri P.P. Makkar junior to applicant in the cadre of UDC in terms of data placed at Annexure A-3. After promotion of applicant, he continuously drew more pay than Shri Makkar even if they were in the different cadres and this continued till promotion of Shri Makkar to the post of Inspector and the anomaly arose only when Shri Makkar was promoted as Inspector when his pay exceeded that of applicant. The unfortunate aspect of the matter is that two Accounts Wings of the same department are giving contrary advice. Order dated 25.5.2004 (Annexure A-2) was issued by the competent authority, i.e. Chief Commissioner of Income Tax removing pay anomaly of applicant with his junior Shri Makkar, after getting the matter clarified from the Zonal Accounts Officer, Patiala, within whose jurisdiction the office of Chief Commissioner of Income Tax falls. The Zonal Accounts Officer, Amritsar had raised frivolous objection without any reference to specific instructions dated 13.5.1992 (Annexure A-4) and the same was upheld by petitioner No.2 relying upon general instructions, in the same manner. Thus, giving rise to filing of O.A. by the applicant. Though the case of the applicant is squarely covered by the CWP No.1684-CAT of 2007 -6- instructions dated 13.5.1992 (Annexure A-4), and it is a case of anomaly and the decision taken by the petitioner No.2 or the Zonal Accounts Officer, Amritsar was contrary to the instructions issued by the CBDT in consultation with DOPT. Such a decision cannot be allowed to stand and as such Tribunal rightly allowed Original Application with details reasons, therein and having discussed both the instructions, i.e. specific instructions dated 13.5.1992, and the general instructions dated 4.11.1993. Further, similar controversy arose in two cases relating to the cadre of Readers of this Court. Claim of the senior vis-a-vis her/his junior was allowed. Reference may be made to a decision of Division Bench of this Court in the case of Mrs. Krishna Goyal Vs. Hon'ble High Court of Punjab & Haryana, reported as 2006(6) SLR 557 and Chhaju Ram Hans Vs. Hon'ble High Court of Punjab and Haryana, reported as 2005 (4) SCT 208. In the case of Smt. Krishna Goyal (supra), the junior was drawing higher pay than the petitioner by virtue of coming to same post of Reader through different channel. The pay of her junior was higher even in the immediate feeder cadre. It was held that petitioner is entitled to re-fixation of pay at different steps from the date the same was granted to junior along with all the consequential benefits. Similarly, in the case of Chhaju Ram Hans (supra), it was held that a senior cannot be granted lesser pay than his junior. Recently, the Hon'ble Supreme Court also dealt with the issue in the case of Er. Gurcharan Singh Grewal & another vs. Punjab State Electricity Board & others, (Civil Appeal No.65-67 of 2009, decided on 9.1.2009). While dealing with the issue of difference in increment in the scales of senior and junior, it was held that same is contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. Even if there was a difference in the incremental benefits in the scale given to the appellant therein and the scale given to his CWP No.1684-CAT of 2007 -7- junior, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant was also stepped up to that of his junior. The very object is to bring pay of the appellant at par with that of his junior. The proposition of law laid down by this Court as well as Apex Court support the claim of the applicant. It is thus apparent that there was an anomaly in the pay of the Applicant Shri R.K. Sood, vis-a-vis his junior Shri P.P. Makkar in the cadre of Inspector and the anomaly fell within the purview of the specific circular dated 13.5.1992 (Annexure A-4) and this case was not to be dealt with under general Decision No.27 dated 4.11.1993, below FR-22, as was sought to be done by the petitioners. The specific policy decision, Annexure A-4 dated 13.5.1992, would prevail over Instructions dated 4.11.1993. As such, the reasoning adopted by the Tribunal to allow the Original Application is justified and reasonable and findings recorded by it are based on evidence on record and not perverse and as such require no interference by this Hon'ble Court. For the aforegoing reasons, this writ petition is dismissed. (ASHUTOSH MOHUNTA) JUDGE February 12, 2009 (NIRMALJIT KAUR) Gulati JUDGE