SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 1 of 10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT J O D H P U R ::: O R D E R ::: LRs of Ram Prasad Chechani v. State of Rajasthan & others S.B. CIVIL WRIT PETITION NO.1896 OF 1998 ::: Date of Order: 23rd March, 2009 ::: P R E S E N T HON'BLE MR JUSTICE GOVIND MATHUR Mr Tribhuvan Gupta, for the petitioner Mr R.L. Jangid, Addl. Advocate General for the respondents BY THE COURT: By this petition for writ, the petitioner claimed for stepping up of his pay as per provisions of rule 14(2)(a) of the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. A direction is also sought by the petitioner to allow him two additional grade increments as per provisions of rule 26A of the Rajasthan Service Rules, 1951 with effect from 13th September, 1994. SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 2 of 10 During pendency of the petition, petitioner Shri Ram Prasad Chechani died, thus, presently the matter is pursued by his legal representatives who were substituted as petitioner under an order dated 27th August, 2001. In brief, facts of the case are that the original petitioner (herein after referred as 'the petitioner') entered in the services of the Government of Rajasthan being appointed as Lower Division Clerk on 22nd March, 1959. He was subsequently selected for appointment as Accountant on 28th February, 1970. A promotion was accorded to him as Assistant Accounts Officer on 08th September, 1983. Further, a promotion was given to him as Accounts Officer in the year 1994. Grievance of the petitioner is that as Assistant Accounts Officer, fixation of his pay was made in the pay scale of Rs.1490- 3050 at Rs.2420/- on 01st September, 1986. On the same day, Shri Madan Lal Nuwal was also fixed in the pay scale of Rs.1490- 3050 at Rs.2420/-. The pay scale of Rs.1490-3050 stood revised with effect from 01st September, 1988, under the Pay Rules of 1989 and the revised pay scale was of Rs.2000-3200. Fixation of the petitioner as well as of Shri Madan Lal Nuwal as on 01st September, 1988 was in the same pay scale, however, despite SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 3 of 10 junior than the petitioner, Shri Madan Lal was fixed at Rs.2675/- on 01st November, 1988, whereas fixation of the petitioner's pay on that point was made on 01st March, 1989. The discrepancy aforesaid occurred as the date of increment of Shri Nuwal was 01st November, 1988. It is stated that appointment of the petitioner in cadre of Assistant Accounts Officer as well as Accounts Officer was made prior to aforesaid Shri Madan Lal Nuwal. As per averments contained in the petition for writ, the petitioner was promoted as Assistant Accounts Officer against vacancies of the year 1983-84 whereas Shri Madan Lal Nuwal was promoted to the post aforesaid against vacancies of the year 1985-86 and in the seniority list of Assistant Accounts Officer, names of the petitioner and aforesaid Madan Lal Nuwal were shown at serial Nos.114 and 241 respectively. It is asserted by learned counsel for the petitioner that the petitioner, being senior, is entitled to get his pay stepped up as per provisions of rule 14(2)(a) of the Rules of 1989, that reads as follows: “14. Removal of anomalies. ......... (2)(a) Where as a result of fixation of pay in the Revised Pay Scale under rule 11 of SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 4 of 10 these rules as a junior Government servant whose existing pay in the existing pay scale was equal to or less than the existing pay of his senior begins to draw more pay than his senior, the pay of such senior Government servant shall be stepped up equal to that of his junior from the date the pay of the junior person becomes more than that of his senior, subject to the fulfillment of the following conditions: (i)Both junior and senior Government servants belong to the same cadre/service or class of posts and serving in the same department and were drawing pay in the same time scale of pay before fixation of pay in the revised pay scales. (ii) The anomaly is directly attributable to fixation of pay under these rules only. (iii) The authority competent to make substantive appointment on that post certifies that there i sno dispute about the inter se seniority of senior/junior Government servants. (iv) The appointment/promotion of the junior Government servant is regular and in accordance with provisions of relevant service rules issued under proviso to Article 309 of the Constitution or where no rules regulating conditions of service have been framed under proviso to Article 309 of the Constitution or where a post/posts have not been included in the Schedule appended to the rules regulating recruitment and conditions of service, the appointment/promotion has been made in accordance with the orders issued by the Government from time to time, if any. If the junior Government servant is holding a post on officiating basis as a result of urgent and temporary appointment made under service rules issued under proviso to Article 309 of the Constitution and the pay of the senior Government servant has been stepped up SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 5 of 10 under this sub-rule, the stepping up of pay of senior Government servant shall be done with the condition that if the urgent/temporary appointment of a junior Government servant is not regulated or converted into a regular appointment according to the service rules applicable to him and he is thereby reverted, the pay of the senior Government servant from the date of reversion of junior Government servant shall be re-fixed at a stage at which he would have drawn, but for stepping up of his pay under this sub-rule.” Besides above, it is also contended by learned counsel for the petitioner that the petitioner was promoted as Accounts Officer against vacancies of the year 1994-95 and he actually joined the post aforesaid on 13th September, 1994 in the pay scale of Rs.3200-4000, his fixation was made at Rs.3300/- as per note-4 to rule 26A of the Rules