PARTHA PRATIM MUKHERJEE v. CENTRAL EXCISE & CUSTOMS

all consequential monetary benefits to the applicants within a period of as to this Hon'ble Tribunal may seem fit and proper.

d) An order directing the respondents to produce/cause production f all relevant records.

e) Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."

2. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-

The applicants were initially appointed as Steno/ UDC. They were subsequently promoted as Inspectors and were placed above the direct recruit Inspectors in the seniority list. In the course of time, the pay of direct recruits, by virtue of financial upgradation, became more than that of the applicants. Some employees of the respondent organization approached the Tribunal and were granted the benefit of stepping of their pay. The applicants herein claim to be identically situated as the employees who got the benefit of stepping up of pay. Aggrieved by the respondents' refusal to extend the same benefits, the applicants have filed this OA.

3. Learned Counsel for the applicant, relying on the judgments of this Tribunal in OA nos. 568/2012 and 802/2012, submits that identical issue has already been adjudicated by this Bench of the Tribunal. He also cites judgments in OA no. 156/JK/2009 of Chandigarh Bench of CAT which was upheld by the Hon'ble High Court and the Hon'ble Supreme Court on appeal.

4. Per Contra, Learned Counsel for the respondent submits that the judgments cited by the applicants are in personem and have been implemented by them as such. Respondents submit that the direct recruits were given the benefits of 1^stACP as per the provisions of DoPT OM of

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09.08.1999 because they did not get any promotion in 12 years whereas the applicants had already got a promotion and were not entitled to 1^stACP. After giving the benefits of first financial upgradation to the direct recruits, their pay became more than that of the applicants. There was, however, no change in the seniority position of the applicants vis-à-vis the direct recruits. Respondents contend that the rules regarding stepping up of pay of a senior in the event his junior is getting more pay than him is not applicable, if such a scenario has emerged as a consequence of financial upgradation under the ACP scheme of 1999.

4.1 Respondents further submit that the applicants, who are promotees, and the direct recruit Inspectors belong to different streams of service and the principles governing stepping up of pay do not apply in the instant case.

5. Heard the parties. Perused materials on record.

5.1 We have perused the judgment passed by this Bench in OA nos. 568/2012 and 802/2012. We consider it necessary to quote this judgment in detail :-

" Before we embark on writing the order, it is clarified that the OA. 568 of 2012 and OA. 802 of 2012 are analogous and to avoid repetition we will be dealing with OA. 568 of 2012, where findings will apply to OA 802 of 2012. The applicants of OA. 568/2012 have sought the following reliefs:- "8(a) The applicants be given the benefit of stepping up of salary at par with their Juniors. (b) Any consequential benefits on account of getting such step up of salary and interest @18% on the amount of arrear be granted to the applicants from the date of settlement to the date of payment. (c) Damages and costs be granted to the applicants because of the indifferent conduct and attitude of the respondent authorities in granting the service benefits to the applicants to which they were preeminently entitled to.

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(d) Leave may be granted to file a single application, since the applicants are having common cause of action and common nature of relief and they have common Interest in the matter as per Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987. (6) Any other relief or reliefs be given to the applicants as Your Lordships may deem fit and proper." 2. The facts of the case are as follows:- That the applicants are citizens of India and were appointed as direct recruit, upper division clerks in the department of Central Excise and presently they are working as Excise Superintendents. They have all received the financial upgradations under Assured Career Progression Scheme implemented vide O.M No. 35034/1/97 Estt. (D) dated 09.08.1999 which are two upgradations, including promotion if any, till 31.08.2008. The case of applicant no. 1, Shri Debashis Ganguly is that he had joined as direct recruit upper division clerk on 25.11.1985 and was promoted to the grade of Inspector on 19.09.1990. The applicant was placed in Serial No. 681 in seniority list published in the year 2002. Shri Subrata Mallick who was junior to the applicant (Serial No. 602) In the seniority list was directly recruited as Inspector and joined on 26.12.1990 (Annexure A-1). The applicants have pointed out the judgment of the Hon'ble Supreme Court in the matter of Commissioner and Secretary to Government of Haryana & Ors. V. Ram Sarup Ganda & Ors, reported in 2007(2) SCT 476 where it was held that "If there is any anomaly to the effect that the Senior Government Servants are receiving lesser pay then 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." The applicants accordingly made representation in 2007 before the respondents authority praying for stepping up of pay at par with their juniors (Annexure A-5). Meanwhile, a representation was made by one Shri Ashoke Kumar, Inspector of Chandigarh Commissionerate who was similarly placed with the applicants and whose similar prayer was rejected by the department on the plea that the judgment of the Hon'ble Supreme Court in the matter of Ram Sarup Ganda & Ors. (Supra) was in personnel and not in rem and that the ACP Scheme of Haryana Government and Central Government were not the same. The said Shri Ashoke Kumar filed an application before the Hon'ble Central Administrative Tribunal, Chandigarh Bench and the Tribunal vide order dated 19.01.2010 allowed the stepping up of pay of the applicant, Shri Ashoke Kumar (Annexure A-6). The relevant portion of Annexure A-6 is set up below:- (OA 156-JK-2009) "9. The issue raised in this case as to whether a senior person, though having received two promotions, is entitled to stepping up of his pay at par with his Junior, who has been granted benefit under ACP Scheme and by virtue of this, is receiving higher pay than his senior, stands clinched by various decisions of this Tribunal including in OA NO. 842-JK-2007 decided on 17.11.2009 titled Madan Gopal Sharma & Others vs. Union of India & Others. In that case reliance was placed on decisions of Apex Court in the case of Ram Sarup Ganda(supra) and (Gurmail Singh). Reliance was also placed on decision in the case of Harcharan Singh Sudan (supra). It was held that seniors are entitled to step up their pay as a general rule as and when any junior gets fixed in a pay scale higher to them on a count of grant of ACP Scale. Para 14 of the decision in the case of Harcharan Singh Sudan (supra) in Para 14 is reproduced as under- "14. However, one aspect is to be seen. In the case decided by the Apex Court, the State Government was the appellant and the challenge was

