Madras High Court
R.Gajalaksmi vs The Government Of Tamil Nadu on 25 March, 2013
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 25.03.2013 Coram:- The Hon'ble Mr. Justice T.Raja Writ Petition No.7321 of 2005 R.Gajalaksmi .. Petitioner Vs. 1. The Government of Tamil Nadu represented by the Secretary to the Government, Revenue Department, Fort St. George, Chennai 600 009. 2. The Collector, Erode, Erode District. .. Respondent Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus as stated therein. For petitioner : Mr.P.Rajendran For respondents : Mr.N.Srinivasan, Addl. Government Pleader. O R D E R
The petitioner herein seeks for issuance of a writ of certiorarifed mandamus to call for the records relating to the impugned order of the 2nd respondent in Na. Ka. No.26078/2004/A2, dated 08.10.2004, quash the same and direct the respondents to fix the pay of the petitioner at Rs.8825/- in the time scale of Rs.8000-275-13,500/- with effect from 01.02.2002 and grant her all consequential benefits.
2. Learned counsel, by way of narrating facts, submitted at the first instance that the petitioner was selected for the post of Deputy Commissioner of Police through the Tamil Nadu Public Service Commission (TNPSC) and she was given posting vide G.O. Ms. No.576, Home - Police-I Department, dated 15.05.1998, and she also joined duty with effect from 23.07.2000. Subsequently, after obtaining No Objection from the Head Office, she appeared for the Group-I services Exam conducted by the TNPSC and, after emerging successful in the exams, she got appointment to the post of Deputy Collector (1998-99 Batch) as per G.O. Ms. No.16, Revenue Department, dated 09.01.2002. Consequently, she was relieved from the post of Assistant Commissioner of Police (PEW), Salem City on 31.01.2002, and thereafter, joined duty as Deputy Collector (Training), Namakkal District on 01.02.2002. Now, the grievance of the petitioner is that she was drawing a pay of Rs.8,825/- in the time scale of pay of Rs.8000-275-13500 in the post of Assistant Commissioner of Police at the time she was relieved from the said post and subsequently, on appointment to the post of Deputy Collector on 01.02.2002 which post also carried the same scale of pay, her pay was fixed at the minimum, thereby, there was a loss of Rs.825/- in her basic pay on joining duty as Deputy Collector. When she made a representation in this regard to the Secretary to the Government, Revenue Department, Chennai-9, on 29.03.2004 requesting for pay protection, the first respondent rejected such request even though the petitioner is entitled to get the benefit of FR-22B of T.N. Government Fundamental Rules (in short 'Rules'), which provision is quite clear that where a Government Servant holding a post in a substantive or officiating capacity is promoted or appointed in a substantive or officiating capacity 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 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. It further says that if the monetary benefit after such fixation falls short of five per cent of the pay drawn in the lower post, his pay in higher post shall be so fixed, allowing a minimum increase of five per cent of the pay drawn in the lower post. In the light of the said provision, according to the learned counsel, by referring to Ruling 6 under FR-22B, the respondents cannot deny the benefit for which she is entitled to as mentioned in FR-22B of the Rules. According to him, when FR 22-B was brought into force with effect from 1.10.1984 by virtue of G.O. Ms. No.778, Personnel and Administrative Reforms (FR.III), dated 8th August, 1986, Ruling/sub-clause (6) was already there in the field by G.O.Ms.No.889, Finance, F.R.I, dated 12th August, 1976, and therefore, the Authority who brought on record FR-22B was conscious of the embargo created by sub-clause(6) of FR-22B. In spite of that, when they came forward to give benefit to the petitioner/Government Servant through FR-22B, raising a question that FR-22 or FR-22B is not applicable should not be accepted.
3. A detailed counter affidavit has been filed by the respondent. Learned Additional Government Pleader appearing for the respondents would submit that, in the absence of FR-22B sub-clause (6), the case of the petitioner is no doubt governed by FR-22B. But, clause (6) also has been brought under FR-22B with effect from 12.08.1976, making it clear that FR22 or 22B is not admissible in the case a Government Servant already in service in a post is appointed to another post through the TNPSC by direct recruitment, for the purpose of getting any higher scale of pay. According to him, the plea of the petitioner cannot be accepted as it would go against clause-6 of FR-22B.
4. In view of the above arguments advanced by both the parties, it is relevant to extract FR-22B of the Rules here-under, " 22-B. Notwithstanding anything contained in these rules, where a Government servant holding a post in a substantive or officiating capacity, is promoted or appointed in a substantive or officiating capacity, 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 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. If the monetary benefit after such fixation falls short of five per cent of the pay drawn in the lower post, his pay in higher post shall be so fixed, allowing a minimum increase of five per cent of the pay drawn in the lower post. Where the pay drawn in the lower post on the date of promotion or appointment plus five per cent of the pay drawn in the lower post is a stage in the time-scale of pay of the higher post, the pay shall be fixed at such stage in the time-scale of pay of the higher post. Where the pay drawn in the lower post on the date of promotion or appointment plus five per cent of the pay drawn in the lower post exceeds the amount arrived at for fixation of pay in the higher post under this rule but where there is no corresponding stage in the time-scale of pay of the higher post, the pay shall be fixed at the next higher stage in the time-scale of pay of the higher post."
The petitioner was appointed as DSP by TNPSC and she also joined duty on 01.06.1998. Subsequently, she was confirmed in the said post with effect from 23.07.2000. Thereafter, she appeared for TNPSC Group-I Service Exams after obtaining permission from the Head Office. Fortunately, she was also selected for appointment to the post of Deputy Collector (1998-99 batch). After being relieved from the post of Assistant Commissioner of Police (PEW), Salem City, on 31.01.2002, she joined duty as Deputy Collector (Training), Namakkal District, on 01.02.2002, which goes to show that there was no break in service. In the meanwhile, when the petitioner was drawing a higher salary by virtue of enjoying increments, on being appointed afresh to the post of Deputy Collector and joining duty on 01.02.2002, though both the posts are carrying the same scale of pay, by representation dated 29.03.2004, she requested the Government to give her pay protection by pointing out that she was losing Rs.825/- in her basic pay on joining duty as Deputy Collector and by citing FR-22B. As stated already, while FR-22B clearly says that where a Government servant holding a post in a substantive or officiating capacity, is promoted or appointed in a substantive or officiating capacity, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale 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, the said provision has to be read along with sub-clause (6) that was also brought into force by G.O. Ms. No.889, Finance (FR.I), dated 12th August 1976, which says that in the case a Government servant already in service in a post is appointed to another post through the Tamil Nadu Public Service Commission by direct recruitment, or when the mode of his appointment to the new post is by direct recruitment, the Government servant concerned should be allowed to draw the minimum of the time scale of pay or as provided in the service rules relating to such appointments and fixation of pay under Fundamental Rule 22 or 22-B is not admissible. A conjoint reading of FR-22B and the Ruling/Sub-clause(6) of the Rules makes it clear that FR-22 or 22B is not admissible to the case of the petitioner. In other words, if the purpose of bringing in force FR-22B is in the line as argued by the learned counsel for the petitioner, the embargo embedded under sub-clause(6) that fixation of pay under FR-22 or 22B is not admissible would have been clarified, but unfortunately, no such clarification has been made, therefore, this Court is not able to subscribe to the argument advanced by the learned counsel appearing for the petitioner to give the benefit under FR-22B.
5. Consequently, the writ petition fails and it is dismissed as devoid of any merit. No costs.
To
1. Secretary to Government, Revenue Department, Fort St. George, Chennai 600 009.
2. The Collector, Erode Erode District