SHISH RAM AND ORS.versusTHE STATE OF HIMACHAL PRADESH AND ORS.

                          SHISH RAM AND ORS.                                 'A
                                       v.
          THE STATE OF HIMACHAL PRADESH AND ORS.

                                JULY 19, 1996

          [DR. K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                             B

        Constitution of India, 1950: A1tic/e 309.

        Se1vice Law-Promotion-State of Himachal Pradesh Class II
Gazetted posts-Head Clerks and Accountants-Pay scale of fonner lower
than that of /atteJ-Creation of posts of Assistants with higher pay scale by
                                                                                 c
an Executive OrdeJ"-Grant of higher scale to Head Clerks under statut01y
111/es than that of Acco~ntants-Promotions of Accountants and Head Clerks
fused togetheJ~Rtdes making Accountants and Head Clerks eligible for
promotion as Supe1intcnde11t-Creation of gazetted Class II post by Govcm-
ment-Eligibility to such posts confined only to Head Clerks and Assi.>tant       D
Supelintendents-Accountallls not included therein-Heid inspite of supe-
liority of Accountants over Head Clerks in the pay scale at initial stage
Ad111inistrative T1ibunal conunitted ennr in directing that Accountants should
be considered senior to Head Clerks and given proniotion tq class II gazetted
posts.
                                                                                 E
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9853 of
1996.

     From the Judgment and Order dated 25.5.93 of the Himachal
Pradesh Administrative Tribunal, Shimla in T.A. No. 90 of 1987.
                                                                                 F
     H.S. Gururaja Rao, Devendra Singh and Ms. Deeva Singh for the
Appellanl,.

        K.R. Nagaraja for the Respondent.

        Om Parkash Vashisht (In-Person) for Respondent.                          G

        J.S. Attri for the Respondent Nos. 1-2.

        The following Order of the Court was delivered :

        Leave granted.                                                           H
                                      771
    772                     SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.
                                                                                   •·
A        We have heard learned counsel on both sides and also respondent
    No. 8 in person.

        The undisputed facts are that while the appellants were working as
  Head Clerks and respondent Nos. 3 and 4, Gulzari Ram and Ram Lal were
B working as Accountants, the scale of pay of the Head Clerks was 160-400
  while tha.t of the Accountants was 160-450. Later by executive order dated
  November 11, 1976 the Government had created 10 temporary posts of
  Assistants and upgraded them.to the scale of Rs. 225-500 and some senior
  candidates came to be appointed to those posts. Subsequently, statutory
  rules under proviso to Article 309 of the Constitution came to be made,
C increasing the number of posts and scale of pay of all the Head Clerks,
  Assistants, Stenographers etc. to Rs. 225-500. By proceedings of the
  Government dated November 2, l979 with ef;fect from January 1, 1978
  promotions of Accountants and Head Clerks were fused together, Pay of
  Assistants, Head Assistants etc. was revised to Rs. 620-1200, while that of
D the junior Auditors and Accountants was revised to Rs. 570-1080. Similarly,
  for the promotion of the Accountants and Head Clerks statutory rules
  came to be made under proviso to Article 309 of the Constitution which
  came into force from June 13, 1978 enabling the Accountants and Head
  Clerks to be eligible for promotion as Superintendents. The Government
  have created promotional avenues to the posts of gazetted class II and the
E Head Clerks, Assistant Superintendents were made eligible for promotion
  to the said posts of Gazetted Grade II in the scale of Rs. 500-900. The
  Accountants were not included therein. The respondents 3 and 4 filed
    representations claiming promotion to these posts but their claims were
    rejected. When they filed the writ petition in the High Court, Shimla which
F was transferred to the Administrative Tribunal, which by the impugned in
    T.A. No. 90/87, dated May 25, 1993 directed the Government to consider
    their claims with effect from 1977 and also their entitlement for promotion
    as Gazetted Class II. Calling those directions jn question, the above appeal
    has come to be filed.

G         Shri Gururaja Rao, learned senior counsel for the appc1lants, con-
    tended that though respondent Nos. 3 and 4 were initially drawing higher
    scale of pay of Rs. 160-450 and the appellants as Head Clerks were drawing
    pay scale of Rs. 160-400, by statutory orders their scale of pay was in-
    creased to Rs. 225-5110 and later to Rs.620-1200 and thereby the appellants
H   scaled a march over the respondents \vhose scale of pay remained constant
                             SHISH RAM v. STATE                            773
'
    al Rs. 160- 450 which was increased to Rs. 570-1080 as referred lo hercin- A
    before. As a consequence, they cannot be made senior lo the appellants.
    Shri K.R. Nagaraja, learned counsel appearing for the respondents con-
    tended that they were recruited initially as clerks in November 1960 and
    May 1962; they were promoted as .Junior Accountants in 1964-65 and they
    were further promoted as Accountants in April 1973 and .July 1973. They
                                                                                 B
    always were treated to be seniors to the appellants who joined the service
    subsequent to their entry into the initial service. As per the executive
    instructions issued by the Government, a note was appended under which
    it was stated that when combined seniority for the purpose of promotion
    to the Superintendents was to be maintained from amongst the Assistants,
    Head Clerks, Stenographers and Accountants, the direction was to keep        c
    the Accountants en block seniors to all others. In other \vords, he contends
    that they \Vere dra\ving higher scale of pay and they \Vere treated seniors
    to the appellants and others; as a consequence, \Vhcn the revised rule came
    to be made under the fortuitous circumstances, their scale of pay was not
    lo he on par with the appellants and they cannot be denied of their D
    legitimate right to promotion to the pest of gazetted class II.

           Having given our anxious consideration to the respective contentions,
    we think that the case of the appellants is founded on a sounder footing
    than that of the respondents. ]( is true that the respondents were drawing
    higher pay-scale than that of the appellants at the initial stage. But, later, E
    when the statutory rule came to be made, there was a jump in the scale of
    pay of the appellants from Rs. 160-400 to Rs. 225-500 while the scale of
    pay of the respondents remained stagnant at Rs. 160-400. Even in the
    subsequent revision in the ministerial cadre, the appellants' scale of pay
    was higher than that of the respondents. They were treated two separate F
    entities as indicated earlier. When the statutory rules came to be made
    increasing their scale of pay and making them eligible for promotion
    directly to the post of gazetted cadre class JI from Assistants, Head
    Accountants, Stenographers etc. to a pay-scale of Rs. 500-900, it would be
    obvious that the executive instructions issued earlier had to yield place to G
    the statutory rules made under proviso to Article 309. lt is equally true that
    in the subsequent rules made on June 13, 1978 under proviso to Article
    309 of the Constitution fusing Accountants and Head Clerks as eligible for
    promotion to the post of Superintendent, it \vould be obvious that in vie\v
    of the fact that higher scale of pay was given to Assistants, Head Clerks in
    the scale of pay of Rs. 620-1200 which that of the respondents remained H
   774                  SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.
                                                                               ...
A to be Rs. 570-1080, by necessary implication they cannot be treated to be
  of the same class for the purpose of enabling them to seek promotion to
  the post of Uazelled Class IL Moreover, the statutory rules do not include
  Accountants as a feeder post for promotion as Gazetted Class II. Con-
  sidered from these perspectives, we are of the view that the Tribunal was
B in clear error in directing the Government to consider Respondent Nos. 3
  and 4 as senior to the appellants and in giving promotion over the appel-
  lants.

          The appeal is accordingly allowed and the T.A. of the respondents
    stands dismissed. No costs.
c T.N.A.                                                    Appeal allowed.