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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: M. SURYANARAYANA RAO

DATE OF JUDGMENT:       07/08/1998

BENCH: M. SRINIVASAN, S.RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                 THE 7TH DAY OF AUGUST, 1998 Present:               Hon’ble Mr. Justice M.Srinivasan               Hon’ble Mr. Justice S.Rajendra Babu P.P.Malhotra, Sr.Adv.,  A.B.Sharma, Ms.  Anubha Jain, C.V.S. Rao, Advs. with him for the appellants J. Ramamurthy,  Sr.Adv., L.K.Pandey and S.Nanda Kumar, Advs. with him for the Respondent                       J U D G M E N T The following Judgment of the Court was delivered: SRINIVASAN,J. leave granted.      The  respondent   herein  applied  before  the  Central Administrative Tribunal,  Hyderabad for quashing an order of Government rejecting  his representation for stepping up his pay to  be on  par with the pay of his juniors N.S. Shah and P. Panjiara  who were  promoted to  the cadre  of  Telegraph Traffic Service  Group ’B’.  The grievance of the respondent was that though he was promoted above his pay was fixed at a lesser scale,  namely, Rs.2000-3500  whereas the  pay of the said persons was fixed on a higher scale.      2.  The   Tribunal  accepted   the  contention  of  the respondent and  held that  he is  entitled to  get  his  pay stepped up to be on par with that of P. Panjiara who was his junior.  as   regards  Shah,  the  Tribunal  held  that  the respondent had  not made  a representation to the Government and therefore,  he could not seek stepping of his pay on par with Shah.  However, the  respondent is  satisfied with  the order of  the Tribunal.  The Tribunal has limited the relief of stepping  up for  a period  of three  years prior  to the filing of  his application  was filed  four years  after his junior P. Panjiara was promoted.      3. The  judgment of  the Tribunal  is assailed  by  the appellant on  the ground  that principle of stepping up will not apply in the case where junior had been promoted earlier to a higher post on adhoc basis and on account of such adhoc promotion the junior got his pay fixed at a higher scale. In support  of  this  contention  reliance  is  placed  by  the appellant on  a judgment of this Court in Union of India vs. R.Swaminathan &  Ors. [1997  (7) SCC 690.]. A bench of three

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Judges considered  F.R. 22(1) and also the Government office memorandum dated  4.11.93 which  sets out  various instances where stepping  up of  pay cannot be done. The Bench pointed out that  in that  case the  higher pay  was fixed  for  the juniors not because of any promotion under FR 22 but because of an  earlier ah-hoc  promotions given  to the  juniors for certain periods. The following observation of the Bench will be relevant:      "The memorandum makes it clear that      in such  instances a junior drawing      more pay  than his  senior will not      constitute    an    anomaly    and,      therefore, stepping  up of pay will      not be  admissible.  The  increased      pay drawn by a junior because of ad      hoc officiating  or regular service      rendered by  him in the higher post      for periods earlier than the senior      is not  an anomaly because pay does      not depend  on seniority  alone nor      is seniority  alone a criterion for      stepping up of pay.      The   aggrieved    employees   have      contended with  some  justification      that local  officiating  promotions      within a  Circle have  resulted  in      their being deprived of a chance to      officiate in  the higher  post,  if      such chance  of officiation  arises      in a  different circle.  They  have      submitted that  since there is all-      India   seniority    for    regular      promotions,     this      all-India      seniority must  prevail even  while      making      local       officiating      appointments within any Circle. The      question    is     basically     of      administrative  exigency   and  the      difficulty that  the administration      may   face   it   even   short-term      vacancies have  to be filled on the      basis  of  all-India  seniority  by      calling  a   person  who   may   be      stationed in  a different circle in      a region  remote  from  the  region      where the  vacancy arises, and that      too for  a short  duration. This is      essentially     a     matter     of      administrative policy. But the only      justification for  local promotions      is their  short duration.  If  such      vacancy is of a long duration there      is no administrative reason for not      following the  all-India seniority.      Most  of   the  grievances  of  the      employees will  be  met  if  proper      norms  are  laid  down  for  making      local if proper norms are laid down      for   making    local   officiating      promotions. One  thing, however, is      clear. Neither  the  seniority  nor      the  regular   promotion  of  these      employees  is   affected  by   such      officiating local arrangements. The      employees who  have not  officiated

