Holding

Stepping up of pay is not admissible to a senior even where a junior has been given a long‑term ad‑hoc promotion; the rule in Union of India v. R. Swaminathan remains applicable.

Summary

The senior employee, M. Suryanarayana Rao, claimed that his pay should be stepped up to match that of his junior who had been given an ad‑hoc promotion on a long‑term basis within a different circle, resulting in the junior drawing a higher salary. The Central Administrative Tribunal allowed the stepping‑up, but the Union of India appealed. The Supreme Court examined whether the principle laid down in Union of India v. R. Swaminathan, which held that stepping‑up does not apply when a junior’s higher pay arises from an ad‑hoc promotion, depends on the promotion being short‑term or long‑term. The Court held that the Swaminathan decision applies irrespective of the duration of the ad‑hoc promotion and that senior officers cannot claim stepping‑up when the junior’s promotion was made within a different circle. Consequently, the appeal was allowed and the Tribunal’s order set aside.

Issues considered

Whether a senior employee is entitled to stepping up of pay when a junior in a different circle has received a long‑term ad‑hoc promotion and draws higher pay.
Whether the decision in Union of India v. R. Swaminathan distinguishes between short‑term and long‑term ad‑hoc promotions for the purpose of stepping up.
Whether the Government memorandum, the Atchutaramiah decision, or the P. Jagdish case modify the rule on stepping up of pay.

Legislation cited

Fundamental Ruless. 22(1)

Subjects

service lawstepping up of payad hoc promotionseniorityFundamental Rule 22administrative lawpay fixationCentral Administrative Tribunal

Judgment

A UNION OF INDIA
v.
M. SURYANARAYANA RAO

AUGUST 7, 1998

B [M. SRINIVASAN ANDS. RAJENDRA BABU, JJ.]
-
Service Law :

Pay-Stepping up of-Entitlement to---Junior given ad hoc promotion
C on long-term basis within the circle to which he belonged whereas senior
who belonged to a different circle was neither considered nor offered such
ad hoc promotion-Therefore, Junior drew higher pay than the senior did-
Entitlement of stepping up of senior's pay on par with junior's pay-Held,
Law laid down in R. Swaminathan's case [1997]7 SCC 690 did not make
a distinction between ad hoc promotion for short-term and long-term while
D deciding stepping up of senior's pay under such circumstances-Hence,
stepping up of pay not admissible to senior even if junior is given ad hoc
promotion on long-term basis-Contention that R. Swminathan's case requires
reconsideration, rejected-Fundamental Rule 220)

The respondent's junior was given ad hoc promotion on a long-term
E basis within the circle to which he belonged whereas the respondent who
belonged to a different circle was neither considered for such ad hoc
promotion nor was he offered the same. As a result the junior drew higher
pay than the respondent did. Being aggrieved the respondent filed an
application before the Central Administrative Tribunal for stepping up of his
F pay on par with his junior, which was allowed. Hence this appeal.

On behalf of the appellant it was contended that according to the law .r
laid down in R. Swaminathan 's case the principle of stepping up of pay would
not apply in a case where a junior was given ad hoc promotion earlier as a
result of which he drew higher pay than the senior.

G On behalf of the respondent it was contended that the aforesaid case
would not apply in the present case as the Bench had considered only a short-
term ad hoc promotion of the junior and not a long-term ad hoc promotion
and, therefore, the decision in R. Swaminathan 's case required re-
consideration.

H Allowing the appeal, this Court
1060
h_
I

U.0.1. v. M. SURYANARAYANA RAO [SRINIVASAN,J.] 1061
HELD : I. It is clear from the judgment in R. Swaminathan 's case that A
the question of stepping up of pay did J!Ot depend upon the fact that the
promotion was short-term ad hoc promotion or long-term ad hoc promotion.
Hence, R. Swaminathan 's does not require re-consideration. Ad hoc
promotions are made within the circles where vacancies arose and the
respondent who was working in a different circle could not have been B
considered for such ad hoc promotion or offered the same. Therefore, the
respondent is not entitled to stepping up of his pay on par with his junior's
,. pay even if the junior is promoted on a long-term basis. (1065-B-C]

Union of India v. R. Swaminathan, (1997) 7 SCC 690, followed.

