Full Judgment Text
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CASE NO.:
Appeal (civil) 2898 of 2008
PETITIONER:
Punjab State Electricity Board & Ors
RESPONDENT:
Gurmail Singh
DATE OF JUDGMENT: 22/04/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 2898 OF 2008
(Arising out of SLP (C) No.5223 of 2004)
With
Civil Appeal No. _____ of 2008
(Arising out of SLP (C) No.8130 of 2004)
S.B. Sinha, J.
1. Leave granted.
2. These two appeals, involving similar questions of fact of law, were
taken up for hearing together and are being disposed of by this common
judgment.
3. The factual matrix of the matter, however, would be noticed from the
case of Gurmail Singh.
Appellant Board is constituted and incorporated under the Electricity
(Supply) Act, 1948. It is entitled to frame regulations incorporating terms
and conditions of service of its employees in terms of Section 79 (c) of the
Act. The regulations so framed are known as Punjab State Electricity Board
Ministerial Services (Class III) Regulations, 1985.
4. Respondent herein was appointed as a Steno-Typist on or about
28.8.1976. There existed a common cadre of the Steno-Typist and Lower
Division Clerk. He was appointed on a scale of pay of Rs.110-250 which
was revised to Rs.400-600 w.e.f. 1.1.1978 and Rs.950-1800 w.e.f. 1.1.1986.
On the said post, he was placed on a scale of pay of Rs.1200-2200/-.
A scheme for grant of time bound promotion to a higher scale of pay
was formulated by the Board wherefor a circular bearing No.17/90 was
issued by its Finance Department on 23.4.1990. In terms of the said scheme,
promotional scale was to be given to the employees upon completion of 9/16
years of regular service. The revision in the scale of pay of LDCs was
directed by an order dated 3.10.1990 w.e.f. 1.1.1986. The said revision of
scale of pay, however, was to be granted on the basis of total number of
years of service as LDC in the said cadre. The same was, however,
implemented in respect of three categories of employees, namely, who have
not been granted any promotion despite completion of minimum 10 years of
service as LDC and Senior Clerk or five years of service as LDC and
remaining of the LDCs not falling in the first two categories. The ratio for
grant of the said promotional scale was fixed at 40:40:20 respectively.
Material part of the said circular is as under :
"In continuation to this officer order
Nol.129/Fin/PRC-1988 dated 11.11.1988, No.147/
Fin/PRC-1988 dated 21.03.89, No.168/Fin/PRC-
1988 dated 15.6.89, No.169/Fin/PRC-1989 dated
26.6.89, No.181/Fin/PRC-1988 dated 20.10.89,
No.189 Fin/PRC-1988 dated 19.01.1990, No.190
Fin/PRC-1988 dated 23.01.1990, No.211
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Fin/PRC-1988 dated 4.7.1990 and office order
No.271 Fin/PRC-1988 dated 13.8.1990, the Punjab
State Electricity Board is pleased to further revise
the scales of pay of the following categories of
employees w.e.f 01.01.1986 as under :
XXX XXX XXX
3. The Punjab State Electricity Board has also
decided that (i) \005 (ii) For UDCs joining PSEB, as
a result of either through direct recruitment or by
promotion from amongst LDCs after passing the
Departmental Accounts Examination, the date of
joining as UDC will be taken as the date of first
induction in the PSEB for the purpose of grant of
9/16 years time bound scales."
5. On or about 7.10.1992, the Board in continuation of Finance Circular
No.58/90 dated 3.10.1990 issued a memo on or about 7.10.1992 whereby
and whereunder it was clarified that in the list of LDCs circulated by the
Board, the names of LDCs who had been promoted as UDCs included, then
those UDCs would not be given the revised scale of LDCs stating :
"In accordance with the above instructions, a list
of employees to whom scale of Junior Assistant
(1500-2640) is payable w.e.f. 01.01.1988 has been
prepared by this office and is being sent to your
office for further action. While preparing this list,
LDCs who have been promoted upto 31.12.87
their names have not been included in this list.
