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2010 DIGILAW 28 (GAU)

Kalyan Kumar Roy v. Tripura Gramin Bank

2010-01-21

T.NANDAKUMAR SINGH

body2010
JUDGMENT T. NK. Singh, J. 1. These two writ petitions, i.e., WP (C) No. 335 of 2002 and WP (C) No. 336 of 2002 involving the similar question of facts and law were taken up for joint hearing and disposal by a common judgment and order. Accordingly, these two writ petitions are being disposed of by a common judgment and order. 2. Heard Mr. D.K. Biswas, learned Counsel appearing for the petitioners in both the writ petitions. Also heard Mr. B.R. Bhattcharjee and Mr. K.N. Bhattacharjee, learned senior counsels, assisted by Mr. T.D. Majumder, learned Counsel appearing for the respondents-Bank. 3. The petitioners, by these writ petitions, are praying for fitment of their pay at par with their juniors, i.e., proforma-respondent Nos. 5 to 8 in WP (C) No. 335 of 2002 by applying the principle of stepping up of pay with effect from 1.1.1989 with reference to the fitment given to their juniors, i.e., proforma-respondent Nos. 5 to 8. Similar writ petitions, i.e., C.R. No. 259 of 1992, C.R. No. 260 of 1992 and CR. No. 261 of 1992 were also filed by the employees of the Tripura Gramin Bank for fitment of their pay at par with their juniors by applying the principle of stepping up of pay. 4. Those writ petitions, i.e., C.R. No. 259 of 1992, C.R. No. 260 of 1992 and C.R. No. 261 of 1992 were allowed by a common judgment and order dated 29.8.2002 passed by the learned single Judge directing the respondents-Bank to step up the pay of the petitioners at par wit their juniors w.e.f. 1.1.1989 by applying the principle of stepping up of pay. The operative portion of the said judgment and order dated 29.8.2002 reads as follows : 12. Now, coming to the case of the petitioners Bibhas Dhar and Nepal Das, we find that the two petitioners were appointed as Field Supervisors as a result of direct recruitment in the year 1983 and 1980 respectively, whereas, the respondent Sishu Ranjan Das was appointed as Senior Clerk in the year 1984. The post of Senior Clerk is below the post of Field Supervisor and admittedly the respondent Sishu Ranjan had joined the Bank after the two petitioners. The post of Senior Clerk is below the post of Field Supervisor and admittedly the respondent Sishu Ranjan had joined the Bank after the two petitioners. The respondents have tried to submit that the two petitioners were direct recruit to the post of Field Supervisor, whereas the respondent Sishu Ranjan Das was promoted to the post of Field Supervisor on 22.12.1983 and hence this being the case of 'Promotee' and 'Direct Recruit; they cannot be treated equally. I find in force in the above submission as because we find that the two writ petitioners who had joined the Bank in the year 1980 and 1983 itself in a higher post and were getting higher salary than the respondent Sishu Ranjan Das, who joined the bank after them and that too in a lower post and promoted subsequently to the post in which the two petitioners were appointed. This is not a case where the two petitioners were appointed to the post of direct recruitment and the respondent who was serving the bank long before the petitioners joined the Bank in a junior post, was promoted and because of the length of service his pay was higher than the respondents. The total period of service of the two petitioners was more than that of the respondent Sishu Ranjan Das but still their pay was fixed at a lower slab than that of the respondent Sishu Ranjan Das. 13. So far the petitioner Subhas Ch. Singha Samanta is concerned, he had joined the bank as Jr. Clerk on 22.9.1979 prior to Swapan Adhikari who was appointed in the similar post on 19.9.1980 i.e., about one year after the petitioners were appointed in the Bank the petitioner was promoted as Field Supervisor on 1.1.1983, whereas Swapan Adhikari was promoted as Senior Clerk-cum-Cashier on 15.7.1984 and he was promoted as Field Supervisors on 1.1.1989. However, the pay scale of Swapan Adhkari was fixed at Rs. 2560/- on 1.1.1989 but the petitioner was to get Rs. 2340/- as on same date. Swapan Adhikari was junior to the petitioner in the Grade of Junior Clerk-cum-Cashier and also in the Grade of Field Supervisor, but still his pay was fixed at a higher slab due to the formula adopted by the bank as per Nabard guidelines. 14. 