The Hon'ble Mr. Justice Surinder Singh, Judge. - High Court of ...

- 3 -3. The stand of the respondent-State is that thecase of the petitioner is not covered under thefundamental rules or any of the instructions issued bythe State Government, however, it is stated by therespondents that as per instructions of the FinanceDepartment issued vide letter No. Fin-C-A(3)-8/88dated 7.3.1991 and as amended from time to time,stepping up of senior employee equal to his junior ispermissible only if the following conditionsprescribed therein are fully satisfied. Clause 2 of theinstructions reads as follows:-“2. The matter relating to removal of anomalies insuch cases where pay of junior has become morethan his senior after 1/1/1996 as a result ofapplication of the provisions of F.R. 22, wasreceiving the attention of the Government and afterdue consideration / examination, and in partialmodification of this Department’s OfficeMemorandum No. Fin( C)A(3)-8/88 dated 7.3.1991,it has been decided that the pay of seniorGovernment servant be stepped up equal to thepay of his junior subject to the following conditions:-(a)(b)both the junior and the senior Governmentservants should belong to the same cadreand the posts in which they have beenpromoted should be identical in the samecadre.The pre-revised scale and revised scales ofpay of the lower and the higher posts in

- 4 -which they are entitled to draw pay shouldbe identical.(c) The senior Government servant at the time ofpromotion have been drawing equal or morepay than the junior.(d) The anomaly should be directly as a result ofthe application of the provisions ofFundamental Rule-22 or any other rule ororder regulating pay fixation on suchpromotion in the revised scale. If in the lowerpost, the junior was drawing more pay in thepre-revised scale than the senior by virtue ofany advance increments granted to him,provision of these instructions shall not beinvoked to step up the pay of the seniorofficer.xxx… xxx.. xxx…xxx… xxx… xxx…”4. The said instructions also speak to thestepping up of pay shall however not be allowed infollowing type of cases vide Clasue 6:-(a) Where a senior proceeds on ExtraordinaryLeave which results in postponement of date ofnext increment in the lower post, consequentlyhe starts drawing less pay than his junior in thelower grade itself. He, therefore, cannot claimpay parity on promotion even though he maybe promoted earlier to the higher grade;(b) If a senior forgoes/refuses promotionleading to his junior being promoted/appointedto the higher post earlier, junior draws higherpay than the senior. The senior may be ondeputation while junior avails of the adhoc

- 5 -promotion in the cadre. The increased paydrawn by a junior either due to adhocofficiating/regular service rendered in thehigher posts for period earlier than the senior,cannot, therefore, be an anomaly in strict senseof the term;(c) If a senior joins the higher post later than thejunior, for whatsoever reasons, whereby hedraws less pay than the junior, in such casessenior cannot claim stepping up of pay or parwith the junior;(d) If a senior is appointed later than the juniorin the lower post itself whereby he is in receiptof lesser pay than the junior, in such cases alsothe senior cannot claim pay parity in the higherpost though he may have been promotedearlier to the higher post;(e) Where a person is promoted from lower to ahigher post, his pay is fixed with reference tothe pay drawn by him in the lower post underthe FR 22 and he is likely to get more pay than adirect appointee whose pay is fixed underdifferent set of rules. In such cases, the seniordirect recruit cannot claim pay parity with thejunior promoted from a lower post to higher postas seniority alone is not a criteria for allowingstepping up;(f) Where a junior gets more pay due toadditional increments earned on acquiringhigher qualifications, etc.”5. Under clause 2 of the aforesaid instructionsa senior is entitled to stepping up of his pay so

