Raj Kumar Anand v. Union of India & Ors.

7. Pay in the pay band after including benefit of bunching in prerevised scale of Rs.5500-9000 if applicable Rs.13860

8. Grade Pay attached to the scale of Rs.7450- Rs.4600

9. Revised basic pay-total of pay in pay band and grade pay Rs.18460

10. Per contra, Mr. Kumar Rajesh Singh, appearing on behalf of the Respondents, while supporting the impugned judgment, submits that the claim of the Petitioner is misconceived. He further submits that the Respondents have rightly fixed the pay of the Petitioner by application of Rule 7(1) Note 2A, which states that where the post have been upgraded as a result of recommendations of the 6th CPC, the fixation of pay would be done by multiplying the pre-revised basic pay as on 01.01.2006 by a factor of 1.86, and, thereafter, adding the grade-pay of the upgraded pay scale thereto.

11. We have considered the submissions made by the Petitioner and learned counsel for the Respondents and perused the material on record.

12. Since the issue involved relates to the effect of Rule 5,6,[7] & 11 of the Rules we deem it appropriate to reproduce the relevant portions of the same:

13. Before we advert to the issue to be decided, we deem it appropriate to also refer to Para (I) & (II) of Section I and entry No.XVII (I) of Section II of Part B of the Rules, which in our view are relevant for deciding the controversy, in hand. “PART - B REVISED PAY SCALES FOR CERTAIN COMMON CATEGORIES OF STAFF Section I

(i) The revised pay scale mentioned in Column (5) and (6) of this part of the Notification for the posts mentioned in Column (2) have been approved by the Government. The initial fixation as on 1.1.2006 will be done in accordance with Note 2 below Rule 7 of Notification.

(ii) On account of merger of pre-revised pay scale of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, some posts which presently constitute feeder and promotion grades will come to lie in an identical grade. The specific recommendations about some categories of these posts made by the Pay Commission are included section II of Part B. As regards other posts, the posts in these three scales should be merged. In case it is not feasible to merge the posts in these pay scales on functional considerations, the posts in the scale of Rs.5000-8000 and Rs.5500-9000 should be merged, with the post in the scale of Rs.6500-10500 being upgraded to the next higher grade in pay band PB-2 i.e. to the grade pay of Rs.4600 corresponding to the pre-revised pay scale of Rs.7450-10500. In case a post already exists in the scale of Rs.7450-11500, post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500.”

14. We find that the parties are ad-idem on the issue that the upgraded pay scale of Primary School Teacher Grade (II) w.e.f. S.L. No. Post Present Scale Revised Pay Scale Correspondin g Pay Band & Grade Pay Para No. of the Report Pay Band Grade Pay (1) (2) (3) (4) (5) (6) (7) XV II TEACHERS 1 Primary School Teacher Grade III 4500-7000 Grade II 5500-9000 Grade I 6500- Grade III 6500-10500 Grade II 7450-11500 Grade I 7500-12000 PB- PB- PB- # Posts of Education Officer/Assistant Director of Education stand merged with post of Deputy Director of Education. 01.01.2006 is Rs.7,450-11,500/- with a Grade pay of Rs.4,600/- while the pre-revised pay scale was that of Rs.5,500-9,000/-. The only narrow controversy between the parties thus is while applying the multiplier factor of 1.86, which pay scale is to be used-pre-revised scale of Rs.5,500- 9,000/- or the upgraded scale of Rs.7,450-11,500/-. The Petitioner insists that it has to be the upgraded scale of Rs.7,450-11,500/- while as per the learned counsel for the Respondents, it has to be the pre-revised scale of Rs.5,500- 9,000/-.

15. The undisputed facts which emerge from the submissions of the parties, are that the Petitioner had elected to opt for switching over to the revised pay structure only from the date of his promotion/upgradation which, admittedly, was on 10.08.2006. The logical corollary thereto, would be that, his pay has to be fixed as per Rule 11, which is the only Rule dealing with fixation of pay in case of an Government servant who opts to switch over to the revised pay structure from the date of promotion/upgradation earned between 01.01.2006 and 29.08.2008 (i.e. the date of notification of the Rules). Rule 7on which the Respondents rely to justify the manner in which they have fixed the pay of the Petitioner, is not at all applicable in case of Government servants like the Petitioner, who opt to switch over to the revised pay structure only upon promotion/upgradation. We are of the view that Rule 7 is applicable only to those Government servants who elect, or are deemed to have elected, to be governed by the revised pay structure on and from 01.01.2006 itself. The reliance by the Respondents on Rule 7, to fix the pay of the Petitioner is thus misplaced, and his pay ought to be fixed with reference to Rule

11.