Still if any employees has been promoted to higher
post (UDC/Stenographer Divisional Accountant,
Revenue Accountant) or have been appointed by
direct recruitment by selection by the Board and
have joined that post or the service or any
employees have been terminated or have left the
Board or has died but his name has been included
in the list, this scale will not be given to those
employees. Names and serial No. of all such
employees be informed to this office.
While preparing the list due care has been
taken to include names of all LDCs who were
posted, still if name of any LDC has not been
included in the list be informed to this office along
with his serial number, date of birth and date of
joining the Board. LDC/Steno-typist who have
forgone promotion as UDC, are not entitled to this
scale.
Those steno-typists who have opted for
cadre of stenographer, they are not entitled to this
scale and names of such employees and their serial
number in the list be informed.
While fixing of these employees in this
revised scale of 1500-2640 from 01.01.88,
instructions issued by the Board from time to time
be kept in view.
It is also informed that above scale granted
to these LDCs can be reviewed by the Board."
6. Another circular was issued by the Board on or about 18.7.1994
directing that those LDCs who are promoted as UDCs would not be given
any option to decide UDC/LDC as their induction post, but some relaxation
may be given while considering individual cases who had been promoted
after 1.1.1986 in the following terms :
"Thereafter Union of Employees submitted
demands that those qualified Lower Division
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Clerks who have been promoted as Upper Division
Clerks after 01.01.1986 be also given opportunity
to exercise option as he been given to Lower
Division Clerks who were promoted before
01.01.86.
The Board has considered the entire case
and has decided that they cannot be given
opportunity to exercise such option because Lower
Division Clerks have already accepted three pay
scales structure on the pattern of Punjab
Government and they were working as Lower
Division Clerks on 01.01.86 and not as Upper
Division Clerks. However, keeping in view the
hardship to the employees, it has been decided that
case of Lower Division Clerks promoted as Upper
Division Clerks after 01.01.86 on passing
departmental examination will not be considered
on merits.
All such cases will be considered by the
competent official by giving relaxation in rules and
the case will be referred with self-contained
proposal to the Secretary Finance Department,
Punjab State Electricity Board, Patiala along with
service record of the employee and financial
burden involved through Head of the Department.
It is submitted that all concerned employees
be informed about this decision of the Board so
that employees may send their case for
consideration by the competent official. Such
cases be disclosed within four months by the
employees so that proper decision be taken in the
case."
7. Respondent made a representation to the Board. He, therein, did not
state that his induction post should be treated as LDC. He, in fact, preferred
UDC as his induction post by a letter dated 8.7.1995. In terms of the said
letter, 1.1.1986 was fixed as the cut off date. A decision was taken in favour
of the employees. However, they were required to make their representation
within the timeframe fixed thereunder. On or about 15.11.1994, the
respondent filed a representation stating :
"It is respectfully submitted that the Director
Personnel PSEB Patiala Vide memo
No.51385/51785/ECM-161 dated 7.10.92 granted
scale of 1500-2640 w.e.f. 01.01.88 to LDCs having
seniority No.3121 to 3651 and my name was at
serial No.270 (Seniority No.3461) in this list.
However, I was not released this scale because of
promotion as UDC from 05.07.86, as such LDCs
who are junior to me and having seniority No.3462
to 3651 have been granted pay scale of Rs.1500-
2640 from 01.01.88 i.e. higher scale than me and
were having more basic pay than me. After that
the Board has granted scale of Rs.1640-2925 to the
LDCs on completion of 16 years of service and
LDCs junior to me are getting this scale and more
salary than me.
Because of these pay anomalies, the Board
has granted opportunity to the LDCs promoted as
UDC before 01.01.1986 to exercise option to keep
their induction post as LDC or UDC. Now
through letter under reference, the Board has
decided not to grant such option to the LDC
promoted as UDC after 01.01.1986 but it was
decided that hardship caused to these employees
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will be considered on merits.
