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2012 DIGILAW 919 (HP)

B. K. Sharma v. State of Himachal Pradesh

2012-12-03

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. Petitioner was promoted as Senior Junior Engineer on 14.9.1988. He was transferred to Irrigation and Public Health Department on 9.9.1988. Petitioner assailed this decision by filing O.A. No. 35 of 1990. The same was decided on 23.6.1995. 2. Pay of one Sh. Tilak Raj Chaunta was fixed at Rs.13,125/- and the pay of petitioner was fixed at Rs.10,025/-. Petitioner made representation for the redrssal of his grievance. The main contention of the petitioner in the representation was that Sh. Tilak Raj Chaunta was junior to him since in the seniority list, he figured at Sr. No. 397 and the petitioner figured at Sr. No. 338. According to the petitioner, his pay ought to have been stepped up since Sh. Tilak Raj Chaunta was junior to him. However, the fact of the matter is that Sh. Tilak Raj Chaunta was promoted as Assistant Engineer (Civil) on 26.8.1978 and the petitioner was promoted as Assistant Engineer (Civil) only on 7.12.2000. 3. According to the averments contained in the supplementary affidavit, case of the petitioner was considered for promotion for the post of Assistant Engineer (Civil) in the Departmental Promotion Committees held in the years 1996, 1997, 1998 and 1999. He was not found suitable for promotion to the post of Assistant Engineer (Civil). In the Review Departmental Promotion Committee held on 1.8.1996, petitioner was again not found suitable. Similarly, in the Departmental Promotion Committee held in the year 1998 and 2000, case of the petitioner was not recommended. Case of the petitioner was finally recommended for promotion as Assistant Engineer (Civil) on 14.11.2000, pursuant to which the petitioner was promoted on 7.12.2000. 4. In view of the facts enumerated hereinabove, it cannot be held that the petitioner is senior to Sh. Tilak Raj Chaunta. Sh. Tilak Raj Chaunta has worked as Assistant Engineer (Civil) with effect from 26.8.1978. Petitioner has been promoted on 7.12.2000 after 22 years of the promotion of Sh. Tilak Raj Cahunta. In view of this, pay of the petitioner cannot be ordered to be stepped up. The petitioner has worked only as Senior Junior Engineer with effect from 1988 to 2000. 5. Their Lordships of the Hon’ble Supreme Court in Union of India and another Vs. Tilak Raj Cahunta. In view of this, pay of the petitioner cannot be ordered to be stepped up. The petitioner has worked only as Senior Junior Engineer with effect from 1988 to 2000. 5. Their Lordships of the Hon’ble Supreme Court in Union of India and another Vs. R. Swaminathan and others (1997) 7 Supreme Court Cases 690 have held that the juniors can be granted higher pay than their seniors, if the juniors officiate in promotional posts. Their Lordships have further held that the increased pay drawn by a junior because of ad hoc officiating or regular service rendered by him in the higher post for periods earlier than the senior is not an anomaly because pay does not depend on seniority alone nor is seniority alone a Criterion for stepping up of pay. Their Lordships have held as under: “9. We are, however, in the present case, concerned basically with Fundamental Rule 22(I)(a)(1) and the proviso to Fundamental Rule 22 because, in all these appeals. the junior employees who have got higher pay on promotion than their seniors, had officiated in the promotional post for different periods on account of local ad hoc promotions granted to them. This is because the Department of Telecommunications is divided into a number of Circles within the country. The regular promotions from the junior post in question to the higher posts are on the basis of all India seniority. The Heads of Circles have, however, been delegated powers for making local officiating arrangements based on circle seniority to the higher posts in question against short term vacancies up to 120 days in the event of the regular pannelled officers not being available in that circle. This period of 120 days was subsequently revised to 180 days. Under this provision for local officiation, the senior most official in the circle is allowed to hold the charge of the higher post for a limited question. This is purely out of administrative considerations and is resorted to in order to tide over the exigencies of work. This practice, we are informed, has been followed in all circles in the Department of Telecommunications since 1970. This is because, at times it is not possible to fill up all the vacancies in a particular circle for various reasons such as non-joining by a particular person, chain promotions or short-term vacancies arising on account of leave etc. This practice, we are informed, has been followed in all circles in the Department of Telecommunications since 1970. This is because, at times it is not possible to fill up all the vacancies in a particular circle for various reasons such as non-joining by a particular person, chain promotions or short-term vacancies arising on account of leave etc. It is submitted before us by the Department that it is not always possible to convene the meetings of the departmental promotion committee for filling up all the posts which are only available for short periods on an All India basis because of administrative problems. To fill up this gap, Government has issued instructions from time to time to allow local officiating arrangements in the interest of work. The department has also pointed out that all of the aggrieved employees in these appeals have availed of such officiating promotions as and when such occasion arose in their circle and they were eligible. The juniors, therefore, in each of these cases who have received a higher pay on their regular promotion than the seniors, have received this higher pay on account of the application of the proviso to Fundamental Rule 22. 