16. We may now refer to the order dated 09.08.2012 of the Tribunal, passed by the Allahabad Bench in O.A. No.293/2011 wherein while dealing with the same issue, the Tribunal, has interpreted the manner of pay fixation in accordance with Rule 5, 7, and 11 of the Rules. Even though the said case related to Section Officers, unlike the present case which relates to a Teacher, we find that this decision of the Tribunal is based on interpretation of the same Rules with which we are concerned in the present case. We are informed that the Union of India has filed a writ application before the Allahabad High Court, challenging the order of the Tribunal, but since no stay was granted, the said order of the Tribunal stands implemented on 22.08.2013. We deem it appropriate to reproduce the relevant findings of the Tribunal which read as under:- “As per Rule 5 regarding drawal of pay in the revised pay structure, a Government servant shall draw pay in the revised pay structure applicable to the post to which he is appointed provided that in cases where a government servant has been placed in a higher pay scale between 01.01.2006 and the date of notification of these rules on account of promotion, up-gradation of pay scale etc., the Government servant may elect to switch over to the revised pay structure from the date of such promotion, up-gradation etc. Meaning thereby an option has to be called and it left to the Government servant to opt the date of re-fixation of his pay. As per Rule 7 regarding fixation of initial pay in the revised structure, the pay in the pay band /pay scale was to be determined by multiplying the existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10. As per Rule 11, which stipulated the method of fixation of pay in revised pay structure subsequent to the 1st day of January 2006, where a government servant continues to draw in the existing scale and is brought over to the revised pay structure from a date later than the 1st day of January 2006, his pay from the later date in the revised pay structure shall be fixed by adding the basic pay applicable on the later date. After accepting the recommendation of 5th CPC the posts were up-graded in pay scale of Rs. 1450-11500. Subsequently by merging the post of the applicants in pay scale of Rs. 7500-12000 w.e.f. 01.01.2006 the posts were re-designated as Assistant Accounts Officer. As per rules of 2008 since the applicants opted to have the revised pay scale w.e.f. the date of their promotion i.e. after 01.01.2006 but before 31.08.2008, therefore, as per rule 11, their pay in the Pay Band will be fixed by adding the basic pay applicable on the last date. Therefore, the action of the respondents in rejecting the representation of the applicants for fixing their pay in pay scale of Rs. 7500-12000 is illegal and against the rules. The action of the respondents also smacks favourtism and discriminatory as the same benefit, which the applicant applicants are asking, has already been given to the Assistants/ PAs of M/o Petroleum and Gas, therefore, the impugned orders are also liable to the dismissed being discriminatory.”

17. We also find that the aforesaid decision dated 09.08.2012 of the Central Administrative Tribunal, Allahabad Bench has been followed not only by the Chandigarh Bench, Allahabad Bench, Hyderabad Bench, Patna Bench and the Principle Bench, New Delhi in a number of cases but, even by this Court, as in the case of Union of India & Ors v. B.S. Mohanty & Ors in W.P(C) 5989/2014 this Court rejected the Union’s writ petition against the order of the Principal Bench, Tribunal, passed by following the decision of Allahabad bench in O.A No.293/2011(supra).

18. Coming to the present case we find that the Tribunal has, vide the impugned order, rejected the Petitioner’s claim by relying on its earlier order dated 25.02.2012 passed in O.A. No.1108/2012 in Government School Teacher Association & Ors. v. Union of India & Ors. While dismissing the OA, the Tribunal has also agreed with the contention of the Respondents that the case of the Petitioner was covered by Rule 7. We find that the Tribunal has, while accepting this contention of the Respondents, completely overlooked the provisions of Rule 7(supra) as the Rule itself depicts that the same is applicable only to those Government servants, who elect to be governed by the revised pay structure on and from 1st day of January, 2006. The Petitioner had, admittedly, opted otherwise i.e. he had elected to switch over to the revised pay structure from the date of his promotion/upgradation which was on 10.08.2006 and, therefore, his case could not brought under the ambit of Rule ‘7’. We have also considered the Tribunal’s order passed in the aforesaid case Government School Teachers Association (supra) relying on which order, the Tribunal has rejected the Petitioner’s Original Application. We have been informed that even though the said order of the Tribunal in the case Government School Teacher Association (supra) was challenged before this Court by way of W.P.(C) 4674/2014, but the said writ petition was withdrawn by granting liberty to the Petitioner to approach the Tribunal by way of a review application, as this Court found that the contentions raised by the Counsel in respect of the Rules and the fitment-table viz-aviz the recommendations of the Sixth Pay Commission, had not been raised before the Tribunal.

19. Thus, we find that the decision of the Tribunal in the case of Government School Teachers Association (supra) has not been tested by this Court. Having considered the order of the Tribunal in the Government School Teachers Association (supra), we find that the said decision of the Tribunal does not at all deal with the interpretation of Rules and, in fact, the said case had been dismissed only because the Applicant therein being a Teacher Association, was seeking parity with Assistant/Steno Cadre-which parity could not be established and, therefore, we find no justification for relying on the said order to reject the Petitioner’s claim, which we find is fully justified and in consonance with the Rules.

20. In these circumstances, the order of the Tribunal is not sustainable in law and the same is set aside. The writ petition is allowed and the Respondents are directed to fix the pay of the Petitioner in accordance with Rule 11 by considering the upgraded scale of the post which the Petitioner was holding from 10.08.2006 and grant him all consequential benefits.

REKHA PALLI, J VIPIN SANGHI, J SEPTEMBER 20, 2017 saurabh