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2011 DIGILAW 43 (JK)

Principal Sainik School, Nagrota v. Jeyaraman & Ors.

2011-02-11

GH.HASNAIN MASSODI, VIRENDER SINGH

body2011
Per Massodi, J.:- 1. Shri A. Jeyaraman respondent no. 1 herein, was appointed as Assistant Master TGT (Trained Graduate Teacher) vide order No. SSN/363/MO dated 06.12.1993 in the grade of Rs. 1400-2600 in Sainik School Nagrola, run by Sainik School Society, Sena Bhawan, New Delhi. Shri Radhey Sham Dayal, a colleague of the respondent no. 1 was appointed as Art Master (TGT)in the same grade i.e. Rs. 1400-2600 vide order No.SSN/12/MO dated 27th January, 1994 i.e. little less than two months, after the appointment of respondent no. 1. The respondent no. 1 and Shri Radhey Sham Dayal were allowed to draw their annual increment in the month of December and January respectively. 2. The Central Government in the year 1997 decided to revise the pay scales of their employees in terms of recommendations of 5th Central Pay Commission w.e.f. 1st January, 1996. The decision prompted the Central Government to make Central Civil Services (Revised Pay) Rules, 1997. The Sainik School Society vide its decision notified on4th March, 1998, decided to implement recommendations of 5th Central Pay Commission to the staff of Sainik Schools, subject to the conditions set out in the communication No. 12(4)/97/D/(SCC) addressed by Under Secretary, Sainik School Society to the Principals of all Sainik Schools. The decision taken by the Sainik School Society made it necessary for the authorities of each of the Sainik Schools to fix the pay of academic and non-academic staff of the school? in revised pay scales in term of recommendations of Central 5th Pay Commission 3. The appellant while fixing the pay of respondent no. 1 proponed the date of increment to month of June, whereas in case of Shri Radhey Sham Dayal, the date of increment was left unaltered. The pay fixation in revised pay scales resulted in variation in the pay of the respondent no. 1 and Shri Radhey Sham Dayal. Though, the respondent no. 1 and Shri Radhey Sham Dayal were initially appointed in the same pay scale, yet on fixation of their pay in terms of recommendations of 5th Central Pay Commission. Shri Radhey Sham Dayal was paid more salary than the salary paid to the respondent no. 1. 4. The respondent no. 1 aggrieved with the treatment meted out to him approached the Sainik School Authorities for redressed of his grievances. The respondent no. Shri Radhey Sham Dayal was paid more salary than the salary paid to the respondent no. 1. 4. The respondent no. 1 aggrieved with the treatment meted out to him approached the Sainik School Authorities for redressed of his grievances. The respondent no. 1 pointed out that though he was senior to Shri Radhey Sham Dayal, yet he was being paid less salary than that of Shri Radhey Sham Dayal and that his seniority was also getting affected. The respondent no. 1 asked for stepping up of his pay to that of Shri Radhey Sham Dayal, so that the respondent no. 1 was not prejudiced and exposed to monetary loss. The representations made by respondent no. 1 went unheeded, constraining the respondent to file a writ petition registered as SWP no. 1943/04. The respondent set out his grievances in the petition and on the strength of averments made asked for the following reliefs. "It is, therefore, prayed that the writ petition may kindly be allowed and a writ of Mandamus be issued directing the respondents to bring the peti­tioner at par with his junior, Radhey Sham Dayal, and refix the salary of the petitioner from January, 1996 onward by releasing the increment of the petitioner on its due date i.e. December every year and further a command be issued to the respondents to refix the pay of the petitioner by giving the benefit of increment and bringing the salary of the petitioner at par with Radhey Sham Dayal and for issuance of any other writ, direction or order which the Hon'ble court deems appropriate in the circumstances of the case be issued in favour of the petitioner and against the respondents along with costs. An Affidavit in support of the petition is attached herewith". 5. The appellants in their reply to the writ petition took the stand that the respondent no. 1 and Shri Radhey Sham Dayal, though appointed in similar pay scales, belonged to two different cadres and that there was no question of parity between the respondent no. 1 and Shri Radhey Sham Dayal. The appellants pleaded that the respondent no. 1 was allowed to draw annual increment in December, 1995 and the respondent's pay was fixed in light of guidelines laid down in Central Civil Services (Revised Pay) Rules, 1997 was fixed at Rs.5500/- w.e.f. 1.1.1996 in the revised pay scale of Rs. 1 and Shri Radhey Sham Dayal. The appellants pleaded that the respondent no. 1 was allowed to draw annual increment in December, 1995 and the respondent's pay was fixed in light of guidelines laid down in Central Civil