N.Sekar Vs The Principal Secretary to Government Transport Department

Prayer : Writ Appeal filed under Clause XV of Letters Patent, to allow the writ appeal by setting aside the order passed in W.P.(MD).No.7964 of 2019 dated 01.03.2022 on the file of this Court.

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W.A.(MD)No.650 of 2022

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For Appellant : Mr.D.Sivaraman For Respondents : Mr.S.S.Madhavan, Addl. Government Pleader for R1. Mr.Ajmalkhan, Addl. Advocate General, Assisted by Mr.S.C.Herold Singh for R2.

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JUDGMENT

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(By G.R.SWAMINATHAN, J.)

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The unsuccessful writ petitioner has filed this writ appeal. The appellant joined the respondent / transport corporation as Superintendent on 16.02.1989. He was later promoted as Senior Superintendent and then as Section Officer. He was promoted as Assistant Manager on 03.01.2007 and as Deputy Manager on 30.09.2014 and retired from service on 31.07.2018 in that post.

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2.The appellant approached the management seeking stepping up

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his pay on par with one K.Elangovan. The appellant pointed out that while he was promoted as Assistant Manager on 03.01.2007, Elangovan was promoted as Assistant Manager only on 11.04.2007. Thus, 2/12

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Elangovan was junior in the grade of Assistant Manager by three months

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and eight days. Initially both of them were in the same scale of pay (15,600 – 39,100). While Elangovan's pay was stepped up to Rs.18,660 + GP 5,700 with effect from 01.02.2010. The appellant continued to be placed in the lower pay of Rs.17,550 + GP 5,400. Invoking the relevant service rule, the appellant demanded stepping up of his pay. The appellant's request was rejected by the Managing Director of the TNSTC, Kumbakonam vide order dated 05.02.2019. Challenging the same, W.P.(MD)No.7964 of 2019 was filed and the learned Single Judge disposed of the writ petition by granting liberty to the writ petitioner to avail the appeal remedy. Aggrieved by the same, this writ appeal came to be filed.

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3.The learned counsel for the appellant reiterated all the contentions set out in the grounds of appeal and called upon this Court to set aside the order of the learned Single Judge and grant relief as prayed for.

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4.Per contra, the learned Additional Advocate General submitted

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that the appellant cannot compare himself with Elangovan and the appellant's request for stepping up of pay was rightly rejected.

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5.We carefully considered the rival contentions and went through the materials on record. It is seen that Elangovan who was originally getting Rs.16,880 + GP 5400 got his pay stepped up with effect from 01.02.2010 because his juniors in the post of Assistant Manager namely, P.Tamilarasan, M.Swaminathan and R.Baskaran were getting higher pay scale of 18660 + GP 5700. Those individuals had been promoted as Assistant Manager only on 09.12.2008. Not only Elangovan but 30 other similarly placed individuals had their pay stepped up vide board proceedings dated 06.04.2010.

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6.It was noted that the juniors namely, P.Tamilarasan, M.Swaminathan and R.Baskaran were promoted as Assistant Managers from the post of Selection Grade Assistant Engineers. The relevant part of the board proceedings read as follows:-

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“As per G.O.(MS) No.142 Transport (C1) Department dated 21.08.2008, 5 th pay commission has been implemented to the supervisory cadre and the basic pay was fixed applicable to them.

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After implementation of the 5 th pay commission for the Assistant Engineers who were promoted as Assistant Manager, their basic pay has been fixed in the Assistant Manager scale of pay with pay protection. After implementation of 6 th pay commission their basi pay has been refixed in the scale of pay of Rs.15600-39100 with Grade pay 5700/-.

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Accordingly, Tvl.P.Tamilarasan, M.Swaminathn, R.Baskaran etc. who have promoted to Assistant Manager cadre on 09.12.2008 are getting higher pay of Rs.18660/-, since their pay was fixed in the 5 th pay and subsequently re-fixed under 6 th pay.

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The pay of the above 31 officers is being fixed directly under 6 th pay and they are getting lesser pay than the above said 3 officers. This difference is caused as a result of the introduction of the revised scale of pay.

