Vs. Administrator U.T. of Lakshadweep & ANR.  INSC 1462 (29 August
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3537 OF 2001 Kunnashada
Muthukoya ... Appellant Administrator U.T. of Lakshadweep & Anr. ...
appellant was promoted as a lineman, a group `C' post, in the Lakshadweep
Electricity department, on 2.2.1985. The pay scale of lineman was initially
Rs.85-2-95-3-110 which was revised to Rs.210-4-226-EB-4- 250-EB-5-290. The pay
scale was further revised to Rs.800-15-1010-EB- 20-1150 as per Central Civil
Services (Revised Pay) Rules, 1986 (for short `Revised Pay Rules'). The
appellant gave a representation dated 1.10.1994 requesting a higher pay scale.
He contended that as the post of lineman was 2 classified as a group C post,
he should be given the benefit of the minimum of the pay scales prescribed for
group `C' posts under the Revised Pay Rules, that is Rs.825-15-900-EB-20-1200.
Office Memorandum dated 9.8.1995 the respondent rejected the representation of
appellant for grant of the higher pay scale of Rs.825-1200.
The said memorandum
stated that though the post of lineman was a group `C' post, the revised pay
scale applicable to the said post was that which corresponded to pre-revision
pay-scale of Rs.210-290 drawn by linemen and therefore appellant was entitled
only to the revised pay scale of Rs.800- 1150. It was also stated that the
duties and responsibilities of linemen in the Electricity Department differed
substantially from linemen in other departments (that is Linemen/Wireman in
telecommunications, Postmen/ Mailguards in Postal department etc.); that the
Fourth Pay Commission had recommended the higher pay scale of
Rs.825-15-900-EB-20-1200 only for linemen and wiremen in the Telecommunication
Department on the specific condition that their recruitment qualifications
should be raised; and that the revised pay scale of Rs.800-1150 given to the
appellant was therefore in accordance with the fourth pay commission's
aggrieved the appellant approached the Central Administrative Tribunal,
Ernakulam Bench. The Tribunal allowed the application by order dated 28.6.1997
and quashed the O.M. dated 9.8.1995.
The Tribunal held
that as the appellant was in a group `C' post, he was entitled to the minimum
pay scale applicable to group `C' posts, after the revision of pay scales; that
under the CCS (Revised Pay) Rules, 1986, the pay scale of Rs.800-1150 was a
group `D' pay scale and the lowest pay scale applicable to group `C' posts was
Rs.825-1200; and that therefore the appellant was entitled to the revised pay
scale of Rs.825-1200 from 1.1.1986 with all consequential benefits. The respondents
challenged the said order in a writ petition (O.P.No.13965/1998) before the
High Court of Kerala. The High Court allowed the writ petition by order dated
27.1.2000 following the decision of this Court in Union of India v. P V
Hariharan [1997 (3) SCC 568]. The High Court held that as the pay scale
applicable to the appellant before the pay revision was Rs.210-290, he was
entitled only to the corresponding revised pay scale of Rs.800-1150 under the
Revised Pay Rules, and that he was not entitled to a higher pay scale. The said
order is challenged in this appeal by special leave. The only question that
therefore arises for our consideration is whether the appellant was entitled 4
to the benefit of higher pay scale of Rs.825-1200 as he was holding a Group `C'
Hariharan (supra), this Court considered a similar claim by Tool Room
Assistants in the Fisheries department, whose pay scale was initially
Rs.85-128, revised to Rs.210-290. After the Fourth Pay Commission
recommendations, they were given the revised pay scale of Rs.800-1150.
The Tribunal held
that as the post held by them was included in Group `C', they were entitled to
the higher pay scale of Rs.1150-2900. Reversing the said decision, this Court
"We are unable
to appreciate the reasoning or approach of the Tribunal.
The pay scale of Tool
Room Assistant in IFP is Rs.800-1150. ....
Assuming that the
said post was mentioned under Group C, it may be - or may not be - an error.
What is material is that the classification cannot result in change of pay
scale from Rs.800-1150 to Rs.1150-2900. This is simply unimaginable. Pay scales
are what are prescribed for each post by the Government which is very often
done on the basis of recommendations of a Pay Commission or a similar expert
body. Classification of posts has nothing to do with fixation of pay scales; it
only classifies posts into several groups based upon the pay scales already
fixed. Classification and prescribing pay scales for several posts are two
different and distinct functions. The Tribunal's order is, in our opinion,
wholly unsustainable in law."
learned counsel for the appellant fairly conceded that if the ratio of
Hariharan is applied, the appellant's claim is liable to be rejected. But he
contended that the decision in Hariharan should be considered as having 5 been
rendered per incurium, as it ignores Rule 5 of the Revised Pay Rules.
