Allowed

Dinesh Kumar and Others v. State of Hp and Others

Himachal Pradesh HC9 Oct 2023CWP/1747/2023

Case brief

AI extract

What is this about?

This court quashed an order rejecting a plea for pay step-up. Relying on Supreme Court precedent, it held that a senior employee is entitled to step-up to match a junior's higher pay if the disparity arises from the junior benefiting from the Assured Career Progressive Scheme, despite clauses restricting pay band adjustments.

What did the court decide?

Respondents directed to step up petitioners' pay to make it par with junior Hemant Kumar forthwith from the due date.

Dinesh Kumar and Others Vs State of… — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Civil Writ Petition No. 1747 of 2023 Date of Decision: 9.10.2023

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_____________________________________________________________________ Dinesh Kumar and Ors.

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……...Petitioners Versus

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State of Himachal Pradesh and Ors.

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…....Respondents

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Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?

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For the Petitioners: Mr. Mohit Thakur, Advocate.

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For the respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General.

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Sandeep Sharma, J. (Oral)

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In the year 2008, petitioners herein came to be appointed as Constable in the Police Department, whereas person namely Hemant Kumar was appointed as Constable in the year, 2009, as a result thereof, he was junior to the petitioners. In the year, 2018, petitioners were promoted to the post of Head Constable. Since Sh. Hemant Kumar being junior to the petitioners was drawing more salary than the petitioners, they filed CWP No.7821 of 2022 Dinesh Kumar and Ors. v. State of Himachal Pradesh, which came to be disposed of vide order dated 10.11.2022, with direction to Superintendent of Police, Shimla, to decide representation dated

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2.8.2022. Pursuant to aforesaid order, petitioners herein filed representation to the concerned authority, stating therein that they are drawing less salary than their Junior Hemant Singh (No. 46), who was appointed in the department in the year, 2009. Office of Superintendent of Police, Shimla, District Shimla, after having examined the case of the petitioners prepared the comparative statement of pay drawn by the petitioners and Hemant Kumar and sent the same to the office of Inspector General of Police, Southern Range, Himachal Pradesh, vide letter dated 22.11.2022, for consideration Annexure R-1. Office of Inspector General of Police, Southern Range, Himachal Pradesh vide letter dated 19.12.2022, intimated the office of Superintendent of Police, District Shimla that bare perusal of service record reveals that pay anomaly had occurred on 31.7.2018, when benefit under the Assured Career Progressive Scheme (ACPS) (4:9:14) was granted to the Junior Constable Hemant Kumar. Aforesaid authority also apprised the office of Superintendent of Police that as per provision made in Rule-4 (h) of the instructions regulating Assured Career Progressive Scheme on 9.8.2012, no step up of pay is admissible with regard to junior getting more pay than the senior on account of pay fixation in the scheme (Annexure R-2).

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2. On the basis of aforesaid information received from the office of Inspector General of Police, Southern Range, Himachal Pradesh, Superintendent of Police, District Shimla, Himachal Pradesh

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vide communication dated 9.1.2023, apprised the Director General of Police, Himachal Pradesh that prayer made on behalf of the petitioners for stepping up of pay is not admissible under Rule 4 (h) of the instructions regulating Assured Career Progressive Scheme. In the aforesaid background, petitioners have approached this court in the instant proceedings, filed under Article 226 of the Constitution of India, praying therein for following main reliefs:

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(a) To issue Writ in the nature of Mandamus directing the Respondents to step up the pay of the Petitioners at par with the Junior from the date when he is getting more Basic Pay than the Petitioners as per the Annual salary statements attached and annexed.

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(b) That the Respondents may be directed to grant full arrears and all consequential benefits on account of above consideration.

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(d) In the alternative if the Hon’ble court comes to the conclusion that the ACP scheme especially Rule 4 (h), g or any other rule debars the claim of the Petitioners the said clauses may be held to be illegal and unconstitutional and as such, may be set aside and quashed.

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3. Pursuant to notices issued in the instant proceedings,

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respondents have filed reply, wherein facts as noticed herein above, have been not disputed, rather stand admitted. In nutshell, ground sought to be raised on behalf of the respondents for rejecting the claim of the petitioners is that pay anomaly, if any, occurred on account of the benefit granted to the Junior Constable Hemant Kumar under

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Assured Career Progressive Scheme, which in terms of Rule 4 (h) of the instructions regulating Assured Career Progressive Scheme issued on 9.8.2012 (Annexure P-12), cannot be taken into consideration while considering prayer, if any, made by the senior for stepping up of his pay to bring him at par with pay of the junior.

