UNION OF INDIA & ORS. vs SH R RAJASHEKHARAN

2023-10-05 Information

$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 05, 2023
+ W.P.(C) 12452/2023, CM APPL. 49053/2023
UNION OF INDIA & ORS. ….. Petitioners
Through: Mr. Jivesh Kr. Tiwari, Sr. Panel Counsel.
versus
SH. R. RAJASHEKHARAN ….. Respondent
Through:
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

ANOOP KUMAR MENDIRATTA, J. (ORAL)
1. The challenge in this writ petition is to an order dated February 03, 2023 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter, referred to as the Tribunal) in OA No. 2532/2016, whereby the OA preferred on behalf of the respondent (R. Rajashekharan) was allowed in terms of paragraphs 6 and 7 as under:
6. In our view, the issue is extremely simple. The benefit of revised pay structure was extended to the applicant on 01.01.2006. As per the rules he was entitled for the increment on completion of six months and on the uniform date prescribed, that is, 01.07.2006. It is not in dispute that he had completed six months on the relevant date. Should a subsequent date of 06.01.2006 on which the benefit of such stepping up of pay was awarded to him be now the reference point for determining the six months period is the only limited issue to be determined. We have no hesitation in answering the question in negative. Increment is to be considered with reference to the date on which the revised pay structure has been awarded. Stepping up of pay is a measure purely personal resorted to in specific circumstances, when an anomaly gets created of a junior drawing higher salary. Rules do not permit this to be the reference date; the CCS (Pension) Rules unambiguously state that six months qualifying service is to be reckoned from the date of the adoption and award of the revised pay structure. The date in this case is not being disputed.
7. We hold that the applicant is entitled to the increment which falls due on 01.07.2006. Accordingly, the impugned office memorandum dated 04.05.2016 is quashed and set aside with a direction to the competent authority amongst the respondent to refix the salary and emoluments of the applicant giving him the benefit of increment with the revised pay structure with effect from 01.07.2006. The said benefit shall be awarded to the applicant on actual basis along with the necessary arrears as calculated on the basis of entitlement. The above directions will be complied with within a period of 16 weeks from the date of this order. The O.A. stands allowed against the aforesaid directions.
2. In brief, the respondent preferred the OA before the Tribunal submitting that pursuant to the acceptance of the recommendations of the 6th Pay Commission, his pay was revised w.e.f. January 01, 2006 in Pay Band 2 carrying the Pay Scale of Rs. 9,300-34,800/- with Grade Pay Rs. 4,600/-. In accordance with Rule 10 of Central Civil Services (Revised Pay) Rules, 2008 (hereinafter, referred to as CCS (Revised Pay) Rules) and instructions issued, the next increment was to be given on July 01, 2006. Thereafter, vide order dated September 07, 2011, the benefit of stepping up of pay was granted to the respondent with retrospective benefit i.e. January 01, 2006 along with six other officials, since the juniors were drawing higher pay than the respondent. However, while giving the benefit of stepping up of pay along with arrears, the increment awarded on July 01, 2006 as per CCS (Revised Pay) Rules was withdrawn and the next increment was directed to be given w.e.f. July 01, 2007, i.e. after a gap of 18 months from the date of grant of revised pay scales.
3. The same was accordingly challenged by the respondent before the Tribunal being in contravention of Rule 10 of CCS (Revised Pay) Rules. The OA preferred by the respondent was allowed by the Tribunal vide impugned order dated February 03, 2023.
4. Aggrieved against the impugned order dated February 03, 2023, passed by the Tribunal, the present writ petition has been preferred on behalf of the petitioner / Union of India, reiterating the stand taken before the Tribunal.
5. It is contended by learned counsel for the petitioners / Union of India that once the respondent had been awarded the benefit of stepping up of pay, he is not entitled to the increment w.e.f. January 01, 2006. Reference was also made to the advice of the Department of Expenditure, Ministry of Finance to contend that the relevant date of determining the qualifying service would be the date on which the benefit of stepping up of pay has been granted. It is also submitted that the Rules relied upon by the respondent provided that entitlement for increment is only after six months of qualifying service and in this case since the pay of the respondent was re-fixed after stepping up with reference to his junior on January 06, 2006 vide order dated September 27, 2011, the respondent had not completed six months of service from the date of re-fixation of pay and hence not eligible for increment on July 01, 2006 in view of OM No. 2(78)E. III(A)/65 dated February 02, 1966.
Reliance is further placed upon judgments passed by this court in Mrs. Nirmal Gupta vs. The LT. Governor/Administrator Govt. of NCT of Delhi & Ors., W.P.(C) 7516/2001, Govt. of NCT of Delhi & Ors. vs. Saroj Khosla and Ors., W.P.(C) 4370/2012 and Govt. of NCT of Delhi & Ors. vs. Krishna Mohan Tiwari, W.P.(C)6153/2012.
6. At the outset, the issue for consideration in the judgments relied by the learned counsel for the petitioner / Union of India may be noticed. In Govt. of NCT of Delhi & Ors. vs. Krishna Mohan Tiwari, W.P.(C) 6153/2012, decided by this court on March 21, 2013, the respondent therein was given an appointment as well as seniority above his batch mate Pramod Kumar. The Tribunal granted relief as claimed by the respondent on principle of retrospective pay fixation on notional basis.
