(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. We have heard Ms. Mauna Bhatt, learned counsel for the petitioners and Mr P H Pathak, learned counsel for the respondent. This petition has been filed challenging the order dated 30.3.2005 passed by the Central Administrative Tribunal, Ahmedabad in Original Application No. 202 of 2002.
2. The respondent was serving as Inspector of Income Tax department. He made a representation dated 31.7.1985 in continuation of his earlier representations for removal of anomaly and claimed stepping up of his pay at par with his junior Shri B.L. Joshi. The said representation was rejected by Central Board of Direct Taxes vide letter and was communicated vide letter dated 16.9.1985 which is reproduced hereunder:
“With reference to the above, I am to state that from time to time Shri Joshi has been drawn more pay than Shri Vaghela on promotion as Tax Assistant w.e.f. 1.8.78. Shri Vaghela has been promoted as HC directly from UDC while Shri Joshi was promoted from Tax Assistant to HC. Naturally, pay of Shri Joshi should be more than Shri Vaghela. Therefore, conditions laid down under FR 22(c) for stepping up of the pay are not fulfilled, in the case of Shri Vaghela. Hence, pay cannot be stepped up of Shri Vaghela.”
On 10.9.2001 the respondent had made another representation for the same grievance wherein reference to earlier representations was made. This representation has been rejected vide order dated 19.10.2001 wherein it was made clear that there is no anomaly in the case of the respondent as the respondent is not fulfilling the conditions which are laid down in Fundamental Rules 22 (C). As the respondent and Mr B.L. Joshi were not in the same cadre, as Mr Joshi was benefited by one interregnum promotion to the cadre of Tax Assistant, the representation of the respondent was rejected by orders dated 19.10.2001 and 24.5.2002. These orders were challenged before the Central Administrative Tribunal (for short, “the Tribunal”) by filing O.A. No. 206/2002. The Tribunal has disposed of the O.A. with certain directions which is under challenge in this petition.
3. Learned counsel Mr Mauna Bhatt for the petitioners submitted that the Tribunal has completely erred in not properly considering the factual aspect that the case of the respondent is not covered by the conditions laid down in FR 22(C) for stepping up of pay and therefore, he is not entitled to the same. She submitted that the cadre of appointment before promotion to the post of Inspector is different in case of both the officials and similarly the scales are also different in both the cadre. She submitted that the Tribunal has erred in directing the CBDT to frame a policy by overlooking the statutory FR 22(C). The learned counsel submitted that the judgments relied upon by the appellant-petitioner before the Tribunal have not been considered by the Tribunal. She, therefore, submitted that the order dated 30.3.2005 passed by the Tribunal in OA No.206/2002 deserves to be set aside. In support of her submissions, the learned counsel has placed reliance on a decision in -
(i) Union of India and Ors. v. Sushil Kumar Paul and Ors. (AIR 1998 SC 1925).
(ii) Union of India v. O.P. Saxens (AIR 1997 SC 2978) and
(iii) E.S.I. Corporation and Anr. v. P.K. Shriniwas Murthy & anr. (AIR 1997 SC. 2983)
4. On the other hand, Mr P H Pathak, learned counsel appearing for the respondents submitted that the order passed by the Tribunal is just and proper which does not call for any interference by this court. He submitted that the Tribunal has taken into consideration the relevant circulars and case digests while disposing the O.A. In support of his submissions, he has placed reliance on a decision of the Apex Court in Gurucharan Singh Grewal and anr. v. Punjab State Electricity Board and Ors. [(2009) 3 SCC 94)] wherein in a similar case, it is held that senior cannot be paid less than his junior even if anomaly in senior's pay is due to difference of incremental benefits and such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of senior was also stepped up to that of the junior.
5. Details in the form of comparative table as narrated in ground (B) of O.A. No. 206/2002 of the present respondent Mr A.A. Vaghela vis-a-vis B.L. Joshi reads as under:
A.A. VAGHELA (respondent) B.L. JOSHI Drawing our attention to the above tabular data, learned counsel for the petitioners submitted that Mr Vaghela the respondent herein was not given the promotion of Tax Assistant and in comparison to it Mr B.L.Joshi junior to him had been given the said promotion on 1.8.1978 and so he was getting more pay than his senior Mr A.A. Vaghela, the respondent herein. On a specific query why the promotion of Tax Assistant had not been given to the respondent, no convincing reply has been forthcoming from her but she has submitted that Mr Vaghela, the respondent had never raised such objections. We are not satisfied with the said explanation made by the learned counsel for the petitioners. It has not been submitted by the learned counsel for the petitioners whether the post of Tax Assistant is higher in cadre than the post of Head Clerk. The learned counsel mainly placed reliance on the above mentioned three decisions and so first we will deal with the same.
