THE HON’BLE SRI JUSTICE GODA RAGHURAM And THE HON’BLE SRI JUSTICE R. SUBHASH REDDY W.P.No. 13601 of 2005 Dated: 30-01-2008 Between: Mohd. Yakub Ali …Petitioner And The District and Sessions Judge, Warangal and others. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM And THE HON’BLE SRI JUSTICE R. SUBHASH REDDY W.P.No. 13601 of 2005 Oral Order: (Per: The Hon’ble Sri justice Goda Raghuram) By the first respondent’s order dated 28-03-2005, the second respondent was directed to take expeditious steps for re-fixation of the petitioner’s pay by stepping it down, to ascertain the amounts recoverable and to address a letter to the third respondent for issue of necessary orders. The petitioner retired from service while working as Sheristadar in the court of Senior Civil Judge, Jangaon, Warangal district. His pension was fixed on 19-09-2003. While in service, the petitioner represented for stepping up of his pay on par with one Sri Syed Mustafa, who was claimed to be his junior. By an order dated 16-04-1999 of the first respondent, the petitioner’s representation was considered and his pay was stepped up on par with the pay drawn by Sri Syed Mustafa with effect from 30-12-1995. By a subsequent proceeding dated 17-05-2004 and in conformity with a condition in the order dated 16-04-1999 (enabling a review, if the order of stepping up were found latter to be irregular or erroneous), the order dated 16-04-1999 was reviewed. The reason recorded for this review of the earlier order was that Sri Syed Mustafa was seen to be senior to the petitioner in two initial categories i.e., in the initial recruitment category as Copyist as well as in the next promotion category of Lower Division Clerk. It requires to be noticed that while Sri Syed Mustafa was first appointed on 26-07-1958 as Copyist, the petitioner was so appointed seven years later on 07-08- 1965 as ‘Reader’. Even in the appointment to the promotional category of Lower Division Clerk, Sri Syed Mustafa was appointed on 25-01-1968, while the petitioner was so appointed on 12-11-1969. In promotion to the next higher cadre of Upper Division Clerk, however the petitioner gained a march over Sri Syed Mustafa, as Sri Syed Mustafa did not qualify for promotion as Upper Division Clerk by passing the requisite departmental tests. The petitioner was promoted on 11-08-1977 as Upper Division Clerk, while Sri Syed Mustafa had to wait for promotion as Upper Division Clerk till 13-10-1983. This accelerated career advancement of the petitioner continued thereafter in the post of Head Clerk, Translator and Sheristadar, to which categories the petitioner was promoted earlier to Sri Syed Mustafa. On account of continuance in the post of Lower Division Clerk from 1968 to 1983 Sri Syed Mustafa earned increments and also earned special stagnation pays/grades pursuant to a scheme introduced in 1981 towards stagnation avoidance measure. On account of these idiosyncratic circumstances, Sri Syed Mustafa’s pay in the category of Upper Division Clerk, Head Clerk, Translator and Sheristadar was fixed reckoning the pay drawn by him in the earlier categories wherein he specifically earned stagnation allowances as well as greater number of incremental benefits. For the aforesaid reasons, the administration felt that the petitioner was not entitled to stepping up of his pay on par with Sri Syed Mustafa as it was not a case to which the provisions of F.R. 22-B applies. An identical fact matrix came to be considered by a learned Division Bench of this Court in W.P.No. 10249 of 2005 also from the same district – Warangal – and also as regards a situation where the petitioner therein claimed stepping up of pay on par with the same individual Sri Syed Mustafa. The learned Division Bench of this Court by the judgment dated 23-11-2007 on an elaborate analysis of the facts held that the petitioner therein was not entitled for stepping up of his pay on par with Sri Syed Mustafa. For reasons alike as recorded in the judgment dated 23-11-2007 in W.P.No. 10249 of 2005, the petitioner herein is equally ineligible for stepping up of his pay on par with Sri Syed Mustafa. The learned Division Bench in W.P.No. 10249 of 2005, following the precedential authority of cited Supreme Court judgments however held that no recovery should be effected from the petitioner, who was found not wholly responsible for re-fixation of his pay. Subject to this the Bench did not interfere with the process of re-fixation. Sri Sanjay Kumar, the learned counsel for the respondent Nos. 1 and 2 would fairly state that in view of the decision of the Division Bench supra, no recoveries from the pensioner either from the pension or other terminal benefits would be justified even though the initial re-fixation was not legitimate. However, the pension would be liable to be re-fixed in accordance with the re-fixation of the petitioner’s pay after removing the benefit of the stepping up irregularity granted earlier, is the contention. Sri M.N. Narasimha Reddy, the learned counsel for the petitioner would place reliance on a judgment of a learned Division Bench of this Court in W.P.No. 21475 of 2004 and batch dated 13-07-2007. We have perused the judgment with care and focus. It is seen that in this batch of cases a claim was also made for stepping up of pay of the petitioners therein on par with one Mr. P. Kumara Swamy. The pay of the petitioners therein was initially stepped up on par with Mr. P. Kumara Swamy. Thereafter, a committee of District Judges was constituted to go into the pay anomaly disputes thereabout and to consider the issue. The Committee by a resolution dated 08-11-2002 recommended dropping of the orders dated 03-08-2002 directing re-fixation of pay and upheld the initial orders dated 23-10-1999 stepping up the pay of the petitioners therein. Considering this fact and the fact that Mr. P. Kumara Swamy was junior to the petitioners both in the initial and subsequent categories, the learned Division Bench found no justification for the administrative action of revising the earlier orders stepping up the pay of the petitioners therein on par with Mr. P. Kumara Swamy. The decision dated 13-07-2007 is distinguishable from the case on hand, on facts. In this case the petitioner was junior to Sri Syed Mustafa in the initial recruitment category as well as the first promotion category of Lower Division Clerk. Further, the pay of Sri Syed Mustafa in the category of Upper Division Clerk was fixed higher to the petitioner (who was promoted earlier to the said category) on account of the adventitious circumstance of Sri Syed Mustafa drawing increments for longer period and on account of stagnation in the category of Lower Division Clerk and on account of deriving the benefit of special promotion grades under a scheme for stagnation avoidance introduced in 1981. It is these circumstances peculiar to Sri Syed Mustafa that brought about his drawal of higher pay in the cadre of Upper Division Clerk. That is what the learned Division Bench held in identical circumstances in the later judgment dated 23-11-2007 in W.P.No. 10249 of 2005, a decision which is normatively and on facts akin to the facts of the case on hand. For the aforesaid reasons and on the aforesaid analysis, this writ petition is disposed of following the judgment dated 23-11-2007 in W.P.No. 10249 of 2005. Consequently, the impugned order of the first respondent dated 28-03-2005 is upheld insofar as the direction to the second respondent as to re-fixation is concerned while setting aside the portion of the impugned order which directs recoveries of the excess emoluments paid, from the pension or other terminal benefits of the petitioner. There shall however be no order as to costs. ____________________ GODA RAGHURAM, J ____________________ R. SUBHASH REDDY, J Dated: 30-01-2008 Pvks/*