Central Administrative Tribunal - Delhi
Dasu Ram vs Union Of India Through Secretary ... on 30 April, 2013
Central Administrative Tribunal Principal Bench OA No. 780/2012 Reserved on: 02.04.2013 Pronounced on: 30.04.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Mr. Birendra Kumar Sinha, Member (A) Dasu Ram R/o 37/H-2, Sector XI, Rohini, Delhi 110 085. Applicant (By Advocate: Shri Rajiv Manglik) Versus Union of India through Secretary (Communication), Ministry of Communications & IT, Department of Telecommunication, 20, Ashoka Road, Sanchar Bhawan, New Delhi. Respondents (By Advocate: Shri R.N. Singh) O R D E R Mr. Birendra Kumar Sinha, Member (A):
The applicant, in the instant Original Application, is Sub Divisional Engineer (SDE for short) who was promoted to the rant of Senior SDE in the scale of pay of Rs.7500-12000 after having granted him the benefit of FR 22(I)(a)(i). On 04.09.2006, the applicant was promoted to the post of ADG on temporary basis for a period of 180 days and his pay was fixed granting him the benefit of FR 22(I)(a)(i) in the pre-revised pay scale of Rs. 10000-15200. The case of the applicant is that he continued to work on higher post of ADG with technical breaks of 2-3 days and after the period of 180 days till his retirement on 31.11.2008. The 6th CPC was implemented on 01.08.2008 and the date of increment was changed in respect of all the central Government employees to 1st July of the year. The applicant was, however, denied increment on 01.07.2007 and 01.07.2008 in the revised scale by taking the grade pay of the higher post. The applicant, thereafter, submitted representation dated 25.09.2009 for granting him increments w.e.f. 01.07.2007 and 01.07.2008 by taking into consideration the grade pay of Rs.6600/- stating therein that three persons junior to him, who had been promoted along with him vide letter dated 27.02.2009, were granted the increments in the higher pay grade. Vide letter dated 15.12.2009 [Annexure A-2], while the applicant was granted increments w.e.f. 01.07.2007 and 01.07.2008 in the higher grade pay and fixed his pay at Rs. 25,180/- with grade pay of Rs.6600/- w.e.f. 01.07.2008 till the date of his retirement i.e. 30.11.2008. However, the grievance of the applicant is that the respondents did not implement their own order. He learnt on query under Right to Information Act, 2005 that his case had been taken up with the Department of Expenditure, Ministry of Finance which had informed vide their note dated 22.11.2011 that since the applicant had not worked in the higher post for a period of six months as on 01.07.2007 and 01.07.2008, his request for revision of pay fixation by granting him the increments in July, 2007 and July, 2008 could not be accepted. The applicant has filed this Original Application against the impugned order dated 05.01.2009 intimating as under:-
With reference to your RTI Application dated 20.12.2011 on the above mentioned subject, it is intimated that your case for grant of increment to Shri Dasu Ram, Ex. ADG in July, 2007 & July, 2008 has been taken up with Ministry of Finance, Department of Expenditure. However, the Department of Expenditure has not agreed to the proposal of DoT on the ground that you have not completed the required period of six months as on 01.07.2007 and 01.07.2008 in the particular post and on promotion to higher post of the officer has been granted the benefit of increment @ 3% and the grade pay as applicable to the post. A copy of the Department of Expenditures note in this regard is sent herewith for ready reference.
2. The learned counsel for the applicant has submitted that the CCS (RP) Rules, 2008 read with FR 22 (1)(a)(i) provide that all such employees who had completed more than six months of service were entitled to increment from the 1st of July of the year. The applicant has admittedly completed six months of service in the grade of Rs.6600/- as on 01.07.2007 and 01.07.2008 and, therefore, he became entitled for increment as on 01.07.2007 and 01.07.2008 in the higher grade pay of Rs. 6600/-. The CCS (RP) Rules, 2008 nowhere provide six months service should have been continuous. The applicant has breaks of 2-3 days intermittently between the two periods of officiation in the higher grade pay just to defeat his claim of grant of increments. Hence, the stand of the Finance Ministry and of the respondent is contrary to the provisions of the CCS (RP) Rules, 2008 as also FR 26(2). The applicant has further invoked the principle of equal work for equal work as a part of the directive principles of State Policy to be read in consonance with the fundamental rights.