2560/- on 1.1.1989 but the petitioner was to get Rs. 2340/- as on same date. Swapan Adhikari was junior to the petitioner in the Grade of Junior Clerk-cum-Cashier and also in the Grade of Field Supervisor, but still his pay was fixed at a higher slab due to the formula adopted by the bank as per Nabard guidelines. 14. In view of what has been stated above and following the Fundamental Rule and the law laid down by the Apex Court, as stated above, it is held that the pay of the petitioners Sri Nepal Ch. Das and Sri Bibhas Dhar and three others are required to be stepped up to that of Sishu Ranjan Das as on 1.1.1989 and the pay of Sri Subhas Chandra Singha Samanta is to be stepped up to that of Swapan Adhikari as on 1.1.1989. 15. We direct the respondents Tripura Gramin Bank to step up the pay of the petitioners as stated above and this shall be done within a period of three months from the date of this order. 16. The writ petition stands allowed but there would be no order as to costs. 5. The respondents being aggrieved by the common judgment and order of the learned single Judge dated 29.8.2002, the operative portions of which are quoted above, preferred appeals being W.A. No. 112 of 2002, W.A. No. 113 of 2002 and W.A. No. 114 of 2002 before the Division Bench of this Court. The Hon'ble Division Bench of this Court also affirmed the common judgment and order of the learned single Judge dated 29.8.2002 by passing the common judgment and order dated 12.12.2008, thereby dismissing the appeals. The operative portion of the said judgment and order of the Division Bench dated 12.12.2008 reads as follows : 18. Even if the contention of the Union of India (para-12 of the counter-affidavit) that prior to the effective date as indicated in the aforesaid circular letter, the employees and officers of RRB would be governed by the State Government Rules, is accepted, then also the appellant Bank and for that matter all concerned are bound to remove the anomaly by way of stepping up of the pay of the seniors at par with the juniors about which there is clear mention in the above quoted Annexure-B letter dated 27.1.1992. 19. 19. The learned single Judge considering the matter in its entirety issued the direction for stepping up of pay of the petitioners at par with their juniors in the touchstone of the principles underlying stepping up of pay. As noticed above, the writ petitioners were all appointed prior in point of time into the services of the Bank than the respondents. They also occupied the post of Field Supervisor prior in point of time than their juniors. If that be so, irrespective of the circular letter dated 22.2.1991, they cannot be pushed back behind their juniors in the matter of pay. We do not find any fault in the matter of fixation of pay of the juniors to the petitioners in the touchstone of the procedure laid down in the circular letter. But while doing so, the kind of situation, in which the petitioners find themselves, which even if held to be not envisaged and taken care of in the said circular letter, will have to be neutralized by stepping up of the pay of the petitioners at par with their juniors. It is this principle on which, the learned single Judge emphasized in the impugned judgment and order, with which we are in full agreement. 20. For all the aforesaid reasons, we see no reason to interfere with the impugned common judgment and order dated 29.8.2002 passed by the learned single Judge in C.R. No. 259/1992, C.R. No. 260/1992 and C.R. No. 261/1992, which has given rise to these appeals. Consequently, all the writ appeals are dismissed. 21. Writ appeals stand dismissed, leaving the parties to bear their own costs. 6. In the present case, i.e., W.P. (C) No. 335 of 2002, on 24.11.2003 the learned Counsel appearing for the respondents submitted that the matter relates to stepping up of the pay of the officers of the Tripura Gramin Bank and analogous matter have been disposed of by this Court and the matter is now pending before the Division Bench. Accordingly, he submitted that hearing of this writ petition may be stayed till the appeals are disposed of, i.e., W.A. No. 112 of 2002, W.A. No. 113 of 2002 and W.A. No. 114 of 2002. Accordingly, he submitted that hearing of this writ petition may be stayed till the appeals are disposed of, i.e., W.A. No. 112 of 2002, W.A. No. 113 of 2002 and W.A. No. 114 of 2002. After disposal of the said writ appeals, i.e., W.A. No. 112 of 2002, W.A. No. 113 of 2002 and W.A. No. 114 of 2002 vide common judgment and order dated 12.12.2008, both the parties had submitted before this Court on 4.3.2009 that the respondents had preferred SLP against the said common judgment and order of the Division Bench dated 12.12.2008, which involved the same issue, before the Apex Court and prayed for listing this writ petition after a month. 