MAHESHKUMAR CHANDULAL PATEL & ANR.versusTHE STATE OF GUJARAT & ORS.

                  [2024] 8 S.C.R. 472 : 2024 INSC 608

                Maheshkumar Chandulal Patel & Anr.
                                 v.
                    The State of Gujarat & Ors.
                       (Civil Appeal No. 9059 of 2024)
                                14 August 2024
           [Vikram Nath* and Prashant Kumar Mishra, JJ.]

                            Issue for Consideration
       Applicability of the Rule of Stepping up of pay of a Government
       employee on the basis of the pay of his junior.

                                   Headnotes†
       Gujarat Civil Services (Pay) Rules, 2002 – Rule 21 – Stepping
       up of pay – Assistant Professors in Government Colleges in
       Gujarat – Applicability of:
       Held: Rule of stepping up shall apply only if the anomaly is the
       direct result of the application of Rule 21 and only if the conditions
       specified therein are fulfilled – One of the condition stipulates that
       if even in the lower post, the junior Government employee draws a
       higher rate of pay than the senior, by way of fixation of the pay or
       by grant of advance increments, the same shall not be applicable
       to step up the pay of the senior Government employee – In
       the present case, the anomaly in pay is not a direct result of
       Rule 21 – Rather, the anomaly arose because of the fact that the
       Junior employees were granted the benefit of Senior Scale/Selection
       Grade Pay by taking into account the ad hoc services that they
       had rendered in the past – Hence, Rule 21 became inapplicable in
       the present case – Stepping up of pay in the present case would
       go against the principle of equity as the benefit cannot be given to
       those who were not even born in the cadre, for claiming benefits for
       the service that they have not actually rendered. [Paras 31, 32, 33]

                                Case Law Cited
       Union of India v. R. Swaminathan [1997] Supp. 4 SCR 94 :
       (1997) 7 SCC 690; Union of India v. M. Suryanarayana Rao
       [1998] 3 SCR 1060 : (1998) 6 SCC 400 – relied on.
       Union of India & Ors. v. C.R. Madhava Murthy & Anr.
       [2022] 3 SCR 22 : (2022) 6 SCC 183; Ashok Ram Parhad &
* Author
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     Maheshkumar Chandulal Patel & Anr. v. The State of Gujarat & Ors.


       Ors. v. State of Maharashtra & Ors. [2023] 2 SCR 900 : (2023)
       SCC Online 265; Gurcharan Singh Grewal v. Punjab SEB
       (2009) 3 SCC 94 – distinguished.
       Union of India v. Sushil Kumar Paul (1998) 5 SCC 268; ESI
       Corporation v. P.K. Srinivasmurthy (1997) 11 SCC 533 – referred to.

                                  List of Acts
       Gujarat Civil Services (Pay) Rules, 2002.
                               List of Keywords
       Service Law; Stepping up of pay.
                              Case Arising From
       CIVIL APPELLATE JURISDICTIONL: Civil Appeal No.9059 of 2024
       From the Judgment and Order dated 28.12.2017 of the High Court
       of Gujarat at Ahmedabad in LPA No.1311 of 2017
       With
       Civil Appeal Nos. 9060, 9061, 9062-9081, 9082-9101, 9102-9121,
       9122-9152 and 9153-9167 of 2024
                           Appearances for Parties
       Shyam Divan, Sr. Adv., Ms. Charu Mathur, Nachiketa Joshi,
       Ms. Sucheta Joshi, Ms. Himadri Haksar, Narayan Dev Parashar,
       Ms. Karishma Rajput, Advs. for the Appellants.
       Kanu Agarwal, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Madhav S,
       Ms. Deepanwita Priyanka, Kanu Agrawal, Advs. for the Respondents.