Services (Revised Pay) Rules, 1997 was fixed at Rs.5500/- w.e.f. 1.1.1996 in the revised pay scale of Rs. 5500-175-9000 and though his next increment was due in December, 1996, the date of increment was pre-poned to June, 1996, so as to bring his salary at par with other Assistant Masters (TGT). The appellants have taken the stand that the increment of the respondent no. 1 was released six months in advance i.e. w.e.f. June, 1996 instead of December, 1996 when it was, otherwise, to fall due. It is further pleaded that Local Audit Officer (B) Jammu, examined the claim put forth by the respondent no. 1 and on such examination found it without any merit inasmuch as the pay of employees belonging to the different cadres could not be equated. The Sainik School Society vide its letter dated 22nd March, 2005 is also said to have opined against stepping up of the pay of the respondent no. 1, so as to bring it at par with the pay of Shri Radhey Sham Dayal. 6. Learned Writ Court on placing reliance on Note 6 of G.S.R. 569 (E) held that as the respondent no. 1 admittedly was drawing more pay than Shri Radhey Sham Dayal prior to the revision of the scales, in terms of Note 6 of G.S.R. 569 (E) pay of the respondent No. 1 was to be stepped up to the same stage in the revised scale as that of Shri Radhey Sham Dayal. The Writ Court after making reference to the statement of learned counsel for the appellants that the respondent No. 1 was not to be made to draw less salary than that of his junior and that the salary of respondent No. 1 was required to be stepped up, proceeded to allow the writ petition. The Writ Court directed the appellants to take a notice of the rules and fix the pay of the respondent No. 1 by stepping up pay to the same level as that of Shri Radhey Sham Dayal. The Writ Court held the respondent No. 1 also entitled to arrears on account of such stepping up of the pay. 7. The Writ Court directed the appellants to take a notice of the rules and fix the pay of the respondent No. 1 by stepping up pay to the same level as that of Shri Radhey Sham Dayal. The Writ Court held the respondent No. 1 also entitled to arrears on account of such stepping up of the pay. 7. The Writ Court judgment dated 12.01.2008 is questioned in the present Letters Patent Appeal. The appellants reiterate the stand taken in their reply to the writ petition. It is urged that as Shri Radhey Sham Dayal was allowed to draw annual increment in January, 1995 i.e. on due dale and as his next increment fell due in January, 1996 and in the meantime, revised pay scales were made applicable w.e.f. 01.01.1996, the increment under revised pay scale was granted to Shri Radhey Sham Dayal w.e.f. 01.01.1996, whereas, increment under revised pay scale that ordinarily was to be released in favour of the respondent no. 1 in December, 1996 was preponed to June, 1996. The respondent no. 1, it is insisted was benefited by preponement of increment and his pay stepped up to the stage of pay drawn by other Assistant Masters (TGT) Trained Graduate Teacher. 8. We have heard learned counsel for the parties and gone through the memorandum of appeal as also Writ Court record. 9. The fate of present appeal hinges on application of Rule 7 (B) Note 6 Central Civil Services (Revised Pay) Rules, 1997 notified as G.S.R. 569 (E) dated 30th September, 1997 to the present fact situation. The Rule reads as under:- "Where in the fixation of pay under sub-rule (1) pay of a Government servant, who, in the existing scale was drawing immediately before the 1st day of January, 1996, more pay than another Government servant junior to him in the same cadre, gets fixed in the revised scale at a stage lower than that of such junior, his pay shall be step speedup to the same stage in the revised scale as that of junior." 10. The Writ Court placed reliance on Note 6 (supra) on the assumption that both the respondent No. 1 and Shri Radhey Sham Dayal belonged to the same cadre. The Writ Court placed reliance on Note 6 (supra) on the assumption that both the respondent No. 1 and Shri Radhey Sham Dayal belonged to the same cadre. It needs no emphasis that Note 6 is pressed into service only where a senior drawing more pay than his junior in the same cadre immediately before 1st January, 1996, deserves to have his pay stepped up to the stage of his junior, in the event his pay gets fixed in the revised pay scale at a stage lower than that of his junior. Note 6 has as its edifice, the general principle of pay protection, where under in case in wake of pay revision, pay of the senior gets fixed at a lower stage than of his junior his pay, is protected and brought at par with that of the junior. 