Writ Petition challenging Central Administrative Tribunal order allowing pay stepping up was dismissed. Court held that disparity due to different increment dates in merged cadres does not warrant denial, finding prior withdrawal of benefit without notice as a violation of natural justice.
Writ petition dismissed with costs; applications disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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..... Petitioner
versus
SUSHIL KOHLI ..... Respondent Through:
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
REKHA PALLI, J(ORAL)
CM APPL. 2311/2024 -Ex. & CM APPL. 2312/2024 -Ex.
W.P.(C) 514/2024, CM APPL. 2310/2024 -Stay., CM APPL. 2313/2024 - Addl. doc.
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the pay of the respondent to bring the same at par with Mr. Sushil Kumar and Mr. L.N. Sharma, who are admittedly juniors to the respondent in the common seniority list of the All India Cadre of Statistical Investigator Grade III, which list was set up after the merger of State Cadres of Statistical Investigator on 02.12.1999. The learned Tribunal also noticed that while the respondent was initially in the Himachal Pradesh Cadre, Mr. Sushil Kumar and Mr. L.N. Sharma were in the Rajasthan Cadre and it is only upon merger of the State Cadres w.e.f. 02.12.1999 that a common seniority list was issued. In the said list, while the respondent was placed at Serial no. 195, the aforesaid Mr. Sushil Kumar and Mr. L.N Sharma were placed at Serial Nos.283 and 370 respectively.
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Training (DoPT). The respondent was also informed that it is only an anomaly that had arisen after the merger of the Cadres, which could be rectified by stepping up of the pay. Being aggrieved, the respondent approached the learned Tribunal by way of the aforesaid OA which came to be allowed vide the impugned order.
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prays that the impugned order be set aside.
“11. The respondents had relied upon the DoP&T‟s O.M. dated 04.11.1993 (Annexure-A6), which clearly stipulates that stepping up of pay would be considered when both the junior and senior belong to the same cadre and posts in which they have been promoted or appointed should be identical and in the same cadre. It is also mentioned in this O.M. that 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 or on any other account, the above provisions will not be invoked to step up the pay of senior officer.
12. Be that as it may, a detailed exercise was undertaken by Respondent No.1 and the issue of stepping up of applicant’s pay was examined in detail, as is evident from the order dated 06.05.2015 and that of 26.03.2015. Vide O.M. dated 26.03.2015, a certain course of action was also advised for stepping up of the pay of the applicant at par with his juniors. It was clearly stated that the pay of the applicant shall be stepped up equal to that of Shri Sushil Kumar and Shri L.N. Sharma w.e.f. 01.02.1986 to 01.12.1999 on notional basis. It was also stated that he may be allowed to re-exercise his option at the time of 1st ACP as well as on subsequent events till date, if he so desires, so that his pay may be fixed at par with Shri Sushil Kumar and Shri L.N. Sharma. From the letter issued on 04.02.2016, it is observed that the reason for withdrawing this O.M. has been given as the difference in pay not being a “Technical Anomaly”, as this was on account of DNIs being different in each individuals case consequent to exercising of option.
13. This also brings us to the fundamental point of the principle
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underlying the stepping up of pay. The DoP&T O.M. No. F.2(78)-EIII(A)/66 dated 04.02.1966 reads as under:
"In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-41961 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 office 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 scales 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."
(Emphasis underlined)
This also differentiates between the anomaly or disparity having been caused due to the dates of increment.
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14. In a catena of judgments, it has been held that the pay disparity or anomaly in the salary of a senior vis-a-vis his juniors, who are getting higher pay, has to be removed. This was precisely the decision taken in the order dated 26.03.2015, which has been subsequently withdrawn.
15. It is evident that the juniors of the applicant even in the integrated seniority list are getting higher pay. This may be by virtue of their date of increment, however, the same needs to be set right. For this, the applicant may be allowed to re-exercise his option at the time of 1st ACP as well as on subsequent events till date, if he so desires, so that his pay could be brought at par with his juniors, viz. Shri Sushil Kumar and Shri L.N. Sharma and this disparity, if not anomaly, can be resolved.
16. In my considered view, such decisions cannot be arrived at all of a sudden after detailed order passed. Within one year reexamination had been undertaken and the withdrawal order had been passed by the respondents without issuing any show cause notice to the applicant.
17. In light of above, the O.A. is allowed and the order dated 04.02.2016 is set aside, with a direction to the respondents to take effective steps for re-examining the case of pay disparity between the applicant and his juniors, Shri Sushil Kumar and Shri L.N. Sharma, and to consider stepping up of the pay of the applicant equal to that of Shri Sushil Kumar and Shri L.N. Sharma by allowing him to reexercise his option. If such an exercise is concluded, the applicant shall be entitled for step up of his pay notionally for the period from 01.02.1986 to 01.12.1999 and financially w.e.f. 02.12.1999, with all consequential benefits. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
There shall be no order as to costs.”