7. The Apex Court had dismissed the SLP filed by the respondents-Bank on 20.4.2009 with the findings that "on the peculiar facts of the present case, we are not inclined to interfere in this petition. The special leave petition is dismissed. However, the dismissal of the present petition shall not be treated as a precedent for future cases". 8. As stated above, the learned Counsel for both the parties admitted that the issues involved in the present writ petitions are similar with those of the earlier writ petitions, i.e., C.R. No. 259 of 1992, C.R. No. 260 of 1992 and C.R. No. 261 of 1992 and the decisions of those civil rules will be binding to the present writ petitions. This Court has also carefully perused the common judgment and order of the learned single Judge dated 29.8.2002 passed in C.R. No. 259 of 1992, C.R. No. 260 of 1992 and C.R. No. 261 of 1992 and also the common judgment and order of the Division Bench dated 12.12.2008 passed in W.A. No. 112 of 2002, W.A. No. 113 of 2002 and W.A. No. 114 of 2002. On such perusal, this Court is of the considered view that the earlier judgments and orders of this Court (learned single Judge and Division Bench) had clinched the issues involved in the present writ petitions inasmuch as the issues involved in the present writ petitions are similar with those of the earlier writ petitions. 9. The Apex Court in Sundarjas Kanyalal Bhathija and Ors. v. The Collector, Thane, Maharashtra and Ors. AIR 1990 SC 261 held that in a multi-Judge Court, the Judges are bound by precedents and procedure. 9. The Apex Court in Sundarjas Kanyalal Bhathija and Ors. v. The Collector, Thane, Maharashtra and Ors. AIR 1990 SC 261 held that in a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a single Judge or a Division Bench does not agree with the decision of a Bench of the co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. In our system of judicial review which is a part of our Constitutional scheme, it is the duty of the Judges of superior Courts and Tribunals to make the law more predictable. The Apex Court is of the similar view in Shridhar v. Nagar Palika, Jaunpur and Ors. AIR 1990 SC 307 , wherein the Apex Court held that "it is well settled principle of judicial discipline that if a single Judge, disagrees with the decision of another single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. In the instant case this Court (Single Bench) is of the view that the common judgment and order of the Division Bench dated 12.12.2008 which clinches the issues involved in the present writ petitions, is binding to this Court (Single Bench) while deciding these two writ petitions. While agreeing with the decisions of the learned single Judge dated 29.8.2002 and the decisions of the Division Bench dated 12.12.2008, this Court is of the view in the fact of the present case that some findings and observations are required to be made so as to make the decision of this Court in these two writ petitions more clear. 10. Since the facts of the present writ petitions, i.e., W.P. (C) No. 335 of 2002 and W.P. (C) No. 336 of 2002 are similar, this Court refers only the W.P. (C) No. 335 of 2002 for the purpose of discussing the facts while disposing of these two writ petitions by a common judgment and order. 11. Factual backgrounds : The Tripura Gramin Bank has been constituted under the provisions of the Regional Rural Bank Act, 1976. Admittedly the United Bank of India is the sponsor Bank of the Tripura Gramin Bank. 11. Factual backgrounds : The Tripura Gramin Bank has been constituted under the provisions of the Regional Rural Bank Act, 1976. Admittedly the United Bank of India is the sponsor Bank of the Tripura Gramin Bank. Under Section 17 of the Regional Rural Bank Act, 1976 (for short 'RRB Act') a Regional Rural Bank may appoint such number of officers and other employees as it may consider necessary or desirable in such manner as may be prescribed for the efficient performance of its functions and may determine the terms and conditions of their appointment and service; provided