D.D. Suri Vs. Union of India & ANR
[1979] INSC 119 (17 July 1979)
SEN, A.P. (J) SEN, A.P. (J) KRISHNAIYER, V.R.
CITATION: 1979 AIR 1596 1980 SCR (1) 24 1979
SCC (3) 553
ACT:
Assignment of year of allotment-Indian
Administrative Service (Regulation of Seniority) Rules 1954, Rule 3 read with
"open Market Emergency Recruitment Scheme 'N' formula"- Interference
by Courts under Article 226 of the Constitution of India.
Fundamental Rules, F.R. 9(21)(b)-Concept of
'pay'-'Pay" for purposes of determining the "completed years of
actual experience" under 'N' formula does not include lodging allowances
and Calcutta compensatory allowance- Whether excluding these allowances offend
Articles 14 & 16 of the Constitution.
Fundamental Rule 49-Combination of posts and
right to additional pay, applicability of, to officers, governed by Indian
Administrative Service (Pay) Rules 1954, Rule 13.
"Next Below Rule" principle
of-Applicability of benefit under F.R. 30(1) Super-time scale of Indian
Administrative Service.
HEADNOTE:
The appellant was born on January 7, 1915. He
joined the Editorial Staff of the Civil and Military Gazette, Lahore, towards
the end of 1938 and continued to serve the Civil and Military Gazette upto
January 7, 1943, when he joined the Army. During the Second World War he was
granted an Emergency Commission in the Army w.e.f March 7, 1943 with the rank
of Lieutenant w.e.f June 3, 1948 but with seniority in that rank w.e.f.
September 1944. Later, he, having been selected by the Special Recruitment
Board as an Emergency Recruit from the "open market" was appointed to
the Indian Administrative Service on August 7, 1950 and allocated to the Orissa
Cadre.
As regards Emergency Recruits from the open
market the year of allotment was to be determined according to the "open
Market Emergency Recruitment Scheme" called also 'N' formula. The year of
allotment in each case would be 1949-Y, where Y = N1 + 1/2 of N2. N2 means the
period of previous experience. The previous experience is the number of completed
years of actual experience of the officers after attaining the age of 25 and
upto 31st December, 1948 as certified by the Special Recruitment Board. N1
means the period of continuous employment on a pay or income of not less than
of Rs. 800/- per month before 31st December, 1944 and the 31st December 1948,
inclusive. The larger the figure of "Y", the earlier the date of
allotment and seniority.
The period of previous experience (N2) in the
case of the appellant worked out to 8 years 11 months 25 days rounded off to 8
years (i.e. 7-1-40 to 31-12-48). The figure of N1 was worked out taking the
"protection pay" admissible to Army Officers as per F.R. 9(21)(b)
i.e. excluding the Calcutta 25 compensatory allowance and lodging allowance.
Therefore, by its letter dated June 11, 1952, the Ministry of Home Affairs
fixed the year of allotment of the petitioner to the Indian Administrative
Service as 1944. (1949 minus 5).
The appellant held various posts in the
Indian Civil Administrative Service cadre of Orissa and was also on deputation
to the Government of India from 1952 to April 7, 1964. During this period, he
was appointed as the Salt Commissioner and Managing Director, Hindustan Salt
Ltd. with Head quarter at Jaipur. He held both these posts from September 11,
1953 to December 23, 1963, and only as Salt Commissioner till April 7, 1964,
where after he was reverted to the State of Orissa. He was compulsorily retired
by the Government on June 9, 1971. By its order dated September 1, 1977, the
State Government gave him pay and allowances in the super-time scale from
November 29, 1967 to April 24, 1968 and thereafter selection grade from April
15, 1968 to June 9, 1971. Respondent 1 rejected his representation (a) for
refixing his year of allotment by condoning the shortage of 6 days in
determining N2 and by taking into consideration allowances for purposes of N1
(b) for granting the benefit of F.R. 49 and (c) for granting the benefit under
F.R. 30.
The appellant, therefore, filed a writ
petition to the High Court claiming three reliefs, namely, (a) Refixation of
the year of allotment as 1942 instead of 1944 in the Indian Administrative
Service, alleging that by refusing to treat the Calcutta compensatory allowance
and lodging allowance as pay under FR 9(21)(b) and to condone the six days'
shortage in determining the number of completed years of editorial experience
under 'N' formula, Respondent 1, by its order dated June 11, 1952, denied him
seniority, (b) pay as admissible under FR 49 i.e. full salary of one post and
additional salary upto a maximum of 50% of the second post, for the period from
September 11, 1961 to December 23, 1963 during which he held both the posts of
Salt Commissioner and Managing Director, Hindustan Salt Ltd. and (c) Placement
in the super-time scale w.e.f. July 24, 1962, i.e. the date when his junior Sri
V.V. Ananta Krishnan was appointed to the super-time scale, under the
"Next Below Rule" implied in F.R. 30.
The High Court refused to grant the reliefs,
prayed for, and dismissed the Writ Petition.
Dismissing the appeal by special leave, the
Court
HELD: 1. In view of the categorical averment
in his application for grant of special leave to this Court under Article 136
of the Constitution that "he was no longer interested in the relief for
determination of the year of allotment, according to the 'N' formula, since he
was on the verge of retirement" the appellant cannot be heard to say that
the Government of India had not arrived at a correct decision in assigning 1944
as the year of allotment to him.
[33H-34A, 34G] (2) Normally the decision of
the Government of India assigning a year of allotment to a particular officer
under Rule 3 of the Indian Administrative Service (Regulation of Seniority)
Rules, 1954, or, in accordance with orders and instructions issued by the
Central Government in that behalf before the commencement of these Rules, is
final and cannot be interfered by the Courts under Article 226 of the
Constitution unless such decision was capricious or arbitrary or in breach of
the said Rules. The same principle should apply to the assignment of a year of
allotment under the 'N' formula. [36F] 26 Even according to the appellant, he
was not entitled, under the 'N' formula as it stands, to a credit of more than
8 years. If that be so, the High Court quite properly declined to exercise its
extra-ordinary jurisdiction under Article 226 of the Constitution, inasmuch as
no writ or direction could be issued, in a matter which was essentially in the
discretion of the Government, to refix his seniority by giving credit for 9
years instead of 8 years as provided for, as admittedly the relevant
instructions require "completed years of actual experience". [36E]
There is no question of condoning the short fall of six days by relaxation of
the relevant Rules under the powers vested in the Government of India by the
All India Services (Conditions of Service Residuary Matters) Rules, 1960, since
these Rules were not in force when the Government of India, Ministry of Home
Affairs, by its letter dated July 19, 1951, issued a statement showing the
years of allotment assigned to officers borne on the Indian Civil
Administrative cadre of Orissa, wherein the year of allotment assigned to the
petitioner was 1943 1/2, or even at the time when the Ministry of Home Affairs
by its letter dated June 11, 1952 rejected his representation in that behalf,
while revising his year of allotment to 1944. Further, the Government of India
adopted a uniform policy in this regard and short falls of even less than 6
days have not been condoned so that there could be uniformity of taking note of
"completed years of service" irrespective of the short fall of number
of days in calculating the year of allotment in every case under the 'N'
formula. The Government of India has also held that the 'Recruitment Rules'
cannot be relaxed under Rule 3. [36H-37C, 38D] Even assuming there was a power
to condone the deficiency, the matter rested entirely in the discretion of the
Government of India. When a decision in a policy matter like relaxation is left
to the absolute discretion of the Executive, courts cannot interfere and issue
a direction to the Government of India to reconsider the matter afresh, after a
lapse of more than 25 years. It would not only disturb the combined gradation
list of the Officers belonging to the Indian Administrative Service, but also
affect the seniority of many officers who have not been impleaded in these
proceedings. [38G] (3) The definition of 'pay' in the case of a military
officer, introduced by F.R. 9(21)(b) is for 'protection pay' when such officer
is recruited in civil service under the employment of the Union of India, i.e.,
for fixation of his pay in such service, as is made clear by F. Rs. 2 and 3.