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4. Mr. Rajan Kahol, learned Additional Advocate General while justifying the action of the respondent-department vehemently argued that pay anomaly has occurred on account of grant of benefit to the Junior Constable Hemant Kumar on account of his having received the benefit under the Assured Career Progressive Scheme (4:9:14). He submitted that no stepping of the pay is admissible with regard to junior getting more pay than his senior on account of pay fixation under the Scheme. He submitted that when the new pay band was introduced, earlier pay merged into new pay band. Learned Additional Advocate General further submitted that new pay band was introduced in the year, 2012, one year ago before the benefit of Assured Career Progressive Scheme (4:9:14) was to be extended to the petitioners. Though Head Constable Hemant Kumar completed four years in 2013 and additional increment was given to him as per law and norms prevalent and as such, it cannot be said that pay anomaly, if any, occurred on account of omission, if any, on the part of the respondents, rather same has crept on account of benefit granted in

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favour of the Junior Constable Hemant Kumar under Assured Career Progressive Scheme.

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5. Mr. Mohit Thakur, learned counsel appearing for the petitioners, while making this Court peruse the reply filed by the respondents vehemently argued that department itself has admitted that there is anomaly and on account of the same, petitioners are earning less salary than their junior. He submitted that vide communication dated 9.1.2023, respondent No.2 was categorically intimated that on account of pay anomaly, junior of the petitioners is getting more salary but yet no steps were taken to remove that anomaly. While making this Court peruse the judgment rendered by the Hon’ble Apex Court in case titled Union of India and Ors. v. C. R.

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Madhava Murthy and Anr., (2022) 6 SCC 183 , learned counsel for the petitioners argued that in similar facts and circumstances where department had refused to correct the pay anomaly on the ground that pay of the junior became more than senior on account of benefit granted in his favour under Assured Career Progressive Scheme, Hon’ble Apex Court upheld the order passed by the High Court, wherein it had considered FR 22 (1) (a) (1), which provides for removal of anomaly by stepping up of pay of the senior on promotion drawing less pay than his junior. He also placed reliance upon the judgment dated 5.12.2022, passed by this Court in CWPOA No. 3837 of 2019 (alongwith connected matter), titled Ajit Singh Dhanjal v. The

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Himachal Pradesh State Electricity Board and Anr., wherein court

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held the action of the respondents in that case to be bad in law in as much as non granting of step-up to the petitioner on the ground that pay of the respondent in that case, came to be enhanced on account of his having availed the benefit of FR-22 1 (a).

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6. Having heard learned counsel for the parties and perused material available on record, issue, which falls for the consideration in this case, is “ whether request made by the seniors to remove the pay anomaly occurred on account of increase in the salary of the junior on account of his having received benefit under Assured Career Progressive Scheme can be rejected/declined on the ground that no stepping-up of pay is admissible with regard to Junior getting more pay than the senior on account of pay fixation under the scheme ?” Admittedly, in the case at hand, person junior to the petitioners is getting more pay, may be, on account of his having received benefit under the Assured Career Progressive Scheme w.e.f. 31.7.2018, benefit of step up, as prayed for, by the petitioner is sought to be denied on the ground that no stepping up of pay is admissible with regard to junior getting more pay than the senior on account of pay fixation under the Assured Progress Scheme under provisions made in Rule 4 (h) of the Assured Career Progressive Scheme on 9.8.2012 (Annexure P-12).