Relying on the
decisions of this Court in Nirmal Jeet Kaur v. State of M.P. [2004 (7) SCC 558]
and Central Board of Dawoodi Bohra Community v. State of Maharashtra [2005 (2)
SCC 673], he submitted that a decision rendered per incurium is not a binding
precedent. According to the appellant, having regard to Rule 5 of the Revised
Pay Rules, the revision of pay of a government servant should be with reference
to the class of post held by him and not with reference to the pay scale
earlier applicable to him.
contended that as the appellant held a Group `C' post, the pay scale applicable
to Group `C' government servants should be extended to him.
principles enunciated in Hariharan is that `classification of posts has nothing
to do with fixation of pay scales" and "classification and
prescribing pay scales for different posts are two different and distinct functions".
These are well settled principles of service jurisprudence. The question
therefore is whether Rule 5 of CCS (Revised Pay) Rules, 1986 carves out any
exception to the said general principles of service law, or lays down a
different principle, and if so whether Rule 5 had been wrongly ignored.
Revised Pay Rules were made to implement the recommendations made by the Fourth
Pay Commission. A brief reference to the relevant provisions of the said Rules
will be necessary to consider the appellant's contention.
7.1) Sub-Rules (2),
(3), and (5) of Rule 3 define the terms `Existing Scale', `Present Scale' and
`Revised Scale'. `Existing Scale' in relation to a Government servant means the
present scale applicable to the post held by the Government servant as on
1.1.1986. `Present Scale' in relation to any post specified in Column 2 of the
First Schedule, means the scale of pay specified against that post in Column 3
thereof. `Revised Scale' in relation to any post specified in column (2) of the
First Schedule means the scale of pay specified against that post in column (4)
thereof unless a different revised scale is notified separately for that post.
Rule 4 provides that from the date of commencement of the revised pay rules
(1.1.1986), the scale of pay of every post specified in column (2) of the First
Schedule shall be as specified against it in column (4) thereof.
7.2) Rule 5 relied on
by the appellant, relating to drawal of pay in the revised scales is extracted
7 "5. Drawal of
pay in the revised scales : Save as otherwise provided in these rules, a
Government servant shall draw pay in the revised scale applicable to the post
to which he is appointed.
Provided that a
government servant may elect to continue to draw pay in the existing scale
until the date on which he earns his next or any subsequent increment in the
existing scale or until he vacates his post or ceases to draw pay in that
Explanations 1, 2, 3
: x x x x x (omitted as not relevant)"
Rule 6 provides how
the option under the proviso to Rule 5 should be exercised.
7.3) The First
Schedule to the Revised Pay Rules consists of two parts.
Part A relates to
"revised scales for posts carrying present scales in Groups D, C & B
except posts for which different revised scales are notified separately."
Part B relates to "revised scales of pay for certain other categories of
staff." The relevant entries in the First Schedule are extracted below:
THE FIRST SCHEDULE
(See Rules 3 & 4) - PART A (Revised scales for posts carrying present
scales in Group D, C & B except posts for which different revised scales
are notified separately) Sl.No. Post Present scale Revised scale (1) (2) (3)
(4) GROUP `D' xxxxx
3. All posts carrying
present (a) x x x x x 800-15-1,010-EB-20-1,150 scales specified in Column 3.
(b) x x x x x (c)210-4-226-EB-4-250-EB-5-290 GROUPS `C' AND `B' 8
4. All posts carrying
present 225-5-260-6-290-EB-6-308 825-15-900-EB-20-1,100 scales specified in
column 3. xxxxx
Central Government has issued an Explanatory Memorandum to understand and
implement the CCS (Revised Pay) Rules, 1986. The explanation given therein in
regard to Rule 5 is extracted below:
"Re : Rule 5.