3. The claim of the applicant has been vehemently opposed by the learned counsel for the respondent contending that the matter stood referred to the Department of Expenditure, Ministry of Finance. He further accused the applicant of not representing the facts correctly in the sense that the provisions of FR 22(I)(a)(i) are not applicable to the case of purely temporary/local officiating promotions. The pay of the applicant had not been correctly fixed on his temporary and local officiating promotion to STS on 18.09.2006 and the mistake was detected and rectified by regulating his pay in the revised pay scale. He has further contended in para 4.7 of the reply that the applicant was promoted to the Senior Time Scale (STS for short) of ITS Group A in the pay scale of Rs.10000-325-15200 on purely temporary and local officiating basis for a period of 180 days vide order dated 04.09.2006. He further submitted that the provisions of FR 22(I)(a)(i) are not applicable to the case of purely temporary and local officiating promotion. His pay on local officiating promotion on 18.09.2006 should have been fixed at Rs.11,625/- instead of Rs.11,950/- and this mistake was corrected as and when it was detected. He further submits that order dated 04.09.2006 under reference clearly stipulates that the officers concerned shall stand reverted to their substantive grade of TES Group B immediately on completion of 180 days. Hence, a separate order of reversion was not necessarily required to be passed. The local officiating promotions are made as a matter of stop gap arrangements till the post is filled up on regular basis and are notified purely on the basis of functional consideration. Since the applicant was not eligible for promotion to the STS on regular basis, he has no claim for promotion to the same.
4. The learned counsel for the respondents vehemently argued that the applicant has not completed six months in the STS on officiating promotion as on 01.07.2007 and 01.07.2008 in the higher post, he is not entitled to draw increments in the higher post but he was allowed increments in the JTS on which post he held the lien under FR 26(b)(i). The learned counsel for the respondents has further submitted that the pay scales of juniors of the applicant namely D.K. Jain and Ms. Bulley Mishra had also been revised as per the provisions of Rule 10 of CCS (RP) Rules, 2008. He strongly argued that there is no violation of statute involved at all and as such the Original Application of the applicant deserves to be dismissed.
5. We have patiently heard the arguments advanced by their respective counsels. All other facts have more or less been admitted by the respondents. The only issue for consideration is whether Rule 10 of the CCS (RP) Rules, 2008 provides that a person in order to the eligible to get increment in the higher grade pay in which he was officiating must have continuous officiating for a period of six months or it construes a total period of six months during the increment year under consideration. The applicant has submitted a chart showing his respective periods of officiation as follows:-
Sl.No. Duration Years Months Days
1. During 01.07.2006 to 30.06.2007
(a) 18.09.2006 to 16.03.2007 0 5 29
(b) 20.03.2007 to 30.06.2007 0 3 12 Total 0 9 11
2. During 01.07.2007 to 30.06.2008
(a) 01.07.2007 to 16.09.2007 0 2 17
(b) 21.09.2007 to 17.03.2008 0 5 27
(c) 30.06.2008 to 30.06.2008 0 0 1 Total 0 8 15
6. From the above chart, it would be apparent that he has officiated for a total period of 9 months and 11 days during the increment year from 01.07.2006 to 30.06.2007 and for 8 months 15 days during the increment year from 01.07.2007 to 30.06.2008 though with broken intervals of 2-3 days.
