1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Panna Lal v. State of Rajasthan & Anr. D.B.CIVIL SPECIAL APPEAL NO.211/1995 against the judgment dated 2.9.1994 passed by learned Single Judge. Date of Judgment :: 21st May, 2009 P R E S E N T HON'BLE MR.JUSTICE N.P.GUPTA HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.S.Singhvi for the appellant. Mr. G.R.Punia ] Mr. Vimal Mathur] for the respondents. .... BY THE COURT : (PER HON'BLE GOVIND MATHUR,J.) The short question, that arises for determination in this appeal, is whether the respondents rightly denied to step up pay of the appellant though a person junior to him in the cadre of Pump Driver Grade-I was drawing higher pay? The facts which are relevant to be noticed are as follows:- On 22.5.1968 an appointment was given to the appellant as Helper on work charge basis and w.e.f. 1.4.1971 he was taken on regular cadre of the post 2 concerned under Rajasthan Engineering Subordinate (Public Health Branch) Rules, 1967 (hereinafter referred to as “the Rules of 1967”). Promotions were accorded to him as Pump Driver Grade-III and Pump Driver Grade-II on 15.2.1975 and 30.8.1978 respectively. Against vacancies of the year 1987-88 a promotion was given to him as Pump Driver Grade-I, by an order dated 31.7.1992. In a seniority list dated 24.5.1983 pertaining to the Pump Drivers Grade-II as on 31.3.1982 the appellant was placed at serial No.35, whereas seniority to one Shri Vishanlal was assigned at serial No.38. Through a representation dated 4.12.1992 the appellant claimed for stepping up of his pay with assertion that Shri Vishanlal despite being junior to him was getting pay at higher point. The claim so made stood rejected vide letter dated 21.5.1993 by Additional Chief Engineer, Public Health & Engineering Department, Bikaner on the count that the pay of Shri Vishanlal against the service rendered in work charge cadre was protected as per Government of Rajasthan's order dated 18.3.1988 and, therefore, he was getting higher pay. The respondents also denied for stepping up of the appellant's pay being not permissible as per Rule 32 of the Rajasthan Service Rules, 1951. The challenge given by the appellant to the decision aforesaid by way of filing a petition for writ before this Court failed vide judgment dated 3 2.9.1994 with reason that “the petitioner become Pump Driver Gr.II on 30.8.78, whereas, the said Vishan lal was working as Pump Driver Gr.II prior to that date, thus, the decision is of no help to the petitioner, in view of the fact that the claim is highly belated as also there is no violation of Article 14 is made out”, hence this appeal is preferred. The petition for writ was dismissed in limine, thus, while contesting this appeal, a reply tot he writ petition has been filed by the respondents stating therein that Shri Vishanlal initially entered in service as Helper Grade-I on 20.2.1968 in work charge cadre and a promotion was given to him as Pump Driver Grade-II on 21.4.1975. He was directly recruited to the post of Pump Driver Grade-II under the Rajasthan Engineering Subordinate Service (Public Health Branch) on 6.11.1978, however, his pay against the services rendered in work charge cadre was protected, as such on 6.8.1978 his fixation was made at Rs.375/- in the applicable pay scale i.e. Of Rs.295-500. The appellant at that time was having fixation at Rs.303/- in the same pay scale. According to the respondents the pay of the Shri Vishanlal was protected as per Government of Rajasthan's notification dated 18.3.1988. In rejoinder, the appellant in general reiterated the facts stated in petition for writ. 4 Heard counsel for the parties. At the threshold, counsel for the appellant quite fairly accepted that Rule 32 of the Rajasthan Service Rules, 1951 is having no application in the instant case, however, by placing reliance upon a Division Bench judgment of this Court in University of Jodhpur v. Dr.C.M.Joshi, DBCivil Special Appeal No.127/94, decided on December 11, 1995, it is contended that doctrine of justice and fair play requires that the person who is higher in seniority should not draw less salary. The status of a senior person in the matter of fixation of emoluments is required to be safeguarded and it would be quite unfair to fix a senior person in lower pay slab than that of a junior employee. To substantiate the contention, reliance is also placed by counsel for the appellant upon judgments of Hon'ble Supreme Court in Union of India & Ors. v. P.Jagdish & Ors., reported in 1997(3) SCC 176 and Punjab State Electricity Board & Ors. v. Gurmail Singh, reported in 2008(7) SCC 245. The factual position that Shri Vishanlal was employed as Helper in work charge cadre prior to the appellant is also not in dispute so also the fact that Shri Vishanlal was promoted as Pump Driver Grade-II on 21.4.1975 in work charge cadre is not in dispute. The stress given by counsel for the appellant is that on being employed as Pump Driver Grade-II by way of 5 direct recruitment to Rajasthan Engineering Subordinate Service (Public Health Branch) on 6.11.1978, Shri Vishanlal was placed at lower seniority vis-a-vis the appellant and, therefore, if higher pay is given to a person junior than such disparity in grant of pay is required to be removed by stepping up of the seniors pay. In Union of India v. P.Jagdish (supra) a person throughout senior was deprived of special pay attached to certain identified posts and the special pay relating to the post aforesaid was protected while giving promotions to the junior persons on higher post and that resulted into disparity in pay on the higher post. Hon'ble Apex Court held that as per fundamental Rule 22 the principle of stepping up becomes applicable when the junior officer and 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 get a higher pay. In the present case the appellant was promoted to the post of Pump Driver Grade-II, however, Shri Vishanlal was a direct recruit and as such the analogy settled in the case aforesaid is having no application. So far as Punjab State Electricity Board v. Gurmail Singh's case (supra) is concerned, that is of no assistance to the appellant as in that case relief 6 was accorded to the employees while exercising powers under Article 142 of the Constitution of India and such power is not available to this Court. True it is, in University of Jodhpur v. Dr.C.M.Joshi, a Division Bench of this Court quite broadly held that “the doctrine of justice and fair play requires that the person, who is higher in merit does not draw less salary. The status of the senior or more meritorious candidate in the matter of fixation of emoluments vis-a-vis person, who is placed in lower merit in the same scale is required to be safeguarded. It would be quite unfair to fix him in a lower pay slab than that of lesser meritorious and junior candidate”, however, it is also well settled that a junior person may receive higher pay than his senior for justifiable reasons. Hon'ble Supreme Court in State of Andhra Pradesh & Ors. v. G.Sreenivasa Rao & Ors., reported in 1989(2) SCC 290, held that “ordinarily grant of higher pay to a junior would ex- facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar, when advance increments are given for 7 experience/passing a test/acquiring higher qualifications or as incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved”. (Emphasis given.) In Union of India & Ors. v. Sushil Kumar Paul & Ors., reported in 1998(5) SCC 268, it was also held by Hon'ble Supreme Court that if a junior officer draws a higher pay in the lower post either because of advance increments or on any other account, then the provisions of stepping up would not apply in such case. In the present case pay of Shri Vishanlal was protected in accordance with law for the services rendered by him in work charge cadre. Shri Vishanlal was holding the post of Pump Driver Grade-II in work charge cadre since 1975 and, therefore, he earned higher number of increments in the pay scale concerned than the present appellant. The disparity alleged occurred because of the pay protection extended to Shri Vishanlal as per the Government of Rajasthan's order dated 18.3.1988 and as such a justifiable reason is available for allowing higher pay to him than the appellant. 8 For the reasons stated above, we do not find any wrong with the order passed by learned Single Judge. Accordingly, the appeal is having no merit and, thus, is dismissed. ( GOVIND MATHUR ),J. ( N.P.GUPTA ),J. kkm/ps