Manjibhai Kalabhai Patel vs The General Manager

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V.M. Sahai, Actg. C.J.

We have heard Mr. P.H. Pathak, learned advocate for the petitioner and Mrs. Vasavdatta Bhatt, learned advocate for respondent No. 3.

The basic facts emerging out of this Writ Petition are that the petitioner was appointed in the Railway Protection Force as Rakshak on 02.07.1966. Thereafter, he was promoted as Sr. Rakshak w.e.f. 01.01.1983. Rakshak is called Constable & Sr. Rakshak is called Naik in revised RPF Rules, 1987. It is relevant to point out here that the post of Naik was abolished w.e.f. 10.10.1997 and Naik was designated as Head Constable vide Railway Board''s letter No. PC-V/97/G/4 (RBE No. 171/97) dated 04.12.1997. By Railways Board''s letter No. PCV/97/1/RSRP/1 dated 16.10.1997, pay scales of RPF staff was revised from 01.01.1996 i.e. Head Constable''s Revised Pay Scale became Rs. 3200-85-4900/-, Naik''s Revised Pay Scale was Rs. 3050-75-3950-80-4590/- and Constable''s Revised Pay Scale was Rs. 2750-70-3800-75-4400/-. Further the Board''s letter No. PC-V/97/G/4 dated 4.12.1997 replaced the pay scales of RPF staff w.e.f. 04.12.1997 i.e. Head Constable''s Revised Pay Scale was Rs. 3200-85-4900+50 Special Pay (For existing incumbent only), Naik''s Revised Pay Scale was Rs. 3200-85-4900/- (Naik was designated as Head Constables) and Constable''s Revised Pay Scale was Rs. 3050-75-3950-80-4590/- (Two advance increments). The date of implementation was revised as 10.10.1997 vide Railway Board''s letter No. PV--V/97/G/4 (RBE No. 129/2000) dated 30.06.2000. The pay scale of Railway Protection Force staff was revised as per the recommendations of Fifth Pay Commission from 01.01.1996. The petitioner was working as Naik on 01.01.1996 and since the post of Naik was merged with the post of Head Constable, he became Head constable at a later point of time. The effect was that the petitioner would be entitled for two advance increments and his pay was to be stepped up to be equivalent to his juniors, who were getting higher pay than the petitioner.

Mr. Pathak, learned counsel for the petitioner submitted that it is required to be noted that in the seniority-list the petitioner is shown at Sr. No. 500. The petitioner joined services in the year 1966 and basic pay of petitioner was shown as Rs. 4700/-, while juniors to the petitioner are shown drawing more salary than petitioner. For example-Mr. Ram Singh appointed w.e.f. 01.07.67, Mr. Surmani Mishra appointed w.e.f. 01.11.1971, Mr. Mohd. Aklal appointed w.e.f. 01.3.68, Mr. Umashankarmal appointed w.e.f. 01.4.71 are drawing higher salary than the petitioner but the petitioner, who is at Sr. No. 500, senior to all the above employees, was drawing basic pay of Rs. 4700/-. Therefore, the petitioner''s pay was required to be stepped up and accordingly, the case of the petitioner is squarely covered by the decision of the Apex Court in the case of Er. Gurcharan Singh Grewal and Another Vs. Punjab State Electricity Board and Others, read as under:

"15. Mr. Chhabra also attempted to justify the disparity in the pay of Shri Shori and Appellant 1 by urging that Appellant 1 had been granted the promotional scale with effect from 1-1-1996, 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 17-5-2006, with effect from 1-9-2001, 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 Appellant 1 getting a lower salary in the promotional scale.

Something may be said with regard to Mr. Chhabra''s submissions about the difference in increment in the scales in which Appellant 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 1 and the 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 Appellant 1 was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant 2."

It has been stated in the aforesaid decision of the Hon''ble Apex Court that if the juniors are getting higher pay scale than their senior, in that case, the pay of senior should be stepped up and he may be granted benefits of stepping up of pay.

In this view of the matter, Writ of mandamus is issued stepping up the pay of the petitioner with effect from 01.01.1996 equivalent to the pay which juniors to the petitioner; namely Mr. Ram Singh, Mr. Surmani Mishra, Mr. Mohd. Aklal, Mr. Umashankarmal were receiving and the petitioner is entitled for payment of difference in pay and his post retiral benefits are to be revised and his arrears with regard to pay scale or pension after revision shall be paid to him and his pension be fixed in the revised pay scale in accordance with law. The aforesaid exercise and payment of difference in salary and pension shall be made to the petitioner within a period of four months from the date of a copy of this order is produced before respondent Nos. 1 and 2.

With the aforesaid directions, this petition succeeds and is allowed. Rule is made absolute to the aforesaid extent. There will, however, be no order as to costs.