IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-11-2008 CORAM : THE HONOURABLE MR. JUSTICE P.K. MISRA and THE HONOURABLE MR. JUSTICE A. KULASEKARAN W.P. No. 28859 of 2004 1. Union of India rep. by the General Manager Southern Railway Park Town, Chennai – 600 003 2. The Divisional Personnel Officer Southern Railway Tiruchirapalli Junction 3. The Divisional Commercial Manager Southern Railway Tiruchirappli Junction 4. The Divisional Accounts Officer Southern Railway Tiruchirapalli Junction .. Petitioners Versus 1. The Registrar Central Administrative Tribunal Madras Bench Chennai – 600 104 2. A. Dhanapal 3. D. Karunakar 4. P. Navaneetha Krishnan 5. K. Ponmudi 6. P. Umapathi .. Respondents Prayer : Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari calling for the entire records of the first respondent in O.A. No. 914 of 2003 including the Order dated 16.06.2004 and quash the same. For Petitioners : Mr. V.G. Suresh Kumar For Respondents : Mr. S. Ramachandran for RR3 & 5 Mr. Ar.L. Sundaresan, Sr. Counsel for Ms. Al. Ganthimathi for RR2 & 4 No appearance for R6 https://hcservices.ecourts.gov.in/hcservices/ ORDER A. KULASEKARAN, J The respondents 1 to 4 in O.A. No. 914 of 2003 on the file of Central Administrative Tribunal, Madras Bench, are the Petitioners herein. The said Original Application was filed by the respondents 2 to 5 herein seeking the relief of fixing their pay on par with the sixth respondent herein, who was junior to them, as per the seniority list published by the second petitioner in his letter NOT/P.612/ III/TC/Vol.2 dated 30.09.2002. 2. The respondents 2 to 5 have canvassed before the Tribunal that the second respondent was promoted as Chief Traveling Ticket Inspector, hereinafter referred to as CTTI on 15.02.1995; the third respondent was promoted to the said post on 30.12.1985; the fourth respondent was promoted on 25.05.1987; the fifth respondent was promoted on 25.05.1987 and the sixth respondent was promoted on 17.08.1989, all in the scale of pay of Rs.6500-10500; that the respondents 2 to 5 were getting lesser pay than the sixth respondent, though he was promoted only on 17.08.1989 and pointing out the same, they sent representations dated 18.11.2002 and 27.01.2003, which were not considered by the petitioners, hence, the said O.A. was filed before the Tribunal. 3. The petitioners herein have contested the Original application stating that the provisional seniority list dated 30.09.2002 was published and representation from the aggrieved employees were called for by extending the time limit of one month upto 31.10.2002; that the respondents 2 to 5 have sent their representation on 18.11.2002; that the sixth respondent belongs to Schedule Tribe (ST) community and he was promoted to the post of CTTI in the scale of Rs.700-900(III PC)/2000- 3200(IV PC) with effect from 01.01.1984 against the ST shortfall in the restructured post; that the respondents 2 to 5 were promoted to the said CTTI post in the scale of pay of Rs.700-900 from 30.12.1985 onwards which was the reason for their drawing lesser pay; that while fixing pay to all the respondents in the V Pay Commission, corresponding increase was made, based on it, the sixth respondent's pay was fixed at Rs.8,900/- with effect from 01.01.1996 and similarly others pay were also fixed; that the pay fixation made in favour of the sixth respondent is not erroneous since he drawn higher pay than the respondents 2 to 5 by virtue of his earned increments only by means of officiating in the scale of pay of Rs.2000- 3200 earlier than the respondents 2 to 5; that in terms of rule provisions contained in Rule 1316 of The Indian Railway Establishment Code, Vol.II (RII in short) this correspond to FR 22 (C), the benefit of stepping up of pay is available to a senior employee and the said Rule is subject to certain conditions; that one of the conditions is that the anomaly of the seniors drawing less pay should be directly as a result of application of this provision; that in the present case, the so called anomaly is not due to application of the aforesaid Rules, hence, the respondents 2 to 5 are not entitled to stepping up of pay. https://hcservices.ecourts.gov.in/hcservices/ 4. The Tribunal, after considering the case of both sides found that the respondents 2 to 5 are seniors than the sixth respondent herein as per the seniority list dated 30.09.2002; that the date of entry into the grade of CTTI is also much earlier in respect of the respondents 2 to 5 than the sixth respondent; that even assuming there was a vacancy arose in ST category, the third respondent herein, who belonged to the said community, ought to have been accommodated in the vacancy, but it was not explained why the sixth respondent was considered for the said vacancy; that in any event, the sixth respondent is junior to the respondents 2 to 5, besides that they were promoted to the post of CTTI much prior to the promotion of the sixth respondent and allowed the Original Application as prayed for directing the petitioners herein to fix the pay and allowance of the respondents 2 to 5 on par with the sixth respondent and pay the arrears arising out of such fixation within a period of eight weeks. 