Chain Singh Vs State of Hp

Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?¹ For the petitioner: Ms.Vijayaini Sharma, Advocate. For the respondents: Mr.Hemant Kumar Verma,

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Mr.Hemant Kumar Verma, Deputy Advocate General for respondents No.1 to 4.

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Proforma respondent No.5 exparte.

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Jiya Lal Bhardwaj, Judge (Oral)

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The petitioner has filed the instant petition,

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praying therein for the following substantive reliefs:-

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“i) That the impugned action of the respondent education department rejecting the claim of the petitioner for stepping up his pay at par with his junior proforma respondent No.5 vide impugned orders dated 2.1.2009 Annexure P-6 be declared unreasonable, harsh, discriminatory and arbitrary, against the provisions of service jurisprudence and ultra vires to the Constitution.

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ii) That the impugned orders dated 2.1.2009 Annexure P-6 rejecting the claim of the petitioner for grant of step up of pay may kindly be quashed and set aside being unjust, illegal, arbitrary, against all canons of law and Principle of Natural Justice, in colorable exercise of powers and in violation of the Constitution of India and the petitioner may kindly be held entitled for pay @ Rs.

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1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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7220/- instead of Rs. 6600/- at par with the proforma respondent No.5 w.e.f. February, 1998.

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iii) That the respondents be directed to grant the pay to the petitioner @Rs.7220/- w.e.f. 10.02.1998 at par with proforma respondent No.5 with all consequential benefits with interest @9% per annum.”

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The precise grouse of the petitioner, as raised in the writ petition and highlighted, is that proforma-respondent No.5, who was appointed after him was granted higher pay than him and thus, he was also entitled to the same pay.

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Briefly, the facts as emerge from the pleadings, are that the petitioner had earlier joined the Indian Army Service on 17.06.1972 and released from there on 31.12.1989. The petitioner had rendered 17 years and 6 months service with the Indian Army. Thereafter, he got himself registered with the Employment Exchange and later on selected for JBT Training Course against the Ex-servicemen quota and underwent the training during the session 1991-93.

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The petitioner after completion of training was appointed as JBT in the pay-scale of Rs.1200-2130/- and posted at GPS Lindi Behi in Chamba Block of Chamba District, where he joined his services on 01.03.1995. The initial pay of the petitioner was Rs.4140/-, which was further revised to Rs.6400/-.

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Proforma-respondent No.5 had also joined the Indian Army on 22.08.1978 and after rendering about 16 years’ service released therefrom on 30.06.1994. Thereafter, he was selected for JBT Course against Ex-servicemen quota in the session 1995-97 and after completing training, he was offered appointment as JBT in the pay-scale of Rs.12002130/- and was posted at GPS Dalwasa in Chamba Block, District Chamba, where he joined his duties on 10.02.1998. As per record, he was granted a sum of Rs.4550/- per month, which was later on revised to Rs.7220/- per month, whereas the petitioner was initially paid a sum of Rs.4140/- per month and later on Rs.6400/- per month.

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The petitioner was promoted to the post of Head Teacher in the year 2000 and thereafter as Centre Head Teacher in the year 2004. The petitioner on receipt of knowledge that proforma-respondent No.5, who is junior to him, drawing more pay than him, despite the fact that the petitioner was senior to him and joined earlier to him, requested for granting same pay at par with him. The representation made by the petitioner was considered by the Block Elementary Education Officer, who after noticing the disparity had forwarded the case of the petitioner for pay

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fixation to respondent No.3. However, the case of the petitioner was rejected vide communication dated 02.01.2009 (Annexure P-6) for the reason that the matter regarding anomalies in pay fixation after counting the military service in respect of ex-servicemen appointed after 01.01.1996, and before 01.01.1996 was sent to the Government for clarification. The Government has clarified that the instructions issued by the Finance Department from time to time, do not warrant grant of step up in such cases.

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After receipt of the said communication, the petitioner has filed the instant petition, praying therein that the rejection of his claim cannot be justified on any count, especially when he had joined as JBT in the year 1995, whereas proforma-respondent No.5 had joined on the same post, in the year 1998. It is wrong to observe that the anomaly in pay fixation is not covered under the provisions for grant of step up. It is settled law that a junior cannot draw more pay than his senior and further when both of them belong to the same cadre and posted in the same Department, there is no justification to deny the same pay to the petitioner, as granted to proforma-respondent No.5. It has also been highlighted that on the date of appointment of

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proforma-respondent No.5, the petitioner was drawing a salary of Rs.6600/-, whereas proforma-respondent No.5 was granted a salary of Rs.7220/-. Thus, the petitioner is entitled for step up of his pay at Rs.7220/- per month.

