CIVIL WRIT JURISDICTION CASE No.4645 OF 2008 ------ In the matter of an application under Article 226 of the Constitution of India. ----- 1. The employees State Insurance Corporation through its Chief Executive Officer, the Director General, Panchdeep Bhawan, C.I.G. Marg, New Delhi. 2. The Director General, Employees State Insurance Corporation, Panchdeep Bhawan, C.I.G. Marg, New Delhi. 3. The Joint Director (A)- III, Employees State Insurance Corporation, Panchdeep Bhawan, C.I.G. Marg, New Delhi. 4. The Regional Director, Employees State Insurance Corporation, Panchdeep Bhawan, J.L. Nehru Marg, Patna, 5. The Deputy Director (Admn.) Employees State Insurance Corporation, Panchdeep Bhawan, J.L. Nehru Marg, Patna. – Petitioners. Versus 1. Prabhas Chandra Mallik son of late Ram Narayan Mallik, resident of village and post Office- Bharwara, P.S. Singhwara, District Darbhanga. 2. The Union of India through the Secretary, Ministry of Labour and Employment, Shramshakti Bhawan, New Delhi. ---- For the Petitioners : Mr. Triloki Nath Maitin, Sr. Adv. With Mr. Sudhir Kumar Bijpuria, Adv. For The Respondent No.1: Mr. J.K.Karn, Adv. For Union of India : Mr. Binay Kumar Pandey, CGC. ---- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ------ Shiva Kirti Singh & Birendra Prasad Verma, JJ : Heard learned counsel for the petitioners and learned counsel for respondent no.1 who was the applicant before the Central Administrative Tribunal, Patna Bench, Patna in O.A. No. 280 of 2005 which was allowed by the impugned order dated 27.04.2007, 2 contained in Annexure-2. 2. Besides challenging the order, contained in Annexure-2, the petitioners have also challenged the order dated 3rd January, 2008, contained in Annexure-3, whereby Review Application No. 60 of 2007 has also been dismissed. The said review petition was filed pursuant to disposal of earlier writ petition filed by the petitioners bearing C.W.J.C. No. 11146 of 2007 by order dated 24.09.2007. That order shows that the writ petition was withdrawn for filing review petition before the Tribunal itself. 3. The applicant –respondent was appointed on 15.03.1979 on the post of Hindi Assistant in the Employees State Insurance Corporation, petitioner No.1. He received his first promotion as Senior Hindi Translator in June, 1985 and another ad- hoc promotion as Hindi Officer in June, 1985 itself. In April, 1986 he was granted regular promotion as Hindi Officer. That post was re- designated as Assistant Director and the applicant- respondent is continuing on that post in the pay scale of Rs. 6500- 10500/-. 4. Some employees, who were juniors to the applicant, applied for direct recruitment to the post of Assistant Director and after selection through the Union Public Service Commission, they joined on the post of Assistant Director in the Corporation and worked admittedly as juniors to the applicant. On enforcement of Assured Career Progression Scheme ( A.C.P.), the direct recruits, who were juniors to the applicant, after certain years of service received higher pay scale of Rs. 10,000- 15200/-. There is no dispute that 3 since the applicant had already received two normal promotions, he was not entitled to the benefit under the A.C.P. and hence he continued in the pay scale of Rs. 6500- 10,500. The juniors were given such benefits of higher pay under A.C.P. vide letter dated 28th/ 29th Sept. 2000, 5. Under the aforesaid circumstances, the applicant- respondent moved the learned Tribunal for up-gradation of his scale on the ground that he could not be kept in a scale lower to that given to his juniors. The learned Tribunal considered the matter on merits and allowed the claim of the applicant- respondent on the basis of a judgment of the Supreme Court in the Case of Commissioner and Secretary to Government of Haryana and Anr. Vrs. Ram Sarup Ganda & Anr. ( Civil Appeal No. 3250 of 2006) dated August 02, 2006 . 6. Learned counsel for the petitioners has submitted that the learned Tribunal erred in placing reliance upon the aforesaid judgment of the Supreme Court in which relief was granted to the concerned employee on the basis of Rule-9 of the Scheme applicable in that case and that rule, which has been extracted by the learned Tribunal in paragraph-6 of the impugned order is, according to the learned counsel, different from the relevant rule mentioned in Clause-8 of the Assured Career Progression Scheme for the Central Government Civilian Employees dated August 9, 1999, contained in Annexure-1. This scheme has been annexed as Annexure-1 to the writ petition and relevant Clause-8 reads as herein below: 4 “The financial up- gradation under the ACP shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay-scale under the ACP Scheme.” 7. For better appreciation and for comparison of the two rules, Rule-9 of the Scheme extracted by the learned Tribunal is also reproduced, which reads as follows: “Rule 9. Non-admissibility of stepping up in certain cases:- If the service rules provide or circumstances warrant direct recruitment at the level of promotional post, in additional to the filling up of such posts through promotion, no benefit of pay upgradation to the Senior Government servant who happens to be a direct recruit to a post other than the post on which the junior government servant is a direct recruits, on the plea that the junior promotee is drawing more salary based on the benefit of ACP upgradation shall be admissible.” 