It is, therefore, submitted that hardship
caused to me by drawing higher pay scale and my
basic pay by employees junior to me be removed
and I be granted pay scale of Rs.1500-2640 w.e.f.
01.01.88 and pay scale of Rs.1640-2925 on
completion of 16 years service and my salary be
fixed accordingly because I have been bearing this
hardship for the last 6/7 years. Kindly remove this
hardship at an early date."
8. Another Finance Circular was issued on 31.10.1995 in terms whereof,
it was clarified that for giving the benefit of time bound promotional scheme
after 9/16/23 years of regular service, the induction post is to be treated as
under :
"After considering this case and as per scheme
made by the Board vide office order
No.197/Fin/PRC-988 dated 23.4.1990, it is
clarified specially that one employee is entitled for
getting benefits of one induction post only during
his whole service. On the points raised by some
officers the clarification is being given as per
following :
I. Those Divisional Accountants who are
getting 8 years proficiency step up and 9 years first time
bound promotional scale are covered within 25% quota
as SAS Accountant and thereafter they pass SAS Part-II
examination, in such case which post is to be considered
as their induction post and from which date?
Those employees who have taken benefit of
one induction post for 9 years promotional
benefit, the said post would be considered as
his induction post.
II. Those Divisional Accountants who after
taking benefit of 9 years first time bound promotional
scale and thereafter clear the four papers of SAS Part-II
and SA Accountant (in qualified quota) and get
promotion, whether they should again be considered as
SA Accountant and be given said induction post after
9/16 years first and second promotional scale or their
post of Divisional Accountant be considered as induction
post for grant of time bound promotional scale after 16
years?
In such cases also the benefits of induction
post of Divisional Accountant are entitled
for.
III. Those Junior Scale Stenographers who are
posted/promoted to the post of Steno-typist
after passing Stenography test, is their post
be considered as their induction post?
In such cases the junior scale stenographer is
to be considered as induction post subject to
the condition that the concerned employee
has not taken benefit of 9/16 years time
bound promotional scale of steno-typist."
9. Yet again, the respondent by a letter dated 29.1.1996 opted for UDC
as his induction post, stating :
"With respect it is requested that I joined as Upper
Division Clerk on 5.7.1986 and in this way I
completed 9 years of my service as Upper Division
Clerk on 4.7.1995. Therefore, I be given 9 years
time bound scale of Upper Division Clerk from
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5.7.1995 and my salary be also settled according to
that."
10. Respondent, thereafter, raised an industrial dispute. The Board was
directed to consider his representation pursuant whereto and in furtherance
thereof by an order dated 30.10.2002, representation of the respondent was
rejected, inter alia, on the premise that :
(i) He had not completed 10 years of service as LDC and, thus, did not
fall in the upper ratio of 40% of LDCs;
(ii) He had already been promoted w.e.f. 5.7.1986;
(iii) He had already taken 9 years time on promotional scale keeping
his induction post as UDC on 8.7.1995; and
(iv) By reason of FC No.34/95 he was entitled to the benefit of revision
of scale of pay only at one induction level.
11. The writ petition filed by the appellant questioning the legality and/or
validity of the said order has been allowed by reason of the impugned
judgment.
12. Mr. Gulati, learned counsel appearing on behalf of the appellant, in
support of the appeal, inter alia, would submit :
(i) The High Court committed a serious error insofar as it failed to take
into consideration that the Board, in exercise of its regulation making
power, was entitled not only to make regulations but also to issue
circulars from time to time. As the validity of the circular letters
issued by the Board had not been questioned, the impugned judgment
is wholly unsustainable.
(ii) The High Court failed to consider the purport of the circulars and in
any event having not quashed any of them was not correct in granting
the reliefs in favour of the respondents herein.