                  Judgment / Order of the Supreme Court

                                  Judgment
       Vikram Nath, J.
1.     Leave granted.
2.     These appeals assail the common impugned order dated 28.12.2017
       passed by the Division Bench of the High Court of Gujarat in LPA
       No. 765/2017 in Special Civil Application No. 3210/2016 along with
       other allied appeals. The LPA was preferred by the respondent
       State of Gujarat against the order of Single Judge dated 19.04.2017
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       directing the State of Gujarat to remove the anomaly in the pay of
       the appellants Petitioners qua their juniors by stepping up their pay.
       The Division Bench allowed the LPA by the State and set aside the
       Single Judge’s order.
       FACTUAL MATRIX –
3.     The matters pertain to the issue whether or not the principle of stepping
       up of pay of an employee on the basis of the pay of his junior, is
       applicable in the present case, where the appellants are put on a
       lesser pay scale than the Assistant Professors who were appointed
       before them as ad hoc lecturers and subsequently regularized. The
       genesis of controversy goes back to the period of 1984-95 when
       111 persons came to be engaged as Lecturers on ad hoc basis in
       various Government Colleges. The University Grants Commission1
       has framed the Regulations of 1998, inter alia, providing for minimum
       length of service of four years for lecturers (Assistant Professor)
       with PhD and M. Phil and of six years for others to be eligible to
       move to Senior Scale (i.e., 10000-325-15200) and on completion of
       another five years of service, for being eligible to move to Selection
       Grade (i.e., 12000-420-18300). The said regulations also provided
       for counting of services during ad hoc period for grant of Senior
       Scale and Selection Grade Pay.
4.     In view of the above regulations, the Education Department, issued
       a Government Resolution dated 17.06.1999 for considering previous
       services rendered by the ad hoc lecturers for the purpose of their
       placement in Senior Scale/Selection Grade. Subsequent to the said
       Resolution, the Government provided benefits to some of the ad hoc
       lecturers subject to conditions as provided therein. In 2001, some
       other ad hoc lecturers [1984-95 Group] approached the High Court
       for regularization of their services. However, the said Special Civil
       Application was dismissed against which LPA No. 485 of 2002 was
       preferred.
5.     In the year 2001 itself, the appellants in the instant case came to
       be directly selected and appointed as Assistant Professors by the
       Gujarat Public Service Commission.2



1    UGC, hereinafter
2    GPSC, hereinafter
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6.     On 15.11.2002, the State Government framed the Gujarat Civil
       Services (Pay) Rules, 20023 wherein Rule 21 provides for stepping
       up of a pay of Government Employee on the basis of the pay of his
       junior, while categorically stipulating that the provision of the said
       Rule will apply where the pay of a junior is fixed higher than his
       senior on his promotion to the higher cadre.
7.     Alongside, in LPA No. 485 of 2002 preferred by the ad hoc lecturers
       for regularization, the Division Bench of the High Court in its order
       dated 11.12.2002 held that the services of the ad hoc lecturers
       cannot be regularized contrary to the Recruitment Rules in the post
       for which direct recruits were already selected through GPSC, but
       in the facts and circumstances of the case, directed the ad hoc
       lecturers to be treated as a separate class in view of their ad hoc
       continuance for nearly a decade and be considered for absorption
       in such posts as may be available with the government. Accordingly,
       rest of the ad hoc Assistant Professors came to be selected through
       GPSC and appointed as regular Assistant Professors in addition to
       the ad hoc lecturers who were already appointed as regular Assistant
       Professors in 2001.
8.     Further, the ad hoc lecturers who were appointed as regular Assistant
       Professors in 2001 approached the High Court by way of Special Civil
       Application No. 6597 of 2007 and other connected matters seeking
       the relief of counting ad hoc services for the purpose of senior scale/
       selection grade. The High Court disposed of the said matters by
       directing the State Authorities to decide their representation. The
       State Government, vide its letter dated 29.03.2008, rejected their
       claim for counting ad hoc services for the purpose of grant of senior
       scale/selection grade on the ground that their initial appointment was
       without the requisite permission of GPSC.
9.     In 2009, the Assistant Professors who got selected through direct
       appointment were extended the benefit of senior scale/selection
       grade effective from their date of selection through GPSC.
10. On 30.06.2010, UGC framed Regulations of 2010 treating Career
    Advancement Scheme as an avenue for promotion. It may be noted
    here that ad hoc services were eligible to be counted for different
    recruitments/promotion under Career Advancement Scheme.