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7. In C. R. Madhava Murthy (supra), similar question came to be decided by the Hon’ble Apex Court. In that case also, prayer

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made on behalf of the petitioner for stepping up was sought to be denied on the ground that their junior is getting higher pay on account of his having received benefit under Assured Career Progressive Scheme. In that case, Central Government set up a case before the Hon’ble Apex Court that the financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. They also claimed that on account of aforesaid benefit, no additional financial upgradation for the senior employee can be granted on the ground that the junior employee in the grade has got higher pay-scale under the ACPS Scheme. Hon’ble Apex Court rejecting the aforesaid plea set up on behalf of the Central Government, categorically held that where junior was drawing more pay on account of up-gradation under the ACPS Scheme and there was anomaly, as a result thereof, pay of the petitioner is/was required to be stepped up. Similar are the facts of the case at hand, where prayer made by the petitioners for stepping up is sought to be defeated in terms of provisions contained under clause 4 (h) of communication dated 9.8.2012 (Annexure P-12), wherein it has been provided that no stepping up in the pay band and grade pay would be admissible with regard to junior getting more pay than the senior on account of pay fixation under the Scheme. This Court while placing reliance upon the aforesaid judgment passed in C.R. Madhava Murthy passed judgment in Ajit Singh Dhanjal , wherein it has been held that where the pay of

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junior as a result of grant of proficiency becomes higher, senior employee is entitled to step-up. Relevant paras of the afore judgment read as under:

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“7. Bare reading of the aforesaid instructions, which subsequently came to be reiterated by way of issuance of fresh instructions dated 29.10.1991 (Annexure P-13), clearly reveals that where the pay of junior as a result of grant of proficiency becomes higher, the senior employee is entitled to the step up. It has been further stated in the aforesaid instructions that where pay of the junior becomes higher as a result of grant of proficiency as against senior, who has not been granted proficiency step-up due to strict application of instructions contained in office letter dated 14.6.1989 read with letter of even number dated 6.4.1990, the pay of senior should be stepped up equal to the pay of junior from the date the junior begins to draw higher pay as a result of grant of proficiency increment. Subsequently, communication dated 5.3.2003 (Annexure P-14) placed on record alongwith rejoinder further clarifies that where an official is promoted to the higher post without taking the benefit of one or two proficiency step ups and drawing a lower rate of pay in higher post and other official who is junior to him in the lower post and granted proficiency step up or promoted another identical post after availing the benefit of said proficiency step up, the pay of the employee who is senior to him shall be stepped up at par with the pay drawn by their junior. Having carefully perused the aforesaid instructions, which were in vogue at the time of promotion of respondent No.2, this court has no hesitation to conclude that stand taken by the respondents in reply to the petition thereby rejecting the claim of the petitioners is not tenable and as such, same deserves outright rejection.

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8.Mr. T.S. Chauhan, learned counsel, vehemently argued that present petition is barred by limitation, but having regard to the nature of controversy and its consequences i.e. recurring loss, plea of limitation as attempted to be raised by Mr. Chauhan, may not be available to respondent-Board on account of denial of step-up to the petitioners to bring them at par with respondent No.2, which is legally permissible in the case of the petitioners herein, who are suffering recurring losses, which have not only caused them financial loss while they were in service, but in pension also. Reliance is placed upon judgment passed by the Hon’ble Apex Court in M.R. Gupta v. Union of India, AIR 1996 SC 669 , relevant para whereof reads as under:

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“5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to

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cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.”

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8. Leaving everything aside, once there is no dispute that on account of upgradation under Assured Career Progressive Scheme, anomaly has crept up, as a result thereof, senior persons are in receipt of less salary than the junior, pay of seniors is required to be stepped up so as to bring at par with their junior.

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9. At this stage, it would be apt to take note of clause 4 (h) of the instructions dated 9.8.2012 (Annexure P-12), which provides that no stepping up of pay in the pay band and grade pay would be admissible with regard to junior getting more pay than the senior on account of pay fixation under this scheme, which means that a senior cannot claim stepping up of pay in the pay band and grade pay under Assured Career Progressive Scheme, but definitely there is no prohibition to claim step up in total salary so as to bring at par with the junior which admittedly is enhanced on account of his/her getting benefit under Assured Career Progressive Scheme. It is not a case,

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where petitioners are seeking parity with their junior, rather they on account of pay anomaly are seeking step up of their pay so as to bring at par with their junior.

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10. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this court finds merit in the present petition and accordingly, same is allowed and order dated 9.1.2023 (Annexure P-10), whereby prayer made by the petitioners came to be rejected, is quashed and set-aside and respondents are directed to step up the pay of the petitioners to make at par with the pay of their junior Hemant Kumar forthwith from the due date. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.

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October 9, 2023

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manjit

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(Sandeep Sharma), Judge

Dinesh Kumar and Others v. State of Hp and Others

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Dinesh Kumar and Others v. State of Hp and Others

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