R.E.Mulay vs Union Of India And Ors.

M. S. SONAK, J

Heard learned Counsel for the parties.

Challenge in this writ petition is to the judgments and orders dated 7th November, 2000 and 14th March, 2002 made by the Central Administrative

Tribunal (CAT) disposing the Original Application No.1307 of 1994 and Review Petition No. 8 of 2001 instituted by the petitioner seeking for reÂ‐

fixation of his pay on parity with his junior, one Sahasrabudhe. The petitioner on such basis had prayed for consequential reliefs like payment of

arrears of difference in pay etc.

The petitioner was appointed as Technical Supervisor on 13th June, 1960 with the respondents. Thereafter, he was directly recruited as Assistant

Foreman with effect from 17th January, 1966 with basic pay of Rs. 370/Â per month. The petitioner was then promoted as Foreman in the basic pay

of Rs. 525/Â w.e.f. 1st November, 1971. On 9th August, 1986, the petitioner was promoted as Junior Scientific Officer in the pay scale of Rs.

20003500. However, the basic pay of the petitioner was fixed at Rs.3200/Â. The petitioner ultimately superannuated from the post of Junior Scientific

Officer w.e.f. 31st March, 1993.

Sahasrabudhe with whom the petitioner claims parity, was directly recruited as Assistant Foreman w.e.f. 9th February, 1966 i.e. about a month

later than the petitioner's direct recruitment as Assistant Foreman w.e.f. 17th January, 1966. Sahasrabudhe was promoted as Foreman on 6th

December, 1973 i.e. almost two years after the promotion of petitioner as Foreman w.e.f. 1st November, 1971. However, since Sahasrabudhe's

promotion to the post of Foreman was after the third pay commission the scales which became effective from 1st January, 1973, Sahasrabudhe's

basic pay was fixed at Rs. 920 per month in the revised pay scale. On revision, however, the petitioner's pay scale was fixed at only Rs. 880/Â​.

From 1st January, 1986, in pursuance of the acceptance the recommendations of the fourth pay commission, the post of Principal Foreman came to

be abolished and the same was merged with the post of Foreman with the common pay scale of Rs.23003500. Accordingly, the pay of the petitioner

as on 1st January, 1986 was fixed at Rs.3050/Â per month, whereas, the pay of Sahasrabudhe was fixed at Rs.3300/Â per month. Shri Sahasrabudhe

was promoted as Junior Scientific Officer dated 22nd March, 1988 i.e. almost two years after the promotion of petitioner to the same post w.e.f. 9th

August, 1986. Again, the basic pay of the petitioner was fixed at Rs.3200/Â in the pay scale of Rs.2000Â3500/Â and the basic pay of Sahasrabudhe

was fixed at Rs.3500/Â in the pay scale of Rs.2000Â3500. The petitioner superannuated on 31st March, 1993 and Sahasrabudhe superannuated on

30th November, 1993.

In the year 1994, one Shri N. V. Nadgauda instituted Original Application No. 1309 of 1994 before the CAT seeking for stepping up his pay/parity

with the pay of Sahasrabudhe who was junior to Nadgauda in the cadre of Foreman as well as Junior Scientific Officer. In the same year, i.e. 1994,

even the petitioner instituted Original Application No. 1307 of 1994 seeking for the same relief of stepping up of his pay/parity with Shri Sahasrabudhe.

By judgment and order dated 7th December, 1995, the CAT allowed Original Application No. 1309 of 1994 instituted by Nadgauda and directed the

respondents to reÂfix his pay of par with Sahasrabudhe. The CAT also allowed by consequential benefits including arrears and differential pay and as

well as pension to Nadgauda. However, by judgment and order dated 7th November, 2000, the CAT dismissed the petitioner's Original Application

No. 1307 of 1994. Even the Review Petition No. 8 of 2001 instituted by the petitioner was dismissed by the Cat by its order dated 14th March, 2002.

Hence, the present petition.

