[G.O.Ms.No. 15592/230/AI/FR.-II/93, Fin. & Plg., Dt. 17-5-1993]
Ref.* :— 1. G.O.Ms.No. 190, Fin. & Plg., (FW. Courts), Dt. 10-6-1983.
G.O.Ms.No. 297, Fin. & Plg. (FW.PRC.-I) Dept., Dt. 25-10-1983.
G.O.Ms.No. 182, Fin. & Plg. (FW. FR.-II) Dept., Dt. 7-5-1984.
Supreme Court Judgment, Dt. 13-3-1989.
Spl. Secy. Finance, D.O.Lr.No. 63-A/1005/FR.II/88-8, Dt. 31-3-1989.
Secretary Fin., D.O.Lr.No. 68-A/1005/Fr.-II/88-17, Dt. 18-6-89.
Order :—In the G.O. first read above the following instructions were issued for fixation of pay of seniors notionally on the date on which their juniors were appointed to the selection grade.
(i) Such of the seniors who were on promotion to next higher post in the regular line on the date on which their juniors were appointed to the Selection Grade will be entitled to get their pay fixed in the Selection Grade notionally and on the basis of this selection grade, their pay shall be fixed in the higher post from the date the Selection Grade became applicable to them, provided they held their lien on the posts in the lower category on the date on which the junior get the Selection Grade.
(ii) The Senior should be eligible for appointment to the Selection Grade post in accordance with the rules governing appointment to Selection Grade.
(iii) Both the junior and senior (who is being given this benefit) should belong to the same lower category. In other words the inter-seniority in the same lower category will be the basis for considering the claim.
(iv) The persons outside the regular line are already covered by the orders issued through the Government Memorandum fourth read above. This order is not therefore applicable to those who were outside the regular line on the date on which their junior was appointed to Selection Grade.
In the reference second cited, orders were issued for stopping up of pay of senior employee with effect from the date of promotion/appointment of the Junior employee to a figure equal to the pay as fixed for the junior in the higher post of which he is promoted on or after 1-4-1981 subject to the following conditions—
(a) both the senior and junior should have been drawing pay in an identical scale,
(b) the senior as well as the junior should be promoted to the same category of post carrying the same scale of pay,
(c) the pay of the junior in the lower category should have been less than or equal to that of the senior in the lower category prior to promotion of the senior to the higher post,
(d) once the pay of the senior is refixed under F.R. 27 on par with that of the junior in the identical post carrying an identical scale of pay, the next increment of the senior will be admissible, only after completion of the required period of service to earn an increment with effect from the date of refixation of pay,
(e) the anomaly should be directly as a result of the application of the orders issued in G.O.Ms.No. 297, Fin. & Plg. (FR. PRC. I) Department, Dt. 25-10-1983. If not, for example if even in the lower post, the junior was drawing more pay in the lower post than the senior for any reason, such as grant of advance increment for merit or as a reward or under the pay of the senior in the higher post to be equal to that of his junior under these orders, and therefore, these orders would not be applicable in such cases, and
(f) in all cases effected by this order, the pay shall be fixed notionally from the date of the junior got a pay higher than that of the senior in the higher post with monetary benefit from the date of these orders.
In the order third read above, to safeguard the interests of a senior employee promoted before introduction of the provisions of F.R. 22-B in relation to a junior promoted after the introduction of F.R. 22-B, orders issued for stepping up of the pay of senior to a figure equal to the pay as fixed for the junior in that higher post, as a result of application of F.R. 22-B, subject to the following conditions :—
(i) The stepping up should be done, with effect from the date of promotion or fixation of pay of the juniors official under the new Rule 22-B of Fundamental Rules/Rule 35-A of Hyderabad Civil Service Rules.
(ii) Both the Junior and Senior Officer should belong to the same cadre and the posts to which they are promoted should be identical and in the same cadre.
(iii) The scale of pay of the lower and the higher post in which they are entitled to draw pay should be identical.
(iv) The anomaly should be directly a result of fixation of pay of the junior person under the new Rule (FR. 22-B) consequent on his promotion after the 25th December, 1982. For example if even in the former post, the junior person draws from time to time a higher rate of pay under normal rules, or any advance increments are granted to him the pay of the senior person promoted before the 25th December, 1982 should not be stopped up.
(v) The orders refixing the pay of the senior persons shall be issued under F.R. 27/Rule 41 of Hyderabad Civil Service Rules.
(vi) The next increment of the senior person will be drawn from the date on which it would have fallen due but for the stepping up of his pay under this order.
(vii) In respect of pay fixation under this order, falling after 25th December, 1982 but before 23rd August, 1983, the monetary benefit shall be followed from 23-8-1983.
F.R. 27 contemplates grant of premature increments to a Government Servant on a time scale of pay. This provision has to be invoked by an authority which has got powers to create a post in the same cadre on the same scale of pay. This would mean, that only Government which has got powers to create a post in the same cadre and in the same scale of pay are empowered to operate the provisions of this rule.