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against the High Court judgment, which held that the higher pay scale be given to the respondents at par with their juniors whose pay scale became higher on account of the benefit of ACP afforded to them. The appeal was not dismissed but partly allowed and it was declared that the respondents were entitled to stepping up of pay. In other words, there shall only be the stepping up of pay and not the pay scale. The pay scale in respect of the applicants would remain the same as of date but the pay would be fixed in appropriate stage, and if there is no stage no match the pay drawn by the junior, the difference shall be treated as one of personal pay. The pay partly would be compared annually and partly would be maintained in future." 10. Finding that the facts of this case are covered by the decision in the case of Harcharan Singh Sudan's case as well as Mandan Gopal Sharma & Others (supra), this original application is allowed to the extent that Annexure A-2 relating to rejection of claim of applicant is quashed and set aside. 11. With this O.A. stands disposed of and the respondents are directed to step up the pay of the applicant at par with his junior aforesaid and in terms of the directions contained in the case of Harcharan Singh Sudan(supra). It is made clear that the applicant shall be given stepping up of pay only and not the pay scale, as explained above. The pay may be fixed accordingly and arrears be also paid to him within a period of three months from the date of receipt of a copy of this order. However, in the given facts and circumstances of the case, applicant is not entitled to interest. Parties to bear their own costs." 3. The respondents authority had preferred a writ petition before the Hon'ble High Court of Punjab and Haryana being CWP 12894/2010 against the order of Hon'ble ÇAT, Chandigarh Bench and the Hon'ble High Court's vide judgment dated 23.07.2010 opined that "having heard the learned counsel we are of the considered view that the order passed by the Tribunal for stepping up the pay of the petitioner and bringing it equivalent with the pay of his Junior Shri Ramesh Chand Sharma, does not suffer from any legal infirmity". Accordingly, writ petition fails and the same is dismissed." The department filed a SLP before the Hon'ble Supreme Court being Special Leave to Appeal (Civil) CC 7278/2011. The Hon'ble Supreme Court vide order dated 02.05.2011 was pleased to dismiss the SLP on the ground of delay as well as on merit (Annexure A-3). T relevant portion cited below:- "Upon hearing counsel the Court made the following: The Special Leave petition is dismissed on the ground of delay as well as merit." Hence, the applicant Shri Debashis Ganguly together with Shri Krishnadas Banerjee and Anilaya Chakraborty have sought the above reliefs i.e. pay parity with their respective juniors from the concerned dates respectively as juniors pertaining to their individual cases. It is the case of the respondent's authorities that under ACP Scheme, the pay being personal to each beneficial official/employees, the question of stepping up of pay of seniors, drawing lesser pay than juniors, getting the personal pay, did not arise. In the instant case all the applicants have already got promotion and hence were found not eligible for grant of 2 nd ACP (after 24 years of service). Further, their representations/applications for grant of "stepping up" also could not be entertained, since the higher/additional pay referred by them are in fact allowed to the officers' junior to them, as personal pay.

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As far as the judgment of the Hon'ble Supreme Court (SLP CC7278/2011) and Hon'ble High Court of Punjab and Haryana (CWP 12894/2010) in the Ashoke Kumar case are concerned, no final direction in the matter has yet been issued by the Government for general acceptance or rejection. 3. Findings: We as a Coordinate Bench of Hon'ble Central Administrative Tribunal, Chandigarh Bench are bound by the direction/decision arrived at by the Co-ordinate Bench specially when it is upheld by the concerned Hon'ble High Court and the Hon'ble Supreme Court. In Sub-Inspector Rooplal & Another v. Lt. Governor through Chief Secretary, Delhi & others, 2000 SCC (L&S) 213 it was held that a Co-ordinate Bench of a Court (CAT) cannot pronounce judgment contrary to declaration of law made by another Bench of CAT. 4. Hence it is ordered that the respondents are directed to step up the pay of the applicants at par with their respective juniors aforesaid and in terms of the direction contained in the case of Harcharan Singh Sudan (supra). It is made clear that the applicants shall be given stepping up of pay only, and not the pay scale. The pay may be fixed accordingly and arrears to be also paid within a period of 3 months from the date of receipt of the copy of this order However, in the circumstances of the case the applicants cannot claim interests in the case. 5. The above order will also govern the applicant in OA 802/2012, Shri Tapan Bose v. Union of India & Ors. (Central Excise). A copy of this order should also be kept in that concerned file. 6. Thus, this OA is partly allowed. No costs."

5.2 We are in agreement with the Learned Counsel for the applicants that the issue involved in the instant case are identical to the issue in OA nos. 568/2012 and 802/2012, and we are bound by our own orders in OA nos. 568/2012 and 802/2012.

It is therefore held that the applicants are entitled to stepping up of their pay. It is made clear that only the pay of the applicants will be increased keeping their pay scales unchanged. In case the increased pay is not within the existing pay scale of the applicants, the difference between the stepped up pay and the maximum of the pay scale will be deemed a personal pay of the applicants.

Respondents are directed to act accordingly and fix the pay of the applicants in accordance with the provisions of stepping up of pay with

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respect to the pay of their juniors and pay the arrears to the applicants, within a period of 180 days from the date a copy of this order is received in their office.

6. OA is disposed of. No costs. (Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl

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