This is a case digest of judgment where Punjab Government preferred appeal against the order of single judge of Punjab Haryana High Court Chandigarh for Stepping up of Pay wherein the writ petition was already allowed. The LPA got dismissed from the division bench of Punjab Haryana High Court Chandigarh being devoid of merit. The verdict was based on normal operation of the provisions of Rule 11-A of the 2009 Rules on the concept of notional gradation.
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Now let’s have the judgment.
Punjab And Haryana High Court And vs Basdev Bansal on 6 March 2020
Petitioner
Punjab and Haryana High Court and another
Respondent
Basdev Bansal
The appellants in the present case, filed a Letters Patent Appeal under Clause X of the Letters Patent Act to set aside the impugned order dated 13.12.2018 passed by the Hon’ble Single Bench of Punjab and Haryana High Court in CWP No. 23260 of 2017 dubbed as Basdev Bansal v. Punjab and Haryana High Court and another.
The facts of the case are as follows: The petitioner was appointed as a Clerk 03.05.1991 and was promoted to the post of Special Secretary on 14.05.2013. The petitioner applied for 10 days earned leave encashment in October of 2016, for the purpose of availing leave travel concession, the petitioner discovered that he was drawing less salary than his junior Sh. Arun Kumar Jain. The petitioner made a representation dated 22.10.2016, the same was allowed by respondent No. 1 by order dated 09.12.2106 whereby the pay of the petitioner was raised up at par with his junior Sh. Arun Kumar Jain w.e.f 30.05.2104, however, the actual financial benefits from such increment was limited w.e.f. 05.12.2016. The petitioner then made a representation dated 15.12.2016 requesting grant of financial benefits from 30.05.2014 to 04.12.2015 but his representation was declined by the respondent by an order dated 08.02.2017 on the ground that the claim of the petitioner was not covered under the rules/instructions as well as the policies framed by this Court in such like matters. The petitioner then submitted a request letter dated 13.04.2017 for providing the necessary guidelines with regards to stepping up of pay and was communicated a response on 17.05.2017 but he could not find any plausible rationale in support of the impugned order dated 08.02.2017. Thereafter, the petitioner claimed the grant of ACP benefits due in the month of May 2017 on account of competition of 4 years of service which he was rebutted by an order dated 07.09.2017 with the remark that the petitioner would be entitled to the benefits of ACP w.e.f 30.05.2018 i.e. on the completion of 4 years from the date of step up with Sh. Arun Kumar Jain. Aggrieved by the order the petitioner the above-mentioned civil writ petition before the Hon’ble High Court seeking to quash the impugned order dated 09.12.2016, 08.02.2017 and 07.09.2017 and grant of actual financial benefits of the step-up of his pay w.e.f 30.05.2014 and grant of ACP I. the completion of 4 years of service w.e.f 14.05.2017.
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The respondents opposed the writ petition and pleaded that the petitioner was appointed as Reader w.e.f. 10.12.2007 and was subsequently promoted to the post of Special secretary w.e.f 14.05.2013 before the completion of years as a court secretary thus, the benefit under ACP on competition of 4 years cannot be drawn by him whereas Sh. Arun Kumar was appointed as a Reader w.e.f 17.12.2007 and was promoted to the post of Special Secretary w.e.f 30.05.2014 after getting the benefit of ACP on the completion of 4 years of service in the cadre of Court Secretary on 12.01.2014 and started drawing out higher pay w.e.f 30.05 2014 on account of fixation of pay on promotion as Special Secretary. The peculiarity in the pay of the petitioner and his junior employee w.e.f 30.05.2014 is a direct result of the application of the provision of rule 11-A of the Punjab Civil Services (Revised Pay) Rules 2009. The petitioner had made a representation on 22.10.2016 which was allowed and an order dated 09.12.2016 wherein the pay if the petitioner was stepped up at par with his junior Sh. Arun Kumar Jain w.e.f 30.05.2014 but the grant of actual financial benefits was limited w.e.f 05.12.2016 on parity with Sh. Narinder Singh Superintendent Grade-1 whose pay was stepped up with his junior w.e.f. 30.07.2008 only on a restricted basis. The representation for grant of actual financial benefits w.e.f 30.05.2014 was declined as the same was not covered under the rules/instruction dated 12.08.2010 as well as policy dated 06.10.2010. The respondent also submitted that the petitioner is not entitled to ACP on the competition of 4 years of service w.e.f 30.05.2017, however, he may receive the same benefit w.e.f 30.05.2018 on the competition of 4 years of service from the date of step up. Accordingly, the respondent prayed for the dismissal of the appeal.