F.R. 2 provides that the Fundamental Rules
shall apply, subject to the provisions of F.R. 3, to all Government servants
whose pay is debitable to civil estimates and to any other class of Government
servants to which the President may, by general or special order, declare them
to be applicable. F.R. 3 provides, that unless it be otherwise distinctly
provided by or under the Rules, "Nothing in these Rules shall apply to
Government servants whose conditions of service are governed by Army or Marine
Regulations". F.R. 9(21)(b) had, therefore, no relevance in the matter of
fixing the seniority of Emergency Recruits from the "Open Market" to
the Indian Administrative Service, like the petitioner, even when they were
drawn from the Army, but was applicable only in regard to fixation of their
initial pay.
[39E, D, G] The 'pay' for purposes of
determining the year of allotment under 'N' formula of such recruits drawn from
the Army was, as per the underlying principles set out in the Ministry of Home
Affairs dated July 18, 1949, the 27 "basic pay" which necessarily
exclude allowances. This concept of "basic pay" for fixation of
initial pay is reflected in the Indian Administrative Service (Pay) Rules,
1954, which takes into account only the "initial pay". [40G] The rule
which requires credit to be given for the period of continuous employment on
pay or income not less than Rs. 800/- p.m., would apply uniformly to all
recruits drawn from different sources, namely, persons who were previously
lawyers, or employed in business houses or in Government service. Uniformity in
such a case can only be attained by excluding allowances in every case, because
the allowances which persons drawn from those different sources would be
getting, would be varied in character. The Government of India, therefore,
acted fully in consonance with Articles 14 and 16 of the Constitution. [41A-C]
The concept of 'pay' under F.R. 9(21)(b) cannot be introduced for purposes of
regulating the year of allotment under 'N' formula, as it relates to fixation
of seniority and not of pay. If the definition of 'pay' in F.R. 9(21)(b) was to
be taken note of, then Calcutta compensatory allowance and marriage allowance
would also be included.
Then, a rule which makes seniority dependent
upon marriage allowance, and therefore, on whether the officer was married or
not will be violative of Article 14 of the Constitution.
The inclusion of 'pay' as defined in F.R.
9(21)(b) in the 'N' formula to include lodging allowance is not permissible as
it was essentially compensatory in character. Any other construction will lead
to manifest injustice as it would result in discrimination between persons
similarly situated i.e., between an Army Officer in receipt of lodging
allowance in lieu of rent-free quarters and one in occupation of such rent-free
quarters, in the matter of seniority in the Indian Administrative Service.
[41G-H, 42D- E] (4) The conditions of service of members of the Indian
Administrative Service are regulated by the provisions of All India Services
Act, 1951 and the various Rules and Regulations framed there under, such as Indian
Administrative Service (Recruitment) Rules, 1954, Indian Administrative Service
(Cadre) Rules, 1954, Indian Administrative Service (Pay) Rules, 1954, Indian
Administrative Service (Regulation of Seniority) Rules, 1954, Indian
Administrative Service (Appointment by Promotion) Regulation, 1955, All India
Services (Discipline and Appeal) Rules, 1955, and 1969, All India Services
(Conditions of Service-Residuary Matters) Rules, 1960 etc. When there is
specified provision made in regard to them on a particular subject regulating
their conditions of service in the said Act and the Rules, the question of
applicability of the Fundamental Rules does not arise. [42G-43A] Even assuming
that the Fundamental Rules were applicable on August 7, 1950 i.e. at the time
when the petitioner was appointed to the Indian Administrative Service, these
Fundamental Rules ceased to be applicable on the coming into force of the
aforesaid rules and regulations framed under the Act, unless the President by
an order under F.R. 2 declared them to be so applicable. [43B] The provisions
of F.R. 49 ceased to apply from the date on which the Indian Administrative
Service (Pay) Rules 1954, were brought into force, as it makes no provision for
'additional pay'. Even if they were F.R. 49, in terms, provides that when a
civil servant holds two posts, he is disentitled to draw the salary of both the
posts. All that such a civil servant becomes 28 entitled to is the salary of
the higher post, but no additional pay can be allowed for performing the duties
of the lower post. Thus, the pay of one of the posts can be allowed.
Even assuming that the provisions in the
Fundamental Rules would continue to apply to a member of the Indian
Administrative Service in regard to which no specific provision is made by
framing a rule under the All India Services Act, 1951, and therefore, in the
instant case, the appellant was still governed by F.R. 49, he had no claim to
any additional salary, on the materials on record. [44A] (5) The intention
underlying the second proviso to F.R. 30(1) which is commonly known as the
"Next Below Rule" is the principle that when an officer in a post
(whether within the cadre of his service or not) is for any reason prevented
from officiating in his turn in a post on higher scale or grade borne on the
cadre of the service to which he belongs, he may be authorised by special order
of the appropriate authority proforma officiating promotions into such scale of
pay and thereupon be granted the pay of that scale of grade, if they be more
advantageous to him on each occasion on which the officer immediately junior to
him in the cadre of his service draws officiating pay in that scale or grade.
The principle behind the so-called rule is
evidently that an officer out of his regular line should not suffer by
forfeiting acting promotion which he would otherwise have received had he
remained in his regular line. [44G-45A] The State of Mysore v. M. H. Bellary,
[1964] 7 SCR 471, referred to.
The 'Next Below Rule' is not a rule of any
independent application. It sets out only the guiding principles for
application in any case in which the President or the Governor proposes to
regulate an officiating pay by special order under the second proviso to F.R.
30 (1). The condition precedent to the application of the 'Next Below Rule'
must, therefore, be fulfilled in each individual case before any action can be
taken under this proviso. [45F] (6) The promotion to a post in super-time scale
involves an element of selection and is not by mere seniority. As a rule of
universal application, the benefit of the "Next Below Rule" though
available in the selection grade has never been extended when there is a
promotion to a post in super-time scale in the Indian Administrative Service
for considerations of policy, namely, (1) the length of service which officers
in States have to put in before they get promotion to super-time scale is not
uniform; (ii) Most of the States have got Divisional Commissioners, while some
States do not have this post; (iii) The posts of Secretaries in some States
carry pay in super-time scale while in others these posts carry pay in the
senior scale, and (iv) An officer might be good enough to be a Divisional
Commissioner, but might not be good enough to be Joint Secretary to the Government
of India.
[45G,46B-D] The process of appointment to the
super-time scale is by selection. When the element of selection comes in, this
promotion must be subject only to the claims of exceptional merit and
suitability, and is not a matter of right.
