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PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

P. JAGDISH AND OTHERS

DATE OF JUDGMENT: 17/12/1996

BENCH:

K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

PATTANAIK, J .

Leave granted.

The short question that arises in this appeal is

whether the Tribunal to was justified in directing the

appellant to fix up the pay of respondents in the cadre of

Head Clerk by notionally holding that they are also eligible

to receive the special pay of Rs. 35/- pre month in the

lower post even though factually the respondents were not

getting the said special pay.

The short facts leading to the filing of the

application before the Tribunal by the respondents are that

they were working they were promoted to the post of Head

Clerks. Under the orders of the competent authority 10% of

the posts of Senior Clerks were identified to be the posts

involving arduous nature of work and those of the incumbents

who were being posted to those identified posts were getting

special pay of Rs. 35/- pre month. This was the state of

affairs prior to 1.1.1986. Usually on the basis of seniority

amongst the Senior Clerks, postings were being made to the

identified posts carrying a special pay of Rs. 35/- per

month. On account of restructuring of the cadre a large

number of vacancies occurred in the category of Head Clerk.

The respondents who were not working against the identified

posts of Senior Clerks were promoted as Head Clerks w.e.f.

1.1.1984 the date from which there had been upgradation to

the posts of Head Clerks and necessarily while fixing of the

pay the category of Head Clerks, the pay which they were

drawing as Senior Clerks was taken into account. While the

respondents were thus promoted to the post of Head Clerk,

their juniors who were posted against the identified posts

of Senior Clerks used to get Rs. 35/- as special pay until

they were promoted as Head Clerks. So far as those persons

are concerned on being promoted as Head Clerks, the special

pay which they are drawing in the category of Senior Clerks

was they into account in fixing their pay in the promoted

category of Head Clerks. Consequentially even though the

respondents were promoted to the post of Head Clerks

earlier, they were found to be getting less pay their

juniors who were promoted as Head Clerks later and who had

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been posed against the indentified posts of Senior Clerks

prior to their promotion. Some of these persons similarly

situated as the respondents who were promoted as Head Clerks

before, have not been posted against any identified post of

Senior Clerk and therefore were not getting the special pay

of Rs. 35/- per month, approached the Tribunal by filing OA

No. 162 of 1990 claiming that their pay should be refixed in

the cadre of Head Clerks on the notional basis that they

were drawing Rs. 35/- per month as special pay in the cadre

of Senior Clerk. The Tribunal, however, did not grant the

relief as claimed but taking into account the fact that when

persons junior to the applicants in the category of Senior

Clerks on being promoted were getting a higher salary than

those who had been promoted earlier, on equitable

consideration the salary of the earlier promoted Head Clerks

should be stepped up so that they would not get less than

what their juniors are getting. This judgment of the

Tribunal in OA No. 192/90 has become final as the special

leave petition against the same stood dismissed. When the

respondents in the present appeal made a similar claim

before the Tribunal, the Tribunal following its earlier

decision dated 4.3.1993 in OA No. 192/90 directed that the

salary of the respondents should be stepped up, so that,

they would not get less than their juniors in the category

of Senior Clerks are getting on being promoted to the cadre

of Head Clerk Challenging the aforesaid direction of the

Tribunal the present appeal has been preferred.

The learned counsel for the appellant contends that the

special pay of Rs. 35/- per month being attached to the

specified post in the cadre of Senior Clerk only those of

the Senior Clerks would get the same who were posted against

those specified posts. That being the position and the

respondents having not been posted on thous posts question

of Rs. 35/- per month on account of the fact that they had

been not posted against the identified posts of Senior

Clerks carrying Rs. 35/- as special pay would not be

entitled to get there pay fixed in the cadre of Head Clerks

by following the principle of stepping up when their juniors

who had been getting the special pay of Rs. 35/- per month

as Senior Clerks on being posted against the identified

posts on promotion gets a higher amount as Head Clerks and

the principle of stepping up will not be applicable of

stepping up will not be applicable. According to the learned

counsel the Tribunal committed serious error in directing

the stepping up of the salary of the respondents in the pay

scale meant Head Clerks solely on the ground their juninors

are getting a higher salary.