7. It appears from the documents that the applicant represented on 25.09.2009 that he has not yet been given annual increment of July, 2008 while other three junior to him have already been given annual increment of July, 2008 vide Finance Ministry letter dated 27.02.2009. In response to this, the order dated 17.02.2009 was issued granting him increments in the higher pay. However, the same was not implemented. It appears from the copies of the files submitted that his case was examined by US (STP) in his note dated 02.09.2009 as under:-
2. The pay of Shri Dasu Ram was initially fixed, consequent to 6th CPC, vide Office Order dated 7th October, 2008 and later a corrigendum was also issued re-fixing his pay vide Office Order dated 19.11.2008.
3. In this connection it may be pointed out that consequent to 6th CPC, Department of Expenditure issued an Office Memorandum No.1/1/2008-IC dated 13.9.2008 clarifying the procedure for fixation of pay of the Government employees promoted after 1.1.2006. A clarification was sought from PAT/Finance Section whether the provisions contained in the aforesaid OM dated 13.09.2008 are applicable to promotions given to JTS Group B on temporary/adhoc basic as STS in DOT. The clarification sought on the issue was kept aside but a representation of Shri DK Jain ADG(IR) was taken up by PAT Section with the Finance Branch, wherein it was contended that since Shri Jain had completed more than six months on higher post of STS on promotion on local arrangement basis from JTO during the years 2007 and 2008 with short spells of reversion to his substantive post, he is entitled to increments of higher post of STS falling due during July, 2007 and 2008 in the light of Rule 10 of CCS (RP) Rules, 2008. This interpretation of PAT Section was agreed to by the Finance Wing of DOT in allowing increments to Shri DK Jain, ADG on 1.7.2007 and 1.7.2008. This ruling of the Finance Branch was received in Pension Section during January, 2009 and was implemented.
4. Shri Dasu Ram, Ex-ADG, DOT has already retired from Government service with effect from 30.11.2008 and he has also been paid pension regularly through PPO No.771010800376 issued by PFP Section of DOT. Now, Shri Dasu Ram has quoted the case of Shri D.K. Jain, who, he contends is his junior in his cadre and requests for giving him the same benefits of two increments during July, 2007 and July, 2008. It is a case of stepping up of pay in comparison with the junior and needs to be examined in consultation with the Finance Branch of DOT.
5. Since Pension Section does not have the seniority list of JTOs, it is not in a position to ascertain whether Shri Dasu Ram is in fact senior to Shri DK Jain in the grade of JTO. Therefore, if approved, we may request PAT Section to examine the case of stepping up of pay of Shri Dasu Ram, ex-ADG in consultation with the Finance Branch, DOT first for issuing the necessary pay fixation corrigendum by Pension Section and revision of his retiral dues accordingly. His service book and pension files are also attached. It was further examined on 14.09.2009 following discussion with Director (Estt.) wherein matters relating to officiating promotions have been dealt with in the following manner:-
2. This has been examined with Director (Estt.). Shri Dasu Ram , Ex-ADG, DOT vide his representation dated 23.6.21009 has made a request for grant of increments falling due to him in July, 2007 and July, 2008 as has been granted to Shri DK Jain and other TES Group B officers on completion of more than six months on the post of STS Group A to which they were promoted on local officiating basis.
3. In this connection it may be pointed out that Staff Branch of DOT has been promoting TES Group B officers to STS of ITS Group A on local officiating basis in the pre revised pay scale of Rs.10000-325-15200 for a period of 180 days at a time and thereafter reverting them to their substantive post for few days and re-promoting them again to STS Group A from time to time. The mode of pay fixation viz under FR 35/FR 22 etc. on their promotion to higher post on local officiating basis was never mentioned in thee promotion orders. As a result, after the 6th CPC, their pay had to be revised both in their officiating post of STS Group A and the substantive post of TES Group B.