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The above 31 officers have requested to re-fix their pay by comparing with Tvl.P.Tamilarasan, M.Swaminathn, R.Baskaran etc.

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On enquiry with our sister corporation (MTC, Salem), it is understood that the pay difference has been set right by their corporation while fixing the pay on implementation of 6 th pay commission.

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Hence, it has been decided to fix their pay of Rs.18660/with grade pay as applicable to them to the above mentioned 31 officers and to give effect the same on that date and to give monetary benefit w.e.f. 01.02.2010.”

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7.The case of the appellant is that since Elangovan was junior to him in the post of Assistant Manager and his pay was fixed at 18,660 + GP 5700, the appellant's pay should by accordingly stepped up.

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8.The question that calls for consideration is whether the appellant's request deserves to be conceded.

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9.We wanted the appellant's counsel to draw our attention to the relevant service rule which permits him to demand such stepping up of pay. Our attention was drawn to Rule 67(c) of the Tamil Nadu State Transport Corporations Service Rules. It reads as follows:-

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“ Fixation of Pay:

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c) In cases where both the senior and junior are drawing the same rate of pay in the lower post/scale, if as a result of fixation of pay under clauses (i) or (v) under sub-rule (b) above, the senior who was promoted to a higher post or who was allowed the benefit of advancement to a higher scale on the basis of review before drawing the next increment in the lower post/scale happens to draw less pay than his junior, who was promoted to the higher post or allowed the benefit of review subsequently after drawing the next increment in the lower post/scale, the pay of the senior in the higher post/scale shall be stepped upto a figure equal to the pay fixed for the junior in that higher post/scale and the stepping up should be done with effect from the date of promotion or advancement to the higher post on the basis of review, as the case may be, of junior and also subject to the following conditions and such other conditions as may be specified by the Management from time to time:-

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1) Both the junior and senior should belong to the same category of post/grade and the post/grade to with they were promoted should be identical and in the same category, or both the senior and junior should belong to the same category of post included in the same Working Group/Miscellaneous Group and the level/scale to which they were given advancement on the basis of review should be identical;

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2) The scales of pay of the lower post/level and the higher post/level in relation to both the senior and the junior should be identical;

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3) The anomaly should be directly as a result of the application of clause (i) or (v) under sub-rule (b) above. For example, even in the lower scale/post the junior draw from time to time a higher rate of pay than the senior by virtue of grant of advance increment or otherwise, the provisions contained in this rule should not be involved to step up the pay of the senior;

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4) The seniority should be with reference to the date of regular appointment to the category/grade of post level in the working group or miscellaneous group, held at the time of promotion or review (as the case may be);

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5) The orders refixing the pay of the senior in accordance with the provisions of this sub-rule, should be issued under Rule 70(b) and the next increment of the senior shall be drawn only on the completion of the requisite qualifying service reckoned from the date of such stepping up of his pay under this subrule.”

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10.A careful reading of the aforesaid rule indicates that stepping up

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of pay has to be granted when the person with whom the claimant seeks

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grade.

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to compare himself was drawing the same rate of pay in the lower post / grade.

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11.It is seen that the appellant was promoted to the post of Assistant Manager from the post of Section Officer. The appellant was in pay scale of 5900-200-9900 before he was promoted as Assistant Manager on 03.01.2007. K.Elangovan was promoted from the post of Selection Grade Assistant Engineer and he was in pay scale of 8000-275-13500. The appellant / Sekar and Elangovan were not in the same lower post. While the appellant was in lower post of Section Officer, Elangovan was in lower post of Selection Grade Assistant Engineer. Their pay scales as already seen above were also different. Since the appellant and Elangovan were not drawing the same rate of pay in the lower post, the question of stepping up of pay of the appellant did not arise at all. The appellant did not fulfil the condition set out in the relevant service rule.

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12.The service particulars of the appellant and Elangovan are as

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follows:-

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13.Both belonged to different streams. While the appellant belonged to non-technical stream, Elangovan belonged to technical stream. Thus, there cannot be any comparison between the appellant on the one hand and Elangovan on the other.

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14.In this view of the matter, we decline to interfere with the order

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of the learned Single Judge and the writ appeal stands dismissed. No

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costs.