3     2002 Pay Rules, hereinafter
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11. The Government vide its resolution dated 03.08.2011 allowed the
    ad hoc services of 111 Professors [1984-95 Group] to be counted
    for the purpose of pay, leave and pension. Subsequently, a letter
    dated 27.09.2011 was written by the Joint Secretary, Education
    Department to the Commissioner, Higher Education, clarifying that
    the benefit of Resolution dated 03.08.2011 would not be extended
    for the purpose of seniority.
12. Consequently, the State Government, while referring to its earlier
    Government Resolution dated 17.06.1999 and the Government
    Resolution dated 02.08.2011, issued the Government Resolution
    dated 22.12.2014 for counting the previous services rendered by
    the erstwhile ad hoc lecturers for extending the benefits of Senior
    Scale/Selection Grade to the eligible Assistant Professors out of the
    total erstwhile ad hoc lecturers [1984-95 Group].
13. Accordingly, the State Government issued an Order dated 10.08.2015
    granting the benefit of Senior Scale and Selection Grade to 85 eligible
    Assistant Professors by considering their previous ad hoc services.
    It so happened that by counting such ad hoc services rendered by
    such lecturers [1984-95 Group], all of them were getting higher pay
    than the direct appointees selected by GPSC. Aggrieved by this, a
    representation dated 19.10.2015 was submitted to the Government
    by the direct appointees to step up their pay in accordance with Rule
    21 of the 2002 Pay Rules. It also gave rise to filing of petitions before
    the Single Judge of the High Court for appropriate writ, direction and
    order to remove the anomaly in their pay resulting from the office
    order dated 10.08.2015 and grant stepping up their pay on the basis
    of Rule 21. It is also to be noted here that the State Government, vide
    Resolution dated 06.03.2017, clarified that the Career Advancement
    Scheme is not related to promotion and deleted the terms “promotion”
    occurring in resolutions dated 18.04.2016 and 03.08.2016.
14. The Single Judge of the High Court, vide judgment dated 19.04.2017,
    held that Rule 21 is applicable in the present case based on the
    finding that the grant of Senior Scale and Selection Grade under
    the Career Advancement Scheme can be said to be promotion and
    therefore, when at the time of grant of Senior Scale and Selection
    Grade under the Career Advancement Scheme, there is anomaly
    in the pay scale between the Senior and Junior. It, accordingly,
    granted the benefit of stepping up, holding that the seniors (original
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     Petitioners) are entitled to pay at par with their junior who were
     selected and appointed subsequent to them.
15. The Single Judge also specifically observed that the original petitioners
    have not challenged the Government Resolutions dated 03.08.2011
    and 22.12.2014 and the office order dated 10.08.2015, or the action
    of the Respondents in granting the Senior Scale and Selection Grade
    to the said junior lectures by counting their past seniority rendered as
    ad hoc. Therefore, the Court chose to refrain itself from expressing
    any opinion on the validity of the said Government Resolutions. The
    Single Judge also noted that the subsequent appointees appear to
    have been treated as a separate class by the State for the purpose
    of considering their past ad hoc services as permissible under the
    UGC Regulations and such classification is not discriminatory, thus
    the ground of equal pay for equal work taken by the Petitioners
    therein would not stand. However, by granting the benefit of Rule 21,
    the State was directed to step up the pay of the original Petitioners.
16. Feeling aggrieved by the judgment of the Single Judge, original
    Respondents-State and others preferred Letters Patent Appeals
    before the Division Bench of the High Court.
17. It was held by the Division Bench of the High Court that in the peculiar
    facts and circumstances of the case, Rule 21 of the 2002 Pay Rules
    shall not be applicable at all since it applies only where the anomaly
    so caused must be the direct result of the application of Rule 21.
    The Court proceeded on the footing that grant of Senior Scale and
    Selection Grade under the Career Advancement Scheme can be said
    to be promotion. It was observed that if the case on behalf of the
    original petitioners is accepted and their pay is fixed at par with all
    those 85 Assistant Professors who as such rendered their services
    as ad hoc lecturers, in that case, all the original petitioners, who
    admittedly never rendered their services as ad hoc lecturers like all
    those 85 lecturers and who for the first time joined their services in
    2001, will be granted the benefit of the earlier years during which
    they never rendered their services as ad hoc or otherwise and/or
    when they were not even born in the cadre.
18. The Division Bench also noted that though it is the specific case on
    behalf of the original Petitioners that counting the earlier services of
    85 Assistant Professors as ad hoc is absolutely illegal, still the very
    Petitioners are asking the same pay which all those 85 Assistant
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       Professors are getting by counting their earlier ad hoc services,
       meaning thereby, it can be said that the original Petitioners pray that
       they may also be granted the benefit of such illegality. There cannot
       be negative discrimination. Accordingly, it was held that the Single
       Judge had materially erred in granting the benefit of stepping up
       under Rule 21. The Division Bench allowed the appeals preferred
       by the State and set aside the order passed by the Single Judge.
19. Aggrieved by the said order, the original writ Petitioners are in appeals
    before us. We have heard Mr. Shyam Divan, learned senior counsel
    appearing for the appellants and Mr. Kanu Agarwal and Ms. Swati
    Ghildiyal, learned counsels appearing for the respondents.
       ARGUMENTS ADVANCED –
20. Appellants have submitted that it is an undeniable fact that the
    subsequent appointees are junior to the Petitioners. The appellants
    who are seniors are seeking pay parity with the junior members of
    the cadre. That the instant case fulfils the requisite conditions for
    invoking Rule 21 of the 2002 Pay Rules as the said rule does not
    contemplate such anomalous situation where the junior is paid more
    salary than the senior. It was argued that the provisions of Rule 21
    are applicable in the fact-situation of the present case in view of: -
       a.   Junior and senior government employees belong to one and
            same cadre;
       b.   Time-scale of pay of the lower post held by the junior and
            senior is identical; and,
       c.   Time-scale of the higher-post to which the government employee
            is promoted, is identical.
21. It is also submitted by the appellants that the State Government
    has resolved that Career Advancement Scheme is in the nature
    of promotion as indicated in the UGC guideline. Thus, Rule 21 is
    applicable and if the junior to the appellants have been granted the
    benefit of Career Advancement Scheme, the appellants who are
    senior to them, are entitled to the salary that they draw when the
    appellants are granted the benefit of Career Advancement Scheme.
22. Further, at one point, it is also argued by some of the appellants
    that the change from ad hoc to regular employees should be treated
    as break in service and service rendered as ad hoc ought not to
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      be considered at the time of calculating total length of service. The
      Respondents, by passing the aforementioned resolutions, have led
      to the present anomaly.
23. Appellants also argued that if juniors get higher pay than the seniors,
    and the seniors have no promotional avenue, their seniority becomes
    insignificant. In that case, the very purpose of making regular
    appointment through GPSC after following the due recruitment
    process would be frustrated and this could have demoralizing effect
    on the working of seniors. It is to avoid such situation that their pay
    deserves to be stepped up to the pay equal to their juniors.
24. Lastly, appellants relied on the following judgments to supplement
    weight to their arguments:
      i)     Union of India & Ors. v. C.R. Madhava Murthy & Anr.,4
      ii)    Ashok Ram Parhad & Ors. v. State of Maharashtra & Ors.,5
      iii)   Gurcharan Singh Grewal v. Punjab SEB6
25. On the other hand, Respondents submitted that they are not disputing
    the fact that the appellants are senior to the ad hoc appointees
    [1984-95 Group] and the same position has also been accepted by
    the Single Bench as well as Division Bench of the High Court. It is
    submitted that despite the ad hoc appointees being juniors, Rule
    21 is not applicable in the present case since the conditions stated
    in the said rule have not been fulfilled in the present case as the
    anomaly in pay is not a direct result of the application of the rule.
    That Clause (v) of Sub-rule (1) of Rule 21 clearly contemplates that
    if even in the lower post the junior Government employee draws
    from time to time the higher rate of pay than the senior by virtue
    of fixation of the pay under the normal rule or by grant of advance
    increments for any reasons, the same shall not be applicable to step
    up the pay of the senior Government employees.
26. Further, it was submitted that if the argument of the appellants that
    Rule 21 is applicable and consequently, their pay should be stepped
    up, is to be accepted, it would amount to giving benefit to the


