MISHRA AND NAVIN SINHA, JJ.] versus RAJ KUMAR ANAND on 14 March 2019

O R D E R

1. Delay condoned.

2. Leave granted.

3. The facts lie in a narrow compass. The respondent wasappointed as an Assistant Teacher (Primary School Teacher) in EastDelhi Municipal Corporation now EDMC, Education department,Shahdara (North) on 10.08.1994. On 04.01.2007, he was promoted asTrained Graduate Teacher (TGT) (Social Science) in Government ofNCT of Delhi, Directorate of Education and was posted as such on17.3.2007. The respondent was granted ACP under the Assured CareerProgression Scheme placing him in Trained Graduate Teacher pay scalevide order dated 25.4.2008 w.e.f. 10.8.2006.

4. Later, on 29.8.2008, 6[th] Central Pay Commission (in short‘CPC’) was enforced and the rules i.e., Central Civil Service (RevisedPay) Rules, 2008 were framed and notified to revise the salary from01.01.2006. On 18.11.2009 pay of respondent was revised in accordancewith the Rules of 2008. A clarification was issued by the Ministry ofFinance, Department of Expenditure, Implementation Cell in respect ofthe manner of pay fixation in the revised pay structure on 29.01.2009. Aclarification was issued on 27.1.2009. Another clarification was issuedby Government of India Ministry of Personnel, PG and Pension,Department of Personnel & Training on 22.12.2010, with respect to themanner of fixation of pay. As pay of the respondent was fixed under A

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1078 SUPREME COURT REPORTS [2019] 2 S.C.R.

ARule 7 and not under Rule 11 of the Rules 2008, he filed a representationfor fixation of pay in terms of proviso to Rule 5 of the Rules, 2008.

5. As pay was not correctly fixed, the respondent filed an originalapplication before Central Administrative Tribunal for correct fixation ofthe pay under Rule 11 of the Rules, 2008. The Tribunal vide order datedB17.05.2012 in O.A. No.2475/2011 directed the concerned authorities topass a speaking order deciding on respondent’s representation. Thereafterthe respondent filed a comprehensive representation to the Director,Directorate of Education and also submitted a copy of the same to theDeputy Education Officer, MCD. The same was rejected on 24.7.2012.The Assistant Director also passed an order dated 7.8.2012 decliningCthe prayer made by the respondent. Again, the respondent filed theoriginal application before the Central Administrative Tribunal. The originalapplication and review both were dismissed.

6. Aggrieved thereby, a Writ Petition was filed by the respondentbefore the High Court. The Division Bench of the High Court allowedDit and opined that it was Rule 11 which was attracted and not the provisionsof Rule 7 in view of the fact that the Respondent was granted theupgraded pay scale of ACP w.e.f. 10.8.2006 and he has opted for revisionof pay from that date. Thus, fixation was wrongly done under Rule 7. Itwas required to be done as per provisions contained under Rule 11 ofERules, 2008.

7. Mr. Vikramjit Banerjee, learned ASG on behalf of Union ofIndia urged that Rule 7 is clearly attracted. Note 2A of Rule 7 clearlyprovides the mode of fixation of salary in such an exigency. Thus, thefixation has been rightly done. The Tribunal was right in dismissing theForiginal application and the Division Bench of the High Court has erredin law in applying Rule 11 of the Rules 2008. He has placed reliance onthe decision rendered by this Court in Union of India & Ors. v. K.V.Rama Raju & Ors.-2018 (2) SCALE 239.

8. The respondent who has appeared in person has supported theGdecision of the High Court and has contended that once he has opted forrevision of pay under the Rules of 2008 w.e.f. 10.8.2006, the date onwhich upgraded pay scale was made available under ACP scheme beforeRules of 2008 were notified, the pay fixation was required to be doneunder Rule 11 of Rules of 2008 and no case for interference is made outwith the decision rendered by the Division Bench of the High Court.

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9. Rule 5, Rule 7 and Rule 11 of the Rules 2008 are required to beconsidered. Rule 5, 7 and 11 are extracted hereunder:

Rule 5. Drawal of pay in the revised pay structure-Save asotherwise provided in these rules, a Government servant shalldraw pay in the revised pay structure applicable to the post towhich he is appointed.