Promotion to the super-time scale is,
therefore, not a matter of course. The Officer must stand the test of
suitability and his integrity must be beyond doubt. For this purpose there is a
Senior Selection Committee which pre- 29 pares a select list of suitable
officers which must be approved by the Union Public Service Commission. The
Senior Selection Committee has to prepare a panel of names for each grade and
submit the same for approval to the Union Public Service Commission as well as
to the Government of India, Ministry of Home Affairs. The select list has to be
reviewed and revised every year, and the Senior Selection Committee meets
annually. The essence of holding Selection Committee meeting annually is that
each annual proceeding is independent of the other. That is why as soon as the
proceedings of the new Selection Committee are approved by the Union Public
Service Commission, the proceedings of the earlier Selection Committee becomes
inoperative. No manner of continuity can, therefore, be imputed to the
proceedings of the various Selection Committees. [48 D-F] In the instant case,
the appellant cannot claim as a right the super-time scale merely on the basis
of his seniority among the members of the Indian Administrative Service
belonging to the Orissa cadre, if he was 'consciously' passed over by the
Senior Selection Committee or Government of India, Ministry of Home Affairs.
[48 C, G] Union of India v. M.L. Capoor, [1973] 3 SCC 836, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1419 of 1971.
Appeal by Special Leave from the Judgment and
Order dated 24-11-1970 of the Orissa High Court in O.J.C. No. 466/66.
D. D. Suri (In person).
K. K. Venugopal, Addl. Sol. Genl. of India,
R. B. Datar and Girish Chandra for Union of India.
L. N. Sinha and G. S. Chatterjee for the
State of Orissa.
The Judgment of the Court was delivered by
SEN J.-This appeal, by special leave, is directed against the judgment and
order of the High Court of Orissa, dated November 24, 1970, dismissing the
appellant's writ petition for fixation of his year of allotment in the Indian
Administrative Service as 1942 instead of 1944 and for giving necessary
benefits to him in the fixation of his pay.
The facts of this case are complicated and
involved. It is nevertheless necessary to unravel these complicated facts, in
order to appreciate clearly what are the questions which must be dealt with in
this appeal. The appellant having been selected by the Special Recruitment
Board as an Emergency Recruit from the 'Open Market', was appointed to the
Indian Administrative Service on August 7, 1950 and allocated to the Orissa
cadre. He was born on January 7, 1950, and joined the Editorial Staff of the
Civil & Military Gazette, Lahore, towards the end of 1938. He continued to
serve the Civil & Military Gazette upto January 7, 1943 when he joined the
Army. During the 30 Second World War, he was granted an Emergency Commission in
the Army w.e f. March 7, 1943 with the rank of Lieutenant w.e.f. June 3, 1948
but with seniority in that rank w.e.f. September 9, 1944.
The Government of India, Ministry of Home
Affairs, New Delhi, by letter dated July 19, 1951, forwarded a statement
showing the years of allotment assigned to various officers borne on the Indian
Civil Administrative cadre of Orissa.
The year of allotment assigned to the
petitioner was 19431/2 for purposes of seniority, on the basis of his
particulars as available at that time. On receiving his representation, the
Ministry of Defence was requested to furnish information regarding the
particulars of his pay and allowances drawn by him during the period December
31, 1944 to December 31, 1948. As the information furnished by the Ministry of
Defence did not tally with those furnished by the petitioner in his application
for recruitment to the Indian Administrative Service to the Special Recruitment
Board, he was asked to explain the discrepancy between the particulars
furnished by him and those furnished by the Ministry of Defence. He was also
asked to explain why his seniority should not be calculated on the basis of the
information furnished by the Ministry of Defence according to which his year of
allotment should have been 1945. On receiving his reply, the Government of
India, Ministry of Home Affairs, by its letter dated June 11, 1952 decided
after due consideration that his 'protection pay' should be treated as part of
his pay, the allowances like the Calcutta Compensatory and Lodging allowances
etc. were not to be counted as part of his pay. It was further decided that the
deficiency of six days in counting the number of completed years of actual
experience could not be condoned. The Government of India, Ministry of Home
Affairs, accordingly, fixed the year of allotment of the petitioner to the
Indian Administrative Service as 1944.
The appellant has had a chequered career. It
appears that the petitioner faced heavy weather in the State of Orissa, from
where in 1952 he was sent out on deputation to the Government of India i.e.
after he had served the State Government of Orissa for a period of little less
than two years. Thereafter, he remained continuously on deputation with the
Government of India for 12 1/2 years till he reverted to his parent State on
April 23, 1965, despite the objection of the then Chief Minister. He served as
Deputy Secretary to the Government of India in the Ministry of Transport from
1955 to 1961. On April 1, 1961 he proceeded on long leave. On his return from
leave, the petitioner was appointed as the Salt Commissioner and Managing
Director, Hindustan Salt Ltd. with headquarters at Jaipur. He held both the
posts until December 23, 1963 and only as Salt Commissioner till 31 April 7,
1964, where after he was reverted to the State of Orissa. On his reversion to
the State, he was first appointed as Managing Director, State Warehousing
Corporation, a post usually held by an Additional District Magistrate, but
later on allowed to officiate in the super- time scale as Revenue Divisional
Commissioner, Sambalpur w.e.f. October 24, 1965, by reverting an officer junior
to him. While the petitioner was serving as Commissioner of Land Reforms,
Orissa, a prosecution was launched against him on November 24, 1967 u/s. 5(2)
read with s. 5(1) (e) of the Prevention of Corruption Act, 1947, on a charge of
having assets to the tune of Rs 3,29,476.90 disproportionate to his income.
There was a search of his house at Cuttack on and after November 27, 1967, and
he was placed under suspension by the Government of Orissa on November 28, 1967
under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955.
Eventually, the prosecution ended in an acquittal. The petitioner was
compulsorily retired by the Government on June 9, 1971. On September 1, 1977,
the State Government after the order of acquittal, issued an order directing
that the period from November 29, 1967 i.e. the date of suspension, till June
9, 1971, i.e., the date of his retirement, shall be treated as period spent on
duty. It also made consequential directions in the matter of pay and
allowances, treating him in the super-time grade from November 29, 1967 to
April 24, 1968 and, thereafter in the selection grade, from April 25, 1968 till
June 9, 1971.
The questions sought to be raised by the
appellant who appeared in person, are no doubt of a wide and general importance.
The question still remains whether one of them, i.e., regarding the year of
allotment need or could be decided at all. Three questions arise for
determination on his submissions: First, whether the Court has the jurisdiction
or the power to make a direction requiring the Government of India, to re-fix
the year of allotment of the petitioner as 1942 instead of 1944 as determined,
respecting his seniority in the Indian Administrative Service, from which he
has retired; secondly, whether the Fundamental Rules applied to the petitioner,
and if so, whether he was entitled under F.R. 49 for the period from September
11, 1961 to December 23, 1963 during which he simultaneously held both the
posts of the Salt Commissioner and the Managing Director, Hindustan Salt Ltd.
with headquarters at Jaipur in the State of Rajasthan, to the full salary of
one post and additional salary upto a maximum of 50% of the second post, which
salary has been denied to him; and thirdly, whether the Next Below Rule implied
in F.R. 30 was applicable to the petitioner while he was serving in connection
with the affairs of the Union. In as much as his junior in the Orissa cadre,
Shri V.V. Anant- 32 krishnan was appointed in the super-time scale on July 24,
1962 and he was thus entitled to the benefit of the same and had to be placed
in the super-time scale w.e.f. July 24, 1962 to June 9, 1971, i.e., the date of
his retirement.
