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PETITIONER: THE CHIEF COMMISSIONER OF INCOME TAX(ADMINISTRATION), BANGAL

       Vs.

RESPONDENT:

DATE OF JUDGMENT:       22/01/1996

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

CITATION:  1996 SCC  (7) 275        JT 1996 (1)   709  1996 SCALE  (1)696

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Office  report   shows  that   notice  was   issued  to the respondents  on  25.8.1993.  Though  it  was  served  on respondent No.2  on 14.9.1993  and  on  respondent  No.7  on 7.9.1993,  they   do  not   appear  either   in  person   or through  counsel.   Neither  unserved   envelopes  nor   A/D cards  have   been  received   in  respect   of   respondent Nos.1,  3   to  6.  Under  these  circumstances,  notice  to them must be deemed to have been served.      Leave granted.        We  have heard  the counsel  for the  appellant.  The Government in O.H.No.F7(52) E IIIX78, dated May 5, 1979 have stated that  special grant of pay of Rs.35/ per month to the Upper Division  Clerks in the non-secretariat administrative offices was  provided. Out of the UDCs carrying the scale of Rs.330-560/-, 10%  of the  posts were earmarked with special grant of  pay of Rs.35/- in the secretariat and other places and they  were directed  to handle  cases of  complex nature involving deep  study and-competence.  For dealing with such cases certain  officers have been promoted to that 10% posts specified among  the UDCs in the secretariat as well as non- secretariat administrative  officers. They were being paid @ Rs.35/- per  month as  compensation for discharge of special duties. The  respondents were not actually discharging those duties but  being UDCs  they claimed  special pay of Rs.35/- .The Tribunal  in the  impugned order  fol1owing its earlier decision dated  9.10.1991 made  in  O.A.394/90  allowed  the petition and  directed payment. We have directed the counsel to find  out whether  any appeal  has been filed against the said order.  It would  appear that  no appeal has been filed against the  said order. However, it being a question of law and since  the matter  is of perennial problem applicable to several places,  we are  of the  considered  view  that  the failure to  file an  appeal in  one case  does not  have the effect of  following in  all other  cases. It  is seen  that

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payment of  Rs.35/- per  month to  UDCs discharging  special duties of  onerous nature,  is personal  pay so long as they discharge the same. Therefore, other UDCs who do not perform the special  duties, though  seniors, do  not ipso facto get the same  pay on  the parity  of equal  pay due  to  juniors getting higher  pay. Under these circumstances we are of the view that  the Tribunal  was wholly  incorrect in  directing payment to all the persons who did not discharge such duties assigned to  the 10%  special posts of UDCs carrying special pay of Rs.35/- per month.      The appeal is accordingly allowed. No costs.