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2016 DIGILAW 2153 (HP)

Bhupinder Singh v. Sports Authority of India

2016-10-04

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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Mansoor Ahmad Mir, C.J. Subject matter of this writ petition is the order, dated 28th January, 2011, passed by the Central Administrative Tribunal, Chandigarh Bench, (for short, Tribunal), in Original Application No.766-HP-2009, titled Bhupinder Singh vs. Sports Authority of India, whereby the Original Application was dismissed, (for short, the impugned order). 2. Petitioner and one G.B. Dangwal were appointed as Hockey Coach in the respondent-Authority. According to the petitioner, said G.B. Dangwal was junior to him. The petitioner has placed on record the seniority list, dated 30th November, 1999, issued by the respondent-Authority, (Annexure P-2 with the writ petition), which does disclose that the writ petitioner was figuring at Sl.No.84 and said G.B. Dangwal was at Sl.No.90. 3. It has been pleaded by the petitioner that he and G.B. Dangwal came to be promoted to Grade-I post on 28th February, 1992. On promotion, pay of the petitioner was fixed at Rs.3,100/-, whereas the pay of G.B. Dangwal was fixed at Rs.3,200/-. After noticing the said facts, it appears that the petitioner approached the Tribunal by the medium of Original Application No.571/HP/2008, came to be disposed of vide order dated 23rd October, 2008, with a direction to the respondent to examine and decide the representation of the petitioner. 4. Upon directions having been passed by the Tribunal in the aforesaid Original Application, the concerned Authority examined the representation of the petitioner and rejected the same by a speaking order, dated 7th August, 2009, (Annexure P-11), containing details how the petitioner was not entitled to the said relief, constraining the petitioner to question the same by the medium of Original Application No.766-HP-2009, which came to be dismissed vide the order impugned in the instant writ petition. 5. The question involved in the writ petition is – Whether consideration order Annexure P-11 and the impugned order Annexure P-12 are legally correct. Answer is in the affirmative for the following reasons. 6. Petitioner has pleaded in paragraph 3 of the writ petition that he was promoted to Grade II post in the pay scale of Rs.2200-75-4000 w.e.f. 1st January, 1986. Answer is in the affirmative for the following reasons. 6. Petitioner has pleaded in paragraph 3 of the writ petition that he was promoted to Grade II post in the pay scale of Rs.2200-75-4000 w.e.f. 1st January, 1986. It has further been pleaded by the petitioner that as per the recommendations of 4th Pay Commission, an option was to be exercised within 30 days in order to have additional increment, which he did not exercise, though the petitioner has pleaded that no communication in this regard was ever addressed to him by the respondent-Authority. On the other hand, his junior G.B. Dangwal exercised such option and got additional increment, while fixing his pay in the revised pay scale of Rs.2200-4000/-. Thereafter, on 28th February, 1992, petitioner and his junior G.B. Dangwal came to be promoted to Grade-I post in the pay scale of Rs.3,000-100-4500 and pay of the petitioner was fixed at Rs.3100/- on the basis of last pay drawn at the time of promotion, while the pay of his junior G.B. Dangwal was fixed at Rs.3200/-. 7. Thus, the claim of the petitioner is that a person junior to him cannot be allowed to draw pay higher than the petitioner and that his pay has to be stepped up accordingly in terms of For the Respondent : 22(I)(a)(1). 8. Respondent, while passing the order Annexure P-11, has given details how the petitioner was not entitled to stepping up. It is also admitted case of the petitioner that additional increment was not granted to him as he had not exercised any option, as required, and his junior G.B. Dangwal exercised the said option, as discussed hereinabove. The petitioner did not raise any finger till 1992. The Tribunal has discussed all these facts in paragraphs 6 and 7 of the impugned order and rightly held that the case of the petitioner does not fall within the ambit of For the Respondent : 22(1)(a)(1). The petitioner is caught by the doctrine of delay, waiver and acquiescence. Thus, no case for stepping up of pay is made out. 9. The Tribunal also observed in the impugned order that the writ petitioner was drawing less pay than his junior as on 1st July, 1982. It is apt to reproduce paragraphs 6 and 9 