T. Atchutaramiah v. Regional Director, ES! Corporation, (1992) 21
c
ATC (Hyd), referred to.

Union of India v. P. Jagdish, [1997) 3 SCC 176, held inapplicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3752 of D
1998.

From the Judgment and Order dated 5.3 .97 of the Central Administrative
Tribunal, Hyderabad in 0.A. No. 913of1996.

P.P Malhotra, A.K. Sharma, Ms. Anubha Jain and C.V.S. Rao for the E
Appellants.

J. Ramamurthy, L.K. Pandey and S. Nanda Kumar for the Respondent.

The Judgment of the Court was delivered by

SRINIVASAN, J. Leave granted. F

The respondent herein applied before the Central Administrative
Tribunal, Hyderabad for quashing an order of the Government rejecting his
representation for stepping up his pay to be on par with the pay of his juniors
N.S. Shah and P. Panjiara who were promoted to the cadre of Telegraph Traffic G
Service Group 'B'. The grievance of the respondent was that though he was
promoted earlier and he was senior to the two persons mentioned above his
pay was fixed at a lesser scale, namely, Rs. 2000-3500 whereas the pay of the
said persons was fixed on a higher scale.

2. The Tribunal accepted the contention of the respondent and held H
1062 SUPREME COURT REPORTS [1998] 3 S.C.R.

A that he is entitled to get his pay stepped up to be on par with that of P.
Panjiara who was his junior. As regards Shah, the Tribunal held that the
respondent had not made a representation to the Government and therefore,
he could not seek stepping of his pay on par with Shah. However, the
respondent is satisfied with the order of the Tribunal. The Tribunal has limited
the relief of stepping up for a period of three years prior to the filing of his
B application before it as a contention was raised that this application was filed
four years after his junior P. Panjiara was promoted.

3. The judgment of the Tribunal is assailed by the appellant on the
ground that principle of stepping up will not apply in the case where junior
C had been promoted earlier to a higher post on adhoc basis and on account
of such adhoc promotion the junior got his pay fixed at a higher scale. In
support of this contention reliance is placed by the appellant on a judgment
of this Court in Union of India v. R. Swaminathan & Ors., [1997] 7 SCC 690.
A Bench of three Judges considered F.R. 22(1) and also the Government office
memorandum dated 4.11.93 which sets out various instances where stepping
D up of pay cannot be done. The Bench pointed out that in that case the higher
pay was fixed for the juniors not because of any promotion under FR 22 but
because of an earlier ah-hoc promotions given to the juniors for certain
'
.
periods. The following observation of the Bench will be relevant:

"The memorandum makes it clear that in such instances a junior
E drawing more pay than his senior will not constitute an anomaly and,
therefore, stepping up of pay will not be admissible. The increased
pay drawn by a junior because of ad hoc officiating or regular service
rendered by him in the higher post for periods earlier than the senior
is not an anomaly because pay does not depend on seniority alone
nor is seniority alone a criterion for stepping up of pay.
F
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
G
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
H remote from the region where the vacancy arises, and that too for a
U.0.1. v. M. SURYANARAYANA RAO [SRINIVASAN, J.] 1063
short duration. This is essentially a matter of administrative policy. A
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 B
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."

4. Learned counsel for the respondent contends that the aforesaid C
decision does not apply in the present case as the Bench had considered only
a short term ad-hoc promotion of the junior and not a long term adhoc
promotion. It is pointed out that in the facts of this case P. Panjiara had been
promoted on adhoc basis for long terms. The said fact is admitted in the
counter statement filed by the Government before the Tribunal. It was
contended that whenever a long term adhoc promotion had been given to D
junior and by virtue thereof his pay was fixed on a higher level, his senior
-~ must get his pay stepped up and the principle laid down by the Bench in the
aforesaid case would apply only to cases of promotion for short term. From
the passage extracted above from the aforesaid judgment it is clear that the
question of stepping up did not depend upon the fact that the promotion was
·E
short term adhoc promotion or long term adhoc promotion. The government
memorandum which has been referred to in the judgement does not make a
distinction between short term adhoc promotion and long term adhoc
promotion. The relevant part of the Government Memorandum which is
extracted in the judgment itself reads as follows:
F
"If a senior foregoes/refuses promotion leading to his junior being
promoted/appointed to the higher post earlier, the junior draws higher
pay than the senior. The senior may be on deputation while the junior
avails of the ad hoc promotion in the cadre. The increased pay drawn
by a junior either due to ad hoc officiating/regular service rendered G
in the higher posts for periods earlier than the senior, cannot, therefore,
be an anomaly in strict sense of the term."

