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PETITIONER: E.S.I. CORPORATION & ANR.

       Vs.

RESPONDENT: P.K. SRINIVASMURTHY & ANR.

DATE OF JUDGMENT:       23/07/1997

BENCH: SUJATA V. MANOHAR, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar,J.      This  is   an  appeal  filed  by  the  Employees  State Insurance Corporation  against the judgment and order of the Central  Administrative  Tribunal,  Bangalore  Bench,  dated 3.10.1991 in Application No.350 of 1990. The application was filed by respondent no.1 for enhancement of this pay.      The appellants  have a  cadre of  Upper Division Clerks (hereinafter  referred   to  as   ‘UDC’)  which   has  three categories -  UDC Cashier,  UDC Care-taker and UDC Incharge. While UDC Cashier and UDC Care-taker were normally posted in regional offices,  UDC Incharge was posted in local offices. It was a normal practice of the appellant-corporation to ask the Upper  Division Clerks  to exercise their option to work in any  of the  three categories.  At the  material time the post of  UDC Cashier  carried certain  allowance including a cash allowance  based on  the total disbursement made by the UDC Cashier  to the  insured persons  per month.  Hence  the seniors generally  opted for  UDC Cashier’s  post. The  pay- scales of all UDCs was Rs.330-560.      By memorandum  dated 22.3.1978 the scale of pay of UDCs Incharge was revised on an ad hoc basis. It was also decided to allow  this revised  scale  of  pay  to  those  who  were actually working as UDCs Incharge on 1.1.1973 and afterwards either regularly  or for  broken periods irrespective of the fact that  they were not the senior most to hold the post as a matter  of right  on temporary  ad hoc  basis. In 1986 the post of UDC Incharge was abolished.      The next promotional post for UDCs was the post of Head Clerk. Some  employees of  the appellant-corporation who has occupied the  post of  UDC Incharge  after 1.1.1973  and who were subsequently promoted as Head Clerks had challenged the Fixation of  their pay  in the  post of  Head  Clerks  under Fundamental Rule  22-C on the basis of the regular pay-scale drawn by  UDCs. They  has contained  that the ad hoc revised pay-scale of  UDC Incharge under the memorandum of 22.3.1978 should be  the basis  for their pay fixation on promotion to the cost  of Head  Clerk under  Fundamental Rule  22-C. This contention was  ultimately upheld by the Andhra Pradesh High Court  in   Writ  Petition  Nos.4529-4531/1983  (hereinafter

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referred to  as ‘Gopala  Sharma’s case’).  A  special  leave petition from this judgment was dismissed by this Court.      Respondent No.2 had opted for the post of UDC Incharge. Accordingly he  worked as UDC Incharge till his promotion as a Head  Clerk on  12.1.1979. He  claimed the  benefit of the decision  in  Gopala  Sharma’s  case  and  was  granted  pay fixation on promotion to the post of Head Clerk on the basis of the  levised scale  of pay  of UDCs  Incharge  under  the memorandum of  22.3.1978.  Respondent  No.1  was  senior  to respondent No.2.  He had  however, opted for the post of UDC Cashier. Respondent  No.1 was  promoted  as  Head  Clerk  on 1.4.1978 earlier  than respondent  No.2. The pay fixation of respondent No.  1 as  Head Clerk  was done under Fundamental Rule 22-C  on the  basis of the last pay drawn by him as UDC Cashier. As  a  result,  on  the  revised  pay  fixation  of respondent No.2  on  the  basis  of  Gopala  Sharma’s  case, although respondent  No.1 was  senior to  respondent No.2 in the cadre  of UDCs as well as Head Clerks, the pay fixed for respondent No.  1 in  the post  of Head Clerk was lower than the pay of respondent No.2 in the same cadre.      Respondent No.1 filed an application before the Central Administrative Tribunal,  Bangalore Bench for stepping up of his pay  on the  basis of  the pay  fixation of  his junior- respondent No.2.  He made  other alternative prayers for his deemed promotion  as UDC Incharge and stepping up of his pay on that  basis. The  Tribunal  by  its  impugned  order  has directed the  appellants to  step up  the pay  of the  first respondent with  effect from  12.1.1979 on  a par  with  the second respondent  on the  refixation of  the salary  of the second  respondent.  The  Tribunal,  however,  confined  the arrears of  pay and  allowances only  from one year prior to the date  of filing  of the  application namely,  11.5.1989. Being aggrieved  by these  directions  the  appellants  have filed the present appeal.      Fundamental Rule  22-C at  the  material  time  was  as follows:-      "Notwithstanding anything contained      in these  rules, where a government      servant  holding   a  posts   in  a      substantive,      temporary      or      officiating capacity is promoted or      appointed   in    a    substantive,      temporary or  officiating  capacity      to another post carrying duties and      responsibilities     of     greater      importance than  those attached  to      the post  held by  him, his initial      pay in the time scale of the higher      post shall  be fixed  at the  stage      next  above   the  pay   nationally      arrived at by increasing his pay in      respect of  the lower  post by  one      increment at  the  stage  at  which      such pay has accrued......."      The provision  on which  respondent No.1  relies is for removal of  anomalies by stepping up of pay of a senior who, on promotion,  draws less pay than his junior as a result of the application of Fundamental Rule 22-C. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1.4.1961 drawing lower pay in that post than  another Government  servant junior  to him in the lower  grade  and  promoted  or  appointed  subsequently  to another identical  post, it  has been  decided that  in such cases the  pay of  the senior  officer in  the  higher  post should be  stepped up  to a figure equal to the pay as fixed

