Mahabir Prasad Yadav v. Lakshmibai College

1. This is a Review Petition filed by the Respondent-College seeking review/recall of the order dated 27.07.2020 to the extent the Court has directed the Respondent to grant interest @ 9% from the date the University approved the grant of 7th CPC i.e. 26.03.2018. Ms. Beenashaw

2. Mr. Joby P. Varghese learned counsel for the Petitioner on the other hand rebuts the said submissions and submits that the Petitioner was not required to furnish any Option / Consent under the Rules to be granted the revised salary pursuant to the recommendations of the 7th Pay Commission and relies on the provisions of Rules 5 and 6 of the Rules in this regard. He submits that the Option Form given to the College was only by way of abundant caution but the furnishing of the Form cannot inure to his disadvantage once the Rules do not mandate the giving of Consent.

3. Ms. Soni, in rejoinder, vehemently argues that none of the teachers in the College were paid the benefits of the 7th Pay Commission soon after the same were accepted by the University. The payments were made in a staggered manner and the arrears were being paid even upto the end of 2019 but neither the teachers claimed any interest on the delayed payments nor was any interest paid to any of the employees. She further submits that whoever was paid the revised salary in April 2018 was only paid on provisional basis and subsequently the arrears were cleared. This according to her is the methodology followed uniformally for all the employees, teaching / non-teaching.

4. I have heard learned counsels for the parties and perused the relevant Rules.

5. Rule 6 of the Rules heavily relied upon by the Review Petitioner reads as under: - ““6. Exercise of option.- (1) The option under the provisos to rule 5 shall be exercised in writing in the form appended to these rules so as to reach the authority mentioned in sub-rule (2) within three months of the date of notification of these rules or where any revision in the existing pay structure is made by any order subsequent to the date of notification of these rules, within three months of the date of such order: Provided that-

(i) in the case of a Government servant who is, on the date of such notification or, as the case may be, date of such order, out of India on leave or deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the said authority within three months of the date of his taking charge of his post in India; and

(ii) where a Government servant is under suspension on the 1st day of January, 2016, the option may be exercised within three months of the date of his return to his duty if that date is later than the date prescribed in this sub-rule. (2) The option shall be intimated by the Government servant to the Head of his Office along with an undertaking, in the form appended to these rules. (3) If the intimation regarding option is not received by the authority within the time specified in sub-rule (1), the Government servant shall be deemed to have elected to be governed by the revised pay structure with effect from the 1st day of January, 2016. (4) The option once exercised shall be final. Note 1: Persons whose services were terminated on or after 1st January, 2016 and who could not exercise the option within the prescribed time limit, on account of discharge on the expiry of the sanctioned posts,”

6. Bare perusal of Rule 6(1) indicates that it requires an employee to exercise an option under the Provisos to Rule 5, in writing, in the Form appended to the Rules, which must reach the Authority within 3 months of the date of Notification. The Option required to be exercised by the employees is under the Provisions of the Provisos to Rule 5 of the CCS (Revised Pay) Rules, 2016. Rule 5 reads as under:- “5. Drawal of pay in the revised pay structure.– Save as otherwise provided in these rules, a Government servant shall draw pay in the Level in the revised pay structure applicable to the post to which he is appointed: Provided that a Government servant may elect to continue to draw pay in the existing pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing pay structure: Provided further that in cases where a Government servant has been placed in a higher grade pay or scale between 1st day of January, 2016 and the date of notification of these rules on account of promotion or upgradation, the Government servant may elect to switch over to the revised pay structure from the date of such promotion or upgradation, as the case may be. Explanation 1.- The option to retain the existing pay structure under the provisos to this rule shall be admissible only in respect of one existing Pay Band and Grade Pay or scale. Explanation 2.- The aforesaid option shall not be admissible to any person appointed to a post for the first time in Government service or by transfer from another post on or after the 1st day of January, 2016, and he shall be allowed pay only in the revised pay structure. Explanation 3.- Where a Government servant exercises the option under the provisos to this rule to retain the existing pay structure of a post held by him in an officiating capacity on a regular basis for the purpose of regulation of pay in that pay structure under Fundamental Rule 22, or under any other rule or order applicable to that post, his substantive pay shall be substantive pay which he would have drawn had he retained the existing pay structure in respect of the permanent post on which he holds a lien or would have held a lien had his lien not been suspended or the pay of the officiating post which has acquired the character of substantive pay in accordance with any order for the time being in force, whichever is higher.”

7. Perusal of Rule 5 shows that substantive provision of the Rule does not require an employee to exercise any option to be governed by the Revised Pay structure applicable to the post, to which he is appointed. It is only when an employee choses to exercise an Option to deviate from the substantive provision i.e. where he elects to continue to draw the Pay under the exiting pay structure until the date on which he earns his next or any subsequent increment in the existing pay structure or until he vacates his post or ceases to draw pay in the existing Pay Structure or where he has been placed in a higher Grade Pay or a scale between first day of January 2016 and the date of Notification of the Rules and elects to switch over to the Revised Pay structure from the date of such promotion or up gradation that he is required to exercise an Option.

8. In the present case the Petitioner chose not to exercise an Option or elect under the Provisos to Rule 5 and therefore in my view keeping in background the clear provisions of the Rules, there was no mandate requiring the Petitioner to exercise an Option under Rule 6. In any case, this argument of Ms. Soni has no force for the reason that Rule 6(3) clearly stipulates that if intimation regarding the Option is not received by the Competent Authority within the time specified in Sub-Rule (1) of Rule 6, the ‘Government Servant’ shall be deemed to have elected to be governed by the revised pay structure w.e.f. 01.01.2016. Therefore, it is wrong for the Review Petitioner to contend that the option was required to be given to the Petitioner and only from the date he opted/gave his Consent / Undertaking / Option, he would be entitled to the benefits of the 7th Pay Commission.

9. During the hearing of the petition, it was accepted by the Review Petitioner that the University had adopted the 7th Pay Commission recommendations in March 2018 and had started disbursing the benefits, though, as Ms. Soni contends, on provisional basis. There was thus no impediment in the way of the Petitioner getting the benefits from the said date. Once the Petitioner has been deprived of the payment, he is entitled to interest on the delayed payments and for this reason while deciding the writ petition, the Court had directed the Respondents to pay interest @ 9% from the date the University adopted the recommendations of the 7th Pay Commission.

10. In view of the above, there is no merit in the Review Petition and the same is accordingly dismissed.

JYOTI SINGH, J OCTOBER 15, 2020 rd/sr