The question for consideration, therefore, would be:

(1) whether the respondents who had not been posted against

the identified posts carrying a special pay of Rs. 35/- per

month can even claim fixation of their pay with Rs. 35/- per

month in the cadre of Senior Clerks even on notional basis.

(2) Whether the respondents can claim for stepping up of

their pay in the promoted cadre of Head Clerks when their

juniors who were later promoted were fixed up at a higher

slab in the cadre of Head Clerks taking into account the

special pay which they are drawing in the lower category of

Senior Clerks.

So far as the first question is concerned, it is to be

seen that a special pay of Rs. 35/- per month is attached to

certain identified posts in the category of Senior Clerks

and, therefore, only those who would be posted against those

identified posts can claim the said special pay. The

respondents who had already been promoted to the higher

category of Head Clerks cannot claim that special pay even

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on notional basis merely because their juniors in the cadre

of Senior Clerks were given that special pay. It is an

additional pay attached to the post and any incumbent who

occupies the post can only claim the same. The claim of the

respondents on this score, therefore, is not sustainable in

law and the Tribunal has rightly rejected the said claim of

the respondents.

So far as the second question is concerned, it depends

upon the applicability of the principle of stepping up.

Admittedly, the respondents had been promoted earlier

juniors who were continuing as Senior Clerks against the

identified posts carrying special pay of Rs. 35/- per month

on being promoted to the post of Head Clerks later than the

respondents got their pay fixed at a higher level than the

respondents. Under the provisions of Fundamental Rules to

remove the anamoly of a Government servant promoted or

appointed to a higher post earlier drawing a lower rate of

pay in that post then another Government servant junior to

him in the lower grade and promoted or appointed

subsequently to the higher post, the principle of steeping

up of the pay is applied. In such cases the pay of the

senior officer in the higher post is required to be stepped

up to a figure equal to the pay as fixed the junior officer

in that higher post. The stepping up is required to be done

with effect from the date of promotion or appointment of the

junior officer. On refixation of the pay of the senior

officer would be drawn on completion of the requisite

qualifying service with effect from the date of the

refixation of pay. This principle becomes applicble when the

junior officer and the senior officer belong to the same

category and the post from which they have been promoted and

the promoted cadre the junior officer on being promoted

later than the senior officer gets a higher pay. This being

the principle of stepping up contained in the Fundamental

Rules and admittedly the respondents being seniors to

several other Senior Clerks and the respondents having been

promoted earlier than many of their juniors who were

promoted later to the post of Head Clerks, the principle of

stepping up should be made applicable to the respondents

with effect from the data their juniors in the erstwhile

cadre of Senior Clerks get promoted to the cadre of Head

Clerks and their pay was fixed at a higher slab that of the

respondent. The stepping up should be done in such a way

that the anamoly of juniors getting higher salary then the

seniors in the promoted category of Head Clerk would be

removed and the pay of the seniors like the respondents

would be stepped up to a figure equal to the pay as fixed

for their junior officer in the higher post of Head Clerk.

In fact the Tribunal by the impugned order has directed to

apply to apply the principle of stepping up and we see no

infirmity with the same direction subject to the aforesaid

clarifications. This principle of stepping up which we have

upheld would prevent violation of equal pay for equal work

but grant of consequential benefit of the difference of

salary would not be correct for the reason that the

respondents had not worked in the post to which 35% special

pay was attached in the lower cader. But by reason of

promotion the promotee-juniors who worked on the said posts,

in fact, performed the hard duties and earned special pay.

Directions to pay arrears world be deleterious to

inculcation of efficiency in service. All persons who were

indolent to share higher responsibilities in lower posts, on

promotion would get accelerated arrears that would be

deleterious to efficiency of service. Therefore, though

direction to step up the pay on notional basis is consistent

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with Article 39(d) of the Constitution, it would be

applicable only perspectively from the data of the promotion

and the fixation of the scale stepping up of scale of pay

would be perspective to calculate future increments on the

scale of pay in promotional post only perspectively. The

appeal is dismissed but in the circumstances there would not

no order as to costs.