IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5138/2008 Reserved on: 18.10.2010 Decided on:27.10.2010 _____________________________________________ Jeet Ram Panwar and others. Petitioners. Versus Himachal Pradesh State Electricity Board. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the petitioners : Mr. Subhash Sharma, Advocate. For the Respondent: Ms. Anjula Khajuria, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that petitioners No. 1 to 5 were appointed as Upper Division Clerks on 18.7.1973, 31.7.1973, 22.7.1973, 3.8.1973 and 27.7.1973, respectively. They were promoted to the post of Head Clerk on 14.10.1988. Seniority list of Upper Division Clerks was circulated in the year 1982. It was challenged by the petitioners and other Upper Division Clerks before the erstwhile Himachal Pradesh Administrative 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Tribunal. The learned Tribunal decided the original application, titled Gopal Singh and others vs. Himachal Pradesh State Electricity Board on 23.12.1996. In sequel thereto, respondent-Board promoted 14 Upper Division Clerks to the post of Head Clerks. Persons, namely, Tirath Ram, Vijay Singh, Ganga Ram Prasar and Chander Singh Mandyal, who were appointed as Upper Division Clerks on 2.8.1973, 17.12.1973, 15.11.1973 and 15.10.1973, respectively were also promoted as Head Clerks vide letter dated 9.2.1996. They were promoted with effect from 26.10.1989. However, the recoveries were not effected from them on the basis of letter dated 1.8.1996. Respondent-Board issued fresh orders on 9.4.1997 vide Annexure A-7. Text of letter dated 9.4.1997 reads thus: “The above promotion shall however, be on notional basis from 26.10.1989 and in case any loss is caused to the official(s) due to application of this order, they will have the option to forego notional fixation of pay on their actual taking over as Head Clerk/Head Asstts./Asstts./I.As (now designated as Supdt. Gr-II) and opt for their pay fixation on the existing emoluments on actual promotion as such.” 2. In the meantime, post of Head Clerk was re- designated as Superintendent Grade-II. Final seniority list of Superintendent Grade-II, as it stood on 1.1.1998, was issued on 28.10.1998. Petitioners figure at Sr. No. 119, 123, 124, 3 125 and 127, respectively of the seniority list and the persons, namely, Tirath Ram, Vijay Singh, Ganga Ram Prasar and Chander Singh Mandyal figure at Sr. No.128, 130, 132 and 135, respectively. However, in view of issuance of Annexure A-7 dated 9.4.1997 and since they had already been granted proficiency step up, the persons junior to the petitioners were drawing higher salary. Petitioners made representation to the respondent-Board and the same was rejected on 11.1.2000. 3. Mr. Subhash Sharma has strenuously argued that respondent-Board has not removed the anomaly since according to him, petitioners being senior to Tirath Ram, Vijay Singh, Ganga Ram Prasar and Chander Singh Mandyal are getting less salary. 4. Ms. Anjula Khajuria has vehemently argued that since petitioners had been promoted before they had completed 18 years of service and they had also opted for old master pay scales, no anomaly had arisen. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. What emerges from the facts enumerated hereinabove is that petitioners were promoted to the post of Head Clerks before Tirath Ram, Vijay Singh, Ganga Ram Prasar and Chander Singh Mandyal on 14.10.1988. These 4 persons were promoted after the revision of the seniority list pursuant to the direction issued by the learned Tribunal in OA No. 420/1988 on 23.12.1996. However, they were promoted only with effect from 26.10.1989. The fact of the matter is that these persons were granted proficiency step up after completion of 18 years of service and were also given the benefit of FR 22-C. The decision not to effect the recoveries from Tirath Ram, Vijay Singh, Ganga Ram Prasar and Chander Singh Mandyal was taken as per Annexure A-6, however, the benefit was restored to them vide Annexure A-7 dated 9.4.1997. Final seniority list of Superintendent Grade-II in the pay scale of Rs. 6750-11050, as it stood on, 1.1.1998, abundantly makes it clear that the petitioners are ranking senior to Tirath Ram, Vijay Singh, Ganga Ram Prasar and Chander Singh Mandyal. Respondent-Board has admitted in the reply that the anomaly had arisen in the pay scale of the petitioners vis-à-vis persons mentioned hereinabove. Primary reason assigned for the anomaly is that it had occurred due to non-admissibility of benefit of second proficiency step up on completion of 18 years of service on a post/scale and the petitioners had opted for old revised master scale as per letter dated 5.6.1995. Petitioners’ basic pay as on 1.1.1999 was Rs. 9700 though they ranked senior to Tirath Ram, Vijay Singh, 5 Ganga Ram Prasar and Chander Singh Mandyal. However, these persons have been granted pay scale of Rs. 10,000/- as on 1.1.1999. 7. It is settled law by now that junior person cannot draw higher salary than the senior. In the instant case, persons, namely, Tirath Ram, Vijay Singh, Ganga Ram Prasar and Chander Singh Mandyal were getting higher salary vis-à- vis petitioners. In these circumstances it was necessary for the respondent-Board to step up the salary of the petitioners to remove the existing anomaly in the pay scale. It may be true that the petitioners have been promoted to the higher post before the completion of 18 years of service and in these circumstances they were not given proficiency step up. Persons junior to the petitioners had completed 18 years of service without promotion and they were given proficiency step up. However, they were subsequently promoted though on notional basis with effect from 26.10.1989 and they were also given benefit of FR 22-C. It is in these circumstances that the petitioner started getting lesser pay vis-à-vis their juniors. Petitioners could not visualize in the year 1995 that they will get lesser pay vis-à-vis their juniors, if they opt for old master pay scales. The anomaly had arisen, as noticed above, due to non-admissibility of second proficiency step on 6 completion of 18 years of service to the petitioners though the persons junior to them had been granted the benefit of proficiency step up on completion of 18 years of service on a post/scale as well as on the basis of giving them benefit of FR 22-C. 8. The fact of the matter is that senior cannot be paid lesser salary than his junior and this principle has been reiterated by their Lordship of the Hon’ble Supreme Court in Er. Gurcharan Singh Grewal and another versus Punjab State Electricity Board and others, 2009 (1) Scale 535. Their Lordships have held as under: “17. Something may be said with regard to Mr. Chhabra’s submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2” 9. Accordingly, in view of the observations made hereinabove and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petition is allowed. Letter dated 11.1.2000 is quashed and set aside. 7 Respondent-Board is directed to remove the anomaly by giving the benefit of stepping up of pay to the petitioners from the due date along with interest @ 7% per annum. Needful be done within a period of twelve weeks from the date of production of certified copy of this judgment by the petitioners. No costs. (Rajiv Sharma), Judge 27.10. 2010 *awasthi*