4. Consequent to 6th CPC, Department of Expenditure issued an Office Memorandum No.1/1/2008-IC dated 13.9.2008 clarifying the procedure for fixation of pay of the Government employees promoted after 1.1.2006. These TES Group B officers, who were re-promoted to STS Group A on local officiating basis after 1.1.2006 wanted the benefit of double increment as laid down in D/o Expenditures O.M. dated 13.9.2008 referred to above. A clarification was, therefore, sought from PAT/Finance Section whether the provisions contained in the aforesaid OM were applicable to promotions given to TES Group B as STS Group A on local officiating basis, which was purely a temporary arrangement. However, the clarification sought by pension section on the issue was not taken up with the Finance Wing but the PAT Section took a representation of Shri DK Jain ADG(IR) with the Finance Branch, wherein it was contended that since Shri Jain had completed more than six months on higher post of STS on promotion on local arrangement basis from TES Group B during the years 2007 and 2008 with short spells of reversion to his substantive post, he is entitled to increments of higher post of STS falling due during July, 2007 and 2008 in the light of Rule 10 of CCS (RP) Rules, 2008. The Finance Wing of DOT agreed to this interpretation of PAT Section and allowed two increments to Shri DK Jain, ADG on 1.7.2007 and 1.7.2008 on the higher post of STS. This ruling of the Finance Branch was received in Pension Section during January, 2009 and was implemented in all similar case of TES Group B, who were promoted as STS Group A on local arrangement basis. However, by the time this ruling was received in Pension Section from PAT Section/Finance Branch, Shri Dasu Ram, ADG had retired from service with effect from 30.11.2008.
5. Shri Dasu Ram, Ex-ADG, DOT has already retired from Government service with effect from 30.11.2008 and he has also been paid pension regularly through PPO No.771010800376 issued by PFP Section of DOT. Now, Shri Dasu Ram has represented that he may also be given the benefits of two increments of July, 2007 and July, 2008 as has been given to Shri D.K. Jain and others.
6. Since Shri Dasu Ra, Ex-ADG, DOT had also completed more than six months on higher post of STS on promotion on local arrangement basis from TES Group B during the years 2007 and 2008 with short spells of reversion to his substantive post, he is also entitled to increments of higher post of STS falling due during July, 2007 and 2008 in the light of Rule 10 of CCS (RP) Rules, 2008 as was agreed to by the Finance Wing of DOT in case of Shri DK Jain, ADG and others. If approved, we may request the Finance Branch, DOT to agree to the above proposal and also to vet the pay fixation Memo of Shri Dasu Ram, Ex-ADG, DOT as placed below. His service book and pension files are also attached. Then the matter was further submitted vide note dated 28.10.2009 as under:-
2. PAT sections file No.1-5(5)/2008-PAT through which case of Sh. D.K. Jain was examined by PAT section in consultation with Finance Section has not been made available by PAT Section. However, copies of the note sheet are placed below for kind reference. Shri Dasu Ram, Ex-ADG. DOT has represented for grant of annual increment of July 2007-08 on the same line as in the case of Sh. D.S. Jain. This case has been examined at page 2/N ante.
DOT Finance approved for grant of increment during July 2007 and July 2008 on the post of ADG to which he was promoted on local officiating basis as was the case of Sh. D.K. Jain is solicited. Further, it transpires that the AAO (Finance) had recorded in the note dated 09.11.2009 as under:-
2. This is regarding grant of increments as per the recommendations of 6th CPC in the higher post of STS on promotion on local officiating arrangement from TES, Group B post case of Shri Dau Ram (Staff No. 18155) Ex.ADG, DOT.
3. The case was earlier examined by Finance Branch and STP Section was requested at page 3/N to refer the case through PAT Section and to link the relevant file No.1-5(5)/2008-PAT in which similar case was examined by Finance Branch.
4. STP Section is now resubmitting the case and stating that the concerned file is not available with PAT Section and, however, photocopies of the Note Sheets obtained from PAT Section have been placed for reference. Further, it has been stated that the officer has represented for grant of annual increments falling in July, 2007 and July 2008 on the same analogy as in the case of Shri D.K. Jain.
