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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: P. JAGDISH AND OTHERS

DATE OF JUDGMENT:       17/12/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J .      Leave granted.      The short  question  that  arises  in  this  appeal  is whether the  Tribunal to  was  justified  in  directing  the appellant to  fix up  the pay of respondents in the cadre of Head Clerk by notionally holding that they are also eligible to receive  the special  pay of  Rs. 35/-  pre month  in the lower post  even though  factually the  respondents were not getting the said special pay.      The  short   facts  leading   to  the   filing  of  the application before  the Tribunal by the respondents are that they were  working they  were promoted  to the  post of Head Clerks. Under  the orders  of the competent authority 10% of the posts  of Senior Clerks  were identified to be the posts involving arduous nature of work and those of the incumbents who were being posted to those identified posts were getting special pay  of Rs.  35/- pre  month. This was the  state of affairs prior to 1.1.1986. Usually on the basis of seniority amongst the  Senior Clerks,  postings were being made to the identified posts  carrying a  special pay  of Rs.  35/-  per month. On  account of  restructuring of  the cadre  a  large number of vacancies  occurred in the category of Head Clerk. The respondents  who were not working against the identified posts of  Senior Clerks  were promoted as Head Clerks w.e.f. 1.1.1984 the  date from  which there had been upgradation to the posts of Head Clerks and necessarily while fixing of the pay the  category of  Head Clerks,  the pay  which they were drawing as  Senior Clerks  was taken into account. While the respondents were  thus promoted  to the  post of Head Clerk, their juniors  who were  posted against the identified posts of Senior  Clerks used  to get Rs. 35/- as special pay until they were  promoted as  Head Clerks. So far as those persons are concerned  on being promoted as Head Clerks, the special pay which  they are drawing in the category of Senior Clerks was they  into account  in fixing  their pay in the promoted category of  Head Clerks.  Consequentially even  though  the respondents  were  promoted  to  the  post  of  Head  Clerks earlier, they  were found  to  be  getting  less  pay  their juniors who  were promoted  as Head Clerks later and who had

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been posed  against the  indentified posts  of Senior Clerks prior to  their promotion.  Some of  these persons similarly situated as the respondents who were promoted as Head Clerks before, have  not been posted against any identified post of Senior Clerk  and therefore were not getting the special pay of Rs.  35/- per month, approached the Tribunal by filing OA No. 162 of 1990 claiming that their pay should be refixed in the cadre  of Head  Clerks on  the notional  basis that they were drawing  Rs. 35/- per month as special pay in the cadre of Senior  Clerk. The  Tribunal, however,  did not grant the relief as claimed but taking into account the fact that when persons junior  to the  applicants in the category of Senior Clerks on  being promoted  were getting a higher salary than those  who   had  been   promoted  earlier,   on   equitable consideration the salary of the earlier promoted Head Clerks should be  stepped up  so that  they would not get less than what  their  juniors  are  getting.  This  judgment  of  the Tribunal in  OA No.  192/90 has  become final as the special leave petition  against the  same stood  dismissed. When the respondents in  the present  appeal  made  a  similar  claim before the  Tribunal, the  Tribunal  following  its  earlier decision dated  4.3.1993 in  OA No. 192/90 directed that the salary of  the respondents  should be  stepped up,  so that, they would  not get  less than their juniors in the category of Senior  Clerks are getting on being promoted to the cadre of Head  Clerk Challenging  the aforesaid  direction of  the Tribunal the present appeal has been preferred.      The learned counsel for the appellant contends that the special pay  of Rs.  35/- per  month being  attached to  the specified post  in the  cadre of  Senior Clerk only those of the Senior Clerks would get the same who were posted against those specified  posts. That  being  the  position  and  the respondents having  not been  posted on thous posts question of Rs.  35/- per  month on account of the fact that they had been not  posted against  the  identified  posts  of  Senior Clerks carrying  Rs.  35/-  as  special  pay  would  not  be entitled to  get there pay fixed in the cadre of Head Clerks by following the principle of stepping up when their juniors who had  been getting the  special pay of Rs. 35/- per month as Senior  Clerks on  being posted  against  the  identified posts on  promotion gets  a higher amount as Head Clerks and the principle  of stepping  up will  not  be  applicable  of stepping up will not be applicable. According to the learned counsel the  Tribunal committed  serious error  in directing the stepping  up of the salary of the respondents in the pay scale meant  Head Clerks solely on the ground their juninors are getting a higher salary.      The question  for consideration,  therefore, would  be: (1) whether  the respondents who had not been posted against the identified  posts carrying a special pay of Rs. 35/- per month can even claim fixation of their pay with Rs. 35/- per month in  the cadre of Senior Clerks even on notional basis. (2) Whether  the respondents  can claim  for stepping  up of their pay  in the  promoted cadre  of Head Clerks when their juniors who  were later  promoted were  fixed up at a higher slab in  the cadre  of Head  Clerks taking  into account the special pay  which they are drawing in the lower category of Senior Clerks.      So far  as the first question is concerned, it is to be seen that a special pay of Rs. 35/- per month is attached to certain identified  posts in  the category  of Senior Clerks and, therefore, only those who would be posted against those identified  posts  can  claim  the  said  special  pay.  The respondents who  had already  been promoted  to  the  higher category of  Head Clerks  cannot claim that special pay even

