R. Santhanam, Member (A):— The applicants herein are aggrieved by the order No. A.32011/2002-Ad. II dated 17.09.2004 of the Respondent No. 2 whereby request of the applicants for pay protection on par with their juniors has been rejected.

2. The applicants are all working in the office of Directorate of Census Operations, Andhra Pradesh. The Registrar General of India, New Delhi, vide order No. A-32011/2/2000-AD.II dated 29.9.2000 (Annexure A-II to OA) had implemented the recommendations of the Fifth Central Pay Commission restructuring the statistical cadre in the organization with effect from 29.9.2000 The cadre starts with Asst. Compiler and thereafter progresses towards Computor, Statistical Asst. and Investigator. In the revised hierarchy, a person joining as Asst. Compiler will progress towards Compiler, Sr. Compiler and three grades in the Investigator cadre. For the sake of simplicity, the restructuring is reproduced as follows:—

Earlier Hierarchy Revised Hierarchy (w.e.f 29.9.2000) Assistant Compiler-468 (Rs. 3050-4590) Assistant Compiler-468 (Rs. 50-4590) Computor-1083 (Rs. 4000-6000) Compiler-775 (Rs. 4500-7000) Senior Compiler-308 (Rs. 4500-7000) Statistical Assistant-707 (Rs. 5000-8000) Statistical Investigator Gr. III-707 (Rs. 5000-8000) Investigator-311 (Rs. 5500-9000) (Group ‘B’ Non-Gazetted) Statistical Investigator Gr. II-169 (Rs. 550-9000) (Group ‘B’ Non-Gazetted) Statistical Investigator Gr. I-142 (Rs. 6500-10500) (Group ‘B’ Gazetted)

By the time of restructuring, the applicants were already promoted as Statistical Assistant. Consequent to restructuring, they were fitted in the Statistical Investigator Gr. III in the revised scale of pay of Rs. 5000-8000 (the pre-revised scale was also Rs. 5000-8000). Their pay was fixed accordingly. Similar exercise was done in the case of persons working in lower posts or below them in the seniority list. Some of the juniors to the applicants who were working as Computors were placed in the newly created post of Sr. Compiler with effect from 30.9.2000 Thereafter, they were further promoted against the quota meant for promotion in Gr. III counting the service rendered by them in the earlier cadre towards eligibility. The persons designated as Sr. Compiler were further promoted as Statistical Investigator Gr. III. At each stage, they got the benefit of pay fixation and consequently several of the juniors to the applicants have started drawing more pay than the applicants. Before January, 2000, the applicants were drawing a pay of Rs. 5450/- in the revised scale of pay Rs. 5000-8000 and continued to draw the same pay even after January, 2001 till the next increment was due. However, in respect of juniors to the applicants, this was not the case. For example, one Mr. Mohd. Khader Vali who was drawing pay in the scale of Rs. 4500-7000 in January, 2001, started drawing Rs. 5900/- in the scale of Rs. 5000-8000 after he was promoted as Statistical Investigator Gr. III by virtue of orders issued on 29.1.2001 These orders took effect from 1.11.2000 Thus even though juniors were promoted 13 months after the applicants into Gr. III, they started drawing more pay than their seniors. Aggrieved by these orders, the applicants represented individually to the Director, Census Operations, on various dates. Since there was no reply, they filed OA 530/2003. That OA was disposed of by order dated 27.7.2004 directing the Respondent No. 1 to pass appropriate order. The Respondent No. 2 in reference No. A-32011/1/2002-Ad. II dated 17.09.2004 rejected the claim of the applicants for grant of pay protection on par with the juniors. Hence this OA.

3. The Respondents, in their reply statement have stated that the existing post of Computors were bifurcated into two cadres as Compiler and Sr. Compiler. Similarly, the existing post of Investigator was also bifurcated into two cadres viz., Statistical Investigator Gr. II and Statistical Investigator Gr. I. The incumbent in the existing grades of Computors and Investigator were placed in the new grades initially on the basis of their inter se seniority in the grade as a one time measure. Those who were placed in the new grade carrying the higher pay scale were allowed pay fixation individually under FR 22(1)(a)(i). However, only statistical assistants were placed in the new grade of Statistical Investigator Gr. III carrying the same scale of pay i.e Rs. 5000-8000 and allowed to draw the same pay as they had been drawing in the existing cadre of Statistical Asst. prior to 29.9.2000 in view of same scale of pay attached to the posts of Statistical Asst./Statistical Investigator Gr. III. Subsequently, some of the Computors who were placed in the new scale of Sr. Compiler in the scale of Rs. 4500-7000 were promoted to the next higher grade post of Statistical Investigator Gr. III in the pay scale of Rs. 5000-8000 in the restructured cadre and were given the benefit of pay fixation under the normal rules. Due to this, some of the Sr. Compilers who were juniors to the applicants in the erstwhile grade of Computor were drawing more pay than the applicants on their promotion to the new grade of Statistical Investigator Gr. III. Though the applicants represented the matter to the Government their request for pay protection has not been acceded to by the Government on the ground that the conditions relating to promotion to the Statistical Asst. before 29.9.2000 and promotion to the post of S.I Gr. III after 29.9.2000 are not the same.

4. Heard Sri P. Naveen Rao, learned counsel for the applicant and Sri Bhim Singh representing Sri Y. Ravindra, learned standing counsel for Respondents. We have carefully considered their pleadings and also the cases relied upon by the learned counsel for the applicant.

5. The issue to be decided is whether the applicants are entitled to pay protection on par with their juniors in view of the anomaly in the matter of pay fixation following restructuring in the organization.