4    [2022] 3 SCR 22 : (2002) 6 SCC 183
5    [2023] 2 SCR 900 : (2023) SCC Online SC 265
6    (2009) 3 SCC 94
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       Petitioners and others of the earlier years, during which admittedly
       they were not even born in the cadre and not even serving, unlike
       the 1984-95 Group.
27. The Respondents relied upon the following judgments to stress that
    in similar facts and circumstances, this Court has held that rule of
    stepping up shall not be applicable:
       i)     Union of India v. R. Swaminathan,7
       ii)    Union of India v. M. Suryanarayana Rao,8
       iii)   Union of India v. Sushil Kumar Paul,9
       iv)    ESI Corporation v. P.K. Srinivasmurthy,10
       ISSUE AT HAND –
28. It is not in dispute that the appellants have not challenged the
    Resolutions dated 22.12.2014 and 10.08.2015, nor have they made
    85 Assistant Professors [1984-95 Group] as party to the present
    proceedings. Therefore, it is clear that it is not the case of the
    appellants that the said 85 Assistant Professors have been wrongly
    granted the benefit, through the said resolutions. It is also not the
    case of the appellants that the said 85 Assistant Professors were
    not eligible for getting the said benefits.
29. Further, it is also an admitted fact that the appellants are seniors
    to the 1984-95 Group and is not under dispute. Moreover, even
    though the Government, vide resolution dated 06.03.2017, has
    clarified that the Career Advancement Scheme is not related to
    promotion and therefore deleted the terms “promotions” occurring
    in resolutions dated 18.04.2016 and 03.08.2016, the High Court had
    proceeded on the footing that the grant of Senior Scale and Selection
    Grade under the Career Advancement Scheme can be said to be
    promotion to elucidate that such an argument would not help the
    case of the Petitioners. So, considering that the said resolutions of
    the Government are not under challenge in the instant case, we



