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Judgment
A.N. Jindal, J.
CM No. 1476-C of 2011
For the reasons mentioned in the application, same is allowed and delay of 68 days in filing of the appeal is condoned.
RSA No. 547 of 2011
The trial Court, vide judgment dated 26.11.2007 had decreed the suit of plaintiff-Vijay Kumar Walia, predecessors-in-interest of the appellants
(hereinafter referred as ''the plaintiff'') and had directed the defendants-respondents (hereinafter referred as ''the defendants'') to step up/refix the
pay scale of the plaintiff as per relevant instructions of the State Government/Board and to release his arrears, if any, along with interest at the rate
of 10% per annum from its due date till realization of the amount. However, the District Judge, Yamuna Nagar, vide judgment dated 15.06.2010,
accepted the appeal and set aside the aforesaid judgment and the suit of Vijay Kumar Walia was dismissed. As such, the legal heirs of Vijay
Kumar Walia-appellants (hereinafter referred as ''the appellants'') have preferred this appeal.
The factual background of the case is that the plaintiff was initially appointed as Mandi Supervisor on 26.06.1970 with the Market Committee,
Ambala Cantt in the pay scale of Rs. 110-225 plus Rs. 25/- as special pay. His pay scale was revised to Rs. 140-300. As on 08.06.1971, his pay
was fixed at Rs. 140/- with effect from 27.03.1979 and at Rs. 200/- with effect from 01.04.1979. However, he did not adopt the said pay scale
as on 01.04.1979. One Fakir Chand Gupta, another employee of the defendants posted at Narwana, was initially appointed as Auction Recorder
on 19.01.1968 in the pay scale of Rs. 110-225, which is a junior post to that of a Mandi Supervisor. As such, the aforesaid Fakir Chand Gupta
was junior to the plaintiff even from the date of his appointment and was promoted as Fee Collector/Mandi Supervisor on 09.08.1979. As such,
Vijay Kumar Walia was 9 years senior to Fakir Chand Gupta in the cadre of Fee Collector/Mandi Supervisor. It was further averred that prior to
his promotion, Fakir Chand Gupta was drawing Rs. 160/- as basic pay plus Rs. 15/- as special pay, whereas the plaintiff was drawing Rs. 200/-.
On revision of the pay scales with effect from 01.04.1979, vide circular of defendant No. 1-Board dated 24.09.1985, the pay of Fakir Chand
Gupta was revised. On the other hand, the pay of Vijay Kumar Walia was fixed at Rs. 585/- on 01.04.1980, Rs. 600/- on 01.04.1981, Rs. 620/-
on 01.04.1982 and Rs. 640/- on 01.04.1983 in comparison to the pay of Fakir Chand Gupta, which was fixed at Rs. 760/- on 01.04.1983. Thus,
he was entitled to refixation of his pay equal to the pay of Fakir Chand Gupta, his junior.
On notice, the defendants filed their joint written statement, wherein, besides taking preliminary objections with regard to jurisdiction of the Civil
Court and locus standi etc., they have denied that Fakir Chand Gupta was junior to the plaintiff from the date of his appointment because both the
posts are separate. It was averred that Fakir Chand Gupta was drawing Rs. 600/- as basic pay on 01.04.1979 and Rs. 620/- on 02.04.1979 as
Auction Recorder in the revised pay scales and selection grade for the said post in the pay scale of Rs. 400-600 and Rs. 480-760 respectively. As
such, his pay was fixed at Rs. 640/- on 09.08.1979 on his promotion as Mandi Supervisor-cum-Fee Collector. It was submitted that the plaintiff
and the said Fakir Chand Gupta were from different cadres. As such, the Government instructions were not attracted in the case in hand. The pay
of the plaintiff was fixed at Rs. 585/- on 01.04.1980, Rs. 600/- on 01.04.1981, Rs. 620/- on 01.04.1982 and Rs. 640/- on 01.04.1983, whereas
the pay of Fakir Chand Gupta was fixed as stated above. It was further submitted that the hike in the pay of Fakir Chand Gupta was due to the
benefits available to him on the post of Auction Recorder on account of revision of pay scales and getting selection grade. As such, the plaintiff was
not entitled to those benefits because he had not worked on the post of Auction Recorder.