5. Brief of the case:
in the light of Rule 10 of CCS (RP) Rules 2008, a similar case of Shri D.K. Jain, ADG, DOT was permitted to grant 2 increments due to him on 1-7-2007 and 1-7-2008 vide page 5/N of copies of Note sheets placed below (F/XA);
Based on this case, all similar cases of TES Group B officers who were promoted as STS Group A on local officiating arrangement basis after 1-1-2006 have been granted increments on 1st July of every year if they rendered service for more than 6 months in the revised pay structure;
However, as Shri Dasu Ram, Ex-ADG, DOT has already retired with effect from 30-11-2008, he has not been granted the above benefit;
Thus, the officer has now represented for granting the benefit of two increments falling in July 2007 and July 2008 as in the case of Shri D.K. Jain, ADG in the light of Rule 10 of CCS (RP) Rules, 2008.
6. The case has been examined with reference to the service book of the officer and it is seen that Shri Dasu Ram worked on officiating/adhoc basis in the higher post of STS, in the revised pay structure, for more than 6 months during the years 2007 and 2008 with short spells of reversion to his substantive post. Details are indicated as below:-
Sl.
No. Duration Years Months Days
1. During 01.07.2006 to 30.06.2007
(a) 18.09.2006 to 16.03.2007
(b) 20.03.2007 to 30.06.2007 0 0 5 3 29 12 Total 0 9 11
2. During 01.07.2007 to 30.06.2008
(a) 01.07.2007 to 16.09.2007
(b) 21.09.2007 to 17.03.2008 0 0 2 5 17 27 Total 0 8 14
7. From the above details, it is clear that the officer had completed more than 6 months in the revised structure of the higher post of TS and he is eligible to be granted increments on 1st July 2007 and on 1st July, 2008 as per the provisions in the Rule 10 of CCS (RP) Rules, 2008. Another proposal was initiated vide Note dated 13.11.2009 which reads under:-
2. In the light of facts stated in para 5 to 7 on page 5/N, it is proposed that Shri Dasu Ram, Ex-ADG of this Deptt. may be allowed increments w.e.f. 01.07.2007 and 01.07.2008 on his pay fixed under VI CPC as ADG on/after 01.01.2006 as he has completed more than 06 months in each year service as ADG prior to 01.07.2007 and 01.07.2008. The increments are admissible under Rule 10 of the CCS (RP) Rules, 2008 (F/xB).
8. The matter was further examined by the US (SGT) vide his note dated 10.06.2010, by AAO (Finance) on 15.07.2010 and by ADG (Finance) on 22.07.2010. Thereafter, the AAO examined the cases of all other similarly situated employees who had been granted the same benefit in the higher grade pay and it was decided to implement the same in respect of D.K. Jain and Ms.Bulley Mishra after having revised their pay. On 27.03.2012, there is another order stating therein as under:-
Shri Dasu Ram has not completed the required period of six months as on 01/07/2007 and 01/07/2008 in the particular post and on promotion to higher post the officer has been granted the benefit of increment @ 3% and the Grade Pay as applicable to the post, the request for revision of pay fixation by granting increments in July 2007 and July 2008 cannot be acceded to and as per the advice of the Finance Branch, Department of Telecom to review and regulate the pay fixation of all other cases of similarly promoted officers, the Pay Fixation of Shri D.K. Jain, ADG who is similarly placed has been reviewed with effect from 01/01/2006 and his pay fixation is regulation in supersession of Office Order dated 21.02.2009.
9. We have carefully perused the pleadings and the documents submitted by the rival parties and have also considered the arguments put forth by their respective counsels and are of the view that the following issues emerge on the basis thereof for our consideration:-
i) Whether RF 22(1)(a)(i)is applicable to the facts of the instant case?
Whether claim of the applicant is covered by Rule 10 of the CCS (RP) Rules, 2008?
Whether the cases of the said DK Jain and the Ms. Bully Mishra constitute a valid precedent for the instant case to follow and not conceding the same which amount to a violation of Articles 14 & 16?