When the orders of Government are as above, certain pay fixation authorities by erroneous interpretation of the above 3 G.Os. have wrongly stepped up the pay of the seniors on par with the juniors, even though such cases do not satisfy one or more of the conditions prescribed in the above 3 G.Os. When such irregular pay fixations (stepping up of pay) were noticed in the audit and by the special calls constituted for the purpose the pay fixation authorities reviewed the matter and refixed the pay of the seniors duly stepping down the pay of the senior to its original stage. Aggrieved by such stepping down of pay, some of the employees had approached the A.P. High Court and A.P. Administrative Tribunal seeking directions to Government for stepping up their pay on par with their respective juniors on the doctrine of "equal pay for equal work."
The A.P. High Court/The A.P. Administrative Tribunal after having gone through the various petitions before them, have issued orders in favour of the petitioners on the above principle. Pursuant to the orders of the Courts, Government has issued instructions/orders for implementation of the Court Orders. Since the number of such claims increased from time to time, Government filed Special Leave petition in the Supreme Court of India in a number of cases. Finally, after on 13-3-1989 in a batch of petitions (C.A.Nos. 307-316 of 1983) and allowed the SLP filed by Government.
The Supreme Court of India, while allowing the appeals preferred by the Government of A.P. have observed as follows :
"Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay-scale is provided in a cadre the Constitutional mandate of equal work is satisfied. Ordinarily grant of higher pay to a junior would exfacie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid Statutory Rules/Executive Instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar when advance increments are given for experience/passing a test/acquiring higher qualifications or as incentive for efficiency, are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentiate on those grounds would be based on intelligible criteria which do not therefore find any good ground to sustain the judgments.
The argument based on Rule 27 was never raised before the High Court/Tribunal. There is neither any material on the record nor any justification before us to direct the appellant authorities to Act under Rule 27 of the Fundamental Rules. The respondents may be if so advised to approach the appropriate authorities for any such relief.
The appeals are accepted. Judgments of the Andhra Pradesh High Court and the Andhra Pradesh Tribunal are set aside and the writ petitions/ petitions/applications of the respondents before the High Court/Tribunal are dismissed. There will be no order as to costs.
The respondents are white-collared salaried persons and it may be too harsh for them to refund the salary already paid to them. Therefore in the interest of justice, we direct that the additional salary paid to them as a result of High Court/Tribunal judgments upto 31-3-89 shall not be recovered from them.
On receipt of the above judgment of the Supreme Court, instructions have been issued through the references 5th and 6th read above for stepping down of the pay of the seniors wherever the original act of stepping up of pay was erroneous.
It has been felt by Government for some time past, that there is an imperative need to give comprehensive instructions on the issue, keeping in view the judgment delivered by Supreme Court on 13-3-1989. Hence the following instructions are issued for guidance and implementation by the Departments of the Secretariat, Heads of Departments etc., scrupulously.
Because of the afflux of time and due to the existence of a number of Court Orders, there are different possibilities of cases occurring under different circumstances. A diagram depicting the various possibilities and sequences of events in all such cases where such stepping down of pay has been done (as the Original stepping up was not in accordance with the G.Os. 1st to 3rd read above) is shown in the annexure. In all such cases where the pay was originally stepped up erroneously from the date on which it was originally stepped up erroneously. In all such cases the issue now is whether to recover the arrears already paid and if so under what circumstances and from which date. From the diagram enclosed, action has to be taken under six different categories of cases marked as A, B, C, D, E and F in the diagram.
(i) Category A, B, C and F :—The Supreme Court of India, in its judgment, dated 13-3-1989 in C.A.Nos. 307-316 of 1988, besides setting aside the judgments of the A.P. High Court and the A.P.A.T. directed that the additional salary already paid to the Government Servants as a result of the judgments of the High Court/ APAT upto 31-3-1989 shall not be recovered from them. Since the judgments of High Court/APAT were setaside by Supreme Court, the question of paying additional salary on par with juniors after the date of Supreme Court judgment does not arise if the additional salary was not paid. Therefore, the question of recovery of the additional amounts arises only if the same was paid after 31-3-1989. That means to say that after stepping down the pay i.e., restoring the pay to that existing prior to stepping up, any excess amount paid after 31-3-1989 as worked out, will have to be recovered after issuing show cause notices to the effected parties. The only condition is that the additional amounts paid prior to 31-3-1989 should not be recovered.
(ii) Category D and E :—In case the judgments of APHC/APAT were delivered prior to 13-3-1989 and were not implemented by the Government/Departments before 31-1-1989 and in case the APHC/APAT passed orders directing implementation of the said judgments of APHC/APAT those orders are against the spirit of the said judgment of the Supreme Court and hence they need not be implemented at this stage. Further there is no need also to file any review petitions at this belated stage. In case any individual approaches APAT/High Court for implementation of their judgments, the fact that the judgments are deemed to have been over-ruled by the judgment of Supreme Court, can be brought to the notice of the APAT/A.P. High Court, as according to Art. 141 of the Constitution of India, the Law declared by the Supreme Court shall be binding on all Courts within the territory of India.
In all the cases where recoveries are to be affected as a result of implementation of these orders, the Drawing and Disbursing Officers shall recover the same in easy instalments ranging from 24 to 48 instalments depending upon the circumstances of the case and the quantum of amount to be recovered. In case, the employees are due to retire shortly the amounts may be recovered from the gratuity payable to the employees on retirement. In respect of the persons already retired the excess amounts actually paid may be recovered from the relief on pension. In all the cases where recoveries are to be effected show-cause notices shall necessarily be issued before actually effecting recovery.