The court established that the petitioner cannot claim stepping up of pay under Fundamental Rule 27(2) due to the anomaly in pay arising from the junior being promoted to a different post and thereafter gaining entry to the present cadre from that post.

JUDGMENT

(Prayer: Writ Petition has been filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus, to the call the records relating to the impugned order vide Roc.No.2254/2012/A1/PDJ-DGL, dated 28.06.2012 passed by the respondent and quash the same and consequently direct the respondent to refix the petitioner''s basic pay and grade pay as per Rule 27(2) of Fundamental Rules on par with the pay of his junior V.Ramachandran as on 01.04.2012.)

D. Bharatha Chakravarthy, J.

This writ petition is filed by the petitioner for issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned order dated 28.06.2012 passed by the respondent and consequently direct the respondent to refix the petitioner''s basic pay and grade pay as per the Rule 27(2) of the Fundamental Rules on par with the pay of his junior V.Ramachandran as on 01.04.2012.

2. The factual matrix on which the case arises is admitted by both sides. The petitioner originally joined service as Examiner on 15.02.1982 and thereafter, was promoted as Junior Assistant on 01.10.1984 and Assistant on 01.04.1992. In the said cadre, he was posted as Sheristadar Category-II with the scale of pay of Rs.5000-175-9200. Subsequently, he was promoted as Sheristadar Category-I with effect from 01.01.2008 in the scale of pay of Rs.15460/-+4900/-. He retired from service upon reaching the age of superannuation with effect from 31.05.2012. At the time of superannuation, he was receiving a pay of Rs.18020/-+4900/-. However, one V.Ramachandran, who is four years Junior to him, who was also working as Sheristadar Category-I was receiving a pay of Rs.18430/-+4900/- with effect from on 01.04.2012. Therefore, the petitioner made an application for stepping up of his pay on par with that of junior under FR 27(2).

3. The respondent, namely, the District Judge, Dindigul, after considering the grievance of the petitioner, dismissed the same, vide order dated 28.06.2012. Aggrieved by the same, the present writ petition is filed.

4. The writ petition is resisted by the respondent on the ground that the case of the said junior V.Ramachandran is not comparable to that of the petitioner case, the petitioner who was promoted as Sheristadar Category-I with effect from 01.01.2008. Subsequent to his promotion, in between the post of Sheristadar Category-II and Sheristadar Category-I, a new post of Bench Clerk Grade-I was introduced in the year 2009, which carries the same scale of pay as that of Sheristadar Category-I. Therefore, the petitioner''s junior V.Ramachandran opted for promotion to the said post and therefore, he was initially appointed as Bench Clerk Grade-I with effect from 31.03.2010 and thereafter, further promoted as Sheristadar Category-I with effect from 01.01.2012. Therefore, since the Bench Clerk Grade-I and the post of Sheristadar Category-I were in the same scale of pay of Rs.9300/-+34800/-, option was given to the said junior of the petitioner and upon exercise of his option, his pay was fixed as per the Fundamental Rules 22(1)(a)(i) by granting him one increment. Accordingly, in view thereof, he was drawing a pay of Rs.18,430/-, while the petitioner was drawing only Rs.18,020/-. Therefore, the case is not comparable.

5. Mr.B.Prasanna Vinoth, the learned counsel for the petitioner would submit that firstly it can be seen that the post of Bench Clerk Grade-I was not available at the time when the petitioner was promoted. Therefore, this anomaly has happened only because of the administrative decisions and therefore, when the junior is drawing more pay than that of the senior, as a natural corollary under FR 27(2), the scale of pay of the junior needs to be stepped up and therefore, the order of the respondent is erroneous in law.

6. Per contra, Mr.K.Samidurai, the learned counsel appearing on behalf of the respondent taking us through the original counter affidavit and the additional counter affidavit filed detailing the scales o