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2022 (3) TMI 1542 - HC - Indian LawsSeeking stepping up of pay at par with junior - petitioner, having come to know that his junior is getting higher scale of pay than him, represented to the Government to step up his pay to the level of his junior - HELD THAT - The benefit of stepping up of pay shall be allowed to the senior only in the case of promotion to the higher post for removing the anomalies on account of fixation of pay under Rule-74(b) or (c) of the O.S.C. subject to the conditions mentioned in sub-clauses (a) to (d). As per sub-clause (a), both the junior and senior officer should belong to the same cadre and the posts in which they have been promoted or appointed should be identical in the same cadre - In this case, although the petitioner and Shri Mohanty had belonged to two different cadres, but, when they were promoted to OAS Class-II cadre, they belonged to same cadre and their posts were identical, and undisputedly the petitioner was senior to Shri Mohanty in the gradation list having placement at sl. no. 327 and sl. No. 329 respectively. Subsequently, both of them were promoted to the cadre of OAS Class-I (Jr.) having their placement in the gradation list at sl. no. 494 and sl. No. 496 respectively and in the said cadre also the petitioner was senior to Shri Mohanty. Therefore, sub-clause (a) of the resolution is satisfied. According to sub-clause (b), the scales of pay of the lower and higher posts, in which they are entitled to draw pay, should be identical. To that extent, there is no dispute that scales of pay of OAS Class-II and OAS Class-I (Jr) are identical to each other and accordingly the petitioner's scale of pay was fixed in terms of said scales of pay in the respective cadre. The petitioner has satisfied this condition to be eligible to get the benefit of stepping up of pay. Rule-11 of the Orissa Service Code states that cadre means, strength of service or part of service sanctioned as a separate unit. Therefore, the petitioner and Shri Mohanty, who was junior to the petitioner, both belonging to OAS Class-II cadre, become the strength of service or part of service sanctioned as a separate unit. More so, their scale of pay in lower or higher post in which they entitled to draw pay should be identical - It is trite-law that if no specific definition has been given to a word or phrase in the Act, then the meaning attached to the same in the dictionary is to be taken as external aid for interpretation of the same. In view of the meaning attached to the words stepping up of the pay and applying the same to the factual matrix of the case in hand, there is no iota of doubt that the principle has already been set up by the apex court in Gurcharan Singh Grewal v. Punjab SEB, 2009 (1) TMI 940 - SUPREME COURT , wherein the apex Court has held that the general norm is that a senior cannot be paid less than his junior even if anomaly in senior's pay is due to difference of incremental benefits. His pay has to be stepped up with reference to higher pay of the junior. As the undisputed fact is that the junior to the petitioner, namely, Shri A.C. Mohanty was drawing higher pay in OAS Class-II cadre, before being promoted to OAS Class-I (Jr) cadre, therefore, the petitioner ought to have asked for stepping up of his pay much earlier when both of them were continuing in OAS Class-II cadre itself. Having not done so and making such a claim after being promoted to OAS Class-I (Jr.) cadre, the stand has been taken by the State that it is hit by the principle of waiver and also limitation, as has been prescribed under the Administrative Tribunals Act 1985. When discrimination has been meted out to the petitioner, the principle of waiver or limitation, as stated in the counter affidavit filed by the State, has no meaning, in view of the fact admittedly a junior to the petitioner is receiving higher pay than that of the petitioner. By applying the provisions of Article 14 of the Constitution of India, this Court is of the opinion that the petitioner is entitled to get the benefit of stepping up of pay at par with his junior Shri A.C. Mohanty from the date he was inducted to OAS Class-II, i.e. from 20.06.1980 and the pay scale of the petitioner should be revised accordingly and he should be granted differential arrear benefits, as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment - Petition allowed.
Issues Involved:
1. Legality and propriety of the Orissa Administrative Tribunal's order dismissing the petitioner's application for stepping up of pay. 2. Entitlement of the petitioner to have his pay stepped up to match that of his junior. 3. Application of the Finance Department Resolution dated 03.05.1985. 4. Allegation of discrimination and violation of Article 14 of the Constitution of India. Issue-wise Detailed Analysis: 1. Legality and Propriety of the Tribunal's Order: The petitioner challenged the legality and propriety of the Orissa Administrative Tribunal's order dated 11.08.2010, which dismissed his application for stepping up his pay to match that of his junior. The petitioner argued that the tribunal failed to appreciate the factual matrix and proceeded on a wrong premise, thereby denying him the relief sought. 2. Entitlement to Stepping Up of Pay: The petitioner, serving as an Under Secretary in OAS Class-I (Jr.), sought to have his pay stepped up at par with his junior, Ananta Charan Mohanty. The petitioner joined as a Lower Division Assistant on 30.07.1964, while his junior joined as a Junior Typist on 08.04.1959. Both were later inducted into the OAS Class-II cadre and subsequently promoted to OAS Class-I (Jr). Despite being senior, the petitioner was drawing a lower salary than his junior. The petitioner contended that similarly situated employees had been granted the benefit of stepping up of pay, and hence, he should also be entitled to the same. 3. Application of the Finance Department Resolution dated 03.05.1985: The Finance Department Resolution dated 03.05.1985 outlines the conditions under which the pay of a senior officer can be stepped up to match that of a junior officer. The resolution stipulates that both officers must belong to the same cadre, the posts should be identical, and the senior officer must be senior in both the lower and higher posts. However, the junior officer should not have been drawing a higher rate of pay in the lower post. The tribunal denied the petitioner's claim based on the condition that the junior officer was drawing a higher rate of pay in the lower post. 4. Allegation of Discrimination and Violation of Article 14: The petitioner alleged discrimination, citing that other similarly situated officers had been granted the benefit of stepping up of pay. He argued that denying him this benefit violated Article 14 of the Constitution of India. The court noted that the petitioner's claim was supported by evidence of other officers being granted similar relief, which the tribunal failed to consider properly. Court's Findings: The court found that the petitioner and his junior belonged to the same cadre and were promoted to identical posts. The petitioner was senior in both the lower and higher posts. The tribunal's reliance on the condition that the junior officer should not have drawn a higher rate of pay in the lower post was found to be erroneous. The court emphasized that the general norm is that a senior cannot be paid less than his junior, even if the anomaly is due to incremental benefits. The court also noted that the petitioner had provided evidence of discrimination, which the tribunal failed to consider. Conclusion: The court concluded that the petitioner was entitled to have his pay stepped up to match that of his junior from the date he was inducted into the OAS Class-II cadre. The tribunal's order was quashed, and the writ petition was allowed. The opposite parties were directed to revise the petitioner's pay scale and grant differential arrear benefits within three months. Separate Judgment: Savitri Ratho, J., concurred with the judgment delivered by Dr. B.R. Sarangi, J., without delivering a separate judgment.
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