Supreme Court of India
D.G., Employees' State Insurance ... vs B. Raghava Shetty And Ors. on 31 March, 1995
Equivalent citations: JT1997(10)SC507, 1995LABLC1806, (1996)IIILLJ350SC, 1995(2)SCALE644, 1995SUPP(2)SCC681
Author: G.T. Nanavati
Bench: A.M. Ahmadi, G.T. Nanavati
JUDGMENT G.T. Nanavati, J.
1. Leave granted.
2. The Employee(sic) State Insurance Corporation, represented by its Director General and Regional Director, is the appellant in all these appeals. Respondent No. 1, in each of these appeals, is the contesting respondent. We have heard learned Counsel for the appellants and the contesting respondents who have appeared in person.
3. The appellant-Corporation has a Regional Office at Bangalore and local offices at smaller places. One such local office is at Shahbad town. In the year 1982 the Corporation invited options from the Upper Division Clerks for being posted as the UDC Incharge at the local offices. The contesting respondents who were senior to Respondent No. 2 and working in the Regional Offices expressed their unwillingness for being posted as UDC Incharge at the local offices. Therefore, Respondent No. 2 came to be posted as UDC Incharge of the local office in Shahabad with effect from 21.9.1984 as no official senior to him was willing to be posted to that place. Respondent No. 2 worked as UDC Incharge from 21.9.1984 to 4.10.1985. He also worked as a Head Clerk at that place on an ad hoc basis from 5.10.1085 till his regular promotion as Head Clerk on 26.7.1989. On his promotion as Head Clerk his pay was fixed at Rs. 1680/ - with effect from 1.6.1989. The contesting respondents also came to be promoted as Head Clerks and their pay was fixed at Rs. 1640/-. As they were senior to Respondent No. 2. and yet their pay was fixed at a lower rate they made representations under FR 22-C seeking parity of their pay with that of Respondent No. 2. As the representations were rejected they approached the Central Administrative Tribunal, Bangalore Bench, for a direction to the Corporation to step up their pay so as to bring it on par with that of Respondent No. 2.
4. The Tribunal felt that "some injustice has been done to the applicant by not giving him an opportunity to opt in the matter of transfer that led to an appreciation in the career prospects of his junior who in all probability made his choice and profited thereby". The Tribunal was also of the view that the stand taken by the Corporation would have been justified had they given an option again in the year 1985 when Respondent No. 2 was made Head Clerk though on a temporary and ad hoc basis. Taking this view the Tribunal directed the Corporation to step up the pay of the contesting respondents under FR 22-C; but as regards the arrears of pay the benefit directed to be given was restricted to one year prior to the date of applications made to the Tribunal. The contention raised by the learned Counsel for the Corporation is that FR 22-C had no application in these cases and, therefore, the Tribunal was wrong in directing the Corporation to step up the pay of the contesting respondents under that Rule.
5. It is not in dispute that the contesting respondents had expressed their unwillingness to be posted as UDC Incharge of local offices. Probably they declined because those places were small and they would have lost the benefit of HRA and CCA. Unlike Respondent No. 2 they refused to avail of the benefit of being UDC Incharge and preferred to remain in the Regional Office and continue to have the benefit of HRA and CCA. It is also not in dispute that posting as UDC Incharge is not a promotion from the cadre of UDC to higher cadre. Such postings were made on a temporary and ad hoc basis. Again, when Respondent No. 2 was posted as Head Clerk at the local office in Shahbad that was also on a (sic)porary and ad hoc basis and by way of local arrangement. When the regular promotions from the cadre of UDC to the cadre of Head Clerk came to be made in 1989 pay of Respondent No. 2 came to be fixed at Rs. 1680/-, at a higher rate in terms of RF 22-C. The contesting respondents were not entitled to such a benefit and, therefore, their pay was fixed at Rs. 1640/-. The contesting respondents had no grievance to make when Respondent No. 2 was posted as UDC Incharge at Shahbad local office. What was submitted by them was that in 1985 when Respondent No. 2 was posted as Head Clerk in that office fresh options should have been invited by the Corporation. This contention had found favour with the Tribunal and, therefore, it felt that as no option was again called for at that time the contesting respondents suffered injustice. The said posting was made by way of local arrangement and as per the prevailing practice. After having expressed their unwillingness to be posted at local offices as UDC Incharge the contesting respondents had not shown their willingness for being considered for their posting as UDC Incharge if there was going to be a possibility of such UDC Incharge being posted as a Head Clerk by way of local arrangement. It is difficult to accept the submission made by the contesting respondents that they were not aware of such a possibility. Under these circumstances it is difficult to appreciate how FR 22-C can be brought to help for stepping up the pay of the contesting respondents to bring it on par with that of Respondent No. 2. FR 22-C provides for fixation of initial pay of a Government servant. It reads as under :-
Notwithstanding anything contained in these Rules, where a Government servant holding a post in a substantive, temporary of officiating capacity is promoted or appointed in a substantive temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached 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 pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued. Provided that the provisions of this Rule shall not apply where Government servant holding a Class-I (Group-A) post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to higher post which is also a Class-I (Group-A) post and carries a time-scale of pay with the minimum of more than Rs. 1500/-.
Provided further that the provisions of Sub-rule (3) of Rule 31 shall not be applicable in any case where the initial pay fixed under this Rule; Provided also that where a Government servant is, immediately before his promotion or appointment 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 by an amount equal to the last increment in the time-scale of the lower post.
Provided that if Government servant either -
i) has previously held substantively or officiated in :-
i) the same post, or
ii) a permanent or temporary post on the same time-scale, or
ii) a permanent post other than a tenure post or temporary post (including a post in a body incorporated or not, which is wholly or substantially owned or controlled by the Government on an identical time-scale; or
iii) if appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated then proviso to FR 22 shall apply in the matter of initial fixation of pay and counting of previous service for increment.
6. Respondent No. 2 got the benefit of his previous service because of that Rule and, therefore, his initial pay was fixed at a higher rate. On a plain reading of that provision it becomes clear that it will not apply to the contesting respondents. It is does not provide for the type of claim which they had made. They were not denied the benefit of working on a post carrying duties and responsibilities of greater importance. On the contrary they had declined to do so. The Tribunal was, therefore, wrong in directing the appellant-Corporation to step up the pay of the contesting respondents under FR 22-C. We, therefore, allow these appeals and set aside the order passed by the Tribunal in each of these matters. However, there shall be no order as to costs.