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    in   the   higher   post   earlier,      however, will  not get  the benefit      of the  proviso to Fundamental Rule      22. Learned  counsel   for  the  respondent  contends  that  the aforesaid decision does not apply in the present case as the Bench had  considered only  a short term ad-hoc promotion of the junior  and not  a long  term  adhoc  promotion.  It  is pointed out  that in  the facts  of this case P.Panjiara had been promoted  on adhoc  basis for long terms. The said fact is admitted in the counter statement filed by the Government before the Tribunal. It was  contended that  whenever a long term adhoc promotion had been  given to  junior and by virtue thereof his pay was fixed on a higher level, his senior must get his pay stepped up and the principle laid down by the Bench in the aforesaid case would  apply only to cases of promotion for short term. From the passage extracted above from the aforesaid judgment it is  clear that the question of stepping up did not depend upon the  fact that  the  promotion  was  short  term  adhoc promotion or  long term  adhoc promotion.    The  government memorandum which  has been referred to in the judgement does not make  a distinction  between short  term adhoc promotion and long  term adhoc  promotion. The  relevant part  of  the Government Memorandum  which is  extracted in  the  judgment itself reads as follows:      "It   a   senior   foregoes/refuses      promotion  leading  to  his  junior      being  promoted/appointed   to  the      higher  post  earlier,  the  junior      draws higher  pay than  the senior.      The senior  may  be  on  deputation      while the  junior avails  of the ad      hoc promotion  in  the  cadre.  The      increased pay  drawn  by  a  junior      either    due     to     ad     hoc      officiating/regular         service      rendered in  the higher  posts  for      periods earlier  than  the  senior,      cannot, therefore, be an anomaly in      strict sense of the term."      5. The second contention of the learned counsel is that the Central  Administrative Tribunal  has  in  several  case taken the  view that  if a junior had been promoted on adhoc basis on  long terms and his pay is fixed at a higher scale, the senior is entitled to get his pay stepped up on par with the junior.  He has  placed reliance  on the judgment of the Tribunal  in   T.Atchutaramaiah   vs.   Regional   Director, Employees’ State Insurance Corporation, Hyderabad [1992 (21) Administrative Tribunal  Cases 78].  It  is  stated  by  the Tribunal in para 4 as follows:      "We  have  examined  the  case  and      heard rival  sides. In  an  exactly      similar case  like this, this Bench      had ordered  stepping up  of pay in      allowing O.A.  No.607  of  1990  by      order dated  3.9.1991  (This  order      has subsequently been upheld by the      Hon’ble  Supreme  Court  by  orders      dated 31.1.1992  in SLP  No.645  of      1992). We  had held  that where the      pay of a junior is fixed on regular      promotion at  higher stage than his      seniors on  account of  his  having      earned increments  by virtue of his

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    earlier ad  hoc promotions  the pay      of the  senior should be stepped up      while fixing  his pay  in this case      also from 1.1.1986."      When the  matter was  brought up  by way  of a  special leave petition  the petition was dismissed in limine by this Court with the following observation:      "Since  in  the  present  case  the      Respondent was  superseded  at  the      time  of   the  adhoc   appointment      petitioner    that     the    adhoc      appointment was  offered to him and      he  had   refused  it  we  are  not      inclined  to   interfere  with  the      impugned order."      6. Learned  counsel has also drawn our attention to the orders of  this Court  dismissing in  limine similar special leave petitions  in other  cases. It is contended by learned counsel that  none of these decisions had been considered by the  Bench  in  R.Swaminathan’s  case  and,  therefore,  the decision in  R.Swaminathan’s case requires re-consideration. We are  unable to  agree. In  none of the cases cited by the learned counsel  there is  any  reference  to  the  relevant fundamental rules or the Government Memorandum. On the other hand, the  Bench has  considered all  the relevant rules and has  laid   down  the   principle  clearly.   We   find   no justification to have the matter re-considered.      7. The  learned counsel  suggests that  the  Bench  had failed to take note of an earlier judgment of a Bench of two Judges in  Union of  India vs. P.Jagdish [1997 (3) SCC 176]. Subsequent to  the promotion  of respondents in that case as Head Clerks  were given a special pay of Rs. 35/- per month. Though the  respondents had  not worked  on such  posts they claimed re-fixation of their pay in the cadre of Head Clerks on a national basis that they were drawing such special pay. That claim  was negatived  by the  Bench. But the Bench held that the respondents therein were entitled to have their pay stepped up  to be  on par with that or their juniors who had worked in  posts carrying such special pay and were promoted later than  the respondents  as Head  Clerks. The Bench took care to  say that such stepping up would be only prospective from the date of promotions of the juniors. The facts of the present case are entirely different and the said ruling will not apply.      8. One  of the reasons given by the Tribunal in support of its  order is  that when  adhoc promotion  were made, the respondent was  not considered  therefor or offered the same and  it  was  not  as  if  he  refused  to  take  up  higher responsibility.  The  reasoning  is  highly  fallacious.  As pointed out  by learned  counsel  for  the  appellant  adhoc promotions are made within the circles where vacancies arose and the  respondent who  was working  in a  different circle could not  have been  considered for such adhoc promotion or offered the  same. The  fact that ad hoc promotions are made within  the  circles  has  been  noticed  by  the  Bench  in R.Swaminathan’s case.      9. We  respectfully agree  with the  ratio in  Union of India vs.  R.Swaminathan & Ors. [1997 (7) SCC 690] and allow this appeal. The order of the Tribunal in OA 913/96 filed by the respondent  is set  aside and  the said  application  is dismissed. No costs.