further that the remuneration of officers and other employees appointed by a Regional Rural Bank shall be such as may be determined by the Central Government, and, in determining such remuneration the Central Government shall have due regard to the salary structure of the employees of the State Government and the local authorities of comparable level and status in the notified area. Under Section 38 of the National Bank for Agricultural and Rural Development Act, 1981, the National Bank, i.e., National Bank for Agricultural and Rural Development established under Section 3 of the Act, 1981 shall co-ordinate its operations and the operations of various institutions engaged in the field of rural credit and maintain expert staff to study all problems relating to agriculture and rural development and be available for consultation to the Central Government, the Reserve Bank, the State Governments and the other institutions engaged in the field of rural development. On the question relating to pay, salary and other allowances and other benefits payable to the employees of the Regional Rural Bank (RRB), the Apex Court by its order dated 1.9.1987 passed in Writ Petition (Civil) Nos. 7141-50/1983 and 132/1984 referred the dispute to the Tribunal to be constituted preferably by a retired Chief Justice of a High Court and pursuant to the said order, the dispute was referred to the National Industrial Tribunal for RRB under the Chairmanship of Hon'ble Justice Shri S. Obul Reddy. The Tribunal passed the award on 30.4.1990 and on the basis of the award, the Central Government constituted an Equation Committee which again made its recommendation on 16.1.1991 which was circulated by the Government of India, the Ministry of Finance, to all RRBs vide Circular letter dated 22.2.1991 (Annexure-3 to the writ petition). The Tribunal passed the award on 30.4.1990 and on the basis of the award, the Central Government constituted an Equation Committee which again made its recommendation on 16.1.1991 which was circulated by the Government of India, the Ministry of Finance, to all RRBs vide Circular letter dated 22.2.1991 (Annexure-3 to the writ petition). The relevant portion of the said circular dated 22.2.1991 is quoted hereunder : No. II-3/90-RRB(1) Ministry of Finance Department of Economic Affairs (Banking Division) 'Jeevan Deep' Parliament Street New Delhi-110001 Dated 22.2.1991. All RRBs (Except Keshetriya Kisan Gramin Bank) Dear Sir, National Industrial Tribunal Award- Equation Committee Recommendations- Implementation of Government of India is pleased to inform that the Award of NIT dated 30.4.1990 and the recommendations of the Equation Committee dated 16.1.1991 have since been accepted. Accordingly, following instructions are issued in terms of Proviso (1) of Section 17 of the RRBs Act, 1976 for implementing the NIT Award and the recommendations of the Equation Committee immediately. 2. National Bank for Agriculture and Rural Development have already forwarded to you the summary of recommendations of the Equation Committee on 19.2.1991. A copy of the report is also being supplied to you shortly. * * * Fitment into new scales of pay as on 1.9.1987 4. As regards fitment into new scales of pay as on 1.9.1987 the procedure is detailed in the following sub-paragraphs : * * * (iv) For the purpose of fitment, the basic pay be arrived at after excluding the number of increments which an employees/officer might have received for family planning, graduation, CAIIB and any other account other than the normal annual increment. After according the employees/officer the corresponding fitment in the sponsor banks pay scale the increments should be added as applicable to the employees/officers of the sponsor banks for graduation, CAIIB, etc. * * * (viii) In the process of re-fixation, if a senior employees is fitted at a lower stage than the junior employee, the senior should be provided with protection by stepping up of his fitment. Care should be taken to ensure that no senior employee drawn less than his junior employee. * * * (viii) In the process of re-fixation, if a senior employees is fitted at a lower stage than the junior employee, the senior should be provided with protection by stepping up of his fitment. Care should be taken to ensure that no senior employee drawn less than his junior employee. (ix) In case after fitment of pay as above, pay of an employee who, in the existing scale was drawing on the appointed date (1.9.1987) more pay than another employee junior to him in the same cadre gets fitted in the revised scale at a stage lower than that such junior, his pay shall be stepped up to the same stage in the revised scale as that of the junior. 