But the whole structure of this argument has
no real foundation.
The Union of India and the State of Orissa
filed counter-affidavits and denied the petitioner's right to relief on any of
the grounds.
In its elaborate judgment, the High Court
carefully considered all the aspects and took the view that the considered
decision of the Government of India, Ministry of Home Affairs, on the
representation of the petitioner reached after due consideration, cannot be
interfered with.
They had decided not to condone the
deficiency of six days in counting the number of completed years of actual
experience, nor take into account compensatory allowance like Calcutta
Compensatory allowance and the lodging allowance, in calculating his pay, for
determining the year of allotment. Further, the High Court observed that the
failure of the petitioner to explain the discrepancy between the particulars as
furnished by him and those furnished by the Ministry of Defence, his failure to
produce any records to show what the information of the Ministry of Defence was
or even the reply that he had ultimately sent to the Government of India in trying
to explain the discrepancy, coupled with the fact that he had neither produced
the impugned order of the Government of India fixing 1944 as the year of
allotment, nor had he furnished the details of his pay and allowances from time
to time in respect of the period in question, were fatal to the petitioner's
case. It also observed that in the absence of any good reason being shown to
justify intervention by the Court in the exercise of its writ jurisdiction, the
contention regarding the year of allotment cannot be accepted.
The High Court also held in the alternative,
that the Government of India had arrived at the correct year of allotment in
respect of the petitioner. In determining the number of completed years in the
'N' formula, the Government was not duty bound under Rule 3 to relax the same,
and its refusal to condone the deficiency of six days, it could not be said
that the Government had not dealt with the case in a just and equitable manner.
In its view, the benefit claimed by the petitioner, to say the least, would be
in direct contravention of the requirement that no fraction of a year was to be
taken into account. On a proper reading of the 'N' formula, it was not possible
to read into the same the imposition of a duty on the Government to relax the
requirements in appropriate cases, nor would the Government be justified in 33
making a departure from the plain meaning of the instructions in a particular
case, merely on the ground of hardship. According to the High Court, the word
'pay' in the context of the relevant Rules and Instructions, included only such
allowances as were intended to form an addition to pay and not compensatory
allowances like Calcutta City Allowance and Lodging Allowance etc., i.e.,
allowances which were essentially compensatory in character and were intended
to be reimbursed to the Government servant for the expenditure incurred by him
in the course of his duty and, therefore, they could not be taken to form part
of 'pay' as referred to in the instructions. It lastly held that it was not
disputed before it with regard to the applicability of the 'Next Below Rule',
that promotion to a post in super- time scale involves an element of selection
and not mere seniority, and that there was nothing to show that the Government
of India ever failed to apply their mind to the case of the petitioner in
respect of his claim to the benefit of the 'Next Below Rule', nor was it argued
before it that the Government of India acted mala fide or in an arbitrary
manner. From the language of the clarificatory letter of the Secretary of State
for India in Council, dated April 2, 1947, it was clear that no Officer can
claim as of right promotion to a post carried in super-time scale under the
'Next Below Rule'. It merely embodies the guiding principles governing
promotion to such post which involves an element of selection and not mere
seniority.
There can be no doubt, in our opinion,
agreeing with the decision of the High Court, that the petitioner was not
entitled to any relief. The High Court has, to our mind, reached a just and
correct decision.
At the very outset, we tried to impress on
the petitioner that his main relief, i.e. with respect to fixation of the year
of allotment according to the 'N' formula, had become infructuous, as he had already
retired from service and only the subsidiary relief i.e., for giving necessary
benefits to him in the fixation of his pay remains which is nothing but a
monetary claim, for the enforcement of which the remedy lay elsewhere. But the
petitioner who appeared in person persisted in arguing all the points raised
particularly the one regarding fixation of the year of allotment saying that he
was doing it for the 'benefit of others'. We have, therefore, no alternative
but to deal with the appeal on merits.
We fail to comprehend what relief the
petitioner can be granted in this appeal. In his application for grant of
special leave to this Court under Article 136 of the Constitution, the
petitioner has cate- 34 gorically stated that 'he was no longer interested in
the relief for determination of the year of allotment', according to the 'N'
formula, since he was on the verge of retirement, and that the arguments
advanced on his behalf in the High Court were, therefore, only confined to 'his
entitlement to additional pay under F.R. 49', irrespective or the fact whether
he was given the benefit under the 'Next Below rule or not.' In this
connection, he avers:- "2. In the said writ petition, your petitioner had
prayed for the following reliefs from the respondents:- (a) Proper fixation of
his year of allotment in the Indian Administrative Service;
(b) Grant to the petitioner of the necessary
benefits under Fundamental Rule 49 and 'Next Below Rule' in the fixation of his
pay at a rate higher than the super-time scale pay of the IAS from 11-9-1961,
the date on which he took over concurrently the two appointments of Salt
Limited, and at super- time scale pay from 23-12-1963 when he held the
appointment of Salt Commissioner only." "4. That the petitioner was
much less interested in the adjudication of the claim stated in sub-para (a) in
view of his impending retirement from service".
"the petitioner's main interest was in
his claim stated in detail in sub-clause (b) of para 2, particularly its
portion relating to his entitlement of extra remuneration under Fundamental
Rule 49 for holding two independent posts concurrently, which involved arrears
of pay amounting to over 30,000/-." (Emphasis supplied) In that situation,
the petitioner cannot be heard to say that the Government of India had not
arrived at a correct decision in assigning 1944 as the year of allotment to
him. Even if he were entitled to do so, the contention merits no consideration.
The learned Additional Solicitor-General has,
at our request, placed before us all the relevant records of the Ministry of
Home Affairs, Ministry of Finance and the Ministry of Law & Justice which
bare upon the questions at issue. On a perusal of these records, it is quite
clear that the Government of India evolved uniform policy as a matter of
principle to deal with such questions. In the light of the set principles, all
the demands of the appellant were considered at 35 each stage, and found that
they could not be accepted, keeping in view the desirability of uniformity of
policy in such matters.
In support of the contention regarding the
year of allotment, the appellant's submission is twofold, namely, (i) the
Government of India were in error in not condoning the deficiency of six days
in reckoning the completed years of his service after attaining the age of 25
years. He has wrongly been given credit for only 8 years instead of 9 years as
there was a short fall of six days to complete 9 years, which short fall should
have been waived by the Government, and (ii) he being a regular Army Officer,
the definition of 'pay' in F.R. 9(21) (b) was attracted, so that in determining
the year of allotment, 'pay' would also include allowances like Lodging
Allowances. We are afraid, none of the contentions can prevail.
