Union of India & Ors Vs. Ashoke Kumar
Banerjee [1998] INSC 314 (13 May 1998)
Sujata
V. Manohar, M. Jagannadha Rao M. Jagannadha Rao,J.
ACT:
HEAD NOTE:
This
appeal is preferred by the Union of India and the C.P.W.D. against the order of
the Central Administrative Tribunal, Calcutta dated 3.13.1993 passed in O.A. No. 241 f 1993. By that order, the
Tribunal directed that the "pay of the petitioner in the promotional post
should be fixed in terms of F.R. 22(1)(a)(i) with effect from 1.8.1991 and all
consequential benefits including arrears should be paid to him within a period
of 3 months from the date of communication of this order".
The
facts relevant to the case are as follows: The respondent was working in the
C.P.W.D. as Junior Engineer in the senior scale Rs.1640 - 2900 and as he had
put in 15 years service as Junior Engineer, he was granted the Assistant
Engineer's scale of Rs. 2000 - 3500 (in terms of Government of India, Ministry
of Urban Development (I Division) No. 12014\2\87 IW II dated 22.3.1991). By
giving him the necessary increment, his pay was fixed at Rs. 2600\- as on
1.2.1991 by applying FR 22(1)(a)(i) as permitted in the said order. This was
after the respondent opted for this scale. The date of his next increment which
fell n 1.2.1991 was taken into account while granting him the increment
mentioned in the FR. Later he was promoted, pursuant to certain orders of the
CAT in an earlier OA, as Assistant Engineer. He, then filed the present OA
claiming that FR 22(1)(a)(i) is to be applied to his case once again and his
pay should be refixed in the scale of 2000 - 3500 by giving him fresh benefit
of the increment permitted by the said FR.
The
CAT opined that as this was his actual promotion from the post of Junior
Engineer to Assistant Engineer, and as he was necessarily discharging higher
duties and responsibilities, he was entitled to a fresh application of the said
FR 22(1)(a)(i).
The
appellants contend that this would amount to giving the benefit of FR twice
over and this is not permissible.
The respondent
has been served and notices have been sent to him that his case will be heard
on a specific date but he has not chosen to be present and we are, therefore,
proceeding to decide the case on merits, setting him ex parte.
The
point for consideration is whether the respondent who was drawing Rs. 1640 -
2900 as Junior Engineer and who on completion of 15 years service as Junior
Engineer was given benefit of FR 22(1)(a)(i) in the Asst. Engineers' scale of Rs.
2000 - 3500 per OM(A) - 11014\91 dated 22.3.1991 with effect from 1.1.1991 is
again entitled on regular promotion as Asstt. Engineer on 1.8.1991 to the
benefit of the same FR 22(1)(a)(i)? Under the OM (A) - 11014\91 dated 22.3.1991
it is stated that in the C.P.W.D. the Junior Engineers Association and
Sectional Officers (Horticulture) Association made certain demands and an
agreement was signed on 20.3.1991 between the Government and the Association.
As per the first part f said agreement there would be 2 scales of JE/SO (Hort)
in CPWD, one in the scale of Rs. 1400 - 2300 and another in the scale of Rs.
1640 - 2900. Those who completed 5 years service in the entry grade Rs.1400 -
2300 will be placed in the grade of Rs. 1640 - 2900, subject to rejection of
those found unfit. This higher grade will not be treated as a promotional one
but will be non-functional and the benefit f FR 22(1)(a)(i) will not be
admissible, while fixing the pay in the higher grade, as there will be no
change in duties and responsibilities. We are not concerned here with the above
portion of the agreement. We are, however, concerned with the second part which
reads as follows:
"(ii)
Junior Engineers\Sectional Officers (Horticulture), who could not be promoted
to the post of Assistant Engineers\Assistant Directors (Horticulture) in the
scale of Rs.2000-3500, due to non availability of vacancies in the grade of
Assistant Engineer\Assistant Directors (Horticulture) will be allowed the scale
of Assistant Engineer\Assistant Director (horticulture) i.e. Rs. 200--0 - 3500,
on a personal basis, after completion of 15 years of total service
(Horticulture), till their normal turn for the functional promotion comes as
Assistant Engineer\Assistant Director (Horticulture). This personal promotion
will be given on fitness basis." It will be noticed that as per this part
of the O.M., those Junior Engineers who have completed 15 years of service
would get the scale of Rs.200 - 3500 (which is the scale of the promotional
post i.e. Assistant Engineers\Assistant Directors (Horticulture). This benefit is
given to avoid frustration of the Junior Engineers and Sectional Officers
(Horticulture) who would otherwise be stagnating for want of vacancies in the
next promotional post. In that light, they are allowed to draw the scale of Rs.