During the hearing, the petitioner gave up his claim for the grant of ACP w.e.f 30.05.2017 in view of the judgement titled ‘Surjit Singh v. District and Sessions Judge, Hoshiarpur and another decided on 03.08.2012 wherein the order restricting the grant of actual benefits of stepping up was held erroneous and was quashed and the petitioner was held entitled to receive the arrears of proficiency step up for the period claimed to remove unfair discrimination. However, the petitioner will not be entitled to claim the benefits of the ACP Scheme which become due on completion of 4 years of service since the claim has been given up by the petitioner and the same remains non-contested
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Aggrieved, the respondent filed the present Letters Patent Appeal.
The counsel for the appellants argued that the representation made by the respondent dated 22.10.2016 was allowed by the appellants by an order dated 09.12.2016 and the payment of the respondent was stepped up at par with his junior Sh. A run Kumar Jain w.e.f 30.05.2014 but the grant of actual financial benefits from such step-up was limited to 05.12.2016, corresponding to Sh. Narinder Singh, Superintendent Grade-1. The counsel for the appellants also submitted that the representation made by the respondent for grant of actual financial benefits was declined because it was not covered under the rules/instruction dated 12.08.2010 as well as the policy dated 06.10.2010. Thus, the appellants contended that the respondent is not entitled to receive payment of arrears from 30.05.2014 to 04.12.2016, and the order authorizing the same suffers from material illegality and is, therefore, liable to be set aside.
On the contrary, the counsel for the respondent argued that on notional up-gradation of his pay up to the level of the pay of his junior employee, he is entitled to payment of arrears from the date of such notional up-gradation. The respondent argued that his representation dated 15.12.2016 requesting the grant of financial benefits from 30.05.2014 to 04.12.2016 was wrongly declined. The respondent submitted that the order allowing the payment if areas for the same period does not suffer from any illegality and that the appeal should be dismissed.
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After carefully listening to both the parties the Hon’ble High Court observed that in the present case, both the petitioner and Sh. Arun Kumar Jain belonged to the same cadre and
the posts to which they were promoted are also the same. Both were Court Secretaries and were later promoted to the post of Special Secretaries. The petitioner was drawing more pay than his junior Sh. Arun Kumar Jain before promotion as Special Secretary. Both officers at the time of promotion to the post of Special Secretaries exercised the option to get their pay fixed in terms of the same clauses of Rule 11 of the 2009 Rules. The petitioner was appointed as Reader w.e.f. 10.12.2007 and was promoted to the post of Special Secretary w.e.f. 14.05.2013 before completing 4 years service as court secretary and the benefit of ACP on completion of 4 years of service in the cadre of Court Secretary was not drawn by him whereas Sh. Arun Kumar Jain was appointed as Reader w.e.f. 17.12.2007 and was promoted to the post of Special Secretary w.e.f. 30.05.2014 and after getting the benefit of ACP on completion of 4 years of service in the cadre of Court Secretary on 12.01.2014 he started drawing higher pay with effect from 30.05.2014 on account of fixation of pay as Special Secretary. The grant of ACP to the junior employee, for which he became entitled under the Assured Career Progression Scheme-2006 was an incidence of service and the eligibility of entitlement of the junior employee is not dubious. The claim of the petitioner is not that he was wrongly affixed a pay in breach of any rules applicable to him but his claim is based upon the rationale that how can a junior employee get higher pay than the senior employee.
The Court also observed that the concept of stepping up the pay of a senior in order to maintain parity with his junior is based upon the Directive Principles contained in Art 39(d) of the Constitution of India, which encompasses the idea of equal pay for equal work. However, the concept of equal pay for equal work does not mean that all the members of a cadre will receive the same pay packet irrespective of their seniority, source of recruitment and various other facets of service. A grant of higher pay to a junior employee would be prima-facie arbitrary but if they are cogent grounds to do so the senior cannot invoke the doctrine of equality. The principle of equal pay for equal work is a general rule which can be deviated for good and justifiable reasons.
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The employees of this Court are governed by the High Court Establishment(Appointment and Conditions of Service) Rule, 1973. The instruction issued by the Punjab Government by letter dated 12.08.2010 deals with the removal of anomaly, by stepping up the pay of senior employee drawing less pay than his junior counterpart, that may have occurred due to operation of Rule 11-A of the 2009 Rules. Para 2 of the said instruction is as follows
“2.After careful consideration of the matter the Governor of Punjab is pleased to decide that if due to normal operation of the provisions of Rule11-A of the Punjab Civil Services (Revised Pay) Rules, 2009, the pay of a senior employees gets fixed at a level lower than his junior employee, the pay of such senior employees shall be stepped up to the level of the pay of his junior employee subject to the following
conditions:-
(a) The junior and senior government employee should belong to the same cadre and the posts in which they have been promoted should also be identical and in the same cadre
(b) The pre-revised and revised scale/pay band and grade pay of the lower and higher posts, in which they are entitled to draw pay, should be identical.