8. A comparison of the two rules makes it clear that Rule-9 of the Scheme applicable in the case of Commissioner and Secretary to Government of Haryana & Anr. ( Supra) clearly disentitles only such Senior Government servants who are direct recruits from getting any stepping up of their scale in case of any anomaly arising due to receipt of lesser pay by them vis-à-vis their juniors. Since the employee in that case was not a direct recruit, the bar in Rule 9 was not considered by the Supreme Court to be relevant and applicable for the concerned employees who were promotees as was the case of their juniors. On the other hand, clause-8 of the scheme applicable in this case as extracted above clearly provides that such anomaly in pay is not to effect seniority 5 and on that ground additional financial upgradation has been prohibited for the senior employee regardless of the fact whether he is a direct recruit or a promotee. 9. Thus, We find substance in the submissions of the learned counsel for the petitioners that the learned Tribunal erred in directing for additional financial upgradation for the applicant without noticing Clause-8 of the Scheme and by wrongly placing reliance upon judgment of the Apex Court in the case of Commissioner and Secretary to the Government of Haryana and others ( Supra )wherein the relevant provision in the scheme was different. 10. On the merits of the claim of the applicant, it was further submitted by learned counsel for the petitioners that on facts there is no controversy that the applicant and his juniors came to occupy the post of additional Director from two different sources and, therefore, principle of stepping up is not applicable in view of judgment of the Supreme Court in the case of Union of India and others Vrs. O.P. Saxena, reported in A.I.R. 1997 SC- 2978 wherein it was held that where the promotions were to the post from different sources, on the basis of different pay for different sources a later promotee may get higher pay and this will not entitle an earlier promotee to claim stepping up of pay if he belongs to a source which was getting lesser pay. 11. In our view, the judgment in the case of Union of India Vs. O.P. Saxena ( Supra ) is strictly not applicable to the 6 present case because here the juniors to the applicant did not occupy the post of Assistant Director by promotion although before being recruited through the Union Public Service Commission, they were working in the same organization as juniors to the applicant. But the principle embedded, to some extent helps the case of the petitioners. Since it is admitted position in law that the applicant is not entitled to benefits of ACP to which his juniors are and the scheme contains a clear bar as per Clause-8 to grant of any additional financial upgradation for the senior employee and because seniority position is not to be affected by the ACP scheme, the applicant cannot be held entitled to additional financial upgradation as claimed by him before the Tribunal. 12. In reply learned counsel for the applicant- respondent has referred to the decision of the Supreme Court in the case of Union of India and others vrs. Leelamma Jacob and others, reported in (2003) 12 SCC 280 in which it was held that since due to the provisions of the Scheme in question seniority attained by the respondents on account of earlier promotion was being taken away , hence it was violative of the existing rules and liable to be set aside. But instead of withdrawing the benefits granted to the juniors of the respondents on account of long lapse of time, the Apex Court directed to give higher pay-scale and seniority in that grade to the affected seniors from the respective dates when their juniors were promoted, along with the consequential benefits. That case related to Post and Telegraph Department, Telecommunication Branch and the 7 Court had found that the recruitments Rules governing that Branch could not be permitted to be violated by the administrative order because the rules were statutory. The fact position in the present case is different and learned counsel for the applicant- respondent could not show us any such rules which could be said to be violated by Clause-8 of the Scheme. 13. In view of our discussions and findings made above, we have no option but to hold that in view of Clause 8 of the Scheme the Tribunal erred in placing reliance upon the judgment of the Supreme Court in the case of Commissioner and Secretary to Government of Haryana and others ( Supra ) and also erred in granting relief to the applicant- respondent contrary to the aforesaid clause-8 of the Scheme. Hence, this writ petition is allowed and the impugned orders of the Tribunal, contained in Annexure- 2 and 3 are quashed. The O.A. shall stand dismissed. There shall be no order as to costs. Patna High Court Dated, the 16th July, 2010 BTiwary/A.F.R. ( Shiva Kirti Singh, J ) ( Birendra Prasad Verma, J)