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what emerges is that the learned Tribunal has duly examined the effect of OM dated 04.11.1993, which OM it is claimed by the petitioner is para materia with the OM dated 04.02.1966. Since it is the petitioner’s claim that the learned Tribunal has failed to appreciate the effects of these OMs, it would be apposite to note hereinbelow the OM dated 04.11.1993 in its entirety. The same reads as under:-
No. 4/7/92-Estt.(Pay-I) GOVERNMENT OF INDIA,
DEPARTMENT OF PERSONNEL & TRAINING
New Delhi
Dated:0 4-11-1993
OFFICE MEMORANDUM
Subject- Stepping up of pay
Cases for stepping up of the Pay of Seniors in a pay scale to that of Juniors are generally considered if the following conditions are satisfied : –
(a) both the junior and senior officer 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 scales of pay of the lower and higher posts in which the junior and senior officer 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 or on
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any other account the above provisions will not be invoked to step up the pay of senior officer.
2. Instances have come to the notice of this Department requesting for stepping up of pay due to the following reasons :-
a) Where a senior proceeds on Extra Ordinary 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 be 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, junior draws higher pay than the senior. The senior may be on deputation while junior avails of the ad-hoc promotion in the cadre. The increased pay drawn by a junior either due to adhoc promotion in the cadre. The increased pay drawn by a junior either, due to ad-hoc officiating/ regular service rendered in the higher posts for periods earlier than the senior, cannot therefore, be as 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 senior cannot claim stepping up of pay at par with the Junior.
(d) If a senior is appointed later than the Junior in the lower post itself whereby he is in receipt of lesser pay than the junior, in such cases also the senior cannot claim pay parity in the higher post though he may have been promoted earlier to the higher post.
(e) Where a person is promoted from lower to a higher post his pay is fixed with reference to the pay drawn by him in the
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lower under FR 22-C and he is likely to get more pay than a direct appointee. For example a UDC on promotion to the post of Assistant gets his pay fixed under FR 22-C with reference to the pay drawn in the post of UDC, whereas the pay of Assistant (DR) is fixed normally at the minimum under FR 22B(2). In such cases the senior direct recruit cannot claim pay parity with the Junior promoted from a lower post to higher post as seniority alone is not a criteria for allowing stepping up.
(f) Where a Junior gets more pay due to additional increments earned on higher qualifications.
The DoPT order on Stepping up of Pay in 7th CPC is given here [ Read DoPT Guidelines 26.10.2018]
3. In the instances referred to in paragraph 2 above, a junior drawing more pay than the senior will not constitute an anomaly. In such cases, stepping up of pay will not , therefore , be admissible.
4. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders have been issued after consultation with the comptroller and Audit general of India.
5. Hindi version will follow
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situations where the junior is drawing higher pay on account of special circumstances like having acquired an higher education or in a case where the junior is appointed on a date later than the senior. In the present case, it is an admitted position that none of the eventualities referred to in paragraph nos.2(a) to 2(f) are applicable to the respondent. The reason why the respondent is drawing lesser pay than his aforesaid two juniors is on account of the increments being received by these two persons from February 1986, the benefit of which increments was extended to the respondent only on August 1986. This difference in the release of the increments in favour of the respondent vis-a-vis his juniors remained a non-issue as they were in two different Cadres i.e. the Himachal Pradesh Cadre and the Rajasthan Cadre. However, it is only after the merger of these two cadres, when the respondent was placed in the same seniority list as the aforesaid Mr. Sushil Kumar and Mr. L.N. Sharma, that this anomaly was noticed, and it is then that the respondent sought upgradation of his pay at par with the aforesaid two employees.
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namely Mr. Sushil Kumar and Mr. L.N. Sharma, it will be grave injustice to the respondent if his pay is not stepped up to be at par with his two juniors. Once the petitioner chose to merge the State Cadres, which had been existing for years, it was incumbent upon them to ensure that no senior draws lesser pay than persons placed lower than him in the seniority list, unless it is a case of special circumstances like those covered under Clauses 2(a) to 2(f) of the OM dated 04.11.1993.
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natural justice. We, therefore, find absolutely no infirmity in the impugned order.
(REKHA PALLI) JUDGE
TUSHAR RAO GEDELA (JUDGE)
JANUARY 15, 2024 sr
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3 issues framed by the court
Whether a senior employee can claim stepping up of pay to match that of juniors when the disparity arose due to different dates of increment grant in separate state cadres.
Whether the withdrawal of an Order in Matters (OM) granting pay stepping up without notice to the employee violates principles of natural justice.
Whether decided precedents regarding ad-hoc promotion apply when pay disparity exists despite a common seniority list.
Colour shows how this judgement treated each authority
Union of India & Ors. v. Sushil Kumar Paul & Ors.Distinguished¶28
Union of India & Ors. v. Sushil Kumar Paul & Ors.[(1998) 5 SCC 268] · Who else cites this
Union of India & Anr. v. R. Swaminathan & Ors.Distinguished¶28
Union of India & Anr. v. R.Swaminathan & Ors.[(1997) 7 SCC 690] · Who else cites this
4 provisions across 4 enactments
Union of India & Anr.
Sushil Kohli
Rekha Palli
Tushar Rao Gedela
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