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for the junior officer in that higher post (G.I., M.F., O.M. No.F.2(78)-E. III(A)-66  dated the  4th February, 1966). The stepping up  should  be  done  with  effect  from  the  date promotion of  appointment  of  the  junior  officer  and  is subject to the following conditions:      "(a) Both  the  junior  and  senior      officers should  belong to the same      cadre and  the posts  in which they      have  been  promoted  or  appointed      should be identical and in the same      cadre;      (b) The  scales of pay of the lower      and higher  posts in which they are      entitled  to  draw  pay  should  be      identical;      (c) The  anomaly should be directly      as a  result of  the application of      F.R. 22-C.  For example,  if in the      lower post the junior officer draws      from time  to time a higher rate of      pay than  the senior  by virtue  of      grant of  advance  increments,  the      above  provisions   will   not   be      invoked to  step up  the pay of the      senior officer."      In the  present case,  respondent No.2 who is junior to respondent No.1  became entitled to a higher pay fixation on promotion as  a Head  Clerk than  respondent No.1 because of the higher  scale of pay to which the became entitled in the post  of  UDC  Incharge  by  reason  of  the  memorandum  of 22.3.1978  as  interpreted  by  the  High  Court  in  Gopala Sharma’s case.  Respondent No.1  never held  the post of UDC Incharge. He  had held  the post  of UDC  Cashier.  He  was, therefore, not  entitled to the benefit of the memorandum of 22.3.1978. As  a result,  the lower  post held by respondent No.1 carried  a different  scale of  pay than the lower post held by  respondent No.2.  Since the  scales of  pay in  the lower post  held by the two were not identical, the question of stepping  up of  pay for  the  purpose  of  removing  any anomaly does not arise in the present case.      In  the   case  of   D.G.  Employees’  State  Insurance Corporation and  Anr. V.  B. Raghava  Shetty and  Ors. (1995 Suppl.(2) SCC  681) which  deals with  a  similar  situation where the seniors has declined to be posted as UDCs Incharge and had  preferred to remain in the regional office in order to have  the  benefit  of  house  rent  allowance  and  city compensatory allowance,  this Court  said  that  Fundamental Rule 22-C  cannot be brought to help for stepping up the pay of the  seniors. In  the present case, since respondent No.1 did not work as UDC Incharge at any point of time before his promotion as  Head Clerk, and has opted for the post for UDC Cashier, he  is not  entitled to  have his pay stepped up on the basis  of the  pay fixed  under F.R.  22-C in respect of respondent No. 2 on his promotion as Head Clerk on the basis of the pay earlier drawn by him as UDC Incharge.      In this  view of  the matter  we need  not examine  the question of  limitation since even on merit, respondent No.1 is not entitled in a higher pay fixation on the basis of the pay drawn  by respondent  No.2 on  promotion to  the post of Head Clerk.  The  appeal  is,  therefore,  allowed  and  the impugned order  of the  Tribunal is  set aside.  There will, however, be no order as to costs.