SUPREME COURT OF INDIA

Before:- S.C. Agrawal, S. Saghir Ahmad and M. Srinivasan, JJ.

Civil Appeal No. 3302 of 1998, Arising out of SLP (C) No. 3280 of 1997. D/d. 17.7.1998.

Union of India and others - Appellants

Versus

B. Sarkar - Respondent

Pay - Special pay - Pay fixation - Anomaly - 10 per cent of the posts of U.D.C.s carry a special pay of Rs. 70/- to handle duties of a complex nature - Junior to the respondent was given the special pay of Rs. 70/- - The respondent entitled to payment of special pay of Rs. 70/- per month which was being given to junior - The principle of stepping up of pay be made applicable to the respondents with effect from the date their juniors promoted and their pay fixed on higher slabs than that of the respondents - The matter is remitted to the Tribunal for considering the question whether the respondent is entitled to the benefit of stepping up in pay on the basis of the decision of this Court in P. Jagdish.

[Paras 3, 6 to 9]

Cases Referred :-

Union of India v. P. Jagdish, (1997) 3 SCC 176 .

ORDER

S.C. Agrawal, J. - Delay condoned.

2. Special leave granted.

3. The respondent, B. Sarkar, joined the Department of Posts and Telegraphs as a Lower Division Clerk (LDC) in 1969. She was promoted as Upper Division Clerk (UDC) on 1-1-1976. She belongs to a Scheduled Caste community. From the post of UDC, she was temporarily promoted on ad hoc basis as Section Supervisor (Operative) (SSO) by order dated 24-6-1987. She was subsequently regularised on the said post of SSO with effect from 5-10-1988. 10 per cent of the posts of UDCs carry a special pay of Rs. 70. These posts are filled by seniority and the incumbents are expected to handle duties of a complex nature. After the respondent had been promoted as SSO, the erstwhile seniors who continued as UDCs were given special pay of Rs. 70. One of the UDCs, Ajay Kumar Bhattacharya, who was junior to the respondent was given the special pay of Rs. 70 by order dated 22-7-1988. The respondent filed an application, being OA No. 855 of 1993, before the Central Administrative Tribunal, Calcutta Bench (hereinafter referred to as "the Tribunal") wherein she claimed that she was entitled to payment of special pay of Rs. 70 per month which was being given to the UDCs who were junior to her. The said application of the respondent has been allowed by the Tribunal by the impugned judgment dated 15-7-1996. The Tribunal has held that since A.K. Bhattacharya was junior to the respondent and was getting the special pay of Rs. 70 with effect from 22-7-1988, the respondent is entitled to be granted such special pay notionally as UDC with effect from 22-7-1988 and that such notional special pay shall be considered for consequential refixation of her pay in the higher post of SSO accordingly.

4. The learned counsel for the appellants has submitted that the Tribunal was in error in giving the aforesaid direction. It has been urged that the special pay of Rs. 70 per month was attached to 10 per cent posts of UDCs and was payable to incumbents who were dealing with a more complex and important job and since the respondent had never done such a job, she is not entitled to the grant of special pay notionally. Reliance has been placed on the decision of this Court in Union of India v. P. Jagdish, (1997) 3 SCC 176 .

5. In P. Jagdish, special pay of Rs. 35 per month was attached to certain identified posts in the cadre of Senior Clerks. The respondents in that case had been promoted as Head Clerks without having worked against the identified posts of Senior Clerks carrying the special pay of Rs. 35. They claimed the said special pay of Rs. 35 on the ground that their juniors who were posted against the identified posts of Senior Clerks were getting Rs. 35 as special pay until they were promoted as Head Clerks. The question which came up for consideration before the Court was whether the respondents who had not been posted against the identified posts carrying special pay of Rs. 35 per month could claim fixation of their pay with Rs. 35 per month in the cadre of Senior Clerks even on a notional basis. Deciding the said question against the respondents, this Court has held: (SCC p. 179, para 6)

"The respondents who had already been promoted to the higher category of Head Clerks cannot claim that special pay even on notional basis merely because their juniors in the cadre of Senior Clerks were given that special pay on being posted against those identified posts carrying the special pay. It is an additional pay attached to the post and only an incumbent who occupies the post can claim the same. The claim of the respondents on this score, therefore, is not sustainable in law and the Tribunal has rightly rejected the said claim of the respondents."

6. Shri Patel, the learned counsel for the respondent has, however, submitted that the respondent is entitled to succeed in view of the decision of this Court in P. Jagdish on Question 2. The said question was in the following terms: (SCC p. 179, para 5)

"(2) Whether the respondents can claim for stepping up of their pay in the promoted cadre of Head Clerks when their juniors who were later promoted were fixed up at a higher slab in the cadre of Head Clerks taking into account the special pay which they are drawing in the lower category of Senior Clerks."

7. While dealing with the said question, this Court has held that the principle of stepping up of pay should be made applicable to the respondents with effect from the date their juniors in the erstwhile cadre of Senior Clerks get promoted to the cadre of Head Clerks and their pay was fixed on higher slabs than that of the respondents.

8. Shri Patel has invited our attention to the averment contained in sub-para (8) of para 4 of the application filed before the Tribunal wherein it is stated that A.K. Bhattacharya was one of the officers who have been promoted as SSO under the order dated 13-6-1991 and that on such promotion, he was given two increments more than the respondent as a result of addition of special pay of Rs. 70 his pay while calculating the pay in the higher pay. This aspect has not been considered by the Tribunal in the impugned judgment and it is a matter which is required to be considered. We do not propose to go into this question and we leave it to the Tribunal to consider the same in the light of the judgment of this Court in P. Jagdish.

9. The appeal is, therefore, allowed. The impugned judgment of the Tribunal is set aside and the matter is remitted to the Tribunal for considering the question whether the respondent is entitled to the benefit of stepping up in pay on the basis of the decision of this Court in P. Jagdish.

No costs.

Appeal allowed.