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on notional  basis merely because their juniors in the cadre of Senior  Clerks were  given that  special pay.  It  is  an additional pay  attached to  the post  and any incumbent who occupies the  post can only claim the same. The claim of the respondents on  this score, therefore, is not sustainable in law and  the Tribunal has rightly rejected the said claim of the respondents.      So far  as the second question is concerned, it depends upon the  applicability of  the principle  of  stepping  up. Admittedly, the  respondents  had    been  promoted  earlier juniors who  were continuing  as Senior  Clerks against  the identified posts  carrying special pay of Rs. 35/- per month on being  promoted to the post of Head Clerks later than the respondents got  their pay  fixed at a higher level than the respondents. Under  the provisions  of Fundamental  Rules to remove the  anamoly of  a  Government  servant  promoted  or appointed to  a higher  post earlier drawing a lower rate of pay in  that post  then another Government servant junior to him  in   the  lower   grade  and   promoted  or   appointed subsequently to the higher post, the principle of steeping up of  the pay  is applied.  In such  cases the  pay of  the senior officer  in the higher post is required to be stepped up to  a figure equal to the pay as fixed the junior officer in that  higher post. The stepping up is required to be done with effect from the date of promotion or appointment of the junior officer.  On refixation  of the  pay  of  the  senior officer would  be  drawn  on  completion  of  the  requisite qualifying  service   with  effect  from  the  date  of  the refixation of pay. This principle becomes applicble when the junior officer  and the  senior officer  belong to  the same category and the post from which they have been promoted and the promoted  cadre the  junior officer  on  being  promoted later than  the senior officer gets a higher pay. This being the principle  of stepping  up contained  in the Fundamental Rules  and  admittedly  the  respondents  being  seniors  to several other  Senior Clerks and the respondents having been promoted  earlier  than  many  of  their  juniors  who  were promoted later  to the post of Head Clerks, the principle of stepping up  should be  made applicable  to the  respondents with effect  from the  data their  juniors in  the erstwhile cadre of  Senior Clerks  get promoted  to the  cadre of Head Clerks and  their pay was fixed at a higher slab that of the respondent. The  stepping up  should be  done in  such a way that the  anamoly of  juniors getting higher salary then the seniors in  the promoted  category of  Head Clerk  would  be removed and  the pay  of the  seniors like  the  respondents would be  stepped up  to a  figure equal to the pay as fixed for their  junior officer  in the higher post of Head Clerk. In fact  the Tribunal  by the impugned order has directed to apply to  apply the  principle of  stepping up and we see no infirmity with  the same  direction subject to the aforesaid clarifications. This  principle of stepping up which we have upheld would  prevent violation  of equal pay for equal work but grant  of consequential  benefit of  the  difference  of salary  would  not  be  correct  for  the  reason  that  the respondents had  not worked in the post to which 35% special pay was  attached in  the lower  cader.  But  by  reason  of promotion the promotee-juniors who worked on the said posts, in fact,  performed the  hard duties and earned special pay. Directions  to   pay  arrears   world  be   deleterious   to inculcation of  efficiency in  service. All persons who were indolent to share higher responsibilities in lower posts, on promotion  would  get  accelerated  arrears  that  would  be deleterious to  efficiency  of  service.  Therefore,  though direction to step up the pay on notional basis is consistent

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with  Article   39(d)  of  the  Constitution,  it  would  be applicable only perspectively from the data of the promotion and the  fixation of  the scale  stepping up of scale of pay would be  perspective to  calculate future increments on the scale of  pay in  promotional post  only perspectively.  The appeal is dismissed but in the circumstances there would not no order as to costs.