GOPALKRISHNA PILLAI Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) This application has come up before us for hearing today. The applicant was working as Assistant Collector of Customs prior to July, 1980. On 26.7.1980, the Ministry of Finance, Department of Revenue passed an order promoting seven Asstt. Collectors of Customs to the post Deputy Collector of Customs "purely on ad hoc basis witty effect from the dates they take over charge of the higher posts and upto 30th June, 1981". The order went on to say that "the promotion of the said Officers was purely provisional and they would not have any right to continue in that grade or any claim for seniority in grade of Deputy Collector of Customs k Central Excise Service Group -A vis-a-vis those who may be promoted on regular basis. "The last of the seventy persons so promoted was a certain Sri S. S. Bedi. The applicant was senior to Sri Bedi in the grade of Asstt. Collector, but his name did not appear in the promotion order because he was at the time on deputation with the Indian Petrochemical Corporation Ltd., Bangalore. Another order was passed on the same date, namely 26 -7 -80, on similar lines as the earlier order, promoting three: more persons on ad hoc basis including the applicant who appears at Serial No. 3. This order stated that "the seniority of these officers in the grade of Deputy Collector will be fixed among the officers promoted to that grade, on purely ad hoc basis" (by the earlier order referred to above) and that they would all be placed above Sri S. S. Bedi. Since these officers were then holding ex-cadre posts they would be given proforma promotion under the 'Next Below Rule' "as and when the conditions laid down in F.R. 30(1) are satisfied".

(2.) As a result of the first of the above orders, Sri S.S. Bedi joined as Deputy Collector of Customs at Delhi immediately, i.e., on 26.7.80 and started drawing pay in the scale of that post, i.e., Rs. 1,500 -2,030 from that date. Since the applicant was on deputation, the question of his drawing pay in that scale as Deputy Collector of Customs did not then arise. It appears that subsequently all the persons promoted on ad hoc basis in the two orders mentioned above were considered for regular promotion as Deputy Collectors and eventually selected for such promotion. As a result of such selection, the Ministry of Finance passed an order on 17.3.83 setting out a list of persons promoted to the grade of Rs. 1,500 -2,000 on regular basis and the dates from which their promotion took effect. The applicant's name appears at Srl. No. 2 in this order and his date of promotion was axed as 6.12.82 under the 'Next Below Rule'. The applicant eventually returned from deputation and joined his parent cadre on 3.7.84 as Deputy Collector of Customs at Calcutta. His pay in that post was then fixed on the basis that he would have drawn the starting pay in that scale from 6.12.82 on which date his promotion became effective under the 'Next Below Rule'. On the other hand, Sri Bedi, who was working as Deputy Collector from 26.7.80 drew increment in that scale from 1980 and so his pay in 1984 was higher than that of the applicant. The applicant's grievance is that on his rejoining the Department on 8.7.84, his pay as Dy. Collector should have been fixed at the same figure as that which his junior, Sri Bedi was drawing at that time.

(3.) Mr. P. Mukherjee, the Learned Counsel for the applicant submitted that it was incongruous that a junior should draw higher pay than a senior. Relying on the judgement of the Supreme Coprt in State of Mysore vs. M. H. Bellary : AIR 1965 SC 868, Mr. Mukherjee submitted that the whole idea of the 'Next Below Rule' was to protect the interest of a senior Officer vis-a-vis his junior. If the spirit of that rule were to be applied here, the applicant's pay should have been axed on 8-7-84 at the same figure as that of his junior. Mr. Mukherjee drew our attention to an Office Mema, dated 17-6-78 issued by the Ministry of Finance, Government of India, according to which the pay of a Senior Group - A Officer promoted to the Senior Scale of that group prior to 1-11-73 was required to be stepped up to a figure equal to the pay of his junior promoted after that date. Mr. Mukherjee submitted that this was an Executive Order which was issued to fill up gaps in the rules and, therefore, it had the force of statutory rules and should. have been implemented in the present case.