12. As per instructions of the Government of India, NABARD issued a circular being No. NB.IDD.RRCBD. No. C. 4559-316 (GRW)-92/93 dated 20.3.1993 addressed to the Chairman & Managing Director, All sponsor Banks (except UPCB) and the Chairman, All RRBs (except K.K. Gramin Bank) for implementation of the working group report, i.e., implementation of the National Industrial Tribunal Award read with Equation Committee recommendation-working group report of the Regional Rural Bank, i.e., the said letter of the Government of India dated 22.2.1991 to the Chairman and the Managing Director, All sponsor Banks (except UPCB). Para 26 of the Annexure-II of the said instructions/circular issued by the NABARD dated 20.3.1993 provided the definition of Senior vis-a-vis, Junior, which reads as follows : 26. Definition of Senior vis-a-vis Junior.-Government of India vide para 4 (viii) of circular dated 22.2.1991 had directed that it should be ensured that no senior draws less than one junior. Queries have been raised as to the definition of Senior and Junior which is detailed as under : (i) The senior and junior belong to the same substantive/lower and officiating/higher grades/cadres. (ii) The senior is senior in all grades/cadres right from the date of appointment i.e., he is senior both in the substantive/lower and officiating/higher grades/cadres and also his total length of service in the Bank is not less than the junior's. No comparison is permissible between a promotee and a direct recruit. No comparison also is permissible among employees recruited to different categories such as junior Clerk-cum-Cashier, Typists, Stenographers. No comparison also is permissible among employees recruited to different categories such as junior Clerk-cum-Cashier, Typists, Stenographers. (iii) The senior is more or equally qualified vis-a-vis the junior as far as relevant qualifications (graduation, CAIIB etc.,) are concerned and also the senior has acquired the qualification not later than the junior. 13. The Central Government, in exercise of the powers conferred by Section 29 of the Regional Rural Bank Act, 1976 read with Section 17 thereof and also after consultation with the National Bank and the Sponsor Banks makes a rule called "The Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988, which has been notified vide Notification No. F.8(3)/88-RRB dated 28.9.1988. Under second Schedule of the said Rules 1988, the posts of the field supervisor are to be filled up fifty percent by direct recruitment and fifty percent by promotion from amongst confirmed senior and junior Clerk-cum-Cashier or Clerk-cum-Typist or Stenographer or Steno-Typist on the basis of seniority-cum-merit. Qualification and eligibility criteria for promotion to the posts of field supervisor are : (i) Confirmed Senior Clerk-cum-Cashier with minimum of four years service as Senior Clerk-cum-Cashier or six years service either as confirmed junior Clerk-cum-Cashier or junior Clerk-cum-Typist or Stenographer or Steno-Typist or as a confirmed Senior or Junior Clerk-cum-Cashier, as the case may be. Therefore, under the said recruitment rules, the posts of field supervisor could be filled up by promotion either from the Senior Clerk-cum-Cashier with minimum of four years service as Senior Clerk-cum-Cashier or six years service either as confirmed Junior Clerk-cum-Cashier or Junior Clerk-cum-Typist or Stenographer or Steno-Typist or as a confirmed Senior or Junior Clerk-cum-Cashier, as the case may be. Graduate is not the essential qualification for the purpose of promotion to the posts of field supervisor from the employee, i.e., Senior Clerk-cum-Cashier or Junior Clerk-cum-Cashier or Junior Clerk-cum-Typist or Stenographer or Steno-Typist. But different qualifying service has been provided for promotion from the Senior Clerk-cum-Cashier or confirmed Junior Clerk-cum-Cashier or Junior Clerk-cum-Typist or Stenographer etc. 14. The writ petitioners of W.P. (C) No. 335 of 2002 were initially appointed as Junior Clerk-cum-Cashier and finally promoted to the posts of field supervisor by promotion on different dates. Some of the writ petitioners are Graduate. The