13. Ms. Rani Chhabra, learned counsel for the respondent, on the other
hand, would submit that
i) Other employees having been granted the benefit of requisite option,
there was absolutely no reason why the respondent should be
discriminated against;
ii) As the Punjab High Court, in a similar set of facts had granted relief
to the employees which having been upheld by this Court, there is no
reason as to why the respondent should have been treated differently;
iii) As despite the aforementioned judgment of the High Court, a further
option was denied to the respondent, the High Court with a view to
avoid anomaly was right in passing the impugned judgment;
(iv) In any event, the benefit of circular letter dated 48/92 having been
granted to a large number of employees and, in fact, in the case of
Gurjant Singh, he having been allowed to opt both LCD as also UDC
as induction posts, there is no reason as to why the similar benefit
should not be granted to the respondent.
14. Mr. Gogia, learned counsel for the respondent in the connected
matter, would submit that the case of the respondent stands on identical
footing with that of Gurjant Singh who was junior to him and, thus, it would
lead to an anomalous situation that he shall draw a higher salary than the
respondent.
15. Indisputably, the Board being a statutory authority was entitled to
frame its own regulations. Section 15 of the Electricity (Supply) Act, 1948
empowers the Board to appoint Secretary as also such other officers and
employees as may be required to enable it to carryout its functions under the
Act. Section 79 of the Act provides for a regulation making power. Clause
(c) of Section 79 thereof empowers the Board to make regulation with
regard to the duties of officers and other employees as also their salaries,
allowances and other conditions of service. It is not in dispute that, in
exercise of the said power, the Board has made 1985 Regulations,
Regulations 13 whereof reads as under :
"PAY OF MEMBERS OF SERVICE
13. Members of the service shall be entitled to
such scales to pay as may be sanctioned by the
Board from time to time. The scales of pay at
present in force in respect of specified posts are
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given in Appendix-’A’."
16. We may also notice the relevant portion of Appendix A to have a
broad idea as regards the different scales of pay payable to the UDCs and
LDCs :
"6. Upper Division Rs.1200-30-1560-40-2000-50-2200
Clerk (With initial start of Rs.1350/-)
7. Lower Division i) Rs.950-25-1200-30-1560-40-1800
Clerk (With initial start of Rs.1000/-)
ii) Rs.1500-2600 (To 40% after 10 years
of service
iii) Rs.1640-2925 (Second time bound
scale after 16 years of service)"
The validity of the provisions of the said regulations is not in
question. The power of the Board to issue circulars from time to time in
support of the matters which are not governed by the statute or statutory
regulations is also not in dispute. The Board, as noticed hereinbefore, had
been issuing such regulations from time to time. It is now well settled that
the Board, even in absence of any express provision of statute, may issue
such circular.
17. In Meghalaya State Electricity Board & Anr. v. Jagadindra Arjun
[(2001) 6 SCC 446, it was held :
"11. As per Section 79(c), MSEB may frame
regulations not inconsistent with the provisions of
the Act and the Rules providing for the duties of
officers and other employees of the Board and
their salary, allowances and other conditions of
service. It is to be stated that this is an enabling
provision. MSEB may frame regulations as
provided in Section 79(c) of the Act, but in the
absence of any regulations, MSEB can lay down
service conditions by administrative
order/instructions. Section 15 of the Act empowers
the Board to appoint its employees as may be
required to enable MSEB to carry out its functions
under the Act except the Secretary who is to be
appointed with previous approval of the State
Government. The power to lay down service
conditions by regulations is expressly conferred
upon MSEB, so it has power to prescribe service
conditions. Section 78-A also provides that except
on question of policy for which the State
Government has issued directions, the Board is
entitled to discharge its functions prescribed under
the Act which would include appointment of staff
to enable it to carry out its functions and also lay
down service conditions. Hence, if there are no
rules or regulations pertaining to service conditions
of its employees, the same could be prescribed by
administrative order and such power of the
employer which is a statutory corporation would
be implied."