5. The learned standing counsel appearing for the petitioners submitted that the sixth respondent was initially recruited in Group 'C' in scale of Rs.260-400 on 10.06.1977. Though the respondents 2 to 5 were recruited in the Railways prior to 1976, the sixth respondent was promoted to the scale of pay of Rs.425-640 which is a selection post on 05.09.1979 under the panel published on 07.08.1979 whereas, the respondents 2, 4 and 5 were promoted to the said selection grade on 24.11.1982 and the third respondent was promoted on 13.03.1980, thus, the respondents 2 to 5 were selected and promoted to the said grade much later to the sixth respondent and they consequently become junior to the sixth respondent; that only while entering the pay scale in the grade of Rs.6500-10500, which is a selection grade post consisting of written examination and viva voce, the sixth respondent was placed below the respondents 2 to 5 in the seniority list, since he was selected to the said grade at a later point of time, which would not affect the increments in pay earned by him over a period of time and it resulted in the sixth respondent drawing more pay, hence, the pay of the respondents 2 to 5 not entitled to be stepped up; that stepping up of pay is concerned, para 1316 of the Indian Railway Establishment Code, Volume II is applicable and pay can be stepped up only if the conditions, as contemplated thereunder, are satisfied; that the Rule contemplates stepping of pay is applicable only if the railway servant promoted or appointed subsequently to another identical post; that in the present case, the sixth respondent was senior to the respondents 2 to 5 herein in the lower post and not junior to them and prayed for setting aside the order passed by the Tribunal. In support of his contention, the learned standing counsel for the petitioners relied on the decision of the Honourable Supreme Court reported in (E.S.I. Corporation and another vs. P.K. Srinivasamurthy and another) (1997) II Supreme Court cases 533 wherein in Para-8, it was held thus:- "8. In the present case, respondent 2 who is junior to respondent 1 became entitled to a higher pay fixation on promotion as a Head Clerk than respondent 1 because of the higher scale of pay to which he became entitled in the post of UDC-in-charge by reason of the memorandum of 22-3-1978 as interpreted by the High Court in Gopal Sharma case. https://hcservices.ecourts.gov.in/hcservices/ Respondent 1 never held the post of UDC-in-charge. He had held the post of UDC Cashier. He was, therefore, not entitled to the benefit of the memorandum of 22-3-1978. As a result, the lower post held by respondent 1 carried a different scale of pay than the lower post held by respondent 2. Since the scales of pay in the lower posts held by the two were not identical, the question of stepping up of pay for the purpose of removing any anomaly does not arise in the present case. (ii) In (Union of India and others vs. M. Suryanarayana Rao) JT 1998 (5) SC 448 wherein in Para No.8 and 9, it was held thus:- "8. One of the reasons given by the Tribunal in support of its order is that when adhoc promotions were made, the respondent was not considered therefore or offered the same and it was not as if he refused to take up higher responsibility. The reasoning is highly fallacious. As pointed out by the learned counsel for the appellant adhoc promotions are made within the circles where vacancies arose and the respondent who was working in a different circle could not have been considered for such adhoc promotion or offered the same. The fact that adhoc promotions are made within the circles has been noticed by the Bench in R. Swaminathan's case. 9. We respectfully agree with the ratio in Union of India v. R. Swaminathan & Ors JT 1997 (8) SC 61 and allow this appeal. The order of the Tribunal in OA 913/96 filed by the respondent is set aside and the said application is dismissed. No costs." 6. Mr. Ar.L. Sundaresan, learned senior counsel appearing for the respondents 2 and 4 submitted that the second respondent was promoted as Chief Traveling Ticket Inspector on 15.02.1995; the third respondent was promoted to the said post on 30.12.1985; the fourth respondent was promoted on 25.05.1987; the fifth respondent was promoted on 25.05.1987 and the sixth respondent was promoted on 17.08.1989, all in the scale of pay of Rs.6500-10500; that the respondents 2 to 5 were getting lesser pay than the sixth respondent, though he was promoted only on 17.08.1989; the the Tribunal rightly pointed out that the respondents 2 to 5 are seniors than the sixth respondent and ordered to step up their pay on par with the sixth respondent, hence, prayed for dismissal of the writ petition. 7. This Court carefully considered the argument of the counsel for both sides. It is seen from the records that the sixth respondent was initially recruited in Group 'C' in the Railways on 10.06.1977 in the scale of pay of Rs.260-400. It is the case of the petitioners that the second respondent was recruited in the Railways in Group 'D' on 13.09.1971, third respondent on 04.04.1976, fourth respondent on 17.01.1974 and the fifth respondent on 17.01.1974. The sixth respondent was promoted on 05.09.1979 to the scale of pay of Rs.425-640 which is a https://hcservices.ecourts.gov.in/hcservices/ selection post as per the panel published on 07.08.1979 and earned increments over a period of time, but the respondents 2, 4 and 5 were promoted to the said selection grade on 24.11.1982 and the third respondent was promoted on 13.03.1980. Thus, the respondents 2 to 5 were selected and promoted to the said grade much later to the sixth respondent and they consequently become junior to the sixth respondent, which is not disputed by respondents 2 to 5. 8. The other averment that the third respondent belonged to Schedule Tribe Community and senior than the sixth respondent but he was ignored and the sixth respondent was accommodated in the vacancy of schedule Tribe category arose is concerned, the same was not at all challenged by the third respondent till date, hence, the said plea cannot be considered at this stage. 