IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 10013 with CWP(T) No. 10014 & CWP(T) No. 10015 of 2008. Judgment Reserved on 24.05.2011. Date of decision: 16.06.2011. _______________________________________________________ 1. CWP(T) No. 10013 of 2008. Surjit Singh ….. Petitioner. Versus State of H.P. & Ors. …. Respondents. 2. CWP(T) No. 10014 of 2008. Ravinder Kumar. ….. Petitioner. Versus State of H.P. & Ors. …. Respondents. 3. CWP(T) No. 10015 of 2008. Madan Lal. ….. Petitioner. Versus State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner (s) : Mr. Ranjan Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl.A.G. with Mr. J.S.Rana, Asstt. A.G. Kuldip Singh, Judge. This judgment shall dispose of CWP (T) No. 10013 of 2008, CWP (T) No. 10014 of 2008 and CWP (T) No. 10015 of 2008 as common question of law is involved in all the three petitions. 2. The petitioner(s) in substance have prayed fixation of their pay at par with their junior Vijay Singh from the date of his appointment on 30.03.1998 and release the arrears to them along with interest at Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 the rate of 18% per annum from 30.03.1998 onwards. The petitioner(s) have prayed for quashing of orders rejecting their claim for fixation of pay scales at par with Vijay Singh. In alternative, they have also prayed that the cut off date for denying the benefit of their pay fixation from 01.01.1996 may be set aside. 3. The petitioner in CWP (T) No. 10013 of 2008 was enrolled in the Army on 26.12.1976 and was discharged on 31.12.1991.He had rendered approved military service of 15 years in the Army. He was appointed as a JBT on 06.10.1993 in the pay scale of `1200-2100/-. The petitioner was given benefit of 15 years of approved military service and was fixed at `1900/- on 16.04.1998 in the pay scale of ` 1200-2100/- from the date of his appointment on 06.10.1993. The respondent No.1 had issued Himachal Pradesh Civil Service (Revised Pay) Rules on 20.01.1998 which were made effective from 01.01.1996. The scale of JBT teachers was revised from ` 1200-2100/- to ` 4550- 7220/- and the petitioner was fixed at ` 6200/- on 01.01.1996. One Vijay Singh ex-serviceman, who had rendered 15 years approved military service was also appointed as a JBT against reserve vacancy on 30.03.1998 and he was fixed at ` 7220/- in the pay scale of ` 3950-7220/- after giving him benefit of approved military service of 15 years. 4. The petitioner made representations for stepping up of his pay at par with his junior Vijay Singh, but such representations were rejected vide Annexure A-3 dated 07.10.2002 and Annexure A-4 dated 30.11.2002. It has been alleged that Annexure A-3 and Annexure A-4 are wrong, illegal and violative of Articles 14, 16 of the Constitution. Vijay Singh being admittedly junior to the petitioner but drawing more 3 pay and, therefore, petitioner is entitled to stepping up of his pay at par with Vijay Singh. 5. The petitioner in CWP (T) No. 10014 of 2008 was enrolled in the Army on 09.05.1973 and was discharged therefrom on 31.05.1988. He had rendered approved military service of 15 years and 22 days in the Army. He was appointed as a JBT on 10.01.1990 in the pay scale of ` 1200-2100/-. He was given benefit of 15 years of approved military service by giving 15 increments and he was fixed at ` 1680/- in the pay scale of ` 1200-2100/- from the date of his appointment on 10.01.1990. On revision of pay scales, he was fixed at ` 6200/- in the pay scale of ` 4550-7220/- on 01.01.1996. On 01.03.1998 his basic pay was ` 6800/-. He has also claimed parity with Vijay Singh, ex-serviceman, who is junior to him for fixation of pay at ` 7220/- on 30.03.1998 in the pay scale of ` 4550-7220/- who has been given benefit of 15 years of approved military service for fixation of his pay at ` 7220/- on 30.03.1998. 6. The petitioner made representation which was rejected on 07.10.2002 and on the basis of decision dated 07.10.2002 the respondent No.2 directed Deputy Director, Primary Education, Kangra at Dharamsala to decide the cases in terms of decision dated 07.10.2002. It has been alleged that decisions dated 07.10.2002 Annexure A-4 and 30.11.2002 Annexure A-5 are wrong, illegal and violative of Articles 14, 16 of the Constitution. The petitioner is senior to Vijay Singh, but Vijay Singh is drawing more pay and, therefore, petitioner is entitled to stepping up of his pay at par with Vijay Singh. 