11. Against the above backdrop, an effort is required to be made to find out whether the respondent No. 1 and Shri Radhey Sham Dayal belonged to the same cadre or different cadres in the event the two officials are found to be in the same cadre. Shri Radhey Sham Dayal being junior to the respondent No. I having regard to the date of initial appointment, the pay of the respondent No. 1 is to be stepped up to the stage of Shri Radhey Sham Dayal in terms of Rule 7 (B) Note 6 Central Civil Services (Revised Pay) Rules, 1997. However, in the event, the two officials are found not to belong to the same cadre, the question of one being senior to other in the same cadre does not arise and Rule 7 (B) Note 6 Central Civil Services (Revised Pay) Rules, 1997 cannot be pressed into service by the respondent no. 1 to seek stepping up of his pay to the stage of Shri Radhey Sham Dayal. 12. It is argued by learned counsel for the respondent no. 1 that as the respondent no. 1 and Shri Radhey Sham Dayal were appointed in the same pay scales i.e. 1400-2600 and were appointed as Assistant Master (TGT) Science and Arts Master (TGT) Art, belong to the same cadre. 12. It is argued by learned counsel for the respondent no. 1 that as the respondent no. 1 and Shri Radhey Sham Dayal were appointed in the same pay scales i.e. 1400-2600 and were appointed as Assistant Master (TGT) Science and Arts Master (TGT) Art, belong to the same cadre. Advertisement Notices dated 23rd November, 1993 and 6th December, 1993 whereby applications were invited for the post of Assistant Master (TGT) Science and Arts Master (TGT Art/Craft/paining, to which the respondent No. 1 and Shri Radhey Sham Dayal responded appoint­ments letter dated 06.10.1993 and 27.01.1994 issued in favour of respondent no. 1 and Shri Radhey Sham Dayal, as also photocopy of the first page of their service books are referred to by the learned counsel for the respondent No. 1 to reinforce his argument. "Cadre" according to Webster Dictionary means "a nucleus or core group especially of trained personnel having some unifying relationship". Law Lexicon (Venkataramaiyas's Volume-I), referring to fundamental Rules 9 and 4, defines "Cadre" as "the strength of an establishment or service sanctioned as a separate unit". The Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rule, 1956 though not relevant in the present context, may nonetheless be looked at to understand meaning of the word "Cadre". Rule 2 (a) defines "Cadre" as sanctioned strength of service, class, category or grade. 13. It is, thus, evident that mere identical pay scales is not by itself indicative of the different posts belonging to the same cadre. Cases can be visualized where two posts may carry same pay scale but belong to different cadres. To illustrate a Pharmacist and a X-Ray Technician" may have similar pay scales but belong to two different cadres in the same Department. The real test is "unifying relationship amongst the employees claimed to belong to same cadre". In the present case, the cadre of Assistant Masters (TGT), is treated differently by the Staff Establishment Rules, as regards the eligibility criteria, promotional avenues and sanctioned strength nature of duties. 14. The details of authorized/sanctioned academic staff of a Sainik School is set out in Staff Establishment Rules. The rules deal with "Art Master" as a cadre different from that of Assistant Master, ordinary scale, senior scale and selection grade. 14. The details of authorized/sanctioned academic staff of a Sainik School is set out in Staff Establishment Rules. The rules deal with "Art Master" as a cadre different from that of Assistant Master, ordinary scale, senior scale and selection grade. Whereas in terms of Para 5.02 only one post of Art Master is sanctioned for a Sainik School without any ordinary scale, senior scale and selection grade, the cadre of Assistant Master, ordinary scale, senior scale and selection grade is dealt with in paras 5.03 to 5.06. Similarly, the Rules provide for separate cadre of Senior Masters as also cadre of Masters, ordinary scale, senior scale and selection grade, craft and work shop instructions, physical training instructors so and so forth. Whereas, Assistant Masters in different disciplines like Life Science, English, Math­ematics, Social Science, Economics and Commerce together constitute one cadre. The cadre of Art Master stands apart. So viewed, the cadre of Art Master and Assistant Masters (TGT) in different disciplines being two different cadre, the respondent no. 1 cannot claim parity with Shri Radhey Sham Dayal in wake of 5th pay revision and insist on stepping up of his pay to the stage of Shri Radhey Sham Dayal. The respondent no. 1 resultantly cannot press into service Rule 7 (B) Note 6 Central Civil Services (Revised Pay) Rules, 1997 with pay of Shri Radhey Sham Dayal. 15. Viewed, thus, the Writ Court erroneously placed reliance on Note 6 of G.S.R. 569 (E) and allowed the respondent's writ petition. The Writ Court lost sight of the fact that Art Master constituted cadre different and distinct from the cadre of Assistant Masters (TGT) and that the writ petition was devoid of any merit. 16. For the reasons discussed above, appeal is allowed and the writ court judgment dated 12.01.2008 is set aside. Allowed.