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The respondents-State filed reply to the petition and averred that claim of the petitioner has been rejected, keeping in view the decision/clarification dated 07.10.2002, issued by the Secretary (Education). Further, as per Fundamental Rule 22, the anomaly should be directed as a result of the application of FR-22-C (now FR-22 1 (a) 1), if even in the lower post, the junior officer drew from time to time a higher rate of pay than his senior by virtue of grant of advance increments or any other account, the above provision (stepping up) will not be invoked to step up the pay of senior.

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I have heard the learned counsel for the parties and also perused the record carefully.

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It has not been disputed by the respondents while filing reply to the petition that proforma-respondent No.5 was appointed in the year 1998 after the petitioner who was appointed in the year 1995. It has also not been disputed that both the petitioner and proforma-respondent No.5 were appointed being Ex-servicemen and further they were granted

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advance increments of their approved military service. Once the petitioner has also been granted the advance increments of approved military service, the action on the part of the respondents to deny the same pay as was granted to proforma-respondent No.5, cannot be justified for the reason that the communication dated 07.10.2002, placed on record along-with the reply as Annexure R-1, only depicts that instructions issued by the Finance Department from time to time, do not warrant grant of step up in such cases. No reasons have been assigned while rejecting the claim. 11. Though, the respondents have filed supplementary affidavit, in sequel to the directions given by this Court, but nothing substantial has come forth in the said affidavits. The affidavit dated 13.04.2012 filed by the Director, Elementary Education, Himachal Pradesh clearly depicts that the petitioner was appointed as JBT on 01.03.1995 and his pay was fixed accordingly as per the Himachal Pradesh Civil Service (Revised Pay) Rules, 1988 and proforma-respondent No.5 was appointed as JBT on 10.02.1998 and his pay was also fixed under the same Rules. So far as the instructions dated 07.10.2002 placed on record, are concerned, the same do not depict that on what count the petitioner was not

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entitled to the step-up of his pay as that of proformarespondent No.5. It is not even the case of the respondents that the proforma-respondent No.5 has wrongly been granted the pay or he had acquired any additional qualification, entitling him to higher pay.

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The Hon’ble Apex Court in various

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pronouncements has culled out the circumstances where the senior is entitled to step-up, when the junior and senior are in the same cadre and granted the same pay-scale. Reference in this regard is made to the judgment of the Hon’ble Apex

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Court in Gurcharan Singh Grewal and another vs. Punjab State Electricity Board & others, 2009 (3) SCC 94 , wherein it has been held that a senior cannot be paid lesser salary than his junior, even if there was a difference in the increment benefits in the scale and such anomaly should not have been allowed to continue and ought to have been rectified. The relevant paras of the judgment read as under:-

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“15. Mr. Chhabra also attempted to justify the disparity in the pay of Shri Shori and the appellant No.1 by urging that the appellant No. 1 had been granted the promotional scale with effect from 1st January, 1996, where the benefits of increment in the scale were lower. On the other hand, Shri Shori who joined the services of the Board in 1974, was granted the promotional scale on 17th May, 2006, with effect from 1st September,

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2001, when the increments and the pay-scales were higher. Mr. Chhabra submitted that it is the disparity in the incremental benefits that led to the anomaly of the appellant No.1 getting a lower salary in the promotional scale.

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16. Having regard to the submissions made on behalf of the respective parties, we have little hesitation in accepting Mr. Gupta's submissions that since the writ petition had been jointly filed on behalf of the appellants, whose interest was common, the prayer therein should not have been confined to the appellant No.2 alone and that the High Court should have granted relief to the appellant No.1 also by directing that his pay also be stepped up to that of his junior, Shri R.P. Shori. Although, this question does not appear to have been gone into by the High Court for the simple reason that the writ petition was disposed of only on the averments contained in paragraph 7 of the written statement filed on behalf of respondents that the grievance of the appellant No.2 duly addressed, there ought to have been at least some discussion in the judgment of the High Court regarding the claim of the appellant No.1. Unfortunately, the case of the appellant No.1 was not considered at all by the High Court.

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17. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the

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scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2.

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18. We are unable to accept the reasoning of the High Court in this regard or the submissions made in support thereof by Mr. Chhabra, since the very object to be achieved is to bring the pay scale of the appellant No.1 at par with that of his junior. We are clearly of the opinion that the reasoning of the High Court was erroneous and the appellant No.1 was also entitled to the same benefits of pay parity with Shri Shori as has been granted to the appellant No.2.”

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Againthe Hon’ble Supreme Court had the occasion to deal with the similar situation in Union of India and

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others vs. C.R. Madhava Murthy and another (2022) 6

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SCC 183 , and held that when a junior and senior officer belong to same cadre and the post, in which, they have been promoted or appointed are identical, their scales of pay should be identical. The relevant paras of the judgment read as under:-

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“9. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was

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with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.