It is common ground that as regards Emergency
Recruits from the 'Open Market', the year of allotment was to be determined
according to the 'Open Market Emergency Recruitment Scheme', embodied in the
instructions of the Government of India for the preparation of a common gradation
list for the officers of the Indian Civil Service cadre in each State issued on
July 7, 1950. The relevant instructions adverted to, so far as material,
(hereinafter referred to as 'N' formula) read as follows:- "IV Emergency
Recruits from the 'Open Market':
These officers should be given an year of
allotment on the basis of the following rules below:
(1) The number of completed years of actual
experience of the officers after attaining the age of 25 and upto the 31st
December, 1948 as certified by the Special Recruitment Board will be the period
of previous experience to be taken into account.
This period will be divided into two parts,
N1 and N2 as below:
(a) N1 means the period of continuous
employment on a pay or income of not less than Rs. 800 per month between 31st
December, 1944, and the 31st December, 1948, inclusive.
(b) N2 means the entire period of previous
experience to be taken into account, exclusive of N1.
(2) The year of allotment in each case will
be 1949-Y, where Y = N1+1/2 of N2." 36 These instructions form a part of
counter-affidavit filed on behalf of the Union of India and are printed in the
All India Services Manual, Second Edition, at p. 774, with the heading
"Executive Instructions/Orders issued by the Government of India under the
Indian Administrative Service (Regulation of Seniority) Rules, 1954".
The year of allotment: 'N' formula:
Rule 3 of the Indian Administrative Service
(Regulation of Seniority) Rules, 1954, so far as relevant, reads:- "3.
Assignment of year of allotment-(1) Every officer shall be assigned a year of
allotment in accordance with the provisions hereinafter contained in this rule.
(2) The year of allotment of an officer in
service at the commencement of these rules shall be the same as has been
assigned to him or may be assigned to him by the Central Government in
accordance with the orders and instructions in force immediately before the
commencement of these rules." Even according to the appellant, he is not
entitled, under the 'N' formula as it stands, to a credit of more than 8 years.
If that be so, the High Court quite properly declined to exercise its
extra-ordinary jurisdiction under Article 226 of the Constitution inasmuch as
no writ or direction could be issued, in a matter which was essentially in the
discretion of the Government, to re-fix his seniority by giving credit for 9
years instead of 8 years as provided for, as admittedly the relevant
instructions require 'completed years of actual experience'.
Normally, the decision of the Government of
India assigning a year of allotment to a particular officer under Rule 3 of the
Indian Administrative Service (Regulation of Seniority) Rules, 1954, or in
accordance with orders and instructions issued by the Central Government in
that behalf before the commencement of these Rules, is final and cannot be
interfered by the Courts under Article 226 of the Constitution unless such
decision was capricious or arbitrary or in breach of the said Rules. The same
principle should apply to the assignment of a year of allotment under the 'N'
formula.
The contention that the Government of India
should have condoned the short fall of six days by relaxation of the relevant
Rules under the powers vested in it by the All India Services (Conditions of
Service-Residuary Matters) Rules, 1960, can hardly be accepted. These Rules
were not in force when the Government of India, Ministry of 37 Home Affairs, by
their letter dated July 19, 1951 issued a statement showing their years of
allotment assigned to officers borne on the Indian Civil Administrative Service
cadre of Orissa, wherein the year of allotment assigned to the petitioner was
19431/2, or even at the time when the Ministry of Home Affairs by its letter
dated June 11, 1952 rejected his representation in that behalf, while revising
his year of allotment to 1944. The relevant records of the Government of India,
Ministry of Home Affairs disclose that the Government of India adopted a
uniform policy in this regard and short falls of even less than 6 days have not
been condoned so that there could be uniformity of taking note of 'completed
years of service', irrespective of the short fall of number of days, in
calculating the year of allotment in every case under the 'N' formula.
The question of relaxation was considered at
the highest level as admitted by the petitioner himself. The records of the
Government of India, Ministry of Home Affairs, disclose that by letter dated
June 11, 1952, the Government of India after due consideration, rejected the
representation of the petitioner, by issuing an order to the following effect:-
"I am directed to say that the Government of India have carefully
considered the points raised by Sri Suri in his representation. The decisions
thereon are as follows:- (i) Considering the circumstances in which the pay
scale in the Army was generally reduced and a 'protection pay' was given, the
Government of India consider that it would only be fair that the 'protection
pay' granted to Sri Suri during his service in Army should be "treated as part
of his basic pay for purposes of determining his seniority.
(ii) The Calcutta Compensatory Allowance and
the Lodging Allowance drawn by Sri Suri during the period October 1944 to
August 1947 cannot be treated as part of pay for computing N1 or N2.
(iii) Sri Suri has represented that the
completed years of service after attaining the age of 25 upto the 31st December
1948, calculated in accordance with the formula falls short of one additional
year in his case because of a shortage of six days. He has requested that this
deficiency should be condoned.
The Government of India have rejected similar
requests for condonation of even shorter periods and regret, therefore, that
they are unable to accede to the request.
2. On the basis of the decision referred to
in para 1(i) above, Shri Suri's revised year of allotment works out to be 1944.
His position in the Orissa Indian Civil Administrative gradation List
(forwarded with the Ministry of Home Affairs letter No. 2/3/52-AIS, dated the
26th April, 1952) will therefore be immediately below Sri S.T.
Merani (S. No. 12) and above Sri S.S. Murthi
(S. No. 33). The serial numbers of Sri Murthi and officers below him in the
list may be changed accordingly." (Emphasis supplied).
The matter did not rest at that. Thereafter,
the All India Services (Conditions of Service-Residuary Matters) Rules, 1960
were framed, and by Rule 3 the Central Government were conferred power to relax
the rules and regulations regulating the conditions of service appointed to an
All India Service, in any particular case, on the ground 'undue hardship', as
they may consider it necessary for dealing with the case in a just and
equitable manner. A doubt was raised whether the power of relaxing rules was
intended to be applicable to 'Recruitment Rules' also. The Government of India
have held that the 'Recruitment Rules' cannot be relaxed under Rule 3.
Nevertheless, the petitioner kept on making representations and the question
was reconsidered on occasions more than once as reflected in the order of Sri
Govind Ballabh Pant, Minister for Home Affairs, dated June 1, 1958, which
reads:- "Sri Suri's case has been considered more than once. I do not
find, however, any adequate reasons for revising the orders already passed. It
would be difficult to condone the deficiency even if it be of only 7 days in
the case of only one officer. The rule which gave an advantage to married
officers cannot apply to him as he was not married at the time." (Emphasis
supplied).
Even assuming there was a power to condone the
deficiency, the matter rested entirely in the discretion of the Government of
India. When a decision in a policy matter like this is left to the absolute
discretion of the Executive, we do not see how the Courts can interfere and
issue a direction to the Government of India to reconsider the matter afresh,
after a lapse of more than 25 years. It would not only disturb the combined
gradation list of the officers belonging to the Indian Administrative Service,
but also affect the seniority of many officers who have not been impleaded in
these proceedings. May be, many of them may have died or retired and even as
regards the others, they may have been confirmed in the super-time grade.
39 The High Court, therefore, rightly, in our
opinion, held that there could be no interference in such matters.