11. The Office Memorandum dated 4-11-1993, Government of India, Department of Personnel and Training, has set out the various instances where stepping of pay cannot be done. It gives, inter alia, the following instances which have come to the notice of the department with a request for stepping up of pay. These are : "(a) Where a senior proceeds on Extra Ordinary Leave which results in postponement of Date of Next Increment in the lower post, consequently he starts drawing less pay than his junior in the lower grade itself. He, therefore, cannot claim pay parity on promotion even though he may be promoted earlier to the higher grade; (b) if a senior foregoes/refuses promotion leading to his junior being promoted/appointed to the higher post earlier, junior draws higher pay than the senior. The senior may be on deputation while junior avails of the ad hoc promotion in the cadre. The increased pay drawn by a junior either due to ad hoc officiating/regular service rendered in the higher posts for period earlier than the senior, cannot, therefore, be an aomaly in strict sense of the term. The senior may be on deputation while junior avails of the ad hoc promotion in the cadre. The increased pay drawn by a junior either due to ad hoc officiating/regular service rendered in the higher posts for period earlier than the senior, cannot, therefore, be an aomaly in strict sense of the term. (c) If a senior joins the higher post later than the junior for whatsoever reasons, whereby he draws less pay than the junior, in such cases senior cannot claim stepping up of pay at par with the junior." (d) . . . . . . . . . . . . . . . There are also other instances cited in the Memorandum. The Memorandum makes it clear that in such instances a junior drawing more pay than his senior will not constitute an anomaly and, therefore, stepping up of pay will not be admissible. The increased pay drawn by a junior because of ad hoc officiating or regular service rendered by him in the higher post for periods earlier than the senior is not an anomaly because pay does not depend on seniority alone nor is seniority alone a criterion for stepping up of pay. 13. The employees in question are, therefore, not entitled to have their pay stepped up under the said Government Order because the difference in the pay drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly; nor is it a result of the application of Fundamental Rule 22(I)(a)(1).” 6. Their Lordships of the Hon’ble Supreme Court in Union of India and others Vs. M. Suryanarana Rao (1998) 6 Supreme Court Cases 400 have held that the benefit of stepping up is not admissible to the senior even if junior’s ad hoc officiation is for a long period. Their Lordships have held as under: “6. The second contention of the learned Counsel is that the Central Administrative Tribunal has in several cases taken the view that if a junior had been promoted on ad hoc basis on long-terms and his pay is fixed at a higher scale, the senior is entitled to get his pay stepped up on par with the junior. He has placed reliance on the judgment of the Tribunal in T. Atchutaramaiah v. Regional Director, Employees' State Insurance Corporation, Hyderabad, 1992 (21) Administrative Tribunal Cases 78. He has placed reliance on the judgment of the Tribunal in T. Atchutaramaiah v. Regional Director, Employees' State Insurance Corporation, Hyderabad, 1992 (21) Administrative Tribunal Cases 78. It is stated by the Tribunal in para 4 as follows : "We have examined the case and heard rival sides. In an exactly similar case like this, this Bench had ordered stepping up of pay in allowing O.A. No. 607 of 1990 by order dated 3-9-1991 (This order has subsequently been upheld by the Hon'ble Supreme Court by orders dated 31-1-1992 in SLP No. 645 of 1992). We had held that where the pay of a junior is fixed on regular promotion at a higher stage than his seniors on account of his having earned increments by virtue of his earlier ad hoc promotions the pay of the senior should be stepped up while fixing his pay on regular promotion. Hence applying the same principles we have to order stepping up of pay in this case also from 1-1-1986." 8. Learned Counsel has also drawn our attention to the orders of this Court dismissing in limine similar special leave petition in other cases. It is contended by learned Counsel that none of these decisions had been considered by the Bench in R. Swaminathan's case (1997 AIR SCW 3659), and, therefore, the decision in R. Swaminathan's case requires reconsideration. We are unable to agree. In none of the cases cited by the learned Counsel there is any reference to the relevant fundamental rules or the Government Memorandum. On the other hand, the Bench has considered all the relevant rules and has laid down the principle clearly. We find no justification to have the matter re-considered. 9. The learned Counsel suggests that the Bench has failed to take note of an earlier judgment of a Bench of two Judges in Union of India v. P. Jagdish, (1997) 3 SCC 176 : (1997 AIR SCW 1017). Subsequent to the promotion of respondents in that case as Head Clerks from the posts of Senior Clerks, some of the posts of Senior Clerks were given a special pay of Rs.35/- per month. Though the respondents had not worked on such posts they claimed re-fixation of their pay in the cadre of Head Clerks on a notional basis that they were drawing such special pay. That claim was negatived by the Bench. Though the respondents had not worked on such posts they claimed re-fixation of their pay in the cadre of Head Clerks on a notional basis that they were drawing such special pay. That claim was negatived by the Bench. But the Bench held that the respondents therein were entitled to have their pay stepped up to be on par with that of their juniors who had worked in posts carrying such special pay and were promoted later than the respondents as Head Clerks. The Bench took care to say that such stepping up would be only prospective from the date of promotions of the juniors. The facts of the present case are entirely different and the said ruling will not apply.” 10. One of the reasons given by the Tribunal in support of its order is that when ad hoc promotions were made, the respondent was not considered therefor or offered the same and it was not as if he refused to take up higher responsibility. The reasoning is highly fallacious. As pointed out by learned Counsel for the appellant ad hoc promotions are made within the circles where vacancies arose and the respondent who was working in a different circle could not have been considered for such ad hoc promotion or offered the same. The fact that ad hoc promotions are made within the circles has been noticed by the Bench in R. Swaminathan's case (1997 AIR SCW 3659). 7. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.