9. While entering into the pay scale in the grade of Rs.6500- 10500, which is a selection post consisting of written examination and viva voce, the respondents 2 to 5 were selected under the panel published on 11.06.1987, but the sixth respondent was selected under the panel published on 02.08.1989, on that basis, the respondents 2 to 5 claimed stepping up of pay on par with the sixth respondent. As mentioned earlier, in the lower grade, the sixth respondent was promoted to the scale of pay of Rs.425-640, which is a selection post, on 05.09.1979. The respondents 2, 4 and 5 were promoted to the said selection post only on 24.11.1982 and the third respondent was promoted on 13.03.1980. The said details makes it clear that the sixth respondent was senior to the respondents 2 to 5 in the lower grade and earned increments over a period of time, which were not taken into consideration by the Tribunal. In view of the above said facts, the sixth respondent earned increments over a period of time, drawing more pay than the respondents 2 to 5 at the time of entering into the grade Rs.6500-10500, pay protection was given to him, which resulted in the sixth respondent drawing more pay, hence, there was no anomaly in the pay as alleged by the respondents 2 to 5. The judgment relied on by the learned counsel for the petitioner reported in (E.S.I. Corporation and another vs. P.K. Srinivasamurthy and another) (1997) II Supreme Court cases 533 is squarely applicable to the facts of the case on hand. The other judgment relied on by the counsel for the petitioner in (Union of India and others vs. M. Suryanarayana Rao) JT 1998 (5) SC 448 is concerned, in the said judgment, the Honourable Supreme Court followed the earlier decision reported in (Union of India and another vs. R. Swaminathan) AIR 1997 Supreme Court 3554 wherein in Para Nos. 10, 11 and 13, it was held thus:- “10. ....We are concerned with the last condition. The difference in the pay of a junior and a senior in the cases before us is not as a result of the application of Fundamental Rule 22 (I) (a)(1). The higher pay received by a junior is on account of his earlier officiation in the higher post because of local officiating promotions, which he got in the past. Because of the proviso to Rule 22 he may have earned increments in the higher pay scale of https://hcservices.ecourts.gov.in/hcservices/ the post to which he is promoted on account of his past service and also his previous pay in the promotional post has been taken into account in fixing his pay on promotion. It is these two factors which have increased the pay of the juniors. This cannot be considered as an anomaly requiring the stepping of the pay of the seniors. 11. ....There are also other instances cited in the Memorandum. The Memorandum makes it clear that in such instances a junior drawing more pay than his senior will not constitute an anomaly and, therefore, stepping up of pay will not be admissible. The increased pay drawn by a junior because of adhoc officiating or regular service rendered by him in the higher post for periods earlier than the senior is not an anomaly because pay does not depend on seniority alone nor is seniority alone a criterion for stepping up of pay. 13. The employees in question are, therefore, not entitled to have their pay stepped up under the said Government Order because the difference in the pay drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly; nor is it a result of the application of Fundamental Rule 22 (I)(a)(1).” 10. In yet another decision of the Honourable Supreme Court reported in (Union of India and others vs. Sushil Kumar Paul and others) AIR 1998 SC 1925, in Para No. 6, it was held thus:- “6. ....On 13.01.1993 the respondents and Mishra were promoted to Grade-I on regular basis. On that date also Mishra was getting a higher pay because of his ad hoc promotion as Welfare Inspector Grade-I. It was for that reason that Mishra, even though was a junior, was getting more pay than the respondents. In view of these facts, the Circular governing stepping up of pay issued by the Railway Board and the law laid down by this Court in Union of India v. O.P. Saxena, (1997) 6 SCC 360, the respondents were not entitled to the benefit of stepping up.....” 11. It is evident from the above decision of the Honourable Supreme Court that a junior drawing more pay than his senior alone will not constitute an anomaly. So far this case is concerned because the higher pay received by the junior is on account of his earlier officiation in the higher post which he got in the past in lower grade, therefore, stepping up of pay will not be admissible. https://hcservices.ecourts.gov.in/hcservices/ 12. The petitioners relied on para 1316 of Indian Railway Establishment Code, Volume II, which is applicable and pay can be stepped up only if the conditions contemplated therein are satisfied by the respondents 2 to 5. The said Rule contemplates that stepping of pay is applicable only if the Railway servant is promoted or appointed subsequently to any other identical post. In the case on hand, the sixth respondent was senior to respondents 2 to 5 in the lower grade and not junior to them, drawn higher rate of pay from time to time than them. The Tribunal overlooked the said facts and passed the impugned order, hence, the same is liable to be set aside and accordingly it is set aside. The writ petition is allowed as prayed for. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To The Registrar Central Administrative Tribunal Madras Bench, Chennai – 600 104. 1 cc To Mrs.AL.Gandhimathi, Advocate, SR.63344. 1 cc To Mr.V.G.Sureshkumar, Advocate, SR.63228. WP No. 28859 of 2004 GGK(CO) RVL 25.11.2008 https://hcservices.ecourts.gov.in/hcservices/