of the impugned order hereunder: “6. Thus, no case for stepping up of pay is made out. 9. The Tribunal also observed in the impugned order that the writ petitioner was drawing less pay than his junior as on 1st July, 1982. It is apt to reproduce paragraphs 6 and 9 of the impugned order hereunder: “6. The case of the respondents is that an anomaly had arisen consequent upon the implementation of recommendation of IVth Pay Commission. At that time, Sh. G.B. Dengwal exercised option to fix his pay in the revised pay scale from the due date of his increment in the pre-revised scale. Accordingly, his pay in the revised pay scale of Rs.2200-4000 was fixed at Rs.2650/- as on 1.7.1987 and applicant was drawing Rs.2575/- as on 1.7.1987. Resultantly, the pay of Sh.G.B. Dengwal was Rs.3000 and that of applicant was Rs.2900 as on 28.2.1992 (the date of promotion to Grade I) in the lower pay scale of Rs.2200-4000. Accordingly, his pay was fixed at Rs.3200/- and that of applicant was fixed at Rs.3100/- on 28.2.1992 in the higher pay scale of Rs.3000-4500. 9. To remove the confusion in the matter, we had called for the service record of the applicant as well as his junior. It is apparent that Shri G.B. Dangwal Hockey Coach was appointed in the pay scale of Rs.700-40-1100 and he was drawing pay of Rs.820/- as on 1.7.1982 whereas applicant was promoted to Grade II in the pay scale of Rs.700-40-1100 on 9.7.1982 and his pay was fixed at the minimum of Rs.700/-. Thus, in July, 1982, the applicant was drawing less pay than his junior. Obviously, if his junior was drawing pay at a higher stage in 1982, it will have consequential effect on fixation of pay on 1.7.1987 also when pay of junior was fixed at higher stage.” 10. The Tribunal has rightly applied the ratio of the judgment of the Apex Court in Union of India and another vs. R. Swaminathan and others, (1997) 7 SCC 690 , wherein the Apex Court has dilated upon FR 22(I)(a)(1) and held in paragraph 10 as under: “10 According to the aggrieved employees, this has resulted in an anomaly. Government Order bearing No. F. 2(78)- E.III(A)/66 dated 4th of February, 1966, has been issued for removal of anomaly by stepping up of pay of a senior on promotion drawing less pay than this junior. Government Order bearing No. F. 2(78)- E.III(A)/66 dated 4th of February, 1966, has been issued for removal of anomaly by stepping up of pay of a senior on promotion drawing less pay than this junior. It provides as follows : "10 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 F.R. 22-C.- 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 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 scale 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 F.R. 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 refixing the pay of the senior officers in accordance with the above provisions shall be issued under F.R. 27. The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under F.R. 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." As the order itself states, the stepping up is subject to three conditions : (1) Both the junior and the senior officers should belong to the same cadre and the posts in which they have been promoted should be identical and in the same cadre; (2) the scales of pay of the lower and higher posts should be identical and; (3) anomaly should be directly as a result of the application of fundamental Rule 22-C which is now Fundamental Rule 22(I)(a)(1). We are concerned with the last condition. The difference in the pay of a junior and a senior in the cases before us is not a result of the application of Fundamental Rule 22(I)(a)(1). The higher pay received by a junior is on account of his earlier officiation in the higher post because of local officiating promotions which he got in the past. Because of the proviso to Rule 22 he may have earned increments in the higher pay scale of the post to which he is promoted on account of his past service and also his previous pay in the promotional post has been taken into account in fixing his pay on promotion. It is these two factors which have increased the pay of the juniors. This cannot be considered as an anomaly requiring the stepping of the pay of the seniors.” 11. Applying the tests to the instant case, the respondent-Authority has passed a well reasoned consideration order Annexure P-11 and the impugned order made by the Tribunal is also reasoned, factually and legally correct. 12. Having said so, no interference is required in the impugned order, the same is upheld and the writ petition is dismissed, alongwith pending CMPs, if any.