proforma-respondent Nos. 5 to 8 were also initially appointed as Junior Clerk-cum-Cashier and finally promoted to the post of field supervisor on different dates. Some of the writ petitioners are Graduate. The proforma-respondent Nos. 5 to 8 were also initially appointed as Junior Clerk-cum-Cashier and finally promoted to the post of field supervisor on different dates. A tabulation mentioning the names of the petitioners and the proforma-respondents, their date of joining in the service as Junior Clerk-cum-Cashier, as Senior Clerk-cum-Cashier and dates of their appointment by promotion to the posts of field supervisor and their educational qualifications and also their respective pay in the lower grade before joining by promotion to the posts of field supervisor is prepared hereunder : 15. The respondent No. 1, Tripura Gramin Bank and the respondent No. 2 filed their affidavit-in-opposition. In the affidavit-in-opposition, the respondents are not denying that the writ petitioners were appointed by promotion to the posts of field supervisor much earlier than the respondent Nos. 5 to 8. The only explanation for fitment of pay of the respondent Nos. 5 to 8, higher to those of the writ petitioners, are that the respondent Nos. 5 to 8 are graduate and they were allowed to enjoy the graduate increment and also that some of the petitioners did not serve as Senior Clerk-cum-Cashier before their appointment by promotion to the posts of field supervisor. Admittedly, under the Fifth Bipartite Settlement in which Indian Banks' Association was one of the parties, there should be graduation increments and it has been circulated vide circular letter No. PD/IR/30/OM-236/90 dated 3.7.1990. The relevant portions of the said circular regarding graduation increments are quoted hereunder: UNITED BANK OF INDIA I.R. DIVISION HEAD OFFICE CIRCULAR LETTER No. PD/IR/30/ OM-236/90 Dated 30.7.1990. All Branches/Offices We reproduce hereunder the set of clarifications, explanations related to the Fifth Bipartite Settlement received from the Indian Banks' Association. Please be guided accordingly. I. Increment/Graduation Increments/Stagnation Increments : (1) The special increment has been kept at 19th stage and not at 20th stage for the following reasons : (I) If it is not given at 19th stage, the increase available at 19th stage would be very low. (II) If the special increment of Rs. 215/- were to be the last increment, there should have been the problem in fixing the quantum of stagnation increment and incremental pattern for officers as Rs. 215/- would have been construed as the maximum increment available in clerical scale of pay. (II) If the special increment of Rs. 215/- were to be the last increment, there should have been the problem in fixing the quantum of stagnation increment and incremental pattern for officers as Rs. 215/- would have been construed as the maximum increment available in clerical scale of pay. (2) Employees who joined as clerks between 23rd February, 1989 and 9th April, 1989 both days inclusive shall be eligible for two increments for graduation. (3) Increments of the allowances are given for graduation. If an employee is a post graduate but not a graduate, he shall not get the graduation increments of graduation allowance. * * * VII. Graduation Allowance : (1) If a person is appointed or promoted as a clerk on or after 10th April, 1989, he shall be eligible for graduation allowance and not graduation increments even though his appointment or promotion was announced earlier. (2) Rs. 117/- out of Rs. 130/- paid as graduation allowance shall rank for HRA/PF purpose. 16. On bare perusal of the said Fifth Bipartite Settlement regarding graduation increments dated 30.7.1990, it is crystal clear that only the employee, who joined as Clerk between 23.2.1989 and 9.4.1989, both dates inclusive, shall be eligible for two increments for graduation and that if a person is appointed or promoted as a Clerk on or after 10th April, 1989, he shall be eligible only for graduate allowance not graduation increment, even though his appointment or promotion was announced earlier. Therefore, the benefit of two increments for graduation will be available only to the clerks, who joined their services between 23.2.1989 and 9.4.1989 and such two increments for graduation will not be available to the other staffs, who do not join their services during the stipulated period indicated