5. The second contention of the learned counsel is that the Central
Administrative Tribunal has in several cases taken the view that if a junior
had been promoted on adhoc basis on long terms and his pay is fixed at a H
1064 SUPREME COURT REPORTS [1998] 3 S.C.R.

A higher scale, the senior is entitled to get his pay stepped up on par with the
junior. He has placed reliance on the judgment of the Tribunal in T.
Atchutaramaiah v. Regional Director, Employees' State Insurance
Corporation. Hyderabad, ( 1992) 21 Administrative Tribunal Cases 78. It is
stated by the Tribunal in para 4 as follows:

B "We have examined the case and heard rival sides. In an exactly
similar case like this, Bench had ordered stepping up of pay in allowing
0.A. No. 607 of 1990 by order dated 3.9.1991 (This order has
subsequently been upheld by the Hon'ble Supreme Court by orders
dated 31.1.1992 in SLP No.645of1992). We had held that where the
C pay of a junior is fixed on regular promotion at a higher stage than
his seniors on account of his having earned increments by virtue of
his earlier ad hoc promotions the pay of the senior should be stepped
up while fixing his pay on regular promotion. Hence applying the same
principles we have to order stepping up of pay in this case also from
1.1.1986."
D
When the matter was brought up by way of .l special leave petition
the petition was dismissed in limine by this Court with the following
observations:

"Since in the present case the Respondent was superseded at the
E· time of the ad hoc appointment of his junior and it is not the case of
the petitioner that the ad hoc appointment was offered to him and he
had refused it we are not inclined to interfere with the impugned
order."

6. Learned counsel has also drawn our attention to the orders of this
F Court dismissing in limine similar special leave petitions in other cases. It is ~--
contended by learned counsel that none of these decisions had been
considered by the Bench in R. Swaminathan's case and, therefore, the decision
in R. Swaminathan's case requires re-consideration. We are unable to agree.
In none of the cases cited by the learned counsel there is any reference to
G the relevant fundamental rules or the Government Memorandum. On the other
hand, the Bench has considered all the relevant rules and has laid down the
principle clearly. We find no justification to have the matter re-considered.

7. The learned counsel suggests that the Bench has failed to take note
of an .earlier judgment of a Bench of two Judges in Union of India v. P.
H Jagdish. (1997] 3 sec 176. Subsequent to the promotion of respondents in
U.0.1. v. M. SURYANARAYANA RAO [SRINIVASAN, J.] 1065
that case as Head Clerks from the posts of Senior Clerks, some of the posts A
of Senior Clerks were given a special pay of Rs. 3 5 per month. Though the
respondents had not worked on such posts they claimed re-fixation of their
pay in the cadre of Head Clerks on a notional basis that they were drawing
such special pay. That claim was negatived by the Bench. But the Bench held
that the respondents therein were entitled to have their pay stepped up to
be on par with that or their juniors who had worked in posts carrying such B
special pay and were promoted later than the respondents as Head Clerks.
The Bench took care to say that such stepping up would be only prospective
from the date of promotions of the juniors. The facts of the present case are
entirely different and the said ruling will not apply.

8. One of the reasons given by tht Tribunal in support of its order is
c
that when adhoc promotion were made, the respondent was not considered
therefor or offered the same and it was not as if he refused to take up higher
responsibility. The reasoning is highly fallacious. As pointed out by learned
counsel for the appellant adhoc promotions are made within the circles where
vacancies arose and the respondent who was working in a different circle D
could not have been considered for such adhoc promotion or offered the
same. The fact that ad hoc promotions are made within the circles has been
~~ noticed by the Bench in R. Swaminathan 's case.

9. We respectfully agree with the ratio in Union of India v. R.
Swaminathan & Ors., [1997] 7 SCC 690 and allow this appeal. The order of E
the Tribunal in OA 913196 filed by the respondent is set aside and the said
application is dismissed. No costs.

v.s.s. Appeal allowed.