A writ petition under Article 226 to contest a pay fixation must be timely; delays can lead to denial of the claim.

ORDER

Chandra Dhari Singh, J. (Oral)--The instant petition under Article 226 of the Constitution of India has been filed seeking inter alia the following reliefs:

(i) "Issue a Writ in the nature of Mandamus, or such other Writ, Order or Direction as deemed proper by this Hon'ble Court, quashing the First Respondent's impugned direction dated 18.07.2009, directing the Petitioner to fix the Second Respondent's basic pay at Rs.6025/-;

(ii) Pass an appropriate direction, declaring that the fixation of the Second Respondent's basic pay at Rs.5850/- as previously calculated by the Petitioner is in conformity with applicable law;"

2. Learned counsel for the petitioner submitted that the Respondent No. 2 was appointed as a Primary School Teacher by the Petitioner with effect from 01.11.1979, in the pay scale and grade of Rs.320-10-380-12-500-15-560. It is submitted that the impugned order directs the Petitioner herein to fix the basic pay of respondent no. 2 at Rs.6025/-. It is submitted that the said order is illegal, inter alia since it is ultra vires the norms for fixation of pay laid down by the Fifth Pay Commission, as accepted by the Ministry of Finance Resolution No. 56(1)/IC/97 dated 30.09,1997, as also the Order regarding revision of Pay Scales of Primary School Teachers dated 04.04.2002 as issued by the Govt. of India, Ministry of Human Resource Development.

3. It is stated that the primary interpretational error which was committed was that the respondent no.1 failed to notice the distinction between the terms "stage in the existing scale" and "increments in the existing scale" as used distinctly in the two provisos to Clause 7 of the Fifth Pay Commission's recommendations.

4. It is submitted that the respondent no. 1 erred in calculating the increments to be added to basic pay as per the second proviso to Clause 7(1)(A), basing the calculation on the erroneous position of the respondent no. 2 that she had received ten increments, whereas she had only received for increments in the existing scale of pay, while previous increments had been received in an earlier, lower scale of pay. Therefore, while she was at the tenth stage of the scale (relevant to the first proviso of Clause 7(1)(A), she had received only four increments in the existing scale, entitling her to the benefit of only one increment under the second proviso. The impugned directions, however, effectively gave the respondent no. 2 the benefit of three such increments, contrary to the applicable rules and norms.

5. It is stated that as the respondent no. 2 had received four increments in the "existing scale of pay", she was entitled to the minimum benefit of one increment as a result of fixation of her basic pay at Rs.5,850. Therefore, it is submitted that the petitioner's fixation of the Respondent No. 2 basic pay was correctly arrived at as a result of due application of mind, whereas the impugned direction of First Respondent misapplied the relevant norms.

6. Per contra, Mr. Puneet Mittal, Senior Advocate, learned counsel for the Respondent No. 2 stated that the order impugned in the present petition was passed by the first respondent after inviting comments/objections from all concerned. In fact the petitioner has fallen in error while understanding and implementation of the norms of the fixation of as laid down by the Fifth Pay Commissi