1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 564 of 1997 UNITED INDIA INS. COMPANY LTD. & ORS V/S PRAMOD SURANA & ORS Mr. H.R.Arora for Mr. M.S.Singhvi, for the appellants. Mr. Anil Bhandari, for the respondents. Date of Order : 24.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- Heard learned counsel for the parties. The learned Single Judge has passed the impugned order, relying upon the Single Bench judgment in Radhey Shyam Gupta Vs. General Insurance Corporation and Others, reported in 1994(1)RLR 757. Learned counsel for the appellants submits that the controversy involved in the present case is precisely covered by another Division Bench Judgment of this Court in National Insurance Company & Others Vs. Kamal Prakash Rohila, reported in 1998(2) WLC (Raj.) 66, wherein, the said judgment in Radhey Shyam's case (supra) has also been considered. Learned counsel for the respondents on the other hand submitted that, Kamal Prakash Rohila's case (supra) was decided on the question of change of option. 2. We have considered the submissions. Of-course, it is observed in Para 17 of the judgment that the employee has not challenged the validity/rationality of the rationalization scheme of 1985 and, no material has been placed to substantiate that it is arbitrary, rather his entire case has been confined to the opportunity to re-opt, just to remove the anomaly in salaries and the Division Bench found that there exists no justification for moving such an application by the respondent after several years of opting for re-fixation and the same was rejected. However, from look at the facts of this case, it is clear that it was held by the Division Bench that though, the persons promoted latter were juniors to employees promoted earlier as Head Clerks, were getting higher salary as they were withdrawing a sum of “Special Pay” on the post of Senior Clerks and it resulted in anomaly in pay scales. It was considered that the Hon'ble Supreme Court has held that if an additional or special pay is attached to a particular post, person not holding such pot cannot claim such additional/special pay, however, in such a case of anomaly, the pay of the senior employee in the higher post is required to be stepped up to a figure equal to the pay of junior employee on that post, but, then it was explained by the Hon'ble Supreme Court that the principle of stepping up of a pay is applicable only when both such employee i.e. senior and junior belong to the same category. Then, in 3. Para 10 of the judgment, it was held that in the facts and circumstances of the case, the principle of stepping up of pay is not applicable. Moreover, in that case, it was found that the employee had given an option, with his eyes open, and after making his calculations considering the gains and losses and examining the pros and cons of both the dates for re-fixation. In our view, in the present case also, the respondent employee is claiming stepping up, because according to him, the persons junior to him are getting higher pay scale, but, a look at the pleadings in para-11 of the writ petition show that these junior persons had opted the new pay scale with effect from 15.10.1985 and not with effect from 1.4.1983 as was opted by the petitioning respondent. It has not been pleaded in the entire writ petition that any person junior to him, who may have opted the new pay scale with effect from 1.4.83, is getting any pay higher than the petitioning respondent. If that would have the situation, perhaps, the petitioner may have had a case for stepping up with the employees opting pay scale with effect from 1.4.83 and the employees opting the pay scale with effect from 15.10.85 forms two in-different classes and claimed validity, then in Kamal Prakash Rohila's case (supra), the concept of acquiescence has already been considered. 4. In our view, that view is also justifiable inasmuch as the petitioning respondent had opted the revised new pay scale with effect from 1.4.83 and, thus, he is liable to all consequences, as the controversy in the present case is covered from Kamal Prakash Rohila's case (supra). Accordingly, the appeal is allowed. The impugned order of the learned Single Judge is set aside. The parties shall bear their own cost. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. ms rathore