MS. PUSHP LATA SHARMA v. THE GOVT. OF NCT OF DELHI & ANR.

1. The present writ petition has been preferred by the petitioner to assail the order dated 19.03.2019 in O.A. No.1817/2014, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the “Tribunal”), whereby the petitioner’s Original Application (OA) had been dismissed.

2. The petitioner had preferred the OA claiming upgradation of her pay at par with her erstwhile junior Shri S.R.S. Lingwal. The petitioner was appointed to the post of Lower Division Clerk (LDC)/Grade-IV (DASS) on 19.11.1979 and was promoted as Upper Division Clerk (UDC) on 30.04.1990 in the pay scale of 2019:DHC:2839-DB Rs.1200-30-1560-EB-40-2040 when her pay was fixed at Rs.1200/-. The petitioner superannuated on 31.03.2014 as a Head Clerk in the post of UDC/Grade II (DASS) after serving for 24 years. During that period, she was granted timely revisions in pay in accordance with her pay fixed on 30.04.1990. After her superannuation from service, the petitioner submitted a representation claiming upgradation of her pay at par with Shri S.R.S. Lingwal who was junior to her both as an LDC & UDC. The claim as set up by the petitioner was that the pay of Shri Lingwal had been fixed at Rs.1230/- at the time of his promotion as UDC on 29.06.1990 even though her pay at the same time had been fixed at Rs.1200/- despite her being senior to Mr.Lingwal. She had, therefore, contended that all her subsequent revisions were also erroneous as she continued to receive lesser pay. The petitioner’s case was placed before the account functionary of the respondent no.2/ Maulana Azad Medical College from where she had superannuated, but her request was not acceded to.

3. Aggrieved by the rejection of her request for upgradation of pay, the petitioner approached the Tribunal by way of the aforesaid OA, which was dismissed vide order dated 14.12.2015 by observing as under:-

and Shri Lingwal to seek stepping up of pay. As regards Shri Tej Pal, the applicant has not supplied any document in his regard and, therefore, it is not at all possible for the respondents or for us to take any view in the matter. It is for the applicant to produce the necessary documents in respect of her claim, in absence of which no decision can be made based on such a bland claim.

10. In view of clear position of rules and facts of the case, we do not find any merit in the Original Application and, therefore, the same is dismissed. No costs."

4. The petitioner then approached this Court by way of WP(C) No.4322/2016, impugning the aforesaid order of the Tribunal wherein this Court after noticing the fact that despite the respondents not having clearly explained as to how Shri S.R.S. Lingwal, who was admittedly junior to the petitioner, was drawing higher pay, had rejected the OA. This Court, therefore, vide its order dated 17.10.2017, had remanded the matter back to the Tribunal with a direction to the respondents to file a better and detailed affidavit to explain as to how Shri S.R.S. Lingwal was drawing higher pay than the petitioner.

5. Pursuant to the directions of this Court, the respondents filed a detailed affidavit before the Tribunal to which the petitioner had filed a response. In their additional affidavit, the respondents had stated as under:- “The pay of the official Sh.S.R.S. Lingwal, UDC taken as Rs.1175/- instead of Rs.1150/- Resulted the pay fixed as on 29-06-1990 in the pay scale of Rs.1200-30-EB-40-2040 at Rs.1230/- is wrong. The Case of Smt.Pusp Lata Sharma cannot be considered for stepping up with the particulars of S.R.S. Lingwal.”

8. That a matter was also sent to finance Deptt. Of GNCTD through H & FW Deptt. Vide dt.12-03-2014 in which the Financial Department observed that as under:- With regard to stepping up of pay in respect of Smt.Pushp Lata Sharma, HC with her junior Sh. S.R.S. Lingwal UDC, it may be submitted that as per provisions contained in Note 4 below Rule 7 of the said rule, where in fixation of pay, if pay of a Govt. Servant who in the existing scale was drawing immediately before the 1st day of January, 1986 more pay than another Govt Servant junior to him in the same cadre, gets fixed in the revised scale at a stage lower than that of such junior, his pay shall be stepped up to the same stage in the revised scale as that of the junior. However, the pay of Junior Sh.S.R.S. Lingwal was revised due to his revised option exercised for fixation of pay as on 01-12-1986. Hence, stepping of pay in r/o Smt. Pushp Lata Sharma, HC with her junior Sh. S.R.S. Lingwal, UDC does not arise.”

6. In the light of the aforesaid explanation given by the respondents, the Tribunal has, by placing reliance on a decision of this Court in Union of India & Ors. Vs. Mahendra Pal Singh & Anr. in WP(C) No.2445/2012, rejected the Original Application on 19.03.2019. The Tribunal also noticed the fact that Shri Lingwal, even though junior to the petitioner, had given a specific option for fixation of his pay, in terms of the fourth CPC w.e.f. 01.12.1986 instead of 01.01.1986 as his annual increment was due on 01.12.1986 in the pre-revised pay of Rs.296-400 which option the petitioner had admittedly not exercised. The Tribunal, therefore, held that the petitioner could not be heard to complain that her pay should have been enhanced at par with Mr.Lingwal from 1990 as claimed by her. The Tribunal also held that even if there was any error in the fixation of the pay of Mr.Lingwal, the petitioner could not claim any benefit on that account in the light of the settled principle that no person can claim any benefit on the basis of any advantage wrongly given to another person.

7. Before us, Mr.Yadav, learned counsel for the petitioner had reiterated the same pleas as were urged by him before the Tribunal. He submits that once the documents in itself show that Shri Lingwal was junior to the petitioner but was still drawing more salary right from 1990, the petitioner would be entitled to stepping up of her pay, so as to be brought at par with him.

8. Having considered the submissions of the learned counsel for the petitioner and perused the record, we find absolutely no infirmity in the order of the Tribunal. We find that the respondents had, before the Tribunal, given specific reasons pointing out as to why Shri Lingwal was drawing higher pay than the petitioner right from 1990, which explanation has been duly accepted by the Tribunal which we find no reason to differ. We also concur with the view of the Tribunal that once an employee makes a rational choice to give an option which he/she finds beneficial, the employee cannot subsequently claim parity with another employee who had chosen the other option, which suited him. We may also note that the petitioner did not raise any grievance qua her pay being lower than Mr.Lingwal while she was in service and, raked up her claim after 28 years, that too after her superannuation and for this reason also, she is not entitled to any relief.

9. For the aforesaid reasons, we find no infirmity with the order passed by the Tribunal.

10. The writ petition being meritless, is dismissed.

(REKHA PALLI) JUDGE (VIPIN SANGHI)