18. Yet again in Sohan Singh Sodhi v. Punjab State Electricity Board
[(2007) 5 SCC 528), M.P. Electricity Board (Supra) was noticed. It was
stated :
"10. The power of the State Electricity Board to
issue circulars in exercise of its powers under
Section 79(c) of the Electricity (Supply) Act, 1948
is not in dispute. It has the power to frame
regulations. If it can frame regulations, in absence
of any regulations, issuance of executive orders is
permissible in law. The power of framing
regulations prescribing conditions of service of its
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employees appointed by the Board in terms of
Section 15 of the Act cannot be disputed. Thus, in
absence of any rules or regulations governing the
service conditions of its employees, issuance of
administrative order is permissible in law vide
Meghalaya SEB v. Jagadindra Arjun."
Power of the Board to issue circulars, therefore, was not in dispute.
The validity of the said circular letters was not in question.
19. It is true that some anomaly stares on the face of the records. It
furthermore appears that a learned Single Judge of the Punjab and Haryana
High Court in PSEB & Ors. v. Surinder Kumar [RSA No.819 of 1989
judgment dated 19th March, 1999] opined that the employees concerned
were entitled to the benefit of the three scales proportionately 20:40:40 with
effect from 1.1.1986.
However, in that case, the employee joined the service on 26.8.1975.
He on 7.7.1983 was working as UDC but the Board was treating him as
LDC. The benefit of 16 years’ service from the date of joining as LDC was
granted to him. It was in the aforementioned situation, the employee therein
was being treated as a Lower Division Clerk.
The special leave petition thereagainst has been dismissed by a Bench
of this Court by an order dated 31.3.2000 in Punjab State Electricity Board
& Ors. v. Supinder Kumar Modgil [SLP (C)___/2000 (CC No.2119/2000)].
20. Our attention has further been drawn to a decision of another learned
Single Judge of the High Court in Chanan Singh v. Punjab State Electricity
Board, Patiala RSA No.337 of 1988 wherein, inter alia, it was held :
"A senior person who has proved his merit vis-‘-
vis the others in the same cadre would be placed in
the lower scale of pay while the juniors who were
either not qualified or had been found unsuitable
for promotion would be placed in higher scale of
pay. Such a course of action would be arbitrary,
unfair and would even amount to denial of equality
of opportunity in promotion. I am reluctant to
accept any interpretation of the order of revision of
pay scales which would deny the benefit of higher
scale to a senior and result in grant of a higher
scale to a junior. Mr. Goyal points out that the
grant of a higher scale to the extent of 50% of the
posts of Head Office Assistants is not promotion.
Even if it is assumed to be so, the getting of higher
scale carries with it the pecuniary benefits. A
senior person is entitled to all those benefits which
a junior in the cadre is getting. The pay of a
senior, in this case, cannot be less than that of his
junior."
21. It is, however, not denied or disputed that representations had been
received from various employees in response to the Finance Circular dated
18.7.1994 opting for retaining the post of LDC as induction post, vis-‘-vis
the hardship which would be faced by them. Each such representation had
been considered on its own merits.
22. We have also noticed hereinbefore that another Finance circular was
issued in 1992 with a view to remove the anomaly between scales of pay of
LDC and UDC. The option granted, however, was in respect of those who
had been promoted before 1.1.1986.
23. No such option was granted for those who had been promoted after
1.1.1986. It may seem unfortunate but that was the legal position. We
would, however, assume that despite absence of such a circular, the
employees could give an option on their own. Such an option could be
exercised even while making a representation for the purpose of
consideration of the Board on the ground of hardship. Unfortunately, the
respondent herein thought it fit to opt for the post of UDC as his induction
post. Our attention although has been drawn to the case of Gurjant Singh, it
is evident, that in terms of Finance Circular No.34/95 dated 31.10.1995, an
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employee was entitled to get the benefit of one induction post only during
his entire service. In this behalf, Regulation 13 is also significant in the
sense that it was for the Board to fix scales of pay to which we have
adverted to hereinbefore.