2000 - 3500 on a personal basis, provided they have completed 15 years, - till
their normal turn for the functional promotion comes as Assistant
Engineers\Assistant Director (H). This personal promotional will be given on
fitness basis.
In the
present case, while working as Junior Engineer the respondent completed 15
years in the scale of Rs. 1640 - 2900 and he became entitled to be fitted in
the scale of Rs.2000 - 3500 of Assistant Engineers and got his pay fixed
accordingly at Rs. 2600 by giving him the benefit of the increment as stated in
FR 22(1)(a)(i) and as permitted by the second part of the OM. This was because,
even though the O.M is dated 22.3.1991, it was agreed that benefit of FR 22(2)(a)(i)
would be given from 1.1.1991.
Thereafter,
Respondent was actually or functionally promoted as Assistant Engineer on
1.8.1991 and he then wanted benefit of FR 22(1)(a)(i) to be given to him once
again as he had then assumed higher duties and responsibilities of a superior
post functionally. Question is whether his claim is justified? FR 22 reads as
follows:
F.R.
22(1): The initial pay of a Government servant who is appointed to a post on a
time-scale of pay is regulated as follows :
(a)
(1) Where a Government servant holding a post, other than a tenure post, in a
substantive or temporary or officiating capacity is promoted or appointed in a
substantive, temporary or officiating capacity, as the case may be, subject to
the fulfillment of the eligibility conditions as prescribed in the relevant
Recruitment Rules, to another post carrying duties and responsibilities of
greater importance than those attaching to the post held by him, his initial
pay in the time-scale of the higher post shall be fixed at the stage next above
the notional pay arrived at by increasing his pay in respect of the lower post
held by him regularly by an increment at the stage at which pay has accrued or
rupees twenty-five only, whichever is more.
Save
in cases of appointment on deputation to an ex-cadre post, or to a post on ad
hoc basis, the Government servant shall have the option, to be exercised within
one month from the date of promotion or appointment, as the case may be, to
have the pay fixed under this rule from the ate of such promotion or
appointment or to have the pay fixed initially at the stage of the time-scale
of the new post above the pay in the lower grade or post from which he is
promoted on regular basis, which may be refixed in accordance with this rule on
the date of accrual of next increment in the scale of the pay of the lower
grade or post. In cases where an ad hoc promotion is followed by regular
appointment without break, the option is admissible as from the date of initial
appointment\promotion, to b e exercised within one month from the date of such
regular appointment.
Provided
that where a Government servant is, immediately before his promotion or
appointment on regular basis to a higher post, drawing pay at the maximum of
the time-scale of the lower post, his initial pay in the time-scale of the
higher post shall be fixed at the stage next above the pay notionally arrived
at by increasing his pay in respect of the lower post held by him on regular
basis by an amount equal to the last increment in the time-scale of the lower
post or rupees twenty-five, whichever is more." In our view, the
respondent having received the same benefit in advance, while working as Junior
Engineer and while not actually functioning as an Assistant Engineer, is not
entitled to the same benefit of fresh fitment in the scale of Rs. 2000 - 3500
when he is promoted on 1.8.1991 as Assistant Engineer. This is because as on
1.8.1991, he is not being fitted into the "time-scale of the higher
post" as stated in the FR. That situation was already over when the OM was applied to him on his completion of 15 years.
For the applicability of the FR 22(1)(a)(i) it is not merely sufficient that
the officer gets a promotion from one post to another involving higher duties
and responsibilities but another condition must also be satisfied, namely, that
he must be moving from a lower scale attached to the lower post to a higher
scale attached to a higher post. If, as in this case, the benefit of the higher
scale has already been given to him by virtue of the OM there is no possibility of applying this part of the
FR which says.
"his
initial pay in the time scale of higher post shall b e fixed at the stage next
above the notional pay arrived at by increasing his pay in respect of the lower
post held by him regularly by an increment at the stage at which such pay has
accrued or rupees twenty - five only, whichever is more".
Further,
the respondent is a junior officer in the category of Junior Engineers and he
has already got the benefit of the FR on completion of 15 years. It he is to be
given a second benefit on the basis of the same FR, then he would be getting
more than his seniors, who might have got promoted earlier and might have got
benefit of the FR 22(1)(a)(i) only once. Such an anomaly was not obviously
intended by the FR.
For
the aforesaid reasons, the appeal is allowed and the order of the Tribunal is
set aside and the OA is dismissed. In the circumstances, there will be no order
as to costs.
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