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1998(5) Supreme 169
Supreme Court of India
(From C.A.T., Hyderabad)
K. Ramaswamy and G.B. Pattanaik, JJ.
Union of India & Ors. -Appellants
versus
P. Jagdish & Ors. -Respondents
Civil Appeal No. 16736 of 1996
(Arising out of SLP (C) No. 20470 of 1995)
Decided on 17-12-1996
Counsel for the Parties :
For the Appellants : Avtar Singh and A.K. Sharma, Advocates.
Held 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 on notional basis merely because their juniors in the cadre of Senior Clerks were given that special pay on being posted against those identified posts carrying the special pay. It is an additional pay attached to the post and any incumbent who occupies the post can only claim the same. (Para 6)
Further held : 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 than another Government servant junior to him in the lower grade and promoted or appointed subsequently to the higher post, the principle of stepping 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 for 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 by applying the principle of stepping up, the next increment of the said officer would be drawn on completion of the requisite qualifying service with effect from the date of the refixation of pay. This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay. 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 cadre. (Para 7)
Judgment
Pattanaik, J.-Leave granted.
2. The short question that arises in this appeal is whether the Tribunal 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/- per month in the lower post even though factually the respondents were not getting the said special pay.
3. The short facts leading to the filing of the application before the Tribunal by the respondents are that they were working as Senior Clerks and while so 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/- per 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 in 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 are taken 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 than their juniors who were promoted as Head Clerks later and who had been posed against the identified 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. 192 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.
4. 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 s
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