24. Respondent, however, it will bear repetition to state, by his letter
dated 29.1.1996 opted for 9 years’ time bound scale of Upper Division Clerk
from 9.7.1995 to which we have adverted to heretobefore.
An employee given the option to opt for one or the other induction
post or one or the other scheme is supposed to know his right or benefit. An
employee cannot be permitted to opt for one or the other scheme again and
again. Schemes are framed for the benefit of the employees ordinarily as a
one time measure. If by reason of a wrong option, an employee suffers, he
himself is to be blamed therefor and not the employer.
25. In State of Punjab & Anr. v. Kuldip Singh & Anr. [(2002) 5 SCC
756], the power of the Board to issue circulars was reiterated, stating :
"9. From the contents of the two circulars, it is
manifest that an employee in order to be eligible to
get the selection grade pay has to complete 15
years’ of service and he is not to be given such
scale of pay before he fulfils the said eligibility
criteria. It follows as a consequence that no
employee can claim selection grade pay before
completing 15 years of service on any ground
including the ground that an employee junior to
him has already been given such grade of pay. The
position is further clarified in the circular issued in
May 1987 wherein it is provided that in the event
of a junior employee getting the selection grade
pay earlier, the post in the said grade may be kept
vacant for the senior employee who may be given
the benefit of the pay prescribed for the selection
grade pay only after he completes 15 years of
service. The interest of the senior employee in
such cases is safeguarded by making the provision
that the inter se seniority between the two
employees will remain undisturbed despite the
junior employee getting the selection grade pay
earlier than the senior employee.
10. In view of the position communicated in the
circulars the claim of an employee for a selection
grade post was to be dealt with only in accordance
with the provisions in the circular. The reasons
stated in the judgment/order of the High Court that
the respondents were entitled to the higher grade
pay with effect from 1-1-1978 as employees junior
to them were granted such pay by that date is
extraneous and irrelevant for the purpose. The
High Court overlooked the provisions in the
circulars while directing the appellants herein to
grant selection grade pay to the respondents before
they completed 15 years of service. The High
Court was clearly in error in issuing a writ of
mandamus apparently against the government
circulars which were binding on the parties. The
judgment/order passed by the High Court is,
therefore, unsustainable. Accordingly, the appeal is
allowed, the judgment/order is set aside and the
writ petition filed by the respondents is dismissed.
It is made clear that if the respondents have
already drawn any amount in pursuance of the
judgment/order of the High Court, the same will
not be recovered from them."
26. Here also the High Court had failed to take note of the effect
and purport of the said circular.
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Ordinarily, the power of judicial review should not be exercised in a
case of this nature.
Furthermore, the High Court failed to take into consideration, the
legal principle that Article 14 being a positive concept, constitutional
scheme of equality cannot be applied in illegality.
27. The High Court, therefore, should have considered the effect of the
circulars vis-‘-vis validity or legality thereof. The matter might have been
different if the said circulars were issued without jurisdiction or otherwise
found to be unconstitutional or ultra vires the provisions of Electricity
(Supply) Act.
28. Having, however, held so, the question which arises is whether it is a
fit case where we should exercise our discretionary jurisdiction under Article
136 of the Constitution of India. We think we should not. Respondent is a
well-qualified person. He has passed the departmental examination. He is
in service for more than 32 years. He was promoted to the post of Upper
Division Clerk as far back as on 5.7.1986. He might have made a mistake in
giving a wrong option but it has not been denied or disputed that in the
implementation of the policy decision of the Board dated 3.10.1990,
respondent had been receiving an amount which is far less than the one
which was being received by his juniors.