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10. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under:

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"(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior (a) As a result of application of FR 22 C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 141961 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 the 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:

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(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;

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(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;

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(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.”

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The orders refixing the pay of the senior officers I 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.

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[G.I., M.F., 0.M. No.F.2 [78)E.III (A)/66, dated the 4th February, 1966)".

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In the present case, it is not in dispute that the petitioner and proforma-respondent No.5 were appointed in the same cadre and Department. Further, the posts held by them were same and further their pay was also fixed under the same Rules i.e. the Himachal Pradesh Civil Service (Revised Pay) Rules, 1988 and thus the action on the part of the respondents to reject the claim of the petitioner to remove the anomaly, is not sustainable in law.

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Learned Deputy Advocate General has placed reliance upon the judgment of the Hon’ble Supreme Court in Maheshkumar Chandulal Patel and another vs. State of Gujarat and others, (2025) 1 SCC 490 and contended that the claim of the petitioner has rightly been rejected and the Hon’ble Apex Court has considered the earlier judgments passed by it. However, if the judgment is perused, in that case, the junior persons, who were granted the higher pay was on account of the fact that their services on adhoc basis

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were counted and on account of that fact, the Hon’ble Apex Court had held that their claim was rightly rejected by the High Court. The relevant paras of the judgment read as under:-

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“35. 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.

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36. 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.

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37. 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 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.

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38. 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)

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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.

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39. It is also befitting here to briefly refer to the relevant judgments by this Court rendered earlier on the subjectmatter, which have been relied by the Respondents:

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40. 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:

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“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:

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“ 10. Removal of anomaly by stepping up of pay of senior on promotion drawing less pay than his junior. —( a ) As 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:

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( 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;

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( b ) the scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical;

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( 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.

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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.”

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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 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.

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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:

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“( 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:

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( 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 posts for periods earlier than the senior, cannot, therefore, be an anomaly in strict sense of the term.

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( 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.

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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.

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13. The employees in question are, therefore, not entitled to have their pay stepped up under the said Government Order because the difference in

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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).”

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41. Similarly, in 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.”

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If the aforesaid judgment is perused in its entirety, the Hon’ble Apex Court had held that the facts in the aforementioned judgments are distinguished on facts. It was noticed that in C.R. Madhava Murthy’s case (supra), was a case where a junior was drawing more pay on account of upgradation under the ACP scheme and there was anomaly and, therefore, the pay of senior was required to be stepped up. However, the said junior had not rendered any adhoc services, which was the case at hand in Maheshkumar Chandulal Patel’s case (supra).

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Admittedly, in the present case, the petitioner and proforma-respondent No.5 were appointed on the same post and further both of them were granted the benefit of approved military service. Proforma-respondent No.5 was not granted any benefit either on account of additional qualification or

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service. Since both the petitioner and proforma-respondent No.5 have been granted the benefits of military service and there was no additional factors assigned to give more pay to proforma-respondent No.5, the action on the part of the respondents, rejecting the claim of the petitioner for his step up is arbitrary, unjust and discriminatory. Proformarespondent No.5 was appointed after the petitioner and had discharged the same duties and, thus, the petitioner was entitled to step-up and the same pay as was being granted to proforma- respondent No.5. Granting less pay to the petitioner is infraction of Articles 14 and 16 of the Constitution of India. Not only this, even no reasons have been assigned while rejecting the claim of the petitioner to remove the anomaly except that the instructions issued by the Finance Department from time to time do not warrant grant of step up in such cases, which is not at all justified. It is settled law that the reasons are the hallmark of decisions. However, in the present case, the claim of the petitioner has been rejected without assigning any reasons and, therefore, on this count too, the impugned order is unsustainable in law and as such is quashed.

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Consequently, the present petition is allowed and the impugned order dated 02.01.2009 (Annexure P-6) is quashed and set aside and the respondents are directed to pay same pay to the petitioner, as was given to proformarespondent No.5 i.e. Rs.7220/- instead of 6600/- w.e.f. 10.02.1998 on notional basis and on actual basis three years prior to the filing of the present petition. The arrears be paid to the petitioner within three months. In case the arrears are not paid to the petitioner within three months from today, it shall carry interest @6% per annum from due date till its payment to the petitioner.

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The writ petition is disposed of in the aforesaid terms, so also the pending applications, if any.

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( Jiya Lal Bhardwaj ) 7^th April, 2026 Judge (naveen)

Chain Singh v. State of Hp

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Chain Singh v. State of Hp

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