JUDGMENT
S.B. Sinha, C.J.
1. The short question which arises for consideration in this writ petition arising out of a judgment and order dated 5th December 2000 passed by the Central Administrative Tribunal in OA 2220/98 and OA 97/99 is as to whether the respondents herein were entitled to ‘step-up’ of their pay’.
2. The respondents herein who were applicants before the learned Tribunal belonged to the Administrative wing of All India Radio. According to them, an all-India seniority list was to be maintained wherefor the feeder grade of Head Clerk and Accountant was being maintained for promotion to the post of Administrative Officer. A common seniority list of all-India basis is allegedly maintained in respect of the post of Administrative Officers also. The contention of the respondents before the learned Tribunal was that as one Shri R.P.S. Chauhan who was junior to them was getting a higher pay and as such, in terms of FR 22-C, the employees who were senior to him were entitled to a higher pay equivalent to the said Shri Chauhan. It is not in dispute that in a similar situation, Hyderabad Bench of the Central Administrative Tribunal in the case of R. Amanulla Khan granted such relief.
3. The correctness of the said decision indisputably was not questioned by the petitioners herein. Following the said decision, the learned Tribunal allowed the Original Applications.
4. Mr. Sameer Aggarwal, the learned counsel appearing on behalf of the petitioners would submit that the learned Tribunal went wrong in passing the impugned judgment in so far as it proceeded on the basis that a common seniority list is being maintained at the level of the Head Clerk. The learned counsel would contend that the seniority list is maintained at the zonal level and not on all-India basis. In this connection, our attention has been drawn to the recruitment rules for various posts in All India Radio which are to the following effect:
“The combined eligibility list should be prepared by first listing the eligible officers in each of the 15 zones separately and then arranging these eligible officers according to their length of continuous regular service subject to maintenance of inter-se-seniority.”
The basic point to be noted is that the eligibility list is not a seniority list. Since there are 15 separate zones, having separate seniority lists there is no comparison in the matter of seniority between the officers working in different zones. The date of appointment on regular basis is relevant for determining the placement of Head Clerk/Accountant/Senior Storekeeper in the eligibility list subject however to the maintenance of their inter-se-seniority within the respective zone.”
5. It was, therefore, urged that the respective Head Clerks being placed in different zones, belonged to different cadres and as such they were not entitled to stepping up of pay in terms of the extant rules. It has further been submitted that having regard to the rules afore-mentioned, as Shri Chauhan had joined the post earlier, the respondents herein were not entitled to the benefit of step up of pay. The learned counsel in support of the afore-mentioned contention, has relied upon Union of India and Anr. v. R. Swaminathan etc. etc., 1997(5) SLR 592.
6. Mr. S.Y. Khan, the learned counsel appearing on behalf of the respondents, on the other hand, would contend that keeping in view the fact that as similar relief had been granted to Amanulla Khan by the Hyderabad Bench of the Central Administrative Tribunal, the same became payable and in that view of the matter, the benefit of the said judgment must be granted to the respondents. The learned counsel would contend that the zone-wise seniority is not required to be maintained, as there existed an all-India seniority list and having regard to the fact that the respondents were even senior to said Shri Amanulla Khan, they were entitled to the same benefit.
7. The learned counsel, submitted that the decision of the Apex Court in Union of India and Anr. v. R. Swaminathan etc. etc. (supra), will have a prospective operation and as such the same would not be applicable in the instant case. Reliance in this connection has been placed on P. Venkata Rao and Anr. v. The Director General, Department of Telecommunications, New Delhi and Ors., 2002(1) ATJ 215 and Kamlakar and Ors. v. Union of India and Ors., 1999(3) SLJ 307.
8. From the recruitment rules, as noticed hereinbefore, it is evident that seniority lists are maintained of persons working in different zones and thus, the contention of the respondents to the effect that all-India seniority list is maintained, does not appear to be correct. It also appears that a specific contention was raised by the petitioner herein that Shri Chauhan who was the seniormost in the zone, was given ad hoc promotion erroneously to the grade of Administrative Officer in the year 1980 against a vacancy in the some zone. It has further been the contention of the petitioner herein that the increased pay being drawn by a junior either due to is ad hoc officiating/regular service rendered in the higher posts for periods earlier than the senior, the same was not treated to constitute an anomaly under the rule of stepping of pay of the senior. The Rules which are operating in the field are as under:
“(23) Instances which do not constitute an anomaly for stepping up of pay with reference to juniors.– Cases for stepping up of the pay of seniors in a pay scale to that of juniors are generally considered if the following conditions are satisfied:-
(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 and in the same cadre;
(b) The scales of pay of the lower and higher posts in which the junior and senior officer are entitled to draw pay should be identical.”
2. Instances have come to the notice of this Department requesting for stepping up of pay due to the following reasons:-
(a) to (b) …..
(c) If a senior joins the higher post later than the junior, for whatsoever reasons, whereby he draws less pay than the junior, in such cases senior cannot claim stepping up of pay at par with the junior;
(d) to (e) …..
9. Keeping in view the facts and circumstances of this case, as noticed hereinbefore, we are of the opinion that in the instant case, the respondents were not entitled to the benefit of stepping up of pay. The afore-mentioned Shri Chauhan and the respondents herein did not belong to the same cadre. Question of the grant of benefit of stepping up of pay would be attracted only in the event all the employees were of the same cadre.