`N' Formula and F.R. 9(21) (b):
F.R. 9(21)(b) reads:- "(b) In the case
of a military officer, in receipt of the rates of pay introduced on July 1,
1924, pay includes the amount which he receives monthly, under the following
designations:- (i) pay of appointment, lodging allowance and marriage
allowance; and "(ii) pay of rank, command pay, additional pay, Indian Army
allowance, lodging allowance and marriage allowance." F.R. 2 provides that
the Fundamental Rules shall apply, subject to the provisions of F.R. 3, to all
Government servants whose pay is debatable to civil estimates and to any other
class of Government servants to which the President may by general or special
order declare them to be applicable. It is, however, provided by F.R. 3 that
unless it be otherwise distinctly provided by or under the rules, nothing in
these Rules shall apply to Government servants whose conditions of service are
governed by Army or Marine Regulations. It is, therefore, obvious that the
definition of 'pay' in the case of a military officer, introduced by F.R. 9(21)
(b), is for 'protection pay', when such officer is recruited in civil service
under the employment of the Union of India, i.e., for fixation of his pay in
such service. For this limited purpose, the term 'pay' not only includes the
'rank pay' but also command pay, additional pay etc., and, 'allowances' like
lodging allowance and marriage allowance are treated as part of 'pay'. If a
military officer had been receiving any of these allowances, they will fall
under the head 'pay' under F.R. 9(21) (b). F.R. 9(21) (b) had, therefore, no
relevance in the matter of fixing the seniority of Emergency Recruits from the
'Open Market' to the Indian Administrative Service, like the petitioner, even
where they were drawn from the Army, but was applicable only in regard to
fixation of their initial pay.
It is, however, argued that the petitioner
was a regular Army Officer at the time when he was appointed as an Emergency
Recruit from the 'Open Market' and, therefore, his pay for purposes of
calculating the year of allotment was regulated by F.R. 9(21) (b), in the
absence of any provision to the contrary.
40 The argument appears to be somewhat
attractive but on deeper considerations must be rejected. The underlying
principles on which the 'N' formula was evolved by the Government of India are
set out in the letter of the Ministry of Home Affairs, dated July 18, 1949, the
substance of which reads:
"4. No decision has yet been reached
about the seniority to be accorded to candidates from the 'Open Market'
appointed to the IAS on the recommendation of the Special Recruitment Board.
There were two alternative methods by which seniority of such officers should
be determined, viz. (a) on the principle of the 'basic pay' or (b) related to
the experience which the candidates concerned had gained in their respective
employment, profession or business. The 'basic pay' of the Emergency Recruits
drawn from the 'Open Market' had been fixed mainly on the basis of age. As
regards (a) it was felt that if seniority is to follow strictly the basic pay,
the initial 'basic pay' would be subject to a maximum of Rs. 660/- for the
junior-scale and Rs 1,000/- in the senior-scale which represents the pay
admissible in the tenth year of service at the age of
36. The alternative method of approach, i.e.,
to relate seniority of the new recruits to be length of his actual experience
in the previous employment, business or profession, would be fair to the
recruits themselves inter se as it would maintain a distinction on the basis of
their 'actual experience'. It was, therefore, proposed that credit should be
given to the Emergency Recruits for the purpose of determining their seniority
in the IAS at the rate of six months in every year of experience which such
recruits may have after the age of 25." The 'pay' for purposes of
determining the year of allotment under 'N' formula of such recruits like the
petitioner was, therefore, the 'basic pay' which must necessarily exclude
allowances. This concept of 'basic pay' for fixation of initial pay is
reflected in the Indian Administrative Service (Pay) Rules, 1954 which takes
into account only the 'initial pay'.
It has been stated on behalf of the Union of
India that the Special Recruitment Board, for this recruitment, interviewed
candidates who were already employed under the Government or in commercial
firms or business houses and in public or local bodies as well as members of
the legal profession and others and out of 153 candidates selected, 115 were
Government servants, 15 were from commercial firms and 41 business houses, 8
from public and local bodies, 4 from legal profession and 11 from other
sources. The rule which requires credit to be given for the period of continuous
employment on pay or income not less than Rs. 800/- p.m.
would, therefore, apply uniformly to persons
who were previously lawyers or employed in business houses or in Government
services. Uniformity in such a case can only be attained by excluding allowances
in every case, because the allowances which persons drawn from these different
sources would be getting, would be varied in character. The Government of
India, therefore, acted fully in consonance with Articles 14 and 16 of the
Constitution in excluding allowances in computing the pay. The amount of Rs
800/-p.m.
was taken as a basis as it was the first
stage in the senior time scale of pay of officers in the Indian Administrative
Service. In this scale, the amount of Rs 800/- is the 'basic pay' without
including allowances.
Under these circumstances, the decision taken
from the beginning was that allowances would not be included in computing the
pay and as long as this decision is applied uniformly, without exception, the
appellant can have no grievance in this regard to seniority specifically as
allowances would have to be added uniformly to all other persons in the
seniority list. Thus, the definition of 'pay' in F.R. 9(21)(b) is applicable
only for the fixation of 'pay' of a Government servant who had been recruited
from the armed Forces. In such a case, the total salary including such
allowances as falling within the definition, is taken note of. The petitioner
admittedly was given an initial pay of Rs 1,000/- i.e. much higher than
officers appointed to the Indian Administrative Service on the result of the
competitive examinations. Here we are not concerned with the fixation of pay of
the petitioner but with regard to the Rules relating to the fixation of his
seniority which would take note of the period prior to his recruitment to the
Indian Administrative Service and for that purpose the 'basic pay' alone was
relevant. The concept of pay under F.R. 9(21) (b) cannot, therefore, be
introduced for purposes of regulating the year of allotment under 'N' formula,
as it relates to fixation of seniority and not of pay. The matter falls to be
regulated by the interpretation placed by the Government of India, Ministry of
Home Affairs in their letter dated July 18, 1949.
If the definition of 'pay' in F.R. 9(21) (b)
was to be taken note of, then Calcutta compensatory allowance and marriage
allowance would also be included. Obviously, a rule which makes seniority
dependent upon marriage allowance and, therefore, on whether the officer was
married or not will be violative of Article 14 of the Constitution. The
appellant gave up before the High Court his claim to the inclusion of marriage
allowance though covered by the definition of pay, and in this Court his claim
for the inclusion of Calcutta Compensatory Allowance. In dealing with the
question, the High Court has observed that the word 'pay' in the context of the
relevant Rules and Instructions included only such allowances as were intended
to form an addition to pay and not compensatory allowance like Calcutta City
Allowance and Lodging Allowance etc., i.e., allowances which were essentially
compensatory in character and were intended to be reimbursed to the Government
servant for the expenditure incurred by him in the course of his duty and,
therefore, they could not be taken to form part of 'pay' as referred to in the
'N' formula. We cannot see that the appellant is on a better footing as regards
lodging allowance, which is usually given to Army Officers in lieu of rent-free
quarters. They become at once disentitled to such allowance the moment they are
allotted quarters.
Lodging allowance is, therefore, essentially
compensatory in nature. The inclusion of pay as defined in F.R. 9(21) (b) in
the 'N' formula to include the Lodging allowance, is not permissible as the
appellant would have to claim the application of the definition of 'pay' in its
full rigour or not at all. Any other construction will lead to manifest
injustice as it would result in discrimination between persons similarly
situated, i.e., between an Army Officer in receipt of lodging allowance in lieu
of rent-free quarters and one in occupation of such rent-free quartes, in the
matter of seniority in the Indian Administrative Service.
