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2013 DIGILAW 424 (HP)

FAQUIR CHAND v. STATE OF H. P.

2013-05-14

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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JUDGMENT DHARAM CHAND CHAUDHARY, J 1. CHALLENGE herein is to the judgment passed on 20.09.2010 in CWP(T) No. 6733 of 2008 whereby learned Single Judge of this Court has dismissed the same. 2. THE appellant (hereinafter referred to as the 'writ petitioner') has filed the writ petition with the following prayers: (i) That the respondents may be directed to step up the pay of the applicant and bring the same at par to the pay what his junior was getting. (ii) That the respondent may also kindly be directed to refund the pending claims of the applicant, the details of which have been given in para 6(iii) to (h) above. (iii) That the respondents may be directed to allow the applicant appropriate interest for the amounts withheld by them. Writ petitioner and one Shri Jati Ram were working as Male Health Worker in the respondent Department. While the initial date of appointment of the writ petitioner was 07.07.1962, the date of appointment of said Shri Jati Ram was 21.01.1964. They both continued drawing the same salary in the same pay-scale till the promotion of the writ petitioner as Male Health Supervisor on 31.08.1989. 3. ON his promotion as Male Health Supervisor, his pay was fixed on 31.08.1989 at Rs. 1680/- whereas pay of said Shri Jati Ram on that day was Rs. 1600/-. The writ petitioner continued drawing higher pay, as compared to said Shri Jati Ram till 01.01.1996 even on his promotion also as Male Health Supervisor on and w.e.f. 01.04.1994. It is on the revision of pay-scale w.e.f. 01.01.1996, in the revised pay-scale, the pay of the writ petitioner was fixed at Rs. 6000/-, whereas, that of his junior said Shri Jati Ram at Rs. 6200/- i.e. Rs. 200/- over and above of the pay of the writ petitioner. The writ petitioner approached the respondent department with a request to remove the anomaly and to bring his pay-scale at par with his junior Shri Jati Ram, but of no avail, as the same was declined by the 2nd respondent vide memo dated 23.08.1999, Annexure-C to the main petition. 4. The writ petitioner approached the respondent department with a request to remove the anomaly and to bring his pay-scale at par with his junior Shri Jati Ram, but of no avail, as the same was declined by the 2nd respondent vide memo dated 23.08.1999, Annexure-C to the main petition. 4. IN reply to the writ petition filed on behalf of respondents No. 1 to 3, the only plea raised was that in view of the writ petitioner having failed to exercise the option on his promotion on 31.08.1989 like his counter-part Shri Jati Ram, he rendered himself dis-entitled to the benefit of stepping up of his pay and as such the representation submitted in this behalf was rightly rejected. Regarding his other claims such as TA/Medical reimbursement, annual increments etc., while denying this part of the case of the writ petitioner, it is submitted that due and admissible benefits on this score stands released to him. Having gone through the record and also analyzing the rival submissions, we find that the failure on the part of the writ petitioner to exercise his option at the time of his promotion as Male Health Supervisor has heavily weighed in the mind of learned Single Judge while dismissing the writ petition and arriving at a conclusion that he is not entitled to stepping up of his pay at par with that of his junior Shri Jati Ram. The dismissal of the writ petition vide the order impugned before this Court is not fortified from the record for the reason that own notings Annexure R-4 of respondent department, whereby the representation of the writ petitioner has been dealt, make it crystal clear that the claim of the writ petitioner for stepping up of his pay at par with that of Shri Jati Ram was recommended by the concerned Dealing Hand to the superior officer in hierarchy. Such recommendation even is found to be supported by office order dated 14.07.1999 of the Block Medical Officer, Barsar, District Hamirpur whereby the pay of the writ petitioner was fixed at par with that of Shri Jati Ram and also the comparative statement of difference of pay in the basic pay of the writ petitioner and that of Shri Jati Ram. Not only this, but the recommendations so made had the support of FRSR also which reads as follows: "(18) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior.- (a) As a result of application of FR 22-C. [Now FR 22 (I) (a) (1) ].- In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following to the conditions, namely :- (a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre; (b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical; (c) The anomaly should be directly as a result of the application of FR 22-C, For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. The orders re-fixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay." 5. EVEN the Apex Court in Gurcharan Singh Grewal and another versus Punjab Sate Electricity Board and others, (2009) 3 Supreme Court Cases 94 has also held that very object to be achieved by stepping up the pay of a senior Government servant viz-a-viz that of his junior, is to bring the pay-scale of the senior at par with that of his junior. The respondents, therefore, should have stepped up the pay of the writ petitioner at par with that of his junior Shri Jati Ram. However, in this case the recommendations in this behalf made by the supporting staff in accordance with law have erroneously been turned down by the 2nd respondent. 6. IN our considered view, the writ petitioner, in all fairness and in the ends of justice is entitled to the benefit of stepping up of his pay at par with that of Shri Jati Ram on and w.e.f. 01.01.1996. This is the only point urged and agitated before us, during the course of hearing of the present appeal. In view of the above, we set aside the impugned judgment passed by learned Single Judge and hold that the writ petitioner is entitled to stepping up of his pay at par with his junior Shri Jati Ram w.e.f. 01.01.1996. There shall be a direction to the 2nd respondent to fix the pay of the writ petitioner accordingly within two months from the date of receipt of a copy of this judgment, which shall be supplied by the office of the learned Advocate General. Due and admissible benefits shall be disbursed to the writ petitioner within one month thereafter, failing which together with interest @ 9% per annum. 7. THE appeal stands disposed of accordingly. Pending application(s), if any, shall also stand disposed of.