In the case of Gurdeep Singh, we have seen that whereas the
representation of his juniors had been allowed, his representation had been
rejected. This may meet the requirements of law but we, having regard to
our extra-ordinary power under Article 142 of the Constitution of India, may
also pass some order which would meet the ends of justice. We say so not
on ipse dixit but on the premise that even in terms of Fundamental Rules
22(1)(a), there exists a provision for stepping up of pay. The said principle
would be applicable when a junior to a senior officer belonging to the same
category and the post from which they have been promoted and in the
promoted cadre, the junior officer on being promoted later than the senior,
gets a higher pay.
Technically the same may or may not be permissible but we may
notice that this Court in Union of India & Ors. v. P. Jagdish & Ors. [(1997) 3
SCC 177] applied the same principle, stating :
"This being the principle of stepping up contained
in the Fundamental Rules and admittedly the
respondents being senior to several other Senior
Clerks and the respondents having been promoted
earlier than many of their juniors who were
promoted later to the post of Head Clerks, the
principle of stepping up should be made applicable
to the respondents with effect from the date their
juniors in the erstwhile cadre of Senior Clerks get
promoted to the cadre of Head Clerks and their pay
was fixed at a higher slab than that of the
respondents. The stepping up should be done in
such a way that the anamoly of juniors getting
higher salary than the seniors in the promoted
category of Head Clerk would be removed and the
pay of the seniors like the respondents would be
stepped up to a figure equal to the pay as fixed for
their junior officer in the higher post of Head
Clerk. In fact the Tribunal by the impugned order
has directed to apply the principle of stepping up
and we see no infirmity with the same direction
subject to the aforesaid clarifications. This
principle of stepping up which we have upheld
would prevent violation of equal pay for equal
work but grant of consequential benefit of the
difference of salary would not be correct for the
reason that the respondents had not worked in the
post to which 35% [sic Rs.35 as] special pay was
attached in the lower cadre. But by reason of
promotion the promotee-juniors who worked on
the said posts, in fact, performed the hard duties
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and earned special pay. Directions to pay arrears
would be deleterious to inculcation of efficiency in
service. All persons who were indolent to share
higher responsibilities in lower posts, on
promotion would get accelerated arrears that
would be deleterious to efficiency of service."
29. It is not a case where the junior has been getting a higher pay because
of his earlier officiation in the higher post by way of officiating promotion.
We may notice that in such an event, this Court in Union of India & Anr. v.
R. Swaminathan & Ors. [(1997) (7) SCC 690], opined :
"2. The aggrieved employees have contended with
some justification that local officiating promotions
within a Circle have resulted in their being
deprived of a chance to officiate in the higher post,
if such chance of officiation arises in a different
Circle. They have submitted that since there is all-
India seniority for regular promotions, this all-
India seniority must prevail even while making
local officiating appointments within any Circle.
The question is basically of administrative
exigency and the difficulty that the administration
may face if even short-term vacancies have to be
filled on the basis of all-India seniority by calling a
person who may be stationed in a different Circle
in a region remote from the region where the
vacancy arises, and that too for a short duration.
This is essentially a matter of administrative
policy. But the only justification for local
promotions is their short duration. If such vacancy
is of a long duration there is no administrative
reason for not following the all-India seniority.
Most of the grievances of the employees will be
met if proper norms are laid down for making local
officiating promotions. One thing, however, is
clear. Neither the seniority nor the regular
promotion of these employees is affected by such
officiating local arrangements. The employees who
have not officiated in the higher post earlier,
however, will not get the benefit of the proviso to
Fundamental Rule 22."
30. Although the order of the Board cannot be said to be wholly illegal
and without jurisdiction warranting interference at the hands of the High
Court but, we are of the opinion that the respondents should be put at the
same scale of pay from the same day which was being paid to the employees
who was next below him in the post of LDC. We would, however, clarify
that the respondent shall not be entitled to treat his induction post both as
LDC and UDC. The amount payable to the respondent in terms of these
observations may be recalculated within a period six weeks.
31. To the aforementioned extent, the appeals are allowed. In the facts
and circumstances of the case, there shall be no order as to costs.