The inevitable conclusion, therefore, is that
the definition of 'pay' in F.R. 9(21) (b) was not applicable for purposes of
fixation of seniority of the appellant.
Fundamental Rules and their applicability:
It is not necessary for our purposes to deal
with the larger question as to whether the Fundamental Rules regulate the
conditions of service of members of the Indian Administrative Service. As at
present advised, we are inclined to think that their conditions of service are
regulated by the provisions of All India Services Act, 1951 and the various
Rules and Regulations framed there under, such as Indian Administrative Service
(Recruitment) Rules, 1954, Indian Administrative Service (Cadre) Rules, 1954,
Indian Administrative Service (Pay) Rules, 1954, Indian Administrative Service
(Regulation of Seniority) Rules, 1954, Indian Administrative Service
(Appointment by Promotion) Regulation, 1955, All India Services (Discipline
& Appeal) Rules, 1955 and 1969, All India Services (Conditions of
Service-Residuary Matters) Rules, 1960 etc.
When there is specific provision made in
regard to them on a particular subject regulating their conditions of service
in the said Act and the Rules, the question of applicability of the Fundamental
Rules does not arise.
Even assuming that the Fundamental Rules were
applicable on August 7, 1950 i.e. at the time when the appellant was appointed
to the Indian Administrative Service, these Fundamental Rules ceased to be
applicable on the coming into force of the aforesaid rules and regulations
framed under the Act, unless the President by an order under F. R. 2 declared
them to be so applicable.
Combination of posts and right to Additional
Pay under F.R. 49:
The short question for consideration is
whether the appellant was entitled under F.R. 49 for the period from September
11, 1961 to December 23, 1963 during which he simultaneously held both the
posts of the Salt Commissioner and the Managing Director, Hindustan Salt Ltd.,
with headquarters at Jaipur, to the full salary of one post and additional
salary of a maximum of 50% of the second post.
The answer must clearly be in the negative.
The provisions of F.R. 49 were not applicable to him after the Indian
Administrative Service (Pay) Rules, 1954 were brought into force; and even if
they were, F.R. 49, in terms, provides that when a civil servant holds two
posts. he is disentitled to draw the salary of both the posts. All that such a
civil servant becomes entitled to is the salary of the higher post, but no
additional salary can be allowed for performing the duties of the lower post. Thus,
the pay of one of the posts can be allowed. Furthermore, the rules relating to
pay applicable in 1962 were the Indian Administrative Service (Pay) Rules, 1954
which make no provision for additional pay.
Rule 13 of the said Rules reads as follows:-
"13. Repeal and saving.-Any rules corresponding to these rules and in
force immediately before the commencement of these rules is hereby repealed:
Provided that any order made or action taken
under the rules so repealed shall be deemed to have been made or taken under
the corresponding provisions of these rules." It would thus follow that
the provisions of Fundamental Rules in regard to pay, even if applicable,
ceased to apply from the date on which the Indian Administrative Service (Pay)
Rules, 1954 came into force. The appellant therefore, would normally not be
entitled to invoke F.R. 49 in regard to the salary paid to him when he was
simultaneously holding the two posts in question.
44 Even assuming that the provisions in the
Fundamental Rules would continue to apply to a member of the Indian
Administrative Service in regard to which no specific provision is made by
framing a rule under the All India Services Act, 1951 and, therefore, the
appellant was still governed by F.R. 49, he had no claim to any additional
salary. The records of the Government of India, Ministry of Home Affairs
disclose that the ground on which the claim of the appellant was rejected was
that at the time the post of Managing Director, Hindustan Salt Ltd. was brought
into existence, there was a down-grading of the posts of Salt Commissioner
having regard to the diminution in the nature of duties and responsibilities
attached to the said post.
Normally, this should have resulted in a
reduction in the scale of pay of the post of Salt Commissioner, but the
Government of India, on due application of mind, refrained from doing so,
purely on consideration of his additional charge, and continued the post in the
same scale of pay as a result of which the appellant in fact, obtained monetary
benefit. For this reason, the Finance Ministry did not agree to any extra
remuneration over and above the scale of Rs. 1800-2000/- to the Salt
Commissioner-cum-Managing Director.
The grievance of the appellant that his
successor-in- office to the post of Salt Commissioner, Jaipur was given a pay
of Rs. 2,250/-was also considered, but his representation was rejected on the
ground that the said incumbent had already been drawing Rs. 2,250/ when he was
asked to hold the post of Salt Commissioner, Jaipur. The relevant records
disclose again a full and detailed application of mind to the issues involved.
Thus there was no question of the appellant
being entitled to be given an additional pay under F.R. 49 i.e. full salary of
one post and additional salary up to a maximum of 50% of the other post, for
the period from September 11, 1961 to December 23, 1963, during which he
simultaneously held both the posts.
`Next Below Rule' The intention underlying
the second proviso to F.R. 30(1) which is commonly known as the 'Next Below
Rule' is the principle that when an officer in a post (whether within the cadre
of his service or not) is for any reason prevented from officiating in his turn
in a post on higher scale or grade borne on the cadre of the service to which he
belongs, he may be authorised by special order of the appropriate authority pro
forma officiating promotions into such scale of pay and thereupon be granted
the pay of that scale or grade, if they be more advantageous to him on each
occasion on which the officer immediately junior to him in the cadre of his
service draws officiating pay in that scale or grade. The principle behind the
so-called rule is evidently that an officer out of his regular line should not
suffer by forfeiting acting promotion which he would otherwise have received
had he remained in his regular line: The State of Mysore v. M. H. Bellary. (1)
The real implications of the 'Next Below Rule' as defined in the Secretary of
State for India's ruling clarified by the Government of India, Ministry of
Finance by letter no. 2(25)-Est.III/46, dated April 2, 1947: All India Services
Manual, 2nd ed. pp. 765-66, in so far as they bear upon the claim or right to
the benefits there under in respect of the appellant, are extracted below:-
"The so-called 'rule' is not a rule of any independent application. It
sets out only the guiding principles for application in any case in which the
Governor-General in Council, or the Governor exercising his individual judgment
in virtue of the powers conferred on him by the Secretary of State's Rule of
the 14th April, 1942 (published with Home Department Notification No. 195/40
Ests., dated the 9th June 1942), proposes to regulate officiating pay by
special orders under the second proviso to Fundamental Rule 30(1). The
condition precedent to the application of the 'Next Below Rule' must,
therefore, be fulfilled in each individual case before action may be taken
under this proviso." It would thus appear that the 'next Below Rule' is
not a rule of any independent application. It sets out only the guiding
principles for application in any case in which the President or the Governor
proposes to regulate an officiating pay by special order under the second
proviso to F.R. 30(1). The condition precedent to the application of the 'Next
Below Rule' must, therefore, be fulfilled in each individual case before any
action can be taken under this proviso.
It was not disputed before the High Court
with regard to the 'Next Below Rule' that promotion to a post in super- time
scale involves an element of selection and not mere seniority. The Government
of India, Ministry of Home Affairs, intimated the petitioner in June 1965 that
his representation for fixation of pay in the super-time scale on the basis of
the 'Next Below Rule' had been rejected. It was, therefore, accepted before the
High Court that there was due application of mind by the Government of India to
the case of the petitioner in respect of his claim to the benefit of the 'Next
Below Rule' and that there was nothing to show that the Government had acted
mala fide or in an arbitrary manner in rejecting his claim.