7    [1997] Supp. 4 SCR 94 : (1997) 7 SCC 690
8    [1998] 3 SCR 1060 : (1998) 6 SCC 400
9    (1998) 5 SCC 268
10   (1997) 11 SCC 533
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     will also deal with the relevant issue at hand presuming that even
     if the Career Advancement Scheme is considered to be promotion.
30. The short question that requires determination in the present case
    boils down to whether Rule 21 of the 2002 Pay Rules would be
    applicable in the facts and circumstances of the present case or
    not. Rule 21 is quoted as under:
           “21. Stepping up of a pay of a Government employee
           on the basis of the pay of his junior:
           (1) Where on regulating initial pay of a Government
           employee under above rules-11, 13, 15 to 17 & 19 or on
           his appointment to a higher post if his pay is fixed at a
           lower rate of pay in that cadre than another Government
           employee junior to him in the lower grade but promoted
           or appointed subsequently in such another identical
           cadre; the pay of the senior Government employee on
           the higher post shall be stepped up to the figure equal to
           the pay as fixed for the junior Government employee in
           that higher post with effect from the date of promotion of
           the junior Government employee and it shall be subject
           to the following conditions viz:-
           i. both, the junior and the senior Government employees
           belong to one and the same cadre and the posts to which
           they have been promoted or appointed, shall be identical
           and in the same cadre and in the same line of promotion;
           ii. the time-scales of pay of the lower posts held by the
           senior and the junior Government employees shall be
           identical;
           iii. the time scales of the higher posts to which the
           Government employees are promoted or appointed shall
           be identical;
           iv. the senior Government employee had he not been
           appointed to the higher post earlier than his junior, he would
           have been eligible to draw pay at a stage not lower than
           that admissible to his junior in the lower post immediately
           prior to the appointment of the junior Government employee
           to the higher post;
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           v. the anomaly so caused must be the direct result of
           the application of this rule. For example, if even in the
           lower post the junior Government employee draws from
           time to time a higher rate of pay than the senior by virtue
           of fixation of pay under the normal rules or by grant of
           advance increment(s) for any reason, these provisions
           shall not be applicable to step up the pay of the senior
           Government employee.
           vi. the pay of the senior Government employee so increased
           due to stepping up of pay shall not be reduced on reversion
           of the junior Government employee nor shall it be increased
           again with reference to the pay of the same officer.
           (2) After the re-fixation of pay of the senior Government
           employee with reference to the pay of his junior, the next
           increment shall occur to him only after he has rendered
           the qualifying service which is necessary for drawing such
           increment from the stage at which his pay had been refixed.”
       ANALYSIS –
31. A bare reading of the above provision makes it clear that a strict
    compliance of the said rule is necessary. The Rule of stepping up shall
    apply only if the conditions specified therein are fulfilled. Specifically,
    condition no. (v) of Rule 21 stipulates that the anomaly must be the
    direct result of the application of this rule. It further states by way
    of an example that, if even in the lower post the junior Government
    employee draws from time to time the higher rate of pay than the
    senior by way of fixation of the pay under the normal rule or by
    grant of advance increments for any reasons, the same shall not be
    applicable to step up the pay of the senior Government employee.
32. It is to be noted that in the present case, the anomaly in pay is not a
    direct result of Rule 21. Rather, the alleged anomaly arose because
    the 85 Assistant Professors [1984-95 Group] have been granted the
    benefit of Senior Scale/Selection Grade Pay by taking into account
    the ad hoc services that they have rendered in the past. Therefore,
    Rule 21 becomes inapplicable in the present case.
33. Moreover, if the present appeals are allowed, then it would amount
    to giving benefit to the appellants and others of the earlier years,
    during which admittedly they were not even born in the cadre and not
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     even serving. This would go against the principle of equity. Such a
     benefit cannot be claimed by the Petitioners for the years of service
     that they have not actually rendered.
34. The case laws cited by the Appellants are not applicable to the
    instant case as they are distinguishable on facts. More specifically,
    Madhava Murthy (supra), it was a case where a junior was drawing
    more pay on account of upgradation under the ACP Scheme and
    there was an anomaly and therefore, the pay of senior was required
    to be stepped up. However, the said junior had not rendered any
    ad hoc services, which is not quite the case at hand. Similarly,
    Gurcharan Singh Grewal (supra) was also not a case involving
    ad hoc services. It was a matter wherein the Appellant was merely