above, i.e., between 23.2.1989 and 9.4.1989, but they shall be eligible for graduate allowance. Such type of benefit of two increments for graduation will not be available to the field supervisors on their appointment by promotion inasmuch as the said Fifth Bipartite Settlement dated 30.7.1990 does not provide so and also under the said recruitment rules for the posts of field supervisor, i.e., The Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988, graduate is not the essential qualification for promotion to the posts of field supervisor. On perusal of the tabulation mentioned above, it is crystal clear that even if the proforma-respondent Nos. On perusal of the tabulation mentioned above, it is crystal clear that even if the proforma-respondent Nos. 5 to 8 were allowed to enjoy the benefit of two increments for graduation at the clerical grade, their pay in the clerical grade is not more than that of the writ petitioners in the said grade, i.e., clerical grade. 17. The stepping up of pay is admissible with reference to the first junior (not necessarily immediate junior) on only one occasion; but if the junior concerned gets his/her stepping up at par one junior to him/her, then the pay of the senior may again be stepped up and also that the junior should not have been drawing more pay than the senior from time to time in the lower post. From the tabulation it is clear that some of the writ petitioners, who joined their services as junior Clerk-cum-Cashier, had been promoted to the posts of field supervisor after completing the qualifying service for such promotion without even working as senior Clerk-cum-Cashier inasmuch as under the said recruitment rules for the posts of field supervisor, confirmed junior Clerk-cum-Cashier having the requisite qualifying service could be promoted. Even though they have been promoted to the posts of field supervisor without serving as senior Clerk-cum-Cashier, they were senior to the proforma-respondent Nos. 5 to 8 while they were serving in the lower posts, i.e., in the junior Clerk-cum-Cashier and were drawing more pay than the proforma-respondent Nos. 5 to 8 even though they had been allowed to enjoy the benefit of two increments for graduation. 18. The proforma-respondent Nos. 5 to 8 cannot be allowed to enjoy the benefit of two increments for graduation for the purpose of fitment of their pay on promotion to the posts of field supervisor inasmuch as if allowed it would amount to granting double benefit. The Apex Court in State of Haryana and Anr. v. Pratap Singh and Ors. (2006) 10 SCC 251 , held that when an employee already getting the higher pay scale on acquiring higher qualification, he cannot once again claim the higher pay scale on regular promotion to the higher post as that would amount to grant of double benefits creating anomalous position against the statute. Para 10 of the SCC in Pratap Singh (supra) reads as follows : 10. Para 10 of the SCC in Pratap Singh (supra) reads as follows : 10. Here in the present case, the difference is that the respondents are getting the higher pay scale i.e., Masters' pay scale on acquiring higher educational qualification though in fact they were not promoted to the post of Masters. In Ashoke Kumar Banerjee (1998) 5 SCC 242 : 1998 SCC (L&S) 1277, functional pay of Assistant Engineer in the pay scale of Rs. 2000-3500 was granted to the incumbent on completion of 15 years of service in identical situation, the Court declined to grant re-fixation of pay as per FR 22(1)(a)(1) and same is the position in the present case. When the respondents were already getting the functional pay of Masters whole working as JBT teachers, now they have been promoted in the pay scale of Masters. Therefore, they cannot get another fixation of pay which would amount to double benefit to the persons who are already working as Masters. Judicial fiat cannot create anomalous position against the stature. Hence, we allow all these appeals and set aside the impugned judgments of the Punjab and Haryana High Court. However, whatever benefits, if any, received by the respondents would not be recovered and they will not be entitled to fixation under Rule 4.4 of the Rules. No order as to costs. 