7. The petitioner in CWP (T) No. 10015 of 2008 was enrolled in the Army on 09.11.1970 and was discharged on 08.05.1986. He had 4 rendered approved military service of 15 years and 22 days in the Army. He was appointed as a JBT on 05.05.1989. He was given the benefit of 15 years of approved military service by giving him 15 increments. He was fixed at ` 1680/- on 05.05.1989 in the pay scale of ` 1200-2100/-. On revision of pay scale, the petitioner was fixed at ` 6200/- on 01.01.1996 in the pay scale of ` 4550-7220/-. The basic pay of the petitioner was ` 6800/- as on 01.03.1998. He has also stated that Vijay Singh, who was appointed on 30.03.1998 has been fixed at ` 7220/- in the pay scale of ` 4550-7220/-. It has been alleged that Vijay Singh is junior to him and, therefore, he is entitled to parity of pay equal to Vijay Singh. It has been submitted that his representations were rejected vide Annexure A-4 dated 07.10.2002 and Annexure A-5 dated 30.11.2002 wrongly, illegally and arbitrarily. He has claimed parity of pay with Vijay Singh, who is junior to him. 8. The respondents have filed replies in all the petitions and contested the claims of the petitioner(s). In CWP (T) No. 10013 of 2008 the stand taken by the respondents is that in view of clarification issued by the Government vide letter dated 07.10.2002, the petitioner is not entitled for stepping up of pay as claimed by him. FR 22 also restricts the stepping up of pay of the petitioner at par to his junior. The pay fixation of the petitioner was, therefore, approved by the Government as per existing provisions after giving benefit of 15 years of approved military service, hence pay of the petitioner was fixed at ` 1900/- in the pay scale of ` 1200-2100/-. Vijay Singh ex-serviceman appointed as JBT on 30.03.1998 was fixed at ` 7220/- in the pay scale of ` 4550-7220/-. The pay of Vijay Singh was fixed in the revised scale applicable as on 01.01.1996 after adding 15 increments 5 to his approved military service. The respondents have defended the decisions dated 07.10.2002 and 30.11.2002. The respondents in CWP (T) No. 10014 of 2008 and CWP (T) No. 10015 of 2008 have filed replies on the same lines as filed by them in CWP (T) No. 10013 of 2008. 9. I have heard the learned counsel for the parties. The learned counsel for the petitioner(s) has submitted that all the petitioner(s) have rendered more than 15 years of approved military service so also Vijay Singh. The petitioner(s) and Vijay Singh were appointed on the posts of JBT. The petitioner(s) were appointed prior to 01.01.1996. The pay-scales were revised with effect from 01.01.1996. Vijay Singh was appointed as JBT on 30.03.1998 and was fixed at ` 7220/- in the pay scale of ` 4550-7220/-. The petitioner(s) were drawing less pay in comparison to Vijay Singh on 30.03.1998 as they were fixed at lower pay. He has submitted that respondent No.1 has taken wrong, illegal stand while fixing the pay of the petitioner(s) and not giving petitioner(s) parity with the pay at which Vijay Singh their junior was fixed on 30.03.1998. The learned Additional Advocate General has supported the decisions dated 07.10.2002 and 30.11.2002. She has submitted that petitioner(s) and Vijay Singh do not constitute one class. The petitioner(s) were appointed before the revision of pay scales on 01.01.1996 and on revision they were fixed in the revised pay scale after 01.01.1996 correctly. The case of Vijay Singh is absolutely different who was appointed on 30.03.1998 when revised pay scale with effect from 01.01.1996 was already in force. He was not given any extra benefit while fixing his pay. The petitioner(s) cannot equate their cases with the case of Vijay Singh. 6 10. The learned counsel for the petitioner (s) has relied Note 10 below Rule 7 of CCS (RP), Rules, 2008 which is as follows:- “In cases, where a Government servant promoted to a higher post before the 1st day of January, 2006, draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day of January, 2006, the pay in the pay band of the senior Government servant should be stepped up to an amount equal to the pay in the pay band as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfillment of the following conditions, namely:- (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 of pay and the revised grade pay of the lower and higher posts in which they are entitled to draw pay, should be identical. (c) the senior Government servants 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 pay structure. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, provisions of this Note need not be invoked to step up the pay of the senior officer. Subject to the provisions of Rule 5, if the pay as fixed in the officiating post under sub-rule (1) is lower than the pay 7 fixed in the substantive post, the former shall be fixed at the same stage as the substantive pay.” 11. The learned counsel for the petitioner(s) has also relied Note 9 below Rule 7 of CCS(RP) Rules, 1997 which is as follows:- “In cases, where a Government servant promoted to a higher post before the 1st day of January, 2006, draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day of January, 2006, the pay in the pay band of the senior Government servant should be stepped up to an amount equal to the pay in the pay band as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfillment of the following conditions, namely:- (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 of pay and the revised grade pay of the lower and higher posts in which they are entitled to draw pay, should be identical. (c) the senior Government servants 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 pay structure. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, provisions of this Note need not be invoked to step up the pay of the senior officer. 8 2. The order relating to refixation of the pay of the senior officer in accordance with the above provisions should be issued under FR 27 and the senior officer will be entitled to the next increment on completion of his required qualifying service with effect from the date of refixation of pay.” 12. The aforesaid Notes 9 and 10 below Rule 7 of CCS (RP) Rules, 1997 are applicable when the government servant has been promoted to a higher post, but he is drawing less pay in the revised pay structure than his junior. The anomaly in the pay fixation of the petitioner(s) and Vijay Singh has not cropped up on account of promotions of petitioner(s) and Vijay Singh. The anomaly in the pay fixation of petitioner(s) and Vijay Singh has arisen on account of the fact that petitioner(s) were appointed before 01.01.1996 and Vijay Singh was appointed after 01.01.1996. On 01.01.1996 the pay scale of JBT was revised. The petitioner(s) were fixed after giving them benefit of approved military service before revision of pay scale on 01.01.1996. Vijay Singh was fixed in the pay scale after giving him benefit of approved military service after revision of pay scale on 01.01.1996. 13. The learned counsel for the petitioner(s) has relied Gurcharan Singh Grewal and Another versus Punjab State Electricity Board and Others (2009) 3 SCC 94, the Supreme Court after noticing the contentions has held as follows:- “15. Mr. Chhabra also attempted to justify the disparity in the pay of Shri Shori and Appellant 1 by urging that Appellant 1 had been granted the promotional scale with effect from 1-1-1996, where the benefits of increment in 9 the scale were lower. On the other hand, Shri Shori who joined the services of the Board in 1974, was granted the promotional scale on 17-5-2006, with effect from 1-9-2001, when the increments and the pay scales were higher. Mr. Chhabra submitted that it is the disparity in the incremental benefits that led to the anomaly of Appellant 1 getting a lower salary in the promotional scale.” “17. Something may be said with regard to Mr. Chhabra’s submissions about the difference in increment in the scales in which Appellant 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 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 Appellant 1 was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant 2.” 14. The perusal of Gurcharan Singh Grewal(supra) indicates that it was also a case of promotion. But, in para 17 of the judgment, the Supreme Court has held that it is a settled principle of law that a senior cannot be paid a lesser salary than his junior, with further observation that in such circumstances, even if there was a difference in the incremental benefits in the scale given to appellant No.1 and the scale given to Shri Shori in that case, 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. 15. Thus, applying the principle laid down by the Supreme Court in Gurcharan Singh Grewal(supra), it can be safely concluded 10 that petitioner(s) who are senior to Vijay Singh are entitled to pay parity with Vijay Singh as on 30th March, 1998 when Vijay Singh was appointed as JBT. The petitioner(s) are also entitled to pay fixation equal to the pay of Vijay Singh on 30.03.1998 by stepping up their pay equal to the pay of Vijay Singh. Hence, Annexure A-3 dated 07.10.2002 and Annexure A-4 dated 30.11.2002 in CWP (T) No. 10013 of 2008 and Annexure A-4 dated 07.10.2002 and Annexure A- 5 dated 30.11.2002 in CWP(T) No. 10014 of 2008 and CWP (T) No.10015 of 2008 are liable to be quashed. 16. In view of above discussion CWP (T) No. 10013 of 2008, CWP (T) No. 10014 of 2008 and CWP (T) No.10015 of 2008 are allowed. Annexure A-3 dated 07.10.2002 and Annexure A-4 dated 30.11.2002 in CWP (T) No. 10013 of 2008 and Annexure A-4 dated 07.10.2002 and Annexure A-5 dated 30.11.2002 in CWP(T) No. 10014 of 2008 and CWP (T) No.10015 of 2008 are quashed. The respondents are directed to fix the pay of the petitioner(s) in each petition equal to the pay of Vijay Singh their junior at which pay Vijay Singh was fixed on 30.03.1998 within a period of two months from the date of supply of copy of this judgment by the petitioner(s) to the competent authority and within the same period the respondents shall release the arrears, if any, to the petitioner(s) as a result of fixation of their pay at par with Vijay Singh. No costs. June 16, 2011. (Kuldip Singh), ( krt) Judge.