    seeking to step up his pay as was done for another appellant
    situated similarly. Lastly, in Ashok Ram Parhad (supra), the grant
    of monetary benefit was not under contention. Rather, that matter
    was with regards to the inter se seniority which is not a point of
    dispute in the instant case. Hence, none of the case laws relied on
    by the Appellants help their case.
35. It is also befitting here to briefly refer to the relevant judgments by
    this Court rendered earlier on the subject-matter, which have been
    relied by the Respondents:
36. The case of R. Swaminathan (supra) is a matter with very similar
    factual matrix wherein certain employees claiming seniority were
    claiming step up if their juniors are getting more pay on account
    of their ad hoc services being counted. Certain junior employees
    had officiated on a promotional post on an ad hoc basis due to
    administrative exigencies., due to which their pay on their regular
    promotion was fixed higher than their senior. The Court held as under:
           “10. According to the aggrieved employees, this has
           resulted in an anomaly, Government Order bearing No.
           F.2(78)-E.III(A)/66 dated 4-2-1966 has been issued for
           removal of anomaly by stepping up of pay of a senior on
           promotion drawing less pay than his junior. It provides
           as follows:
           “10. Removal of anomaly by stepping up of pay of senior
           on promotion drawing less pay than his junior.—(a) As
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       a result of application of FR 22-C.—In order to remove
       the anomaly of a government servant promoted or
       appointed to a higher post on or after 1-4-1961 drawing
       a lower rate of pay in that post than another government
       servant junior to him in the lower grade and promoted
       or appointed subsequently to another identical post,
       it has been decided that in such cases the pay of the
       senior officer in the higher post should be stepped up
       to a figure equal to the pay as fixed for the junior officer
       in that higher post. The stepping up should be done
       with effect from the date of promotion or appointment
       of the junior officer and will be subject to the following
       conditions, namely:
       (a) Both the junior and senior officers should belong to
       the same cadre and the posts in which they have been
       promoted or appointed should be identical and in the
       same cadre;
       (b) the scale of pay of the lower and higher posts in which
       they are entitled to draw pay should be identical;
       (c) the anomaly should be directly as a result of the
       application of FR 22-C. For example, if even in the lower
       post the junior officer draws from time to time a higher
       rate of pay than the senior by virtue of grant of advance
       increments, the above provisions will not be invoked to
       step up the pay of the senior officer.
            The orders refixing the pay of the senior officers
            in accordance with the above provisions shall
            be issued under FR 27. The next increment of
            the senior officer will be drawn on completion of
            the requisite qualifying service with effect from
            the date of refixation of pay.”
       As the Order itself states, the stepping up is subject to
       three conditions: (1) Both the junior and the senior officers
       should belong to the same cadre and the posts in which
       they have been promoted should be identical and in the
       same cadre; (2) the scales of pay of the lower and higher
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           posts should be identical; and (3) anomaly should be
           directly as a result of the application of Fundamental Rule
           22-C which is now Fundamental Rule 22(I)(a)(1). We are
           concerned with the last condition. The difference in
           the pay of a junior and a senior in the cases before
           us is not as a result of the application of Fundamental
           Rule 22(I)(a)(1). The higher pay received by a junior is
           on account of his earlier officiation in the higher post
           because of local officiating promotions which he got
           in the past. Because of the proviso to Rule 22 he may
           have earned increments in the higher pay scale of the
           post to which he is promoted on account of his past
           service and also his previous pay in the promotional
           post has been taken into account in fixing his pay on
           promotion. It is these two factors which have increased
           the pay of the juniors. This cannot be considered as
           an anomaly requiring the stepping up of the pay of
           the seniors.
           11. The Office Memorandum dated 4-11-1993, Government
           of India, Department of Personnel and Training, has set
           out various instances where stepping up of pay cannot
           be done. It gives, inter alia, the following instances which
           have come to the notice of the Department with a request
           for stepping up of pay. These are:
                “(a) Where a senior proceeds on Extraordinary
                Leave which results in postponement of date of
                next increment in the lower post, consequently he
                starts drawing less pay than his junior in the lower
                grade itself. He, therefore, cannot claim pay parity on
                promotion even though he may have been promoted
                earlier to the higher grade:
                (b) If 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
486                                                           [2024] 8 S.C.R.