6. Learned counsel for the applicants argued that there is no justification to fix higher pay to juniors when they are discharging the same duties and responsibilities. Due to wrong implementation of cadre restructuring policy, the Seniors like the applicants were given a raw deal and juniors are conferred with more financial benefits. It is not the mistake of the applicants that they happened to be seniors to those in the pre-revised Computor cadre who got promoted as Sr. Compilers and again as Statistical Asst. when the restructuring was made. The anomaly created is directly attributable to the administration and is directly covered by the provisions in FR 22. The learned counsel mentioned that the anomaly arose from the fact that while applying the cadre review, the revision was applied from the date of issue of the orders i.e 29.9.2000 for all categories except the S.I Gr. III for whom revision was extended from 1.1.1996 If the restructuring had been applied uniformly to all the cadres, the applicants could have been fixed in the cadre of Sr. Compiler with effect from 1.1.1996 and then brought into Statistical Investigator Gr. III. Learned counsel for the applicant also cited judgment of the Hon'ble Supreme Court in the case of State of Mizoram v. Mizoram Engineering Service Association, (2004) 6 SCC 218) and Commissioner & Secretary to Government of Haryana & Others in Civil Appeal No. 3250/06. According to the learned counsel, in both the cases the Hon'ble Apex Court ruled that seniors were entitled to stepping up of pay bringing them on par with the salary received by the juniors.

7. The short point to be decided is whether the applicants are entitled to pay protection on par with their juniors consequent to implementation of the restructuring policy.

8. The learned counsel for the Respondents argued that the Registrar General of India had issued orders implementing the restructuring of Statistical cadre posts with effect from 29.9.2000 after discussing the issue with the representatives of Staff and Staff Unions at various levels. As per Pay Commission Recommendations, the mode of recruitment to the post of Statistical Investigator Gr. I was 100% by promotion which resulted in blocking the promotional avenues of the incumbents of the posts below. The Government therefore, implemented the Pay Commission's recommendations after modifying them keeping in view the interest of the staff i.e changing the mode of recruitment of the post of Statistical Investigator Gr. I from “100% by promotion” to “50% by promotion and 50% by direct recruitment”, upgrading all the 707 posts of Statistical Assistant from Rs. 4500-7000 to Rs. 5000-8000 designated as Statistical Investigator Gr. III against the Pay Commission's recommendations to upgrade only 400 posts out of 700 posts. Admittedly, bifurcation of cadres in the restructuring cadre and allocation of posts in each grade was made as per recommendations of Fifth Pay Commission with suitable modifications to the best advantage of the staff working in the statistical cadre posts in the department. It is also not denied that this has also led to certain anomalies.

9. According to the instructions contained in Government of India's order No. 22 incorporated under FR 22, the stepping up of pay of a senior official on par with the pay of junior can be allowed under the following conditions namely:—

“(a) Both the juniors 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 scales 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 FR 22-C”.

In the instant case the applicants were promoted to the erstwhile grade of Statistical Assistant from the erstwhile post of Computor in the pay scale of Rs. 4000-6000. Whereas their juniors were promoted to the new grade of S.I Gr. III from the grade of Senior Compiler carrying the pay scale of Rs. 4500-7000. As such the cadre of posts and pay scale of the post of the seniors and juniors from which they were promoted to the post of S.A/S.I Gr. III are not one and the same. Further as already stated in earlier paras the anomaly has arisen due to implementation of restructured cadres in the Statistical cadre w.e.f 29.9.2000 and not arisen directly as a result of the application of F.R 22. Hence the provisions of F.R 22 for stepping up of pay are not applicable to the applicants and their pay cannot be stepped up on par with the pay of their juniors under F.R 22.

10. We have gone through the judgments relied upon by the learned counsel for the Respondents. In the case of State of Mizoram v. Mizoram Engineering Service Association the Hon'ble Supreme Court ruled that there was no justification for confining the higher scale to a particular individual and denying the same to others which was sought to be done by the Government of Mizoram. The facts and circumstances of the present case cannot be compared with the case cited above. However, in the case of Commissioner & Secretary to Government of Haryana the question arose whether senior employees who came to Group-C post through a different source of recruitment and got lesser pay scale compared to their juniors who came to Group-C from Group-D are entitled to stepping up of their pay. The Hon'ble Apex Court made the following observation:—

“If there is any anomaly to the effect that the senior Government servants are receiving lesser pay than their juniors, who entered the service from a different source of recruitment, certainly such senior Government servants are entitled to stepping up of their pay in order to bring them on par with the salary which is being received by their juniors.”

Allowing the appeal partly, the Hon'ble Apex Court held as follows:—

“In case of any anomaly, if the employees who, on fixation of ACT scales, are in receipt of lesser salary than their juniors in the same cadre/post then their salary shall be stepped up accordingly”.

In the present case, the seniors have been put in disadvantage for no fault of theirs. The respondents have admitted in the reply statement that in so far as S.I Gr. III, the recommendations of pay commission were implemented with effect from 1.1.1996 whereas with reference to all other grades the revision was implemented with effect from 29.9.2000 There is no convincing explanation or justification as to why such staggered implementation has been done. As pointed out by the applicants in their rejoinder, their grievance stems from the action of the respondents in implementing the cadre revision in two different spells. Even the respondents have admitted in the reply statement that the anomaly has arisen due to implementation of restructuring in Statistical cadre with effect from 29.9.2000 and not directly as a result of FR-22.

11. We agree with the applicants that whatever be the circumstances, the anomaly of pay, wherein a junior draws more pay than the senior in a same cadre has to be rectified. In the result, we allow the OA with the direction to the Respondents to rectify the anomaly by either paying the difference as a personal pay to the seniors to be absorbed in future increments or by any other method that is feasible under the rules within a period of three months from the date of receipt of a copy of this order.

12. The O.A is allowed accordingly. No order as to costs.