10. In respect to the first of the issues to be considered it is necessary to look at what the relevant rules provides. It would be evident from a plain reading of this provision that the relevant provision has been substituted by GI Deptt. of Personnel & Training Notification No.1/10/89-Estt.(Pay-I) dated 30th August, 1989 as amended from time to time. 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 fulfilment 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 date 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 be 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."
11. The answering respondents have questioned the applicability of FR 22(1)(a)(i) in the sense that it does not apply to the purely temporary/officiating promotion given by invoking local arrangements. The pay of the applicant had been incorrectly fixed at the stage of Rs.11,950/- only instead of being fixed at Rs.11,625/-. This mistake has been rectified while regulating the pay of the applicant in the revised scale of pay. Under this provision the option of fixation from the date of increment in the lower post is not available in the case purely local or temporary appointments. It is apparent from a plain reading of the provision of FR 22(1)(a)(i) that a case must fulfill certain pre-condition in order to apply to FR 22 (i) the government servant should be holding a non-tenure post; (ii) the post should be held in a substantive, temporary or officiating capacity; (iii) such government servant is promoted or appointed in a substantive, temporary or officiating capacity; (iv) he must fulfill the eligibility condition prescribed in the rules for promotion to another post carrying higher responsibilities of greater importance; (v) promotion/absorption to higher post should have been made under the due process prescribed; (vi) his initial pay in the time scale of the higher post is liable to be fixed at the stage above the notional pay by increase his pay in respect of the lower post held by him regularly by granting him the increment at the stage at which such pay has accrued or rupees twenty five only, whichever is more. In the case of Union of India and Others versus Ashoke Kumar Banerjee [(1998) 5 SCC 242], Honble Supreme Court has held as under:-
8For 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.
12. Even a cursory reading of FR 22(1)(a)(i) reveals that the term promotion here necessarily connotes promotion or appointment to a post carrying higher pay and responsibilities. When we apply the acid tests mentioned in the preceding paragraphs, we find that it is not applicable to purely local officiating promotion which has been made by local arrangement. In the instant case, we find that many of the essential pre-conditions as indicated above are not getting fulfilled promotion of the applicant was totally on the basis of local arrangement; the question of eligibility was not taken into account; the seniority list was not followed; those senior to him were not given the opportunity of competing for the post; the prescribed process of promotion or appointment to the higher post were not followed. Had these procedures been followed, the applicant might not have qualified. Under these circumstances, we have no hesitation in holding that the application of FR 22(1)(a)(i) is not there.
13. It is also necessary to look at the composition of the order No.11-7/2006-STG-I dated 04.09.2006 (page 53 of the paper book). It is apparent from the said order that the promotion granted to the applicant was purely on temporary and local officiating basis. It was for a limited period of 180 days upon completion of which the applicant would stand reverted to his substantive grade of TES Group B and he would have no claim to seniority in TES Group-A based on his local officiating promotion. His seniority will remain in the substantive grade of TEST Group-B. This order is quite categorical in establishing that the promotion is purely temporary; it has been made on the basis of the local officiating basis; after the completion of the period of 180 days the applicant shall stand reverted; and that the seniority of the applicant shall continue to be retained in his substantive scale of TES Group B; he shall have no claim to the higher grade of TES Group-A. This makes it clear that it had never been intended to be a promotion and, hence, it does not get covered by FR 22(1)(a)(i).
14. The question that now arises is that even if it is an officiating promotion does the applicant get any benefit from it? Howe does he get covered? In this regard, we have to consider the provisions of FR 49 to be read with FR 35 which provides for such contingencies:-
F.R. 49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under that Government. In such cases, his pay is regulated as follows:-
(i) Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post;
(ii) Where a Government servant is formally appointment to hold dual charge of two post in the same cadre in the same office carying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charge:
Provided that if the Government servant is appointed to an additional post which carries a special pay, he shall be allowed such special pay;
(iii) Where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post or of the highest post if he holds charge of more than two posts in addition to ten percent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 39 days but not exceeding 3 months:
Provided that if in any particular case it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the Finance Department shall be obtained for the payment of the additional pay beyond the period of 3 months;
(iv) where an officer is formally appointed to hold full additional charge of another post, the aggregate of pay and additional pay shall in no case exceed (Rs.80,000);
(v) No additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge;
(v) If compensatory or sumptuary allowances are attached to one or more of the posts, the Government servant shall draw such compensatory or sumptuary allowances as the State Government may fix:
Provided that such allowances shall not exceed the total of the compensatory and sumptuary allowances attached to all the posts. The issue No.1 stands answered in negative i.e. against the applicant.