of 1951. According to the petitioner, while making his promotion as Accounts Officer, the respondents should have allowed two additional increments as per rule 26A of the Rules of 1951 and as such, his pay should have been fixed at Rs.3700/-. Per contra, as per respondents both the claims made by the petitioner are unsustainable as Shri Madan Lal Nuwal entered in service of respondents as Lower Division Clerk on 04th October, 1957 and as such, there was no reason to treat him junior to petitioner. It is also pointed out by placing reliance SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 6 of 10 upon a document Annx.R1/1 that Shri Madan Lal Nuwal was getting higher pay than petitioner on 01st September, 1976 while working in the pay scale of Rs.500-900. It is also stated that a selection grade was also granted to the petitioner relating to post of Assistant Accounts Officer in the month of March, 1992, therefore, on promotion, his pay was required to be fixed as per Note-4 to rule 26A of the Rules of 1951. Note-4 to rule 26A of the Rules of 1951 prescribes that in cases where a government servant gets his regular promotion after getting selection grade (identical to or lower than the pay scale of the promotion post) at the equal stage and if there is equal stage, at the next higher stage and where the selection grade (second or third) already granted to a government servant is higher than the pay scale of promotion post, the government servant shall continue to draw pay in the selection grade and his pay shall not be fixed in the pay scale of the promotion post. In the present case, as per respondents the pay scale pertaining to the post of Accounts Officer was already given to the petitioner in March, 1992, as such, his fixation as per Note-4 to rule 26A of Rules of 1951 was rightly made. Heard learned counsel for the parties. SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 7 of 10 It is not in dispute that the petitioner was appointed as Accountant on 28th February, 1970 as a consequence of regular selection process whereas Shri Madan Lal Nuwal was working as Lower Division Clerk since 04th October, 1957. A promotion was given to the petitioner as Assistant Accounts Officer in the year 1983 whereas promotion to Shri Madan Lal Nuwal on the same post was accorded in the year 1986. After promotion as Assistant Accounts Officer, petitioner's pay was fixed at Rs.1060/- on 01st March, 1982. The same pay-point was given to Shri Madan Lal Nuwal on 01st November, 1981. Shri Madan Lal Nuwal was promoted as Assistant Accounts Officer only in the year 1986 and as such, he came in the pay scale equivalent to pay scale granted to the petitioner in the year 1986 only. The pay of the petitioner as well as of Madan Lal Nuwal, as on 01st September, 1986 in the cadre of Assistant Accounts Officer, was at Rs.2420/-. On revision of pay, both the persons named above were kept in same pay scale on 01st September, 1988. It is not in dispute that the petitioner was quite senior than Shri Madan Lal Nuwal in the cadre of Assistant Accounts Officer. However, only for the reason that his date of increment was coming in the month of November, 1988, he marched over petitioner by getting increment in the pay scale of SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 8 of 10 Rs.2000-3200 on 01st November, 1988 whereas the petitioner earned increment on 01st March, 1989 and that resulted in disparity in pay. To meet such exigency, rule 14(2)(a) of the Rules of 1989 prescribes that wherever because of fixation of pay in the revised pay scales any disparity appears then pay scale of senior is required to be stepped up. In the instant matter, disparity in the pay occurred totally due to fixation in revised pay and due to a fortuitous reason, therefore, the petitioner was certainly entitled to get his pay stepped up as per rule 14(2)(a) of the Rules of 1989. It is well settled that a person senior in a cadre is required to get pay higher or at least equivalent to his junior, if no justifiable reason is available contrary to that. In the instant matter, I do not find any justifiable reason available with the respondents to continue a person junior than the petitioner at a higher pay point. The respondents should have stepped up petitioner's pay at pay point of Rs.2675 on 01st November, 1988 itself, being senior to Shri Madan Lal Nuwal. SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 9 of 10 So far as second claim of the petitioner, with regard to extension of benefit of rule 26A of the Rules of 1951, is concerned; it is pertinent to note that the petitioner received selection grade, that is, pay scale equivalent to pay scale applicable to the post of Accounts Officer in the month of March, 1992. Note-4(i) given below rule 26A prescribes a mode for making fixation of pay in such exigency and the petitioner's pay was fixed accordingly. I do not find any just reason available to allow two additional increments to the petitioner on being promoted as Accounts Officer in the year 1994. The fixation of the petitioner's pay was made in the pay scale of Accounts Officer, as a matter of fact, in that he was already running on grant of selection grade. As such, this petition for writ deserves acceptance to the extent claim made by the petitioner- late Shri Ram Prasad Chechani, for getting his pay stepped up to pay point of Rs.2675/- as on 01st November, 1988 only. Accordingly, this petition for writ is allowed in part with a direction to the respondents to make fixation of pay of late Ram Prasad Chechani at Rs.2675/- in the pay scale of Rs.2000-3200 on 01st November, 1988, the date on which the same pay-point was given to Shri Madan Lal Nuwal. The petitioner is declared entitled for all consequential benefits. SBCWP No.1896/98 – Lrs of Ram Prasad Chechani v. State of Rajasthan & another Date of Order: 23.03.2009 10 of 10 Whatever benefits accrue to the petitioner, be given to his legal representatives, who have already been substituted as petitioners. No order as to costs. [GOVIND MATHUR],J. mma