UNION OF INDIA AND ORS.versusP. JAGDISH AND ORS.

A                         UNION OF INDIA AND ORS.
                                           v.
                              P. JAGDISH AND ORS.

                               DECEMBER 17, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

           SERVICE LAW-PAY FIXATION-Special pay attached to certain
    identified posts in category of Senior Clerks-Additional pay attached to the
    post-Incumbent who oqcupies the post can only claim it. ·
c         Fundamental Rule-Stepping up of pay-Principles of-Ap-
    plicability-Senior officer in higher post drawing lower rate ofpay than officers
    in lower grade promoted or appointed subsequently-Pay of senior officer to
    be stepped up to a figure equal to pay fzxed for junior officer.

D          Prior to 1.1.1986, 10% of the posts of Senior Clerks were identified
    to be the posts involving arduous nature of work and thos~//r the incum-
    bents who were being posted to those identified posts were getting special
    pay of Rs. 35 per months. The respondents, Senior Clerks not working
    against the identified posts of Senior Clerks were promoted as Head
E   Clerks w.e.f. 1.1.1984 the date from which there had been upgradation to
    the posts of Head Clerks and while fixing of the pay in the category of Head
    Clerks, the pay which they were drawing as Senior Clerk was taken into
    account. While the respondents were promoted to the post of Head Clerks,
    their juniors who were posted against the identified posts of Senior Clerks
    getting Rs. 35 as special pay on being promoted as Head Clerks, were
F   getting higher pay than the respondents, though respondents promoted
    prior to their promotion.
                                                                                  \
          Respondents approached the Tribunal claiming that their pay
    should be refixed in the cadre of Head Clerks on the notional ~asis that
G   they were drawing Rs. 35 p.m. as special pay in the cadre of Senior Clerk.
    The Tribunal though did not grant the relief as claimed, directed on
    equitable consideration, 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 were getting on being promoted to the cadre of
    Head Clerk. This appeal had been filed against the direction of the
H   Tribunal.
                                       220
                          U.O.I. v. P. JAGDISH                          221

      The appellant contended that the special pay of Rs. 35 per month A
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 and the respqndents having not been posted on those posts,
they were not entitled to be granted notionally the special pay of Rs. 35 per
month; that once the respondents were not in fact dra"ing the special pay B
of Rs. 35 per month on account of the fact that they had not been posted
against the identified posts of Senior Clerks would not be entitled to get
their pay fixed in the cadre of Head Clerks by following the principle of
stepping up solely on the ground that their juniors were getting a higher
salary.
                                                                               c
       The questions raised for consideration were (i) whether the respon·
dent who had not been posted against the identified posts could even claim
fixation of their pay with Rs. 35 per month in the, qidre of Senior Clerk
even on notional basis; (ii) whether the respon:dents could claim for
stepping up of their pay in the promoted cadre of Jiead Clerks when their      D
juniors who were promoted were fixed up at a higher slab in the cadre of
Head Clerks taking into account the special pay which they were drawing
in the lower category of Senior Clerks~

      Dismissing the appeals, this Court                                       E
      HELD : A special pay of Rs. 35 per month was attached. to certain
identified posts in the category of Senior Clerks and, therefore, only those
who would be posted against those identified posts could claim the said
special pay. The respondents who had l)lready been promoted to the higher
category of Head Clerks could not claim tRat special pay even on notional      F
basis merely because their juniors in the cadre of Senior Clerks were given
that special pay on being posted against those identified posts carrying the
special pay. It was an additional pay attached to the post and any incum·
bent who occupied the post could only claim the same. The claim of the
respondents on this score, therefore, was not sustainable in law and the       G
Tribunal had rightly rejected the said claim of the respondents. [225-E-G]

      1.2. 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 than another Government H
    222                   SUPREME COURT REPORTS[1996) SUPP. 10 S.C.R.

A servant junior to him in the lower grade and promoted or appointed
   subsequently to the higher post, the principle of stepping 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 for the junior
   officer in that higher post. The stepping up is required to be done with
B effect from the date of promotion or appointment of the junior officer. On
   refIXation of the pay of the senior officer by applying the principle of
   stepping up, the next increment of the said .officer would be drawn on
   completion of the requisite qualifying service with effect from the date of
   refixation of pay. This principle becomes applicable when the junior officer
C .and the senior officer belong to the same category and the post from which
   they have been promoted and in 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
D 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 date their juniors in the eartwhile cadres of Senior Clerks got
   promoted to the cadre of Head Clerks and their pay was fIXed at a higher
   slab than· that of the respondent. The stepping up should be done in such
E a way that the anamoly of juniors getting higher salary than 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 f1Xed for their junior officer in the higher post of Head Clerk.
   This principle of stepping up would prevent violation of equal pay for equal
F work but grant of consequential  0
                                       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 cadre. 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
G pay arrears would 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 with Article 39(d) of the Constitution, it would
H be applicable only prospectively from the date of the promotion and the
                  U.0.1. v. P. JAGDISH [ PATIANAIK, J.]                 223

fixation of the scale stepping up of the scale of pay would be prospective     A
to calculate future increments on the scale of pay in promotional post only
prospectively. [226-A; 227-B]

    . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 16736 of
1996.
                                                                               B
      From the Judgment and Order dated 23.1.95 of the Central Ad-
ministrative Tribunal, Hyderabad in 0.A No. 600 of 1994.