15. In respect of Issue No.2, the provision of Rule 10 of the CCS (RP) Rules, 2008 provides as under:-
10. Date of next increment in the revised pay structure - There will be a uniform date of annual increment, viz. 1st July of every year. Employees completing 6 months and above in the revised pay structure as on 1st of July will be eligible to be granted the increment. The first increment after fixation of pay on 1.1.2006 in the revised pay structure will be granted on 1.7.2006 for those employees for whom the date of next increment was between 1st July, 2006 to 1st January, 2007.
Provided that in the case of persons who had been drawing maximum of the existing scale for more than a year as on the 1st day of January, 2006, the next increment in the revised pay structure shall be allowed on the 1st day of January, 2006. Thereafter, the provision of Rule 10 would apply.
Provided that in cases where an employee reaches the maximum of his pay band, shall be placed in the next higher pay band after one year of reaching such a maximum. At the time of placement in the higher pay band, benefit of one increment will be provided. Thereafter, he will continue to move in the higher pay band till his pay in the pay band reaches the maximum of PB-4, after which no further increments will be granted.
Note 1 - In cases where two existing scales, one being a promotional scale for the other, are merged, and the junior Government servant, now drawing his pay at equal or lower stage in the lower scale of pay, happens to draw more pay in the pay band in the revised pay structure than the pay of the senior Government servant in the existing higher scale, the pay in the pay band of the senior government servant shall be stepped up to that of his junior from the same date and he shall draw next increment in accordance with-Rule 10.
16. In other words, this Rule provides that hitherto prevalent system of granting increments has been rationalized to giving increments on 1st of July of every year. The pay in the revised scale was to be fixed w.e.f. 01.01.2006 in the first instance. However, for the first year the such employees who had completed 6 months and above shall be entitled to an increment on 01.07.2007. Such employees who earned their increments between 02.01.2005 and 01.07.2006 would get their next increment on 01.07.2006. This is applicable only on completion of service in the regular scale. Rule 10 of the CCS (RP) Rules 2008 does not cover such employees who are officiating against a higher grade under local arrangement. Hence, the answer is clear that to such employees the provisions of Rule 10 would not apply. Thus, we find that the advice of the Department of Expenditure vide their GoI dated 25.04.2011 correctly given that: Rule 10 of CCS (RP) Rules, 2008 will not apply in this case and the incumbent will not be entitled to increment on 01.07.2007 and 01.07.2008. Hence, the Department also endorses the stand as already conveyed by the Pay and Accounts Department that the order dated 19th November, 2008 is found to be in order.
17. Here, one would also have to fall back upon the analogy that the Fundamental Rules provide for allowance for officiating promotion. Where a Commissioner of a Division in the Super Time Scale of the Indian Administrative Service goes on leave and one of the Deputy Commissioner in the Junior Time Scale is allowed to officiate on local arrangements all that the Deputy Commissioner can legitimately claim is an officiating allowance. He would have no claim to the increment under the Super Time Scale for the period that he has officiated at all but would be only entitled to extra allowance under FR 49 read with FR 35.
The issue No.2 is also answered in negative i.e. against the applicant.
