R.K. JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicant is working as Scientist 'E', on which post he was promoted on 1.7.1999. He has a grievance against the impugned communication dated 17.3.2011 (Annexure A -1) by which it has been clarified by the respondents that the criteria of seniority should be taken from the date of appointment in the cadre and not from the feeder grade (Scientist "E" in the case). His case is that according to Note 10 below Rule 7 of the CCS (RP) Rules, 2008, when a senior Government servant promoted to a higher post before 1.1.2006, draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 01.01.2006; the pay in the pay band of the senior Government servant should be stepped to an amount equal to the pay in the pay band as fixed for his junior in that higher post. Referring to the above provisions, the applicant has stated that he was promoted to the post of Scientist 'F' from Scientist 'E' on 1.7.2004, whereas his junior Shri J.K. Varshney was promoted to the post of Scientist 'F' on 1.7.2008. That on 1.7.2008, the basic pay of the applicant, who was holding the higher post of Scientist 'F', was Rs. 54,700/ -. On 30.6.2008, i.e. one day prior to his promotion to the post of Scientist 'F', his junior's pay was Rs. 52,260/ - in the lower post of Scientist 'E'. On promotion on the very next day, the applicant's junior's pay has been raised to Rs. 56,030/ -. On this count, the applicant states that he being senior is entitled to have his pay stepped up to Rs. 56,030/ - with effect from 1.7.2008 in terms of the CCS (Revised Pay) Rules, 2008. Yet, when he made a request for stepping up of his salary, the same has been rejected on the ground that seniority should be taken from the date of appointment in the cadre and not from the feeder grade. Applicant, however, contends that the CCS (Revised Pay) Rules, 2008, being Statutory Rules, the administrative authorities could not have made any interpretation, which is nowhere laid down in the Statute and deprive the applicant of such stepping up, especially when junior to the applicant could not be promoted along with him because of below par performance.

(2.) GROUNDS urged are that Note 10 of Rule 7(1) of Revised Pay Rules, 2008 has been infringed by the respondents because the purpose of this provision is to take care of the pay of the senior who has been promoted earlier than 1.1.2006 and is getting less pay than his junior, who in turn, was given higher pay on promotion on or after 1.1.2006. Secondly, it is urged that OM dated 4.11.1993 of the Department of Personnel & Training (DoP&T) cannot override the provisions of the Statutory Rules in so far as they are specific and it is well established that supplementary rules cannot be supplanted by an instruction. The applicant has sought relief by way of quashing and setting aside the communication dated 17.3.2011 (Annexure A -1) and order dated 28.3.2011 (Annexure A -2) along with a direction to the respondent No. 3 to step up his pay to Rs. 56,030/ - with effect from 1.7.2008 at par with the pay of his junior with all consequential benefits, including arrears of pay and allowance, as applicable on GPF, consequent upon stepping up of his pay.

(3.) BOTH parties were heard. Mr. Padma Kumar S. argued on behalf of the applicant stating the facts and also referred to the facts stated in the rejoinder as well as in the additional affidavit. He filed a copy of the List of Scientist 'E' (2003) with respect to the applicant and his junior and the List of Scientist 'F' as on 1.7.2009. Learned Counsel for the applicant also referred to the judgment in Union of India and Others v. P. Jagdish and Others, : 1997 (2) SLJ 136 (SC) : (1997) 3 SCC 176 wherein in paragraph -7, modalities of stepping up of pay are laid down. He also drew attention to the order of the Ernakulam Bench of this Tribunal where the Tribunal had allowed parity in pay with juniors on the ground that seniors are being paid less.