- 6 -that it is equivalent to that of junior where boththe junior and senior belong to the same cadreand the post to which they have been promotedare identical and in the same cadre. There is nodispute that this condition is fulfilled.6. The next condition which is required to besatisfied is that the pre-revised and revised scalesof the lower and higher posts should be identical.There is no dispute with regard to this conditionalso. As per sub clause(c) of clause 2 the seniorGovernment servants at the time of promotionshould have been drawing equal or more paythan the junior, but this condition is not fulfilled inthe present case, because Krishanoo Ram wasdrawing more pay than the petitioner. Sub clause(d) of clause 2 only applies to the junior officerwas drawing more pay in the pre revised scalethan the senior by virtue of any advanceincrement granted to him. This condition is notapplicable here since Krishanoo Ram was notgiven any advance increment but was promotedas an Assistant Engineer earlier to the petitioner

- 7 -on adhoc basis since he was a member of thereserved category.7. Clause 6 of the aforesaid instructions dealswith those cases where benefits of stepping up ofpay under F.R. 22 are not to be allowed. None ofthe conditions mentioned in clause (a) to (f) areapplicable in the present case, whereas, FR22(I)(a)(1) reads as follows:-(18) Removal of anomaly by stepping up of payof Senior on promotion drawing less pay thanhis junior.-(a) As a result of application of FR 22-C (Now FR 22(I)(a)(1).-In order to remove the anomaly of aGovernment servant promoted or appointed toa higher post on or after 1.4.1961 drawing alower rate of pay in that post than anotherGovernment servant junior to him in the lowergrade and promoted or appointedsubsequently to another identical post, it hasbeen decided that in such cases the pay of thesenior officer in the higher post should bestepped up to a figure equal to the pay as fixedfor the junior officer in that higher post. Thestepping up should be done with effect from thedate of promotion or appointment of the juniorofficer and will be subject to the followingconditions, namely;-(a) Both the junior and senior officersshould belong to the same cadre and the

- 8 -posts in which they have been promotedor appointed should be identical and inthe same cadre;(b) The scales of pay of the lower andhigher posts in which they are entitled todraw pay should be identical;(c) The anomaly should be directly as aresult of the application of FR22-C. Forexample, if even in the lower post thejunior officer draws from time to time ahigher rate of pay than the senior byvirtue of grant of advance increments, theabove provisions will not be invoked tostep up the pay of the senior officer.The orders refixing the pay of thesenior officers in accordance with theabove provisions shall be issued underFR27. The next increment of the seniorofficer will be drawn on completion of therequisite qualifying service with effectfrom the date of refixation of pay.8. The aforesaid fundamental rules deals withfixation of the salary of an employee on hispromotion to a higher post. Instruction issued bythe Government of India, Ministry of Finance on4th February, 1966 provides that in order toremove the anomaly of a Government servantpromoted/ appointed to a higher post butdrawing a lower rate of pay in the post than a

- 9 -Government servant junior to him and promotedor appointed subsequently to another identicalpost, such officer would be entitled to steppingup of his pay to make it equal to the pay of thejunior. This instruction aforesaid clearly envisagesthat when two persons are in the same gradedoing identical work then the senior cannot getpay less than the senior cannot get pay less thanthat of his junior except in the circumstancesspecifically mentioned in the order, such as,having higher qualifications, etc.9. Thus, for the aforesaid reasons, the claim ofthe petitioner is justified also in view of thejudgment passed by this Court in J.K. Mahindruvs. State of H.P.and another [CWP (T) No.13348 of2008], decided on 30.12.2010 which has decidedthe identical issue in favour of the petitioner. As aresult of the aforesaid discussion, the petitioner isheld entitled to having his pay stepped up toequal the pay of his junior Shri Krishanoo Ram.10 The petition stands accordingly allowed inthe aforesaid terms. The respondents are directedto step up the pay of the petitioner and make it

- 10 -equal to his junior Krishanoo Ram with allconsequential benefits within two months fromthe receipt of the copy of this judgment. In case,this due and admissible amount is not paid to thepetitioner within the stipulated period, by therespondents-State, it shall carry an interest @12%interest per annum from the date when theamount fell due to the petitioner.11. The petition stands disposed of accordingly,so also the pending application(s), if any.May 23, 2012.(Pds)(Surinder Singh)Judge