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18. Now, we take up the third issue in context of the argument that those juniors to the applicant have also been given the benefit of increments in the higher scale namely one Ms. Bully Mishra and D.K. Jain. These two persons have not been impleaded as parties and they do not appear as respondents before us. In this regard it appears from the note dated 23.02.2012 that the increments granted to those employees have been order to have been withdrawn vide the Note dated 23.12.2012:-
5. In respect of Smt. Bussy Mishra and Sri D K Jain, during their higher officiating spells in STS of ITS Group A cadre, increments were allowed on 01/07/2007 and 01/07/2008 which is contrary to the Ministry of Finance decision. The office orders dated 26/02/2009 and 24/02/2009 are placed on file for kind perusal. The error may be rectified as detailed below:-
(i) In respect of Sh. D K Jain the increments allowed in the higher officiating STS of ITS Group A on 01/07/2007 and 01/07/2008 may be withdrawn. The error in the pay fixation order with reference to the subsequent regular promotion to JTS of ITS Group A and officiating promotion to STS of ITS Group A cadre ordered vide Office Orders 11/3/2006-STG 1 dated 30/11/2009 and 11/7-2009-Estt (Pay-I) dated 16/11/2010 respectively may be rectified and revised draft pay fixation order from 01/01/2006 to 01/07/2011 is placed at F/x below.
(ii) In respect of Smt. Bully Mishra the increments allowed in the higher officiating STS of ITS Group A post on 01/07/2007 and 01/07/2008 may be withdrawn and the revised draft pay fixation order is placed at F/y below. In the subsequent local officiating promotions to STS of ITS Group A there is no mistake in the pay fixation.
19. We further find that order dated 27.03.2012 mentions that the case of Ms. Bully Mishra also stands reviewed following the advice of the Department of Expenditure, Ministry of Finance. In any case, it is well established that the applicant has no entitlement to increment in the higher scale as claimed and as such the case of Ms. Bully Mishra would not constitute a valid legal precedence as two wrongs do not constitute a right.
20. Here, it is also to be considered that even if the said Ms. Bully Mishra had been granted an increment in the higher grade would it still constitute a legal precedent to be followed in the instant case. It has already been deduced from the issues considered that there was no entitlement of the applicant for increment in the higher pay scale as postal retiral benefits. We have also held that the Department of Expenditure, Ministry of Finance was right in rejecting the claim of the applicant. In these circumstances, we refer to the case of Union of India & Ors. versus M.K. Sarkar, 2010(2) SCC 59 wherein the question before the Honble Supreme Court was that whether a benefit incorrectly given would apply ipso facto to other claimant merely because it has been given. The Honble Supreme Court conclusively rejected this approach on the ground that two wrongs do not adapt to one right and, therefore, it does not constitute a legal precedent. His Lordship in the case of Union of India & Ors. versus M.K. Sarkar (supra) has categorically held that a wrongly extended benefit cannot be cited as a valid precedent for similar benefits by others. A claim on the basis of guarantee of equality is permissible only when a person similarly placed has been lawfully granted a relief and the person claiming the relief is lawfully entitled to the same. In this regard, the Honble Supreme Court in the matter of Union of India & Others versus M.K. Sarkar (supra) has held as under:-
25. There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegaly extended to others. See: Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459; Faridabad C.T. Scan Centre vs. Director General, Health Services - 1997 (7) SCC 752; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321, State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. - 2000 (9) SCC 94 and Union of India vs. International Trading Company - 2003 (5) SCC 437.
26. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief.
27. The appeal is therefore allowed and the orders of the Tribunal and the High Court are set aside and the original application of the respondent before the tribunal is dismissed.
21. The above issues having been answered in the manner as discussed individually, we find that the claim of the applicant is devoid of merit and misplaced. He is simply fortuitously placed in being located at a place where the posts carrying higher responsibilities and pay were required to be filled up by local arrangement. Had a proper mode of selection been resorted to for all, we know the applicant might not have been selected. In any case, he has already been paid for the officiation. This piece of luck cannot be stretched further by converting it into a permanent benefit. The Original Application, therefore, stands dismissed without there being any order as to costs.
(Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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