A writ petition was preferred on behalf of Govt. of NCT of Delhi contending that back wages, actual or notional, being denied to the respondent therein and having not been expressly granted are deemed to be refused. The High Court dismissed the writ petition upholding the order of the Tribunal but observed that stepping up of pay had nothing to do with pay fixation on notional basis though its effect may be akin to notional pay fixation. Further, an illustration was noticed as reflected in paragraph 5 as under:
5. Stepping up of pay has nothing to do with notional fixation of salary, much less back wages. Though its effect may be akin to notional pay fixation, but as a concept stepping up of pay is an entirely different concept. We have used the expression akin for the reason the persons salary is increased, but it is not the same as notional fixation for the reason a persons claim for appointment relating to the year 1980 on being decided in the year 1985, if back wages or benefit of notional pay fixation is granted, would require pay to be fixed in the initial scale of pay as of the year 1980 and annual increments granted. But if no such benefit is accorded, save and except seniority is required to be maintained with respect to a person who joined in the year 1983, the pay of said person would have to be fixed in the year 1985, at par with the junior, who having joined in the year 1983 would have earned two increments. The stepping up of pay would give benefit of only two notional increments. We have noted as aforesaid by way of illustration.
On the face of record, the case does not deal with the issue of date of grant of next increment in the light of Rule 10 of CCS (Revised Pay) Rules or pay fixation in terms of OM No. F.2(78)-EIII(a)/66 dated February 02, 1966.
7. Similarly, in Mrs. Nirmal Gupta vs. The LT. Governor/Administrator Govt. of NCT of Delhi & Ors., W.P.(C) 7516/2001, decided by this court on July 30, 2013, relied by the petitioner, a select panel for appointment to the post of Post-Graduate Teacher (PGT) was prepared in the year 1984 and some appointments were made without exhausting the panel another advertisement was issued inviting applications from eligible candidates and at that stage the empanelled candidates who had not been offered appointment approached the Tribunal. The empanelled candidates were given appointments pursuant to the cases filed on their behalf in batches by the Tribunal which were upheld by Honble Apex Court. In the interregnum large number of persons were appointed as PGTs, leading to another round of litigation pertaining to seniority which was decided by granting the seniority as per merit position in the panel. Thereafter, in the further round of litigation, the back wages claimed by the empanelled candidates were denied by the Tribunal noting that only benefit of notional pay fixation was granted.
In the aforesaid background, Division Bench observed that principle of stepping up of pay was ignored at all stages. It was further held that the principle of stepping up of pay has to be applied across the board in all cases where a person who is senior gets less salary than his junior; requiring the salary of the senior to be stepped up and brought at least at par with the junior. The said conclusion was stated to be logical referring to OM No. F.2(78)-EIII(a)/66 and it was further observed in paragraphs 10 and 11 as under:
10. And we only highlight sub-para (a), as per which, even in case of appointment in the same cadre, both the junior and senior officers have to be given equal pay; requiring the pay of the senior officer to be stepped up to bring it at par with the junior officer.
11. Whether we may call it notional fixation of pay from a back date i.e. the date when the junior person was appointed or we may call it stepping up of pay, the end is the same. The incumbent starts receiving a higher pay when he joins service.
On the face of record, even in said case the court never considered the issue of date of grant of next increment, but only made reference to sub-para (a) of OM No. F.2(78)-EIII(a)/66 providing for stepping up of pay.
8. Further, in Govt. of NCT of Delhi & Ors. vs. Saroj Khosla and Ors., W.P.(C) 4370/2012 decided by this court on January 31, 2013 along with other connected writ petitions, relied upon by the learned counsel for the petitioner, names of 1492 candidates were notified to be appointed as Trained Graduate Teachers in various disciplines, but, only 654 candidates were issued letters offering appointment. The act of the Director of Education to advertise and invite applications from eligible candidates to fill vacancies in the next year resulted in a large number of candidates approaching the Central Administrative Tribunal, to whom the letters offering appointment were not issued.
A direction was issued in favour of the left over candidates by directing to exhaust the panel of 1492 candidates before letter of appointments were offered to others. The challenge to the same by the Department failed before the Apex Court. However, since in the interregnum i.e. during pendency of proceedings, certain appointments were made and the incumbents were not granted any notional pay fixation or back wages, there was another round of litigation.
The Division Bench highlighted the principle of stepping up of pay as already noticed by us in Mrs. Nirmal Gupta (Supra) in the light of observations in sub-para (a) of OM dated February 04, 1966. It is again pertinent to note that the issue relating to the date of grant of increment was not in question before the Division Bench.