The intention is that all Government servants should be brought over to the
revised scales except those who elect to draw pay in the existing scales. Those
who exercise the option to continue on the existing scales of pay will continue
to draw the dearness pay, dearness allowance, ad hoc dearness allowance and
interim reliefs at the rates in force on the 1st January, 1986 and the dearness
pay will count towards house rent and compensatory allowances, emoluments for
pension, etc. to the extent it so counted on the said date. If a Government
servant is holding a permanent post in a substantive capacity and officiating
in a higher post or would have officiated in one or more posts but for his
being on deputation etc., he has the option to retain the existing scale only
in respect of one scale. Such a Government servant may retain the existing
scale applicable to a permanent post or any one of the officiating posts. In
respect of the remaining posts he will necessarily have to be brought over to
the revised scales."
position that emerged from a combined reading of the provisions of the Revised
Pay Rules in the context of the question raised by the appellant was as follows
(i) As from 1.1.1986,
the scale of pay of every post specified in column (2) of the First Schedule
was as specified against it in column (4) of the First Schedule.
9 (ii) Part A of the
First Schedule did not individually name the several posts for which the
revised pay scales were prescribed. It grouped the posts, with reference to the
existing (pre-revision) pay scale and prescribed a single revised pay scale.
Therefore in regard to posts covered by Part A (that is posts excluding those
specified in Part B) the entitlement of a government servant to the revised
scale of pay was with reference to the existing scale of pay (that is
pre-revised scale applicable to him as on 1.1.1986 when the revised scales of
pay came into effect). All posts carrying a particular pay scale before the
revision, were given the corresponding revised pay scale shown in the First
Schedule. The pay revision was thus with reference to the existing pay scale
drawn by the government servant and not with reference to the `post' held by
(iii) Part B of First
Schedule, on the other hand, specifically described certain posts, as for
example, Junior Engineer, Technical Supervisor etc., while prescribing the
revised pay scales. In regard to posts described in Part B, both the `post' and
the existing scale of pay became relevant for finding out the corresponding
revised scale of pay.
(iv) The Revised Pay
Rules did not change the classification of posts. The fact that the First
Schedule classified the pay scales for convenience under the headings `Group D'
and `Groups C & B' did not mean that a government servant working in Group
`C' but whose existing scale of pay was shown under the heading Group `D',
could ignore his existing scale and claim the benefit of a revised scale
corresponding to some other higher pre- revised scale of pay.
10 (v) The object
and intent of Rule 5 was to bring all government servants covered by the
Revised Pay Rules to the revised scales except those who elected to continue to
drawing pay in the existing scales.
contention of appellant that pay revision should be with reference to post held
and not existing pay scales, if accepted would have lead to confusion,
uncertainty and inconsistency. Its effect, in the case of appellant, would have
been to first upgrade the existing pay scale from Rs.210-4-226-
EB-4-250-EB-5-290 to Rs.225-5-260-6-290-EB-6-308 and then grant the revised pay
scale corresponding to such upgraded higher pay scale with effect from
1.1.1986. Rule 4 read with First Schedule made it clear that the government
servant was only entitled to the revised pay scale corresponding to his
existing pay scale (and not any other revised pay scale corresponding to some
higher pre-revised scale). Rule 5 does not mean that if a government servant
was in a post classified as a Group `C' post with an existing pay scale shown
in the First Schedule as a Group `D' pay scale, the government servant would
get the pay scale applicable to a Group `C' post.
In fact there are
several revised pay scales in Part A of the First Schedule for Group `C' posts.
If the contention of the appellant was to be accepted, and the revised pay
scale to be given to him was to be delinked from the existing pay scale, then
he could have chosen any of the several revised pay 11 scales corresponding to
pay scales shown as Group `C' scales (that is Rs.825-1200 or Rs.950-1400 or
950-1500 or 975-1540 etc) as he did not fit into any of the existing pay scales
of Group `C'. Obviously such a course was clearly impermissible. All that Rule
5 provided was that except those who exercised option to continue to draw pay
in the existing pay scale, others should draw their pay only in the revised pay
scale corresponding to his existing pay scale and that he could not draw any
other pay scale.
Further a person who
fell under part A of First Schedule could not draw the pay provided in Part B
of First Schedule and vice versa.
is also of some relevance to note that Rule 5 in the Revised Pay Rules is not a
new provision, but same as Rule 5 of the Central Civil Services (Revised Pay)
Rules, 1973 relating to the earlier pay revision. The said rule had never been
interpreted in the manner suggested by the Appellant. Be that as it may.
the reasons aforesaid, the contention that Hariharan (supra) ignored Rule 5 and
should therefore be considered as per incurium is untenable. The said
contention is rejected. The appeal is therefore dismissed as having no merit.
(R. V. Raveendran)