GOVT OF NCT OF DELHI v. CYRIAC MATHEW

20. We have also perused Schedule II of Part B of the first schedule appended to the Rules, 2008 and we find that the present and revised pay scale etc. are mentioned, as under:- Sl No. Post Present Scale Revised Pay Scale Correspondi ng Pay Band Para No. of the Rep ort (1) (2) (3) (4) (5) (6) (7) XX ORGANISED ACCOUNTS CADRES*

2. Assistant Accounts/ Audit Officer 7450- 7500- PB- 4800 7.56.

3. Audit/Account s Officer 7500- 8000- PB- 5400 7.56.

4. Senior Audit/ Accounts Officer 8000- 8000- PB- 5400 7.56. *Also applicable to employee of Indian Audit & Accounts Department

21. We find that there is nothing in Rule 11 of the Rules, 2008 which provides for revised pay structure as defined in Rule 7 of the Rules 2008 to mean actual pre-revised pay drawn by the employee in the actual pre-revised scale, as has been asserted in paragraph no. 9 of the writ petition.

22. Hon'ble Supreme Court considered the circumstances where Rule 7 or Rule 11 would be applicable and held in the case of Raj Kumar Anand[4] (supra), as under:- "It is apparent from the first proviso to Rule 5 of Rules of 2008, that option was given to the government servant to continue to draw the pay scale until the date on which his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that pay scale. Second proviso to Rule 5 which is attracted also made it clear that where the government servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of these Rules on account of promotion, upgradation of pay scale etc., the government servant may elect to switch over to the revised pay structure from the date of such promotion, upgradation etc. It is not in dispute that the ACP was granted to the respondent between 01.01.2006 and 29.8.2008 i.e. the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the respondent in between the aforesaid dates. Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule

11 which is applicable. Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first schedule to the Rules 2008. The respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case. Coming to the decision rendered by this Court in K.V. Rama Raju & Ors[5]. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju & Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner. Resultantly, we have no hesitation to hold that the appeal is bereft of merit. Pay fixation has to be done under Rule 11 and not Rule 7 as discussed. Let pay revision be worked out and arrears, if any, be paid within a period of 3 months from today. The appeals deserve to be dismissed and are hereby dismissed. Parties to bear their own costs."

23. In the aforequoted judgement, the Hon'ble Supreme Court has distinguished its own decision in the case of Union of India and others vs. K.V. Rama Raju and others (supra) and observed that decision in the said case cannot be applied where up-gradation has been made otherwise than as per schedule of the Rules, 2008. Bare reading of Rule 11 of the Rules 2008 itself clearly reveals that Rule 11 shall be attracted where a government servant continues to draw his pay in the existing scale and is brought over to the revised pay scale from the later date his pay from the later date in the revised pay structure shall be fixed in the manner as provided in the Clause (I). By the impugned order, the Tribunal has remitted back the matter to the petitioners herein to consider the claim of the respondents herein regarding fixation of their pay in the revised pay structure from the date of their promotion as SO (A) in the light of the observations made in the body of the order. Thus, we find no infirmity in the impugned order of the Tribunal.

24. For all the reasons afore-stated, we do not find any merit in these writ petitions. Consequently, all the writ petitions fails and are hereby dismissed.”

5. A holistic reading of the afore-extracted passages from the judgment of the Allahabad in Neeraj Kumar Srivastava reveals that the High Court has, placing reliance on the judgment of the Supreme Court in Raj Kumar Anand, held that, in the case of re-fixation of the pay of the employees in the higher pay scale consequent on the exercise of option by them under Rule 5 of the CCS (Revised Pay) Rules, the fixation of pay would have to be as per Rule 11 whereas, if it is a case where the fixation of pay is as per the revised pay structure contained in Schedule II of Part B of the first schedule appended to the Rules, 2008, consequent on the recommendations of the Sixth Central Pay Commission, fixation would be as per Rule 7.

6. Thereafter, the learned Tribunal has not pronounced categorically on whether the case of Respondents 1 to 30 actually fell under Rule 7 or Rule 11. We are constrained to observe that it would have been better if the learned Tribunal decided this issue, as that was the precise controversy raised before it. Instead of doing so, however, the learned Tribunal has merely directed the petitioners to verify as to whether the respondents had exercised their option as per the first proviso to Rule 5 of the CCS (Revised Pay) Rules.

7. As the learned Tribunal has, unfortunately, not really addressed the controversy before it and has left the matter to the wisdom of the petitioners, to take a decision as to whether the fixation of the pay of the respondents was consequent to exercise of option by them under the first proviso to Rule 5 or consequent on upgradation under the CCS (Revised Pay) Rules, this writ petition was actually not necessary.

8. Suffice it to state that, depending on the decision of the verification conducted by the petitioners in accordance with para 5 of the impugned judgment, the issue of whether the respondents would be entitled to have their pay re-fixed in accordance with Rule 7 or Rule 11 of the CCS (Revised Pay) Rules would have to be determined.

9. We foresee a second round of litigation, but nothing can be done about it.

10. Accordingly, we dispose of this writ petition with a direction to the petitioners to comply with para 5 of the impugned judgment of the learned Tribunal within a period of eight weeks from today.

11. The petition stands disposed of accordingly.

C. HARI SHANKAR, J.