Provided that a Government servant may elect to continue to drawpay in the existing scale until the date on which he earns his nextor any subsequent increment in the existing scale or until he vacateshis post or ceases to draw pay in that scale.

Provided further that in cases where a government servant hasbeen placed in a higher pay scale between 1.1.2006 and the dateof notification of these Rules on account of promotion, upgradationof pay scale etc., the government servant may elect to switchover to the revised pay structure from the date of such promotion,upgradation etc.

Explanation 1- The option to retain the existing scale under theprovisos to this rule shall be admissible only in respect of oneexisting scale.

Explanation 2- The aforesaid option shall not be admissible to anyperson appointed to a post on or after the 1[st] day of January 2006,whether for the first time in government service or by transferfrom another post and he shall be allowed pay only in the revisedpay structure.

Explanation 3 – Where a government servant exercises the optionunder the provisos to this Rule to retain the existing scale in respectof a post held by him in an officiating capacity on a regular basisfor the purpose of regulation of pay in that scale under fundamentalRule 22, or any other rule or order applicable to that post, hissubstantive pay shall be substantive pay which he would havedrawn had he retained the existing scale in respect of the permanentpost on which he holds a lien or would have held a lien had his liennot been suspended or the pay of the officiating post which hasacquired the character of substantive pay in accordance with anyorder for the time being in force, whichever is higher.

Rule 7. Fixation of initial pay in the revised pay structure:

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(1) The initial pay of a government servant who elects, or is deemedto have elected under sub-rule (s) of rule 6 to be governedby therevised pay structure on and from the 1[st] day of January, 2006,shall, unless in any case the President by special orderotherwisedirects, be fixed separately in respect of his substantive pay in thepermanent post on which he holds a lien or would have held a lienif it had not been suspended, and in respect of his pay in the-officiating post held by him, in the following manner, namely:

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(A) in the case of all employees:-

(i) the pay in the pay band/pay scale will be determined bymultiplying the existing basic pay as on 1.1.2006 by a factor of1.86 and rounding off the resultant figure to be next multiple of10.

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(ii) if the minimum of the revised pay band/pay scale is more thanthe amount arrived at as per (I) above, the pay shall be fixed atthe minimum of the revised pay band/pay scale; Provided furtherthat:- D

where, in the fixation of pay, the pay of Government servantsdrawing pay at two or more consecutive stages in an existingscale gets bunched, that is to say, gets fixed in the revised payEstructure at the same stage in the pay band, then for every twostages so bunched, benefit of one increment shall be given so asto avoid bunching of more than two stages in the revised runningpay bands. For this purpose, the increment will be calculated onthe pay in the pay band. Grade pay would not be taken intoaccount for the purpose of granting increments to alleviateFbunching.

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In the case of pay scales in higher administrative grade (HAG) inthe pay band, PB-4 benefits of increments due to bunching shallbe given taking into account all the stages in different pay scalesin this grade. In the case of HAG + scale benefit of one incrementfor every two stages in the pre-revised scale will be granted inthe revised pay scale. In by stepping up of the pay as above, thepay of a government servant gets fixed at a stage in the revisedpay band/pay scale (where applicable) which is higher than thestage in the revised pay band at which the pay of a governmentservant who was drawing pay at the next higher stage or stages G

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in the same existing scale is fixed, the pay of the latter shall alsobe stepped up only to the extent by which it falls short of that ofthe former.

(iii) the pay in the pay band will be determined in the above manner.In addition to the pay in the pay band, grade pay corresponding tothe existing scale will be payable.

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Note 2A- Where a post has been upgraded as a result of therecommendations of the Sixth CPC as indicated in part B or PartC of the First Schedule to these Rules, the fixation of pay in theapplicable pay band will be done in the manner prescribed inaccordance with Clause (A) (i) and (ii) of Rule 7 by multiplyingthe existing basic pay as on 1.1.2006 by a factor of 1.86 androunding the resultant figure to the next multiple of ten. The gradepay corresponding to the upgraded scale as indicated in Column 6of Part B or C will be payable in addition. Illustration 4A in thisregard is in the Explanatory Memorandum to these rules.