10. In R. Swaminathan (supra), it has been held:
“11. According to the aggrieved employees, this has resulted in an anomaly. Government order bearing No. F. 2(78) – E. III(A) /66 dated 4th of February, of anomaly by stepping up of pay of a senior on promotion drawing less pay than his junior. It provides as follows:
“(10) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior – (a) As a result of application of F.R. 22-C- In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1.4.1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:-
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of F.R. 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.
The order refixing the pay of the senior officers in accordance with the above provisions shall be issued under F.R. 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.”
11. Yet again in ESI Corporation and Anr. v. P.K. Srinivasmurthy and Anr., 1997(4) SLR 749, it was held:
“7. Fundamental Rule 22-C at the material time was as follows:-
“Notwithstanding anything contained in these rules, where a government servant holding a post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued…..
The provision on which respondent No.1 relies is for removal of anomalies by stepping up of pay of a senior who, on promotion, draws les pay than his junior as a result of the application of fundamental Rule 22-C. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1.4.1961 drawing lower pay in that post than another Government servant junior to him in the lower grade ann promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post, should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post (G.I., M.F., O.M. No. F 2 (78)-E. III(A)-66 dated the 4th February, 1966). The stepping up should be done with effect from the date of promotion or appointment of the junior officer and is subject to the following conditions:
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of F.R. 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.
8. In the present case, respondent No.2 who is junior to respondent No.1 became entitled to a higher pay fixation on promotion as a Head Clerk than respondent No.1 because of the higher scale of pay to which he became entitled in the post of UDC In-charge by reason of the memorandum of 22.3.1978 as interpreted by the High Court in Gopala Sharms’s case. Respondent No.1 never held the post of UDC In-charge. He had held the post of UDC Cashier. He was, therefore, not entitled to the benefit of the memorandum of 22.3.1978. As a result, the lower post held by respondent No.1 carried a different scale of pay than the lower post held by respondent No.2. Since the scales of pay in the lower posts held by the two were not identical, the question of stepping up of pay for the purpose of removing any anomaly does not arise in the present case.”
12. In Union of India and Ors. v. Sushil Kumar Paul & Ors. 1998(2) SLR 708, it was observed:
“5. It is held by the Tribunal that the respondents and Mishra belonged to the same cadre and their pay scales were also the same in the lower posts and, therefore, they are entitled to the benefit of stepping up. But, what the Tribunal has failed to take into consideration is the Circular dated 4.11.1993 issued by the Government of India, Department of Personnel & Training which clearly provides that the anomaly for granting benefit of stepping up of pay should be directly as a result of the application of fundamental Rule 22-C and that if a junior officer draws a higher pay in the lower post either because of advance increments or on any other account then the provision of stepping up would not apply in such a case. Moreover in paragraph 2(C) of the Circular it is, further, provided that if a senior joins the higher post later than the junior, for whatsoever reason, whereby he draws less pay than the junior, in such a case senior cannot claim stepping up of pay at par with the junior.
6. In this case what had happened was that the respondents and Mishra were appointed as typists/clerks on different dates but were promoted to the post of Welfare Inspector Grade-III on the same date. Mishra was promoted to Grade II earlier than the respondents on ad hoc basis. He was promoted as Welfare Inspector Grade II on 1.2.1981 on ad hoc basis and worked continuously on the higher post up to 1.1.84 on which date the two respondents and Mishra were promoted as Welfare Inspector Grade II on regular basis. At that time he was getting a higher pay than the respondents because of his earlier ad hoc promotion. Mishra was again promoted as Welfare Inspector Grade I on ad hoc basis and worked on that post continuously from 28.7.86 to 13.1.93. On 13.1.93 the respondents and Mishra were promoted to Grade I on regular basis. On that date also Mishra was getting a higher pay because of his ad hoc promotion as Welfare Inspector Grade I. It was for that reason that Mishra, even though a junior, was getting more pay than the respondents. In view of these facts, the Circular governing stepping up of pay issued by the Railway Board and the law laid down by this Court in Union of India & Ors. v. O.P. Saxena the respondents were not entitled to the benefit of stepping up. The Tribunal, thus, committed an error in granting that benefit to the respondents. We, therefore, allow these appeals, and set aside the impugned orders of the Tribunal.”
13. The submissions of Mr. Khan to the effect that he judgment in Union of India and Anr. v. R. Swaminathan etc. etc. (supra), is prospective in nature, is stated to be rejected. By reason of the aforementioned judgment, the Apex Court laid down a law within the meaning of Article 141 of the Constitution of India. Therein, it was not directed that the same will have prospective operation. In absence of any such declaration by the Apex Court itself that the ratio laid down will be prospective in nature, it must be held that the same will have application in the instant case also.
14. We, therefore, are of the opinion that the decision of Central Administrative Tribunal in P. Venkata Rao and Anr. v. The Director General, Department of Telecommunications, New Delhi and Ors. (supra), is not applicable in the instant case.
15. In Kamlakar and Ors. v. Union of India and Ors., 1999(3)SLJ 307, the Apex Court was considering only the question whether the persons similarly situated should be given the same benefit or not. There cannot be any dispute with regard to the afore-mentioned proposition of law. The decision of the Hyderabad Bench of the Central Administrative Tribunal is not binding on this court. This court has to arrive at its own independent finding irrespective of the fact that the Hyderabad Bench of the Central Administrative Tribunal has laid down a different proposition of law.
16. Articles 14 and 16 of the Constitution of India have a positive concept. No person can claim equality on illegality nor can a right be claimed on the basis of a wrong order.
17. For the reasons afore-mentioned, we are of the opinion that the impugned order cannot be sustained which is set aside accordingly. This writ petition is allowed but in the facts and circumstances of the case, there shall be no order as to costs.