(c) The senior government employee at the time of his promotion to the higher level had been
drawing pay equal to or more than the pay of the junior. No relief will be given under these instructions if the senior employee exercises an option to get his pay fixation/promotion postponed or opts for revised pay structure from a date different than the date of option of the junior. However, if the option for fixation of pay exercised by the senior and junior employee is under different clauses of rule 11 of the Punjab Civil Services (Revised Pay) Rules, 2009 and at the time of the promotion of the junior employee the pay of such junior is fixed at a level higher than the pay of the senior, the senior employee may, if it is advantageous to him get his pay refixed subject to resultant financial adjustment as if he had exercised the option under the same clause of rule 11 as has been exercised by the junior employee.
(d) The anomaly should be directly as a result of the application of the provisions of rule 11-A of the Punjab Civil Services (Revised Pay) Rules, 2009. However, if in the lower post, the junior officer was drawing more pay in the pre-revised/revised pay scale than his senior by virtue of any advance increments granted to him or due to any inflation in pay other than by way of normal pay fixation, the benefit of step-up envisaged under these instructions shall not be admissible.
(e) The next increment to senior government employee shall be admissible on the same date as that of his junior, in respect to whom, he has got his pay stepped up.
(f) The benefit of stepping up of pay can be allowed to the senior employee for the second time, if the anomaly has again arisen with reference to the pay of the same junior, in respect of whom, the pay of the senior was stepped up for the first time.”
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The instructions of the Government of Punjab have been duly recognised and accepted by this court by an office order dated 08.09.2010. The Court pointed out that the issue in hand has also been considered by the Committee of two Hon’ble Judges of the High Court and the following guidelines dated 06.10.2010 were issued:
- With respect to Rule 26(1) of the High Court Establishment (Appointment and Conditions of Service) Rules 1973, the pay scale owed to the employee of the High Court shall be as per the First Schedule of the Rules.
- In the above-mentioned pay scale, the pay shall be fixed in terms of Rule 34(1)(A) keeping in mind Rule 4.4 and 4.14 of the Punjab Civil Service Rules such as pay protection in case of an employee gets promoted to a higher post in a lower pay scale and the pay fixation by granting additional increment on account of promotion, etc.
- An employee of one cadre will be placed in the same “pay scale” irrespective of the source of promotion.
- The pay of a senior is not required to be stepped up, if the pay of both the senior employee and the junior employee is fixed as per the fixation rules and instructions, and when the junior employee draws higher pay on account of his length of service or pay fixation or some other reasons including personal pay.
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The Court stated that in the case of Sh. Narinder Singh, Superintendent Grade-1, there was a delay of 8 years in making a claim for the up-gradation of his pay to the level of his junior. Sh. Narinder Singh did not make any further representation on the administrative side or judicial side for the payment of arrears. The Court noted that the order dated 27.10.2016 cannot be regarded as an administrative precedent.
The instruction issued by the Punjab Government by the letter dated 12.08.2010 mandates the stepping up of the pay of a senior employee, whose pay gets fixed at a lower level than his junior counterpart due to the normal operation of the provisions of Rule 11-A of the 2009 Rules, up to the level of pay of the pay of his junior employee from the date of such fixation of pay of the senior employee at a lower level than his junior employee and not from any subsequent date. Allowing notional up-gradation with denial of actual financial benefits from the date of notional up-gradation is not only mutually contradictory but also wholly opposed to the very rationale of such notional up-gradation.
The Court stated that from the above-stated facts it is clear that the petitioner had made a claim for the up-gradation of his pay to the level of pay of his junior within a period of 3 years and, therefore, his claim is not barred by time/limitation/latches. The notional up-gradation of the petitioner’s pay to the level of his junior counterpart was effected from 30.05.2014 and consequently, the petitioner is entitled to payment of arrears from the period of 30.05.2014 to 04.10.2016 and the order allowing the same does not suffer from any material illegality. The Letters Patent Appeal is devoid of any merit is, therefore, liable to be dismissed.
Accordingly, the Letters Patent Appeal is dismissed and the appellants are directed to calculate the amount to be paid to the petitioner and disburse the same within a period of 3 months.
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This post is written by Aniket Rai.
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