                    Digital Supreme Court Reports


               posts for periods earlier than the senior, cannot,
               therefore, be an anomaly in strict sense of the term.
               (c) If a senior joins the higher post later than the junior
               for whatsoever reasons, whereby he draws less pay
               than the junior, in such cases the senior cannot claim
               stepping up of pay on a par with the junior.
               (d) ***”
               There are also other instances cited in the
               Memorandum. 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.
               13. The employees in question are, therefore, not
               entitled to have their pay stepped up under the
               said Government Order because the difference
               in the pay drawn by them and the higher pay
               drawn by their juniors is not as a result of any
               anomaly; nor is it a result of the application of
               Fundamental Rule 22(I)(a)(1).”
37. Similarly, in the case of Suryanarayana Rao (supra), the Respondent
    was promoted and he was senior to two other persons, yet his pay
    was fixed at a lesser scale whereas the pay of the said two persons
    was fixed on a higher scale for the reason that the said juniors were
    promoted earlier to the promotional posts on an ad hoc basis. The
    Court had relied on the ratio laid down in R. Swaminathan (supra)
    and refused to grant the relief of stepping up.
       CONCLUSION –
38. In light of the facts and circumstances of the case(s), the discussion
    laid out above surrounding Rule 21 and a perusal of the authorities
    elucidated above, we do not find any merit in the contentions of the
    appellants.
[2024] 8 S.C.R.                                                                  487

  Maheshkumar Chandulal Patel & Anr. v. The State of Gujarat & Ors.


39. We, thus, hold that Rule 21 of the 2002 Pay Rules is inapplicable in
    the instant case(s) and no relief can be granted to the appellants. The
    present appeals deserve to be dismissed. It is ordered accordingly.
40. Pending applications (if any) are disposed of.

     Result of the case: Appeal dismissed.



     †
         Headnotes prepared by: Prastut Mahesh Dalvi, Hony. Associate Editor
                                 (Verified by: Shadan Farasat, Senior Advocate)