19. The Apex Court in State of Haryana v. Sumitra Devi and Ors. (2004) 12 SCC 322 held that the concerned circular providing higher scale of pay would be admissible only to such teacher/master, who had enhanced their educational qualification during the course of service and the1 respondents having already acquired the higher qualification before their appointment shall not be entitled to the benefit of that circular. In the instant case, the said Fifth Bipartite Settlement clearly speaks the benefit of two increments for graduation will be available only to those Clerks, who were appointed during the period indicated in the Fifth Bipartite Settlement itself and also that there is no provision for providing such increment to the employee (in the clerical grade) who had already enjoyed the increments for graduation during their service in the clerical grade at the time of their appointment by promotion to the posts of officer grade, i.e., field supervisor. 20. Para Nos. 5 and 6 of the SCC in Sumitra Devi (supra) reads as follows : 5. 20. Para Nos. 5 and 6 of the SCC in Sumitra Devi (supra) reads as follows : 5. It is, therefore, not a case where the petitioners had acquired a qualification prior to 9.3.1990 while acting as teachers or masters. The circular letter dated 9.3.1990 clearly stated that a higher scale of pay would not be admissible to them despite holding a higher qualification having been appointed on a lower post. Such higher scale of pay was admissible only to such teachers/masters who had enhanced their educational qualification during the course of service. The petitioners, therefore, were not entitled to higher scale of pay. The learned Counsel for the respondents submitted that keeping in view the fact that persons having similar qualification are getting higher scales of pay, as such this Court should not interfere with the impugned judgment. The submission of the learned Counsel cannot be accepted for more than one reason. As the persons who have been granted higher scales of pay enhanced their qualification while holding their offices they had been allowed to continue to get higher scale of pay in view of the concession made by the learned Counsel appearing on behalf of the State. This Court, both in Wazir Singh, 1995 Supp (3) SCC 697 : 1996 SCC (L&S) 114 and Kamal Singh Saharwat (1999) 8 SCC 44 : 1999 SCC (L&S) 1410, as indicated hereinbefore, in no uncertain terms held that even such holders of such offices would not automatically be entitled to, on acquisition of a higher qualification, a higher scale of pay. The petitioners, as noticed, already had higher qualification and thus not entitled to benefit of any circular whatsoever. Unfortunately, this aspect of the matter has not been taken into consideration by the High Court. Furthermore, even an order cannot be passed under Article 142 of the Constitution which will be contrary to the statute or statutory rules. 6. Thus in this view of the matter, any teacher who was granted this pay scale was only those JBT teachers, who were entitled to have a higher pay scale if they acquired qualification during the period of their service not prior to joining of the service. 21. For the foregoing reasons, this Court is of the considered view that the fitment of pay of the writ petitioners of WP (C) No. 335 of 2002 would be at par with the proforma-respondent Nos. 21. For the foregoing reasons, this Court is of the considered view that the fitment of pay of the writ petitioners of WP (C) No. 335 of 2002 would be at par with the proforma-respondent Nos. 5 to 8 by applying the principle of stepping up of pay. The petitioners of WP (C) No. 336 of 2002 are all graduate, appointed directly to the post of field supervisor from the date much earlier about 9 to 5 years to the date of appointment of the respondent No. 5, Shri Sishu Ranjan Das by promotion to the post of field supervisor. Therefore, the fitment of pay scale of the writ petitioners, who are graduate direct recruitees and senior to the respondent No. 5 by five to six years in the posts of field supervisor, cannot be lower than that of the respondent No. 5. In this regard, this Court is in complete agreement with the earlier judgment and order of this Court, i.e., judgment and order of the learned Single Judge dated 29.8.2002 and the judgment and order of the Division Bench dated 12.12.2002 and accordingly, by applying the principle of stepping up of pay the fitment of the pay scale of the writ petitioners would be at par with the respondent No. 5. 22. The two writ petitions stand allowed to the extent indicated above. There shall be no order as to costs. Petition allowed.