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PETITIONER: SHISH RAM & ORS.

       Vs.

RESPONDENT: THE STATE OF HIMACHAL PRADESH& ORS.

DATE OF JUDGMENT:       19/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   353        1996 SCALE  (5)785

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard learned  counsel on  both sides and also respondent No.8 in person.      The undisputed facts are that while the appellants were working us  Head Clerks  and respondent Nos.3 and 4, Gulzari Ram and  Jam Lal  were working  as Accountants, the scale of pay of  the Head  Clerks  was  160-400  while  that  of  the Accountants was  160-450. Later  by  executive  order  dated November 11,  1976 the  Government had  created 10 temporary posts of  Assistants and  upgraded  them  to  the  scale  of Rs.225-500 and  some senior  candidates came to be appointed to those  posts. Subsequently, statutory rules under proviso to  Article  309  of  the  Constitution  came  to  be  made, increasing the  number of  posts and scale of pay of all the Head Clerks,  Assistants, Stenographers  etc. to Rs.225-500. By proceedings of the Government dated November 2, 1979 with effect from  January 1,  1978 promotions  or Accountants and Head Clerks  were fused  together. Pay  of Assistants,  Head Assistants etc.  was revised to Rs.620-1200/-, while that of the Junior  Auditors and  Accountants was revised to Rs.570- 1080/-. Similarly  for the  promotion of the Accountants and Head Clerks statutory rules came to be made under proviso to Article 309  of the  Constitution which came into force from June 13, 1978 enabling the Accountants and Head Clerks to be eligible for  promotion as  Superintendents. The  Government have created  promotional avenues  to the  posts of gazetted class II and the Head Clerks, Assistant Superintendents were made eligible  for promotion  to the  said posts of Gazetted Grade II in the scale of RS. 500-900/-, The Accountants were not  included   therein.  The  respondents  3  and  4  filed representations claiming  promotion to these posts but their claims were  rejected, When  they filed the writ petition in the  High   Court,  Shimla  which  was  transferred  to  the Administrative Tribunal,  which  by  the  impugned  in  T.A. No.90/87, dated  May 25,  1990 directed  the  Government  to

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consider their  claims with  effect from 1977 and also their entitlement for  promotion as  Gazetted  Class  II.  Calling those directions  in question,  the above appeal has come to be filed,      Shri Gururaja  Rao,  learned  senior  counsel  for  the appellants, contended  that though  respondent Nos.3  and  4 were initially  drawing higher  scale of pay of Es.160-450/- and the  appellants as Head Clerks were drawing pay scale of Rs.160-400/-, by  statutory orders  their scale  of pay  was increased to  Rs.225-500/- and  later to  Rs.620-1200/-  and thereby the  appellants scaled  a march  own the respondents whose scale  of pay  remained constant at Rs.160-450/- which was increased to Rs. 570-1080/- as referred to hereinbefore. As  a  consequence,  they  cannot  be  made  senior  to  the appellants. Shri  K.R. Nagaraja,  learned counsel  appearing for the  respondents  contended  that  they  were  recruited initially as  clerks in  November 1960  and Flay  1962; they were promoted as Junior Accountants in 1964-65 and they were further promoted as Accountants in April 1973 and July 1973. They always were treated to be seniors to the appellants who joined the  service  subsequent  to  their  entry  into  the initial service.  As   per the executive instructions issued by the  Government, a  note was  appended under which it was stated that  when combined  seniority  for  the  purpose  of promotion to  the Superintendents  was to be maintained from amongst the  a Assistants,  Head Clerks,  Stenographers  and Accountants, the  direction was  to keep  the Accountants en block seniors  to all  others. In  other words,  he contends that they  were drawing  higher scale  of pay  and they were treated  seniors   to  the   appellants   and   others;   as consequence, when  the revised  rules came  to be made under the fortuitous  circumstances, their scale of pay was not to be on  par with  the appellants and they cannot be denied of their legitimate  right to promotion to the post of gazetted class II.      Having  given   our  anxious   consideration   to   the respective contentions,  we  think  that  the  case  of  the appellants is  founded on a sounder footing than that of the respondents. It  is true  that the  respondents were drawing higher pay-scale  than that of the appellants at the initial stage. But, later, when the statutory rules came to be made, there was  a jump in the scale of pay of the appellants from Rs.160-400/- to  Rs.225-500/- while  the scale of pay of the respondents remained  stagnant  at Rs.160-400/-. Even in the subsequent  revision   in   the   ministerial   cadre,   the appellants’ scale  of  pay  was  higher  than  that  of  the respondents They  were  treated  two  separate  entities  as indicated earlier  When the  statutory rules came to be made increasing their  scale of  pay and making them eligible for promotion directly  to the  post of  gazetted cadre class II from Assistants,  Head Accountants,  Stenographers etc. to a pay-scale of  Rs 500-900/-,  it would  be obvious  that  the executive instructions  issued earlier had to yield place to the statutory  rules made under proviso to Article 309 It is equally true  that in  the subsequent rules made on June 13, 1978 under proviso to Article 309 of the Constitution fusing Accountants and Head Clerks as eligible for promotion to the post of  Superintendent, it would be obvious that in view of the  fact  that  higher  scale  of  pay  was  given  to  the Assistants, Head Clerks in the scale of pay of Rs 620-1200/- which that  of the respondents remained to be Rs 570-1080/-, by necessary implication they cannot be treated to be of the same  class  for  the  purpose  of  enabling  them  to  seek promotion to  the post  of Gazetted  Class II  Moreover, the statutory rules  do not include Accountants as a feeder post

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for promotion  as Gazetted  Class II  Considered from  these perspectives, we  are of  the view  that the Tribunal was in clear  error   in  directing   the  Government  to  consider Respondent Nos.  3 and  4 as senior to the appellants and in giving promotion over the appellants.      The appeal  is accordingly  allowed and the T.A. of the respondents stands dismissed. No costs.