1 S.B.CIVIL WRIT PETITION NO. 809/2008 Kishan Abhichandani VS. Raj. Rajya Vidhyut Prasaran Nigam Ltd. & Ors. Date of Order :: 29.10.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. Sanjeet Purohit, for the petitioner. Mr. Vivek Shrimali, for the respondents. ... An appointment was given to the petitioner as Lower Division Clerk with Rajasthan State Electricity Board on 1.8.1970 and then he was promoted as Upper Division Clerk on 6.4.1984. As a consequent to the selection by direct recruitment competitive examination for boards employees he was employed as Junior Accountant under an order dated 17.7.1990. The petitioner retired from service on 30.6.2007 and prior to that the Senior Accounts Officer (DC) Jodhpur Vidyut Vitran Nigam Ltd., Jodhpur pointed out some anomaly in making fixation of the petitioner's pay. The anomaly pointed out was in following terms:- “Sh. Narsingh Gehlot, UDC of office of the Assistant Engineer (HTM-II), Jodhpur Discom, Jodhpur, being junior in the cadre of UDC, started to get more pay than him w.e.f. 1.4.1987. While comparing the service books of both the employees the comparative statement is as under:- 2 -------------------------------------------------------------------------------------- S.No. Particulars Sh. Kishan Abichandani Sh. Narsingh Gehlot --------------------------------------------------------------------------------------- 1. Date of appointment 1.8.70 28.4.71 as LDC 2. Pay as on 1.4.74 380/- 370/- 3. Pay as on 1.9.76 440/- 430/- 4. Pay as on 1.4.80 640/- 640/- 5. Pay as on 1.4.83 700/- 700/- 6. Next date of A.G.I. 6.4.83 28.4.83 7. Promoted on 6.9.84 780/- 740/- 8. Pay as on 1.9.86 1520/- 1490/- 9. Allowed S.G. 1.4.87 1520/- 1550/- 10.Next date of A.G.I. 6.4.87 28.4.87 11.Pay as on 28.4.87 1550/- 1580/- ---------------------------------------------------------------------------------------- From the above comparison it is very clear that being junior Sh. Nar Singh Gehlot UDC started to get more pay than me w.e.f. 1.4.87 in the cadre of UDC. The pay anomaly has arised as a result of application of the provisions of regulation 27 of RSEB ESR, 1964.” From the comparative chart referred above it is apparent that one Sh. Narsingh Gehlot was quite junior than the petitioner but he scored higher pay than the petitioner w.e.f. 1.4.1987 on the count of granting selection grade. The anomaly aforesaid was removed by the respondents by making fixation of the petitioner's pay as on 28.4.1987 at Rs.1580 per month in the pay scale of RS.1200-2050. After retirement of the petitioner, when his pension case was 3 forwarded to pension section of the Rajasthan Rajya Vidyut Vitran Prasaran Nigam Ltd., the Assistant Secretary (Pension) pointed out certain alleged irregularities in stepping up of petitioner's pay and also with regard to grant of increment on basis of the date of appointment in the ministerial cadre, even after his appointment as Junior Accountant on 26.7.1990. The Accounts Officer (District Circle), Jodhpur Vidyut Vitran Nigam Ltd. by a communication dated 23.10.2007 made efforts to satisfy the pension section by asserting that the petitioner was senior to Sh. Narsingh Gehlot, a person to whom selection grade was given in lieu of promotion, thus, he could not be at a lower pay point, than a junior employee who availed selection grade but not promotion. The issue with regard to grant of increment too was answered in the terms that Clause 24(4)(b) of Employees Services Regulations, 1964 was not existing on 26.7.1990, the day on which the petitioner was employed as Junior Accountant. The Assistant Secretary (Pension) being not in agreement with the view of Accounts Officer (District Circle), vide letter dated 25.10.2007 requested to withdraw stepping up of pay. In pursuant thereto the respondents withdrew stepping up of pay and also one annual grade increment already granted. Accordingly, they also proceeded to effect recovery from petitioner's pension against the amount said to be paid in excess. 4 No relief was granted to the petitioner though he submitted a notice for demand of justice though his counsel, thus, this petition for writ is preferred. The claim of the petitioner is that the respondents rightly allowed stepping up of pay to him, and as such, there was no just and valid reason to withdraw the same, the petitioner was appointed as Junior Accountant from among the departmental candidates, thus, the date for grant of annual grade increment could have not been changed, and also that even the stepping up was wrong, then too, no recovery could have been made as he never made any effort to mislead the respondents with a view to obtain higher pay or increment. Per contra stand of the respondents is that as per the order dated 20.12.1991 No.RSEB/F&R/R.16(2)II/D. 123, stepping up of pay could have been allowed only if the junior and senior board employees belonged to the same cadre and the post and should be in identical scale. The petitioner on the relevant date, i.e. 28.4.1987, was working as Upper Division Clerk, whereas Sh. Narsingh