Rule 11. Fixation of pay in the revised pay structure subsequentto the 1stday of January, 2006 -Where a government servantcontinues to draw his pay in the existing scale and is brought overto the revised pay structure from a date later than the 1[st] day ofJanuary 2006, his pay from the later date in the revised paystructure shall be fixed in the following manner:-

(i) Pay in the pay band will be fixed by adding the basic payapplicable on the later date, the dearness pay applicable on thatdate and the pre-revised dearness allowance based on ratesapplicable as on 1.1.2006. This figure will be rounded off to thenext multiple of 10 and will then become the pay in the applicablepay band. In addition to this, the grade pay corresponding to thepre-revised pay scale will be payable…....”

(emphasis supplied)

10. It is apparent from the first proviso to Rule 5 of Rules of 2008,that option was given to the government servant to continue to draw thepay scale until the date on which his next or any subsequent incrementin the existing scale or until he vacates his post or ceases to draw pay inthat pay scale.

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A11. Second proviso to Rule 5 which is attracted also made it clearthat where the government servant has been placed in a higher payscale between 1.1.2006 and the date of notification of these Rules onaccount of promotion, upgradation of pay scale etc., the governmentservant may elect to switch over to the revised pay structure from thedate of such promotion, upgradation etc.B

12. It is not in dispute that the ACP was granted to the respondentbetween 01.01.2006 and 29.8.2008 i.e. the date of notification of Rules2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus,the benefit of upgraded pay scale was given to the respondent in betweenthe aforesaid dates.C

13. Once he has elected for revised pay scale w.e.f. 10.8.2006,the date on which he was placed in the upgraded pay scale, obviously,Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable.

14. Rule 7 deals with the fixation of initial pay in the revised payDstructure as per the 6[th] Central Pay Commission. Note 2A to Rule 7relied upon by the appellants makes it vivid that where a pay scale hasbeen upgraded on the recommendation of Central Pay Commission asindicated in para B and C of the first Schedule of the Rules of 2008, thefixation has to be made under Rule 7. However,it was not the case ofupgradation of the post as a result of the recommendation of the 6[th] PayECommission and Schedule of Rules of 2008, but it was under ACP schemewhich is a different scheme than the one as provided in the first scheduleto the Rules 2008. The respondent has opted for revision of pay scalefrom the date of upgradation in the ACP scale w.e.f. 10.08.2006.Obviously, his pay has to be fixed under Rule 11 which deals with fixationFof the pay in the revised pay scale in case such an option is exercisedunder the Rules of 2008. The Division Bench of the High Court wasabsolutely correct in applying Rule 11 as Note 2A of Rule 7 is notapplicable in the case.

15. Coming to the decision rendered by this Court in K.V. RamaGRaju & Ors. (supra), it does not appear from the facts that it was acase of exercising option from the date of upgradation under ACP thatcame for consideration before this Court. It is not clear whether it wasa case of upgradation as a result of the recommendation of the 6[th] PayCommission or independent thereto. In both the cases consequencesare different. In the earlier exigency Rule 7 is attracted and in the laterH

one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, thedecision cannot be an authority on the aforesaid issue which has notbeen decided. Apart from that, it was not the case of appellants thatupgraded pay scale has been brought about by 6[th] Pay Commission asper provisions contained in Schedule of the Rules 2008 as provided inNote 2A of Rule 7. Thus, the decision in K.V. Rama Raju & Ors. (supra)is wholly distinguishable and cannot be applied to such cases whereupgradation has been made otherwise than as per Schedule to Rules of2008 framed as per recommendations of 6[th] Pay Commission and optionis exercised in the aforesaid manner.

16. Resultantly, we have no hesitation to hold that the appeal isbereft of merit. Pay fixation has to be done under Rule 11 and not Rule 7 as discussed. Let pay revision be worked out and arrears, if any, bepaid within a period of 3 months from today.

17. The appeals deserve to be dismissed and are hereby dismissed.

18. Parties to bear their own costs.

Nidhi Jain

Appeals dismissed.

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