9. It may be observed that the stepping up of pay has to be done to ensure that senior has his pay fixed at par with the junior from the date he joins, since the junior has been drawing higher scale of pay. However, in the present case, the issue for consideration is, if the increment already granted to the respondent w.e.f. July 01, 2006 could be withdrawn on stepping up of pay under Rule 10 of CCS (Revised Pay) Rules by making reference to OM dated February 02, 1966 relied by the petitioners.
10. In order to appreciate the contentions raised on behalf of the petitioners, Rule 10 of CCS (Revised Pay) Rules may be reproduced for reference:
10. Date of next increment in the revised pay structure – There will be a uniform date of annual increment, viz. 1st July of every year. Employees completing 6 months and above in the revised pay structure as on 1st of July will be eligible to be granted the increment. The first increment after fixation of pay on 1.1.2006 in the revised pay structure will be granted on 1.7.2006 for those employees for whom the date of next increment was between 1st July, 2006 to 1st January, 2007.
Provided that in the case of persons who had been drawing maximum of the existing scale for more than a year as on the 1st day of January, 2006, the next increment in the revised pay structure shall be allowed on the 1st day of January, 2006. Thereafter, the provision of Rule 10 would apply.
Provided that in cases where an employee reaches the maximum of his pay band, shall be placed in the next higher pay band after one year of reaching such a maximum. At the time of placement in the higher pay band, benefit of one increment will be provided. Thereafter, he will continue to move in the higher pay band till his pay in the pay band reaches the maximum of PB-4, after which no further increments will be granted.
Note 1 In cases where two existing scales, one being a promotional scale for the other, are merged, and the junior Government servant, now drawing his pay at equal or lower stage in the lower scale of pay, happens to draw more pay in the pay band in the revised pay structure than the pay of the senior Government servant in the existing higher scale, the pay in the pay band of the senior government servant shall be stepped up to that of his junior from the same date and he shall draw next increment in accordance with Rule 10.
11. It may be noticed that consequent upon implementation of CCS (Revised Pay) Rules, 2008, the increments in the revised pay structure are to be strictly regulated in terms of Rule 10 of the aforesaid Rules. The rule firstly specifies that there will be uniform date of annual increment i.e. July 1st of every year. It further declares that the employees completing six months and above in the revised pay structure as on July 1st would be eligible to be granted the increment. It is further stipulated that the first increment after fixation of pay on January 01, 2006, in the revised pay structure, will be on July 01, 2006 to employee whose date of increment was between July 01, 2006 to January 01, 2007. The first Proviso to Rule 10 provides the next date of increment in the revised pay structure, in case of persons, who had been drawing maximum of the existing scale for more than a year as on 1st day of January 2006, would be 1st day of January, 2006.
Also, Note 1 of the Rule clarifies that the cases wherein the two existing scales are merged, one being a promotional scale for the other, and the junior government servant now happens to draw more pay in the pay band in the revised pay structure than the pay of the senior government servant in the higher scale, in said eventuality, the pay in the pay band of senior government servant shall be stepped up to that of his junior from the same date and he shall draw next increment in accordance with Rule 10.
12. Apparently, Rule 10 of CCS (Revised Pay) Rules does not contemplate the withdrawal of increment to the eligible persons on completing six months in revised pay structure. The increment due on July 01, 2006 could not have been withdrawn and revised vide order dated September 27, 2011, on the ground that stepping up was with reference to his junior who was promoted on January 06, 2006 and respondent had not completed qualifying service of six months on July 01, 2006. Stepping up of pay is personal to employee and is only for purpose of removing the anomaly due to junior drawing higher pay than the senior. The withdrawal of increment is neither intended nor provided for under Rule 10 of CCS (Revised Pay) Rules. It would clearly prejudice the respondent as he would not be able to earn an increment for a period of 18 months.
It is also pertinent to note that in terms of Rule 15 of CCS (Revised Pay) Rules, the said Rules shall have an over-riding effect and the provisions of the Fundamental Rules, the Central Civil Services (Revision of Pay) Rules, 1947 and the earlier Central Civil Services (Revised Pay) Rules, 1960, 1973, 1986 and 1997 shall not apply save as otherwise provided in the CCS (Revised Pay) Rules, 2008 to the extent of inconsistency. In view of over-riding effect of CCS (Revised Pay) Rules, the grant of increment cannot be regulated in terms of OM dated February 02, 1966 as relied by learned counsel for the petitioners, contrary to Rule 10 of CCS (Revised Pay) Rules.
13. For the foregoing reasons, we do not find any merit in the contentions raised on behalf of the petitioner / Union of India and agree with the findings of the Tribunal.
We also do not find any merits in the contentions that the OA is barred on grounds of limitation, as already deliberated and discussed by the Tribunal.
Writ petition is accordingly dismissed. In the facts and circumstances, no order as to costs. Pending applications, if any, also stand disposed of.

ANOOP KUMAR MENDIRATTA, J.

V. KAMESWAR RAO, J.
OCTOBER 05, 2023/R

W.P.(C) 12452/20230Page 1 of 11