6. In the case of Union of India and Ors (supra), the Tribunal allowed the application of the respondents and directed the appellants to step up their pay so as to make it at par with the pay of B.C. Mishra who was their junior but getting a higher pay. The respondents and Mishra were appointed as Typists/Clerks on different dates but were promoted to the post of Welfare Inspector Grade-III on the same date. In the said case it was also the fact that Mishra was promoted to Grade-II on 1.2.1981 earlier than the respondents on ad-hoc basis and worked continuously on the higher post upto 1.1.84 on which date two respondents and Mishra were promoted to Grade-II on regular basis. Thus it was also held by the Apex Court that due to Mishra's earlier ad hoc promotion he was getting more pay than senior and so the senior was not entitled to stepping up of his pay. In our view, this observation will be of more assistance to the present respondents because the respondent herein and Mr B L Joshi both were U.D.C. on 31.3.1978. Record shows that the present respondent Mr Vaghela was promoted as Head Clerk on 29.4.1978 and Mr B.L. Joshi was promoted as Head Clerk on 28.2.1980. Thus it is clear that Mr Vaghela, the present respondent was promoted to the post of Head Clerk earlier than his junior Mr B L Joshi who had been appointed as Head Clerk on 28.2.1980. It has been argued by the learned counsel for the petitioners that on the post of Tax Assistant the respondent Mr Vaghela had never been appointed and in comparison to it Mr B.L. Joshi was appointed as Tax Assistant on 1.8.1978 and that is why he was getting more pay. In our view, the respondent was not appointed as Tax Assistant and he was directly promoted as Head Clerk so he may be more efficient to the said post which was given to him without appointing and without any experience as Tax Assistant so the above decision, in our view, is helpful to the present respondent and not to the petitioners.
6.1 In the case of Union of India v. O.P. Saxena (supra) the three Judges Bench of the Apex Court had held that if the source of promotion is different, principle of stepping up would not be applicable. In the said case, respondents were promoted earlier from Driver Grade-C post whereas the other employee was promoted from the post of Driver Grade-A. In the instant case on hand, learned counsel for the petitioner has failed to show how the source of promotion between the present respondent and Mr B.L. Joshi is different. On the contrary the respondent Mr Vaghela had got promotion as Head Clerk earlier than Mr B.L. Joshi and then also he is getting less pay than Mr Joshi. Thus, in our view, this is a fit case for application of stepping up of pay.
6.2 In the case of E.S.I. Corporation and anr. (supra), an Upper Division Clerk working as Cashier senior to U.D.C. working as In-charge was promoted as Head Clerk earlier than the U.D.C. working as in-charge. In para 8, the Apex Court held as under:
“8. In the present case, respondent No.2 who is junior to respondent No.1 became entitled to a higher pay fixation on promotion as a Head Clerk than respondent No.1 because of the higher scale of pay to which he became entitled in the post of UDC In charge by reason of the memorandum of 22.3.1978 as interpreted by the High Court in Gopala Sharma's case. Respondent No.1 never held the post of UDC In charge. He had held the post of UDC Cashier. He was, therefore, not entitled to the benefit of the memorandum of 22.3.1978. As a result, the lower post held by respondent No.1 carried a different scale of pay than the lower post held by respondent No.2. Since the scales of pay in the lower posts held by the two were not identical, the question of stepping up of pay for the purpose of removing any anomaly does not arise in the present case.”
The above case is not identical to the one on hand. Hence the ratio laid down by the Apex Court in the above case is not applicable to the present case.
7. It is pertinent to note that the Tribunal, while disposing of the O.A. No. 206/2002 by order dated 30.3.2005, has given certain directions in para 11 which reads as under:
“11. In view of what has been discussed above, we quash and set aside the reply given by Central Board of Direct Taxes and remit the matter back to Chief Commissioner of Income Tax to examine the two questions referred to in para 6 above. It should first be ascertained as to whether two advance increments which were given to Mr Joshi for passing the Inspector's examination while working as UDC have been given to the applicant in past or not. If it has not been given, the same should be given. As far as the other question is concerned, it should be examined as to whether there exists a policy on par with the case of Inspectors. If that is not so, he should refer the matter to CBDT who should frame an appropriate policy within three months from the receipt of a copy of this order. The case of the applicant should be decided within three more months from the date of receipt of this policy decision. The O.A. is disposed of with these directions. No costs.”
8. Having regard to the submissions made on behalf of the respective parties, we are unable to accept the submissions made by the learned counsel for the petitioners. We have carefully gone through the order dated 30.3.2005 passed by the Central Administrative Tribunal, Ahmedabad in Original Application No. 206 of 2002. In our considered view, the Tribunal has not committed any error in giving direction to the petitioners/original respondents vide para 11 of the impugned order.
8. In the result, the petition is dismissed. The petitioner is directed to comply with the directions as aforesaid within a month from the date of receipt of this order.
[V.M. SAHAI, J.]
[G. B. SHAH, J.]
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