R P MISTRY Vs. REGISTRAR

JUDGEMENT

(1.) This appeal, under Clause 15 of the Letters Patent, is preferred from the judgment denying the relief of stepping up to the original petitioner, who, having passed away during the pendency of the appeal, is represented by his legal representatives, but hereinafter referred for the sake of convenience as 'the original petitioner' or 'the appellant'.

(2.) The simple relevant facts may be recounted in brief to appreciate the interesting legal issue involved in the matter. The petitioner was originally appointed as a Section Writer on 19th March, 1962 and thereafter promoted to the post of Section Officer on 20th April, 1980. Two other Sections Writers, namely, Shri R.R.Shah and Shri D.M.Talwari, were appointed on the post of Section Writer on 1st March, 1962 and 16th March, 1962 respectively. All the three were confirmed in the intermediate promotional post of Assistant on 1st March, 1972. Thereafter, as against the date of promotion to the post of Section Officer of the petitioner, i.e. 20th April, 1980, the two other officers, namely, Shri R.R.Shah and Shri D.M.Talwari, were promoted to the post of Section Officer on 20th September, 1982 and 1st May, 1982 respectively. In the year 1980 when the petitioner was selected and promoted to the post of Section Officer, his pay in the cadre of Assistant was Rs.635.00 whereas that of Shri R.R.Shah was Rs.675.00 and that of Shri D.M.Talwari was Rs.655.00 in the common pay scale of Rs.425-15-455-20-615-EB-20-675-25-700-EB-25-800. Upon being promoted to the post of Section Officer in the pay scale of Rs.650.00, the pay of the petitioner was fixed at Rs.680.00 giving the benefit of Rule 41-A of the Bombay Civil Service Rules (BCSR). In the year 1982 when Shri Talwari was promoted to the cadre of Section Officer, his salary in the cadre of Assistant was Rs.700.00 and on promotion, it was fixed at Rs.740.00 again under Rule 41-A of the BCSR. At that time, the petitioner was drawing Rs.740.00 per month in the cadre of Section Officer and the salary of Shri R.R.Shah was Rs.725.00 per month in the cadre of Assistant. In September 1982, when Shri R.R.Shah was also promoted as Section Officer, his salary had to be fixed at Rs.775.00 under the same Rule. As a result, by the subsequent promotion to the two other officers to the post of Section Officer, they came to be entitled to more pay than the petitioner who was senior to those officers in the cadre of Section Officer.

(3.) There was no dispute about the legal position that pay of the employees concerned on the promotional post had to be fixed in accordance with Rule 41-A of the BCSR as also about the fact that the post of Section Officer was purely a selection post filled up on selection from the cadre of Assistant. Under the Government Resolution dated 5.1.1965, which was subsequently incorporated into Rule 41-A of the BCSR, one increment in the substantive cadre had to be given and thereafter the pay had to be fixed in the pay scale of the promotional cadre at the next higher stage. When the petitioner was promoted to the post of Section Officer on 1st September, 1980, his basic pay in the cadre of Assistant was Rs.635.00, whereas the basic pay of Shri R.R.Shah and Shri Talwari was Rs.675.00 and Rs.655.00 respectively. Upon promotion, the pay scale of the petitioner on the post of Section Officer started from Rs.650.00 and was fixed at Rs.680.00 in compliance of Rule 41-A of the BCSR. Similarly, after two years in 1982, Shri Talwari was promoted and his salary was fixed at Rs.740.00 on the basis of his salary of Rs.700.00 per month in the cadre of Assistant. At that time, the salary of the petitioner and Shri Talwari became equal. When Shri R.R.Shah was promoted, his salary was fixed at Rs.775.00 on the basis of his salary of Rs.725.00 which he was drawing in the cadre of Assistant. Thus, Shri R.R.Shah and Shri D.M.Talwari, who were juniors to the petitioner in the cadre of Section Officer, got higher salary despite their promotion being subsequent to that of the petitioner. Stating this as an anomaly, the petitioner approached this Court with the prayers to remove the disparity and direct the respondents to give step-up increments to the petitioner.