Gehlot was working as Lower Division Clerk, therefore, both the employees were in different cadres, and as such, no step up could have been given. It is also stated that the appointment of the petitioner as Junior Accountant under the 5 order dated 17.7.1990 was by way of direct recruitment, and thus, his earlier appointment as LDC or UDC was not at all relevant for determining the date for grant of annual grade increments. It is strenuously urged by learned counsel for the respondents that stepping up of the pay was made by the respondents by acting upon a representation made by the petitioner himself, and therefore, it can not be said that no effort was made by him for getting the amount which was paid in excess and which is now sought be recovered. Heard counsel for the parties and considered the rival contentions. As already stated, the petitioner entered in services of the Rajasthan State Electricity Board on 1.8.1970, whereas one Sh. Narsingh Gehlot was appointed as such on 28.4.1971. On 1.4.1974 the petitioner's pay was fixed at Rs.380/- per month whereas Sh. Narsingh Gehlot's pay was fixed at Rs.370/- per month. The petitioner remained at higher point of pay up to 1.9.1986 when his pay was fixed at Rs.1520/- and Sh. Narsingh Gehlot was receiving pay at the fixation point of Rs.1490/-. It is relevant to note that on the date aforesaid the petitioner was holding the post of UDC, whereas Sh. Narsingh Gehlot was working as Lower Division Clerk. Subsequent thereto, a selection grade was allowed to Sh. Narsingh Gehlot and consequent there of his pay was fixed at 6 Rs.1550/-. Suffice it to mention here that the selection grade granted to Sh. Narsingh Gehlot is nothing but the pay scale of promotional post i.e. Upper Division Clerk. As such, after grant of selection grade the petitioner as well as Sh. Narsingh Gehlot both were running in the pay scale applicable to the same post in the same cadre. On grant of selection grade the petitioner's pay was fixed at Rs.1520 and pay of Sh. Narsingh Gehlot at Rs.1550 as on 1.4.1987. Sh. Narsingh Gehlot continued to remain at higher point in the pay scale concerned even on 28.4.1987 when he was fixed at Rs.1580/- and the petitioner's pay was fixed at Rs.1550/-. The factual position mentioned above clearly establishes that the petitioner though was senior to Sh. Narsingh Gehlot was receiving less pay only on the count of grant of selection grade to his Junior. As a matter of fact, if promotion would have not been allowed to the petitioner then he would have been receiving higher pay than Sh. Narsingh Gehlot. In the present set of facts it can be safely said that it is only promotion of the petitioner that has put him at lower point of pay than a person junior to him, or in other words Narsingh Gehlot marched over the petitioner only for the reason that no promotion was given to him being junior and he availed selection grade in lieu of promotion. The petitioner can not be put to loss merely on the count that a promotion was granted to him in accordance with law. 7 The order dated 28.12.1991 provides for granting of stepping up to the senior, if the senior and junior employees both belong to the same cadre and they should be in identical scale. Prima facie it appears that the petitioner and Sh. Narsingh Gehlot were in two different cadres and were holding two different posts, thus, the stepping up was erroneously allowed to the petitioner, however, on minute examination of the restrictions imposed under letter dated 20.12.1991, the position emerges is absolutely different. The petitioner was promoted as Upper Division Clerk on 6.9.1984, whereas the selection grade was allowed to Sh. Narsingh Gehlot subsequent thereto. The selection grade granted is nothing but the pay scale of the promotional post that is Upper Division Clerk. On grant of selection grades both the employees in question were running in the same pay scale. The grant of selection grade is also admittedly in lieu of promotion and as such the petitioner as well as Sh. Narsingh Gehlot both are required to be treated as the persons belonging to same cadre, same post and getting pay in the same pay scale. In view of whatever discussion made above, I am of considered opinion that stepping up of the petitioner's pay was rightly made and withdrawal of the same is erroneous, thus, this petition for writ deserves acceptance. Accordingly, the same is allowed. Position of the 8 petitioner as that was prior to withdrawal of the stepping up of pay is restored. Respondents are directed to make fixation of the petitioner's pay by according stepping up as per order Annexure-4 dated 28.1.2005. If the respondents have already made any recovery from the petitioner's pension or from his terminal benefits as a consequent to withdrawal of the stepping up of pay,. then the same is required to be refunded with interest @ 5.5% per annum. The pension case of the petitioner in changed circumstances is required to be settled within a period of four months from today. Cost is made easy. (GOVIND MATHUR), J. Jgoyal '