R.C. Patnaik, J.
1. The petitioner has filed this writ application under Article 226 of the Constitution 6f India for the quashing of the Government order as per Annexure-5 withdrawing its earlier decision stepping up his pay with effect from 10. 8. 76.
2. The petitioner and one Adikanda Mallick took the recruitment examination conducted by the Orissa Public Service Commission for the post of Lower Division Assistant. The petitioner secured the 77th position while Adikanda secured 85th. Both of them were recruited as Lower Division Assistants in the Home Department towards the end of 1971.
3. Prior to his joining Home Department, Adikanda was serving in the office of the Labour Commissioner, Orissa, and was drawing a salary of Rs. 150/-. His pay was, therefore, fixed under Rule 74 (1) of the Orissa Service Code in the scale of pay of Rs. 90-150/- prescribed for the post of Lower Division Assistant.
4. Adikanda and the petitioner were promoted to Grad-e-II posts, the former on 10. 8. 76 and the latter on 5. 8. 76. At the time of promotion the petitioner was drawing a salary of Rs. 285/- per month and Adikanda was drawing Rs. 306/- per month. Upon promotion to the post of Grade-II Assistant, the salary of the petitioner was fixed at Rs. 320/- per month and that of Adikanda at Rs. 370/- in the scale of Rs. 320/--450/-. The petitioner thereupon made a representation to the opposite party for stepping up his pay under Government Resolution dated 26.5.75 (Annexure-2) to bring it on par with that drawn by Adikanda. The opposite party accepted the representation and the petitioner's pay was stepped up with effect from 10. 8. 76, The Government in the Finance Department took a decision which was published in the shape of a resolution on 29. 7. 78 (Annexure-4) inserting one more exception to the principle of stepping up of pay. The exception is to the following effect :
'(viii) When the Senior Officer was drawing from time to time a lower rate of pay than the junior in the lower post by virtue of fixation of pay under the normal rules or advance increment granted to him. '
It has been urged by the petitioner that in pursuance of the said resolution of the Finance Department, as per Annexure-5 dated 24. 11. 78 the Government withdrew their earlier decision stepping up his pay.
5. Mr. Dora, the learned counsel for the petitioner, has urged that the petitioner's case might come under Exception (viii) as introduced by the resolution (Annexure-4) but the said resolution categorically postulates that the decision shall take effect from the date of issue and cases already decided shall not be reopened. The resolution. being prospective in nature, the stepping up of the petitioner's pay was not available to be reopened. He has further urged that if the said rule is applied, it might result in gross discrimination. He has urged that where two persons voluntarily take a competitive examination and are recruited, there can be no justification and it would be arbitrary to grant higher pay to the junior because of the fortuitous circumstance that the junior ha 1 been previously serving under the Government and was drawing higher pay. Where the senior has faired better in the test/examination, the grant of higher pay would result in invidious discrimination, cause hardship to the senior. Viewed this way, he has submitted, the rules would infringe Articles 14 and 16 of the Constitution of India. The petitioner has referred to some instances where Government have directed stepping up of pay.
6. The opposite party while accepting the facts has joined issue that the pay of the petitioner was not available to be stepped up under the resolution of the Government dated 26.5.75. It has relied on Exception (iii) in Annexure-2. It has been averred that the case of the petitioner was not reviewed pursuant to the resolution dated 29.7. 78 of the Finance Department as per Annexure-4 but on the basis of resolution dated 26.5.75 (Annexure-2). The gist of the Government stand is that the stepping up of the petitioner's pay was a mistake. By the impugned decision the error was rectified. It has been averred that the instances cited by the petitioner are not comparable.
7. The vires of the resolution has not been questioned. Hence the short question is : Does the case of the petitioner come within Exception (iii) contained in the Government resolution dated 26.5.75. The portion from Annexure-2 that is relevant is as follows :
' With this end in view Government after careful consideration are pleased to decide that where the senior officer draws a pay less than his junior, his pay should be stepped up to a figure equal to that of his junior with effect. from the date the junior officer draws the higher pay except under the following circumstances :
* * *(iii) When the Junior draws higher pay on account of protection of pay drawn in his previous post belonging to some other cadre..'
8. The exception would apply if the junior draws higher pay on account of protection of pay drawn in his previous post belonging to some other cadre. Adikanda drew higher pay in the post of Lower Division Assistant on account of protection of his pay drawn in the previous post belonging to some other cadre, i. e., in the post held by him in the office of the Labour Commissioner. The petitioner while in the rank of Lower Division Assistant would not be entitled to stepping up of his pay because of the bar in Exception (iii). When both of them are promoted to Grade-II, Exception (iii) would have no application because Adikanda does not draw higher pay in the rank of Grade II Assistant on account of protection of pay drawn as Lower Division Assistant which is the previous post vis-a-vis the Grade II post which he is holding. In our opinion, Exception (iii) ceased to apply after promotion of petitioner and Adikanda as Grade-II Assistants. To remove this lacuna, the Government took a decision to incorporate Exception (viii) which specifically covered a care like the present, namely, when the senior officer was drawing from time to time a lower rate of pay than the junior in the lower post. The resolution Annexure-4 is as follows :
'No. C. S. I.--31/78-41665/F
Government of Orissa
Finance Department. Resolution.
Bhubaneswar, the 29th July, 1978.
Sub : Stepping up the pay of the Senior to that of the junior.
Below serial (vii) of paragraph 1 of Finance Department Resolution No. 20741/F. dated 26. 5. 75, the following shall be inserted.
(viii) When the Senior Officer was drawing from time to time a Jower rate of pay than the junior in the lower post by virtue of fixation of pay under the normal rules of advance increment granted to him.
2. This order will take effect from the date of issue-- cases already decided shall not be reopened.
ORDER--Ordered that this Resolution be published for general information in the next issue of the Orissa Gazette.
By order of the Governor
Secretary of Government.'
9. Mr. Dora referred us to a decision of this Court in Ramose Chandra Mohanty v. Accountant General, Orissa, Bhubaneswar, (O. J. C. No. 925 of 1977 disposed of on 14. 5. 80) wherein the provision relating to stepping up of pay of Central Government servants fell for consideration. He drew our attention specifically to an observation of this Court to the following effect :
'Salary and status usually move hand in hand and particularly in the same grade, a junior officer cannot be given higher salary than a senior officer...--...'
Since the question of vires has not been raised in this writ application, the decision interpreting the provisions governing the Central Government servants is not very material.
10. We are, therefore, of the opinion that the petitioner's case does not come under Exception (iii) and the Government erroneously withdrew its earlier decision stepping up his pay equalising the same with that drawn by his junior, Adikanda. Annexure-4 incorporating Exception (viii) specifically says that the decision is prospective in nature and shall not affect decisions already taken. In view thereof the decision of the Government stepping up the petitioner's pay would remain unaffected. We would accordingly quash Annexure-5 and declare that the petitioner shall be entitled to the pay as stepped up.
The writ application is accordingly allowed. There would be no order as to costs.
D.P. Mohapatra, J.
11. I agree.