The Additional Solicitor General placed
before us voluminous records showing that, as a rule of universal application,
the benefit of the 'Next Below Rule' has never been extended when there is
promotion to a post in super- time scale. This is a problem which has faced the
Government of India on numerous occasions and eventually the Government reached
a uniform decision that the 'Next Below Rule, should not be applied to a
super-time scale post, carrying Rs.
2,500-125/2-2750 for considerations of policy
which are these: (i) The length of Service which officers in States have to put
in before they get promotion to super-time scale is not uniform, (ii) Most of
the States have got Divisional Commissioners, while some States do not have
this post, (iii) The posts of Secretaries in some States carry pay in
super-time scale while in other these posts carry pay in the senior scale; and
(iv) An officer might be good enough to be a Divisional Commissioner, but might
not be good enough to be Joint Secretary to the Government of India.
The benefit of the 'Next Below Rule' is
available in the selection grade but this benefit has not so far been allowed
to the members of the Indian Administrative Service in the super-time scale.
The considerations on which this policy of the Central Government is based are
contained in the note of Sri L. P. Singh which is reproduced below:- "The
length of service which officers in different States have to put in before they
get promotion is not uniform. In some States, officers become Commissioners in
the 15th or 16th year of service, in some; even officers who have put in 20
years service in the Indian Civil Service are still drawing pay in the senior
time scale. Again while most States have got Divisional Commissioners, some
have not. Further, Secretaries to Government in West Bengal, Maharashtra and
Gujarat are allowed special rates of remuneration. Again, while an officer may
be good enough to be a Divisional Commissioner, he may not necessarily be good
enough to be a Joint Secretary to the Government of India." It appears
that the State Government of Tamil Nadu made a reference on the subject, and
the matter was studied in depth by the various ministries. The Ministry of Home
Affairs was not unfavourably inclined. It expressed that since new guide-lines
have been evolved and the State Governments have been requested to constitute
47 a Screening Committee for considering the cases of the members of the Indian
Administrative Service for appointments to posts carrying pay in super-time
scale, the benefit of super-time scale should be extended to officers on
deputation with the Government of India under the 'Next Below Rule'. It,
however, agreed that there cannot be complete uniformity at any particular
time, since the length of service which officers in different States have to
put in before they get promotion is not uniform but expressed that this
criterion loses much of its force with the passage of time and that the view
that an officer might be good enough to be a Divisional Commissioner and might
not be good enough to be the Joint Secretary to the Government of India, hits
at the very root of the system of Administration which we have adopted in this
Country. It further expressed that the fact that most of the States have got
Divisional Commissioners while some States do not have these posts, has no
relevance. It, therefore, proposed that officers belonging to the Indian
Administrative Service should be given pro forma promotion to the super-time
scale by the State Government under the 'Next Below Rule' so that the service
rendered by such officer from the date of such promotion, will count for the
purpose of fixation of initial pay, on reversion to the present cadre, and also
for the purpose of increments, and the benefit should be allowed on 'one for
one basis'. It was also suggested in the alternative, that if the benefit of
the 'Next Below Rule' could not be extended to such officer and if he is
detained by the Government in a lower post at the Centre against his wishes and
in public interest, he should be given the 'higher pay' on personal basis,
i.e., as a measure personal to him within the frame-work of the policy quoted
above.
When the matter was referred to the Ministry
of Finance, it did not agree to either proposal, and the Ministry of Law
rightly pointed out:
"It is not appropriate to raise the
scale of ex- cadre post to that of super-time scale merely because the
incumbent has become due for promotion to the super-time scale. The pay
attached to a post is with regard to the nature of the duties and
responsibilities and not with reference to the entitlement of the
incumbents." As regards, the scope of the protection of pay envisaged by
the proviso to sub-rule (2) of Rule 6 of the Indian Administrative Service
(Cadre) Rules, the Law Ministry advised that:
"The concept of the basic pay which the
officer would have drawn but for his deputation is limited to the basic 48 pay
of the post to which he would have been promoted in the natural course of
things but not to a post like a supertime scale to which appointment is not
only on the basis of seniority but also merit and suitability." Thus the
present position is that the benefit of the 'Next Below Rule is available at
the first stage of selection i.e. at the time of appointment in the selection
grade but not at the second stage, namely, at the time of promotion to the
super-time scale.
It is, therefore, abundantly clear that the
appellant cannot claim as a right the super-time scale merely on the basis of
his seniority among the members of the Indian Administrative Service belonging
to the Orissa cadre. The process of appointment to the super-time scale is by
selection. When the element of selection comes in, this promotion must be
subject only to the claims of exceptional merit and suitability, and is not a
matter of right: Union of India v. M.L. (Capoor(1). Promotion to the super-time
scale is, therefore, not a matter of course. The officer must stand the test of
suitability and his integrity must be beyond doubt. For this purpose, there is
a Senior Selection Committee which prepares a select list of suitable officers
which must be approved by the Union Public Service Commission. The Senior
Selection Committee has to prepare a panel of names for each grade and submit
the same for approval to the Union Public Service Commission as well as to the
Government of India, Ministry of Home Affairs. The select list has to be
reviewed and revised every year, and the Senior Selection Committee meets
annually. The essence of holding Selection Committee meeting annually is that
each annual proceeding is independent of the other. That is why as soon as the
proceedings of the new Selection Committee are approved by the Union Public
Service Commission, the proceedings of the earlier Selection Committee become
inoperative. No manner of continuity can, therefore, be imputed to the
proceedings of the various Selection Committees. It is not the petitioner's case
that his name was ever brought into the select list by the Senior Selection
Committee and approved by the Government of India, Ministry of Home Affairs,
for appointment in the selection grade. If the petitioner was 'consciously'
passed over by the Senior Selection Committee or the Government of India,
Ministry of Home Affairs, then there is no question of the applicability of the
'Next Below Rule'.
Much stress was, however, laid on the letter
of Sri R.N. Mohanti, Joint Secretary to the Government of Orissa, Political
& Services Department, dated May 7, 1963, addressed to the petitioner in
re- 49 ply to his letter dated March 15, 1963 for the submission, that had
remained in his parent cadre, he would have been promoted and drawn pay in the
super-time scale. It was urged that the petitioner should have been given pro
forma promotion and the higher scale of pay in the super-time grade under the
'Next Below Rule' because his junior in his parent cadre had been promoted to
such scale of pay or granted 'higher pay', on personal basis to compensate for
the financial loss suffered by him due to his retention in a lower post at the
Centre. We are afraid, the contention must be rejected. The aforementioned
letter only stated that his case would have been 'considered' in the normal
course for appointment to the selection grade as well as to a super- time scale
post, had he continued under the State Government. It did not at all mention
nor could it be construed to mean that he was entitled for appointment to a post
in super-time scale on account of his seniority on the basis of the 'Next Below
Rule'. In any event, the letter, we are afraid, cannot take the place of the
recommendation of the Senior Selection Committee.
In the result, the appeal fails and is
dismissed. There shall be no order as to costs.
N.V.K. Appeal dismissed.
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