From the pleadings of the parties, following issues were framed by the trial Court:-
Whether plaintiff is entitled for up gradation of his pay scale equal to that of his junior along with arrears of pay and interest at the rate of 18%
per annum? OPP
Whether plaintiff has got no cause of action to file the suit? OPD
Whether plaintiff has got no locus-standi to file the suit? OPD
Whether Civil Court at Jagadhri has got no jurisdiction to entertain the suit? OPD
Whether suit has not been properly valued for the purpose of Court Fee and jurisdiction? OPD
Whether suit is false, frivolous and defendants are entitled to special costs u/s 35-A CPC? OPD
Relief.
There is no denying a fact that both Fakir Chand Gupta as well as Vijay Kumar Walia (since deceased) came from different source. Their dates
of appointments are also quite different. The relevant instructions governing the Government employees regarding fixation of pay in such a situation
have been referred as Ex. D 4 in the judgment passed by the first Appellate Court, which are reproduced as under:-
Fixation of pay-removal of anomaly wherein a Senior Government employee draws less pay in the revised scale than his junior.
(F.D. Hr. No. 1/1/(9)/81-1FR 1 dt. 28.12.81)
I am directed to invite a reference to the subject noted above and to say that instances have come to the notice of the Finance Department wherein
a Senior Government employee promoted to a higher post before 01.04.1979 draws less pay in the revised scale than his junior, who is promoted
to the higher post after the crucial date. This has created anomaly which is directed as a result of the revision of pay scales and the application of
rule 4.4 of the Punjab C.S.R. Vol. I, Part I in the revised scales. In order to remove the anomaly, it has been decided that in such cases, the pay of
the senior officer in the revised scale 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 promoted on or after 01.04.1979. The stepping up should be done with effect from the date of promotion of the junior officer and should be
subject to the following conditions:
(a) Both the junior and senior officer should belong to the same cadre and the posts in which they have been promoted should be identical in the
same cadre.
(b).......
(c)......
On perusing the above instructions, it transpires that Vijay Kumar Walia was not entitled to claim parity with the pay of Fakir Chand Gupta.
Apparently in order to claim parity, both the junior as well as senior official should belong to the same cadre and the post, in which they had been
promoted, should be identical in the same cadre. But, in the case in hand, both the sources, from which Fakir Chand Gupta as well as the plaintiff
came, are quite different. The plaintiff was directly appointed in the cadre of Mandi Supervisor/Fee Collector while Fakir Chand Gupta was initially
appointed in the cadre of Auction Recorder and was then promoted in the cadre of Mandi Supervisor/Fee Collector. Thus, the initial cadres of
both the employees were not similar. Therefore, stepping up of the pay of the plaintiff equal to that of Fakir Chand Gupta was not in accordance
with the rules and instructions, as referred to above. Even a three Judge Bench of the Hon''ble Apex Court in case Union of India and others Vs.
O.P. Saxena and Others, observed that if the source of promotion was different, then the principle of stepping up would not be applicable and the
pay cannot be re-fixed. In the aforesaid case also, the cadre qua whom the petitioners were claiming parity, was not the same and the source of
promotion was different.
Even otherwise, while examining the case from another angle, the plaintiff could not claim parity with Fakir Chand Gupta, as former was getting
higher pay to that of the plaintiff because of the benefits, already earned by him in his feeder post of Auction Recorder, whereas, the plaintiff was
appointed as a Mandi Supervisor directly. Therefore, he was not entitled to stepping up of his pay till the revision of his next pay scale after the
year 1979. Vijay Kumar Walia could raise a grouse only, if the pay of Fakir Chand Gupta would be fixed more than his pay, after revision of pay
scales in the cadre of Mandi Supervisor/Fee Collector, but he has nowhere set up his case that after the revision of the pay scales on 01.01.1986,
the pay of Fakir Chand Gupta was still more than that of his pay. As such, the plaintiff cannot claim stepping up next pay equal to that of Fakir
Chand Gupta, as he never earned the benefits of the post of Auction Recorder, as were earned by Fakir Chand Gupta while serving on the said
post.
The first Appellate Court appears to have taken right view of the matter. No substantial question of law arises for determination.
Dismissed.