        Avtar Singh and AK. Sharma for the Appellants.

        The Judgment of the Court was delivered by
                                                                               c
        PATIANAIK, J.: Leave granted.

      The short question that arises in this appeal is whether the Tribunal
was justified in directing the appellant to fix up the pay of respondents in   D.
the cadre of Head Clerk by notionally holding that they are also eligible t0
receive the special pay of Rs. 35. per month in the lower post even though
factually respondents were not getting the said special pay.

       The short facts leadings to the filing of the application before the
Tribunal by the respondents are that they were working as Senior Clerks        E
and while so working they were promoted to the post of Hea<l 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 per months. This was the state of affairs   F
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 wlarge
number of vacancies occurred in the category of Head Clerk. The respo:!i-
dents who were not working against the identified poits of Senior Clerks       G
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 in 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     H
    224                   SUPREME COURTREPORTS[1996] SUPP.10 S.C.R.

A 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 taken into
    account in fixing their pay in the promoted category of Head Clerks.
    Consequentially even though the respondents were prompted to the post
B of Head Clerks earlier, they were found to be getting less pay than their
    junior who were promoted as Head Clerks later and who had been posed
    against the identified 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
C per months, approached the Tribunal by filing OA No. 192 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 months 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
D 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 stepprd 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
E 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.
p 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
G    posted against those specified posts. That being the position and the
     respondents having not been posted on those posts question of granting
     notionally to them the special pay of Rs. 35 per month does not arise. He
     further contended that once the respondents were not in fact drawing the
     special pay of Rs. 35 per month on account of the fact that they had been
H    not posted against the identified posted of Senior Clerks carrying Rs. 35
                                                     ,'   ..
                      U.0.1. v. P. JAGDISH [ PATIANAIK, J,)                ' 225
    as special pay would not be entitled to get there pay fixed in the cadre of A
    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. According to the learned counsel the Tribunal committed B
    serious error in directing the stepping up of the salary of the respondents
    in the pay scale meant for Head Clerks solely on the ground that their
    juniors 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 C
    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 Clerk 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 D
    into account the special pay which they are drawing in the lower category
    of Senior Clerks.

           So far a5 the first question is concerned, it to be seen that a special
    pay of Rs. 35 per month is attached to certain identified posts in the           E
    category of Senior Clerks and, therefore, only those who would be posted
    against those identified posts can claim the said special pay. The respon-
    dents who had already been promoted to the higher category of Head
    Clerks cannot claim that special pay even on notional basis merely because
    their juniors in the cadre of Senior Clerks were given that special pay on       F
    being posted against those identified posts carrying the 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.
                                                                                     G
           So far as the second question is concerned it dependents upon the
    applicability of the principle of stepping up. Admittedly, the respondents
    had been promoted earlier to the category of Head Clerks and some of
    their juniors who were continuing as Senior Clerks against the identified
    posts carrying special pay of Rs. 35 per month on being promoted to the H
   226                    SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.

A 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
   than another Government servant junior to him in the lower. grade and
B promoted or appointed subsequently to the higher post, the principle of
   stepping 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 for the junior officer in that higher post. The stepping up ,is
   required to be done with effect from the date of promotion of appointment
   of the junior officer. On refixation of the pay of the senior officer by
C applying the principle of stepping up, the next increment of the said officer
   would be drawn on completion of the requisite qualifying service with
   effect from the date of the refixation of pay. This principle becomes            •
   applicable when the junior officer and the senior officer belong to the same
   category and the post from which they have been promoted and in the
   promoted cadre the junior on being promoted later than the senior officer
D 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
E the respondents with effect from the date 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 than that of the respondent. The stepping
   up should be done in such a way that the anamoly of juniors getting higher
   salary than the seniors in the promoted category of Head Clerk would be
   removed and the pay of the seniors like the respondents would be stepped
F up to a figure equal to the pay as fixed for their junior officer in the higher
   post of Board Clerks. In fact the Tribunal by the impugned orders has
   directed 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
   ~ual work but grant of the consequential benefit of the difference of salary         ..
G would not be correct f©r the reason that the respondents had not worked
   in the post to which 35% special pay was attached in the lower cadre. But
   by reason of prolfllotion the promotee-juniors who worked on the said
                                 '
   posts, in fact, performed the ihard duties and earned special pay. Directions
    to pay arrears would be dele~erious to inculcation of efficiency in service.
H All persons who were indolent to share higher responsibilities in lower
                 U.0.I. v. P.JAGDISH [ PATIANAIK,J.]                    Tl.7

posts, on promotion would get accelerated arrears that would be                A
deleterious to efficiency of service. Therefore, though direction to step up
the pay on notional basis is consistent with Article 39(d) of the Constitu-
tion, it would be applicable only prospectively from the date of the promo-
tion and the fixation of the scale stepping up of the scale of pay would be
perspective to calculate future increments on the scale of pay in promo-
tional post only prospectively. The appeal is dismissed by in the err-         B
cumstances there would not not order as to costs.

R.A.                                                     Appeal dismissed.




                  \