It is quite clear that the petitioner was in fact senior to both Nadgauda as well as Sahasrabudhe in the cadre of Foreman. This is because the

petitioner was promoted as Foreman on 16th October, 1971, whereas Nadgauda and Sahasrabudhe were promoted as Foreman on 16th October, 1971

and 6th December, 1973 respectively. There is also no dispute that the petitioner was senior to both Nadgauda as well as Sahasrabudhe in the cadre

of Junior Scientific Officer. Therefore, there was absolutely no distinction between the case of Nadgauda and the case of the petitioner. The

reasoning adopted by the CAT in its judgment dated 7th December, 1995 in Original Application No. 1309 of 1994 instituted by Mr. Nadgauda

squarely applied to the reasoning in petitioner's Original Application No. 1307 of 1994. Admittedly, the respondents did not challenge the CAT's

judgment dated 7th December, 1995 in Original Application No. 1309 of 1994 instituted by Nadgauda. In such circumstances, the CAT was not at all

justified in taking some contrary view in the case of the petitioner and dismissing petitioner's Original Application No. 1307 of 1994 vide judgment and

order dated 7th November, 2000.

The CAT in its impugned judgment dated 7th November, 2000 has quoted a circular of D.O.P.T. dated 4th November, 2000, which makes

reference to FR 22ÂC and on such basis refused to follow judgment and order dated 7th December, 1995 in Original Application No. 1309 of 1994

(Nadgauda's case), by observing that the said judgment makes no reference to the circular or FR 22Â​C.

The CAT, in paragraph 8 of the impugned order has quoted sub para (C) of the D.O.P.T. circular dated 4th November, 2000, which reads as

follows:Â​

“(C) the anomaly should be directly as a result of the application of FR 22ÂC. 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 or on any other account the above provisions will not be

invoked to step up the pay of Senior Officer.â€​

There is absolutely no material on record, to establish the applicability of the D.O.P.T. circular dated 4th November, 2000 to the issue involved in

the case of either the petitioner or Nadgauda. Secondly, this is also not a case where the obvious anomaly had arisen directly as a result of application

FR 22ÂC. In such circumstances, the CAT was not at all justified in refusing to follow its earlier judgment and order dated 7th December, 1995 in

Original Application No. 1309 of 1994.

Since, as noted earlier, there was absolutely no distinction between the case of Nadgauda and the petitioner the respondents were not at all

justified in opposing the grant of relief to the petitioner, when admittedly, the respondents accepted and even implemented the judgment and order

dated 7th December, 1995 in Nadgauda's Original Application No. 1309 of 1994. As noted earlier, the petitioner was senior to both Nadgauda as well

as Sahasrabudhe in the cadre of Foreman and Junior Scientific Officers. In the absence of any valid reasons, therefore, the respondents were not at

all justified in denying the petitioner parity with Nadgauda and Sahasrabudhe. Such denial would amounts to hostile discrimination against the petitioner

thereby violating his right guaranteed by Article 14 of the Constitution of India.

For the aforesaid reasons, we allow this writ petition and make rule absolute in terms of prayer clauses (a), (b), (c) and (d) which read as

follows:Â​

(a) The Hon'ble Court may be pleased to issue a writ of certiorari or any other appropriate writ or order or direction in the nature of writ, calling for

the records and proceedings of Original Application No. 1307 of 1994 from the Central Administrative Tribunal, Bombay Bench and after perusal of

the same to quash and set aside the order of the Tribunal dt. 07.11.2000 and 14.03.2002,

(b) to direct the Respondents to step up the pay of the Petitioner at par with the pay of Shri. M. P. Sahasrabudhe from 06.12.1973 in Foreman grade

and reÂ​fix the Petitioner's pay by granting annual increment from time to time, as was done in the case of Shri. N. V. Nadgauda,

(c) to direct the Respondents to step up the pay of the Petitioner in Junior Scientific Officer grade at par with that of Shri. M. P. Sahasrabudhe, as

was done in the case of Shri N. V. Nadgauda,

(d) to direct the Respondents to recalculate the pension and other retirement benefits of the Petitioner on the basis of his pay as stepped up vide para

(b) and (c) above, and to pay arrears of amounts arising out of the same.â€​

We further direct that payment of arrears and other benefits under this judgment and order be made to the petitioner within a period of three

months from today, failing which the respondents to pay to the petitioner interest on such arrears @ 6% p.a. on the date such amount became due and

payable to the petitioner till the date of actual payment.

In the facts and circumstances of the present case, there shall be no order as to costs.