Central Administrative Tribunal - Delhi
Arvind Kumar Sharma vs M/O Law And Justice And Company Affairs on 17 April, 2025
1
OA No.3555/2019
Court No.1 (item No.23)
Central Administrative Tribunal
Principal Bench
OA No.3555/2019
Reserved on: 12.03.2025.
Pronounced on: 17.04.2025.
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
Arvind Kumar Sharma, Group-A, Age-66 yrs.
Deputy Govt. Advocate, (Retired)
Ministry of Law, Justice & CO. Affairs,
Department of Legal Affairs,
207-B, Pocket-A, Phase-II
Mayur Vihar, New Delhi.
- Applicant
(Through Advocate: Mr. Rakesh Nautiyal)
Versus
Union of India
Through its Secretary to the
Government of India, Ministry of Law
Justice & Company Affairs, Government of India
New Delhi.
-Respondents
(Through Advocate: Mr. Y.P. Singh)
2
OA No.3555/2019
Court No.1 (item No.23)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A): -
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., 1985, seeking the following relief: -
"(a) call for the records of the case and hold that the act of the Respondent wrongly fixing the pay and pension of the Applicant in total disregard of the provision of FR 22 B is bad in law and arbitrary; and/or
b) pass an order directing the respondent to fix the pay of the applicant at Rs 67,699 w.e.f 01.07.2012 in place of the present erroneous fixation of pay at Rs. 58,240/- and consequently direct the Respondent to fix the pension of the Applicant at Rs.33,849/- in place of Rs. 28,120 w.e.f. 01.10.2012 that was being drawn by the Applicant, and/or
c) pass an order directing the respondent to fix the pay of the applicant at Rs. 1,77,400 w.e.f. 01.01.2016 in place of the present erroneous fixation of pay at Rs. 1,53,000 and consequently direct the Respondent to fix the pension of the Applicant at Rs.
88,700/- in place of Rs. 76,500 w.e.f. 01.01.2016 that is being drawn by the Applicant presently; and/or
(d) pass an order directing the respondent to pay the applicant the arrears of pay after fixing the pay of the applicant as mentioned above in accordance with Rule FR 22 B and thereafter pay all consequential benefits as applicable to the Applicant under the Rules; and/or
(e) pass any other consequential or other relief which this Hon'ble' Tribunal deem fit and proper in the interest of justice." FACTS IN BRIEF:
2. The brief facts of the case are that the applicant was appointed as Judicial Officer in the Rajasthan Judicial Service, vide order dated 13.10.1978 on probation. Upon completion of his probation period, he was confirmed in Rajasthan Judicial Service w.e.f. January 1, 1981. It is stated that after seeking due permission from the Rajasthan High 3 OA No.3555/2019 Court No.1 (item No.23) Court, the applicant applied for the post of Assistant Government Advocate in the Ministry of Law & Justice, Government of India. He was relieved by the Rajasthan High Court vide order dated 21.10.1991 to join the said post by retaining his lien in the Rajasthan Judicial Service as per rules. The applicant was posted as Assistant Government Advocate w.e.f. 15.10.1991, vide order dated 25.11.1991 issued by the Government of India and he was acting, pleading and appearing as Advocate-on-Record for Union of India before the Supreme Court. It was stated in the said order that the applicant will be on probation for a period of two years which could be extended further. The applicant was not confirmed with the Government of India and continued to hold his lien in the Rajasthan Judicial Service.
Vide order 17.08.1993, he was granted Selection Scale (3700-5000) w.e.f. 15.01.1992. The applicant was thereafter granted super time scale (Rs. 14,300-18,300) w.e.f. 20.01.1997, vide order dated 25.06.1999 issued by the Rajasthan High Court. Meanwhile, the applicant was promoted as Additional District and Sessions Judge vide order dated 30.12.1996, on adhoc basis for a period of one year. Vide letter dated 20.06.1997, by the Rajasthan High Court, the applicant was directed to come and join his parent Department as Additional District and Sessions 4 OA No.3555/2019 Court No.1 (item No.23) Judge. In response thereto, Government of India requested the Rajasthan High Court to allow the applicant to continue with the Government of India for some more time, and that after being relieved from the Government of India, the applicant would join as ad-hoc Additional District and Sessions Judge. Accordingly, he was retained in Government of India.
3. He was nominated by the Govt. of India to join the post of Chief Law Officer in MCD in the pay scale of Rs.16,400- 20,000/-. The applicant joined the said post on 09.06.2003 and continued to work as such up to 09.03.2009. After being relieved from MCD as Chief Law Officer, the applicant was again posted as Assistant Govt. Advocate in Central Agency Section. It is accordingly pleaded that his pay ought to have been fixed as per FR 22 B & C after taking into consideration the fact that the applicant was granted the scale of Rs 3700-5000 w.e.f. 15.1.1992 and Rs.14,300- 18,300 w.e.f. 20.01.1997, and worked as Chief Law Officer in MCD in the pay scale of Rs. 16,400- 20,000/-. and also in Pay Band-4 with Grade Pay of Rs 8900/-. However, the applicant's pay was fixed allegedly in utter disregard of rules and vide order dated 12th June, 2009, his pay was fixed in violation of FR 22 B and other rules in the pay scale of Rs 5 OA No.3555/2019 Court No.1 (item No.23) 10,000-15,200 and in the Pay Band 3 of Rs. 15,600-39,100 with Grade Pay of Rs.6600/-.
4. It is further stated that after joining the Central Agency Section, the applicant was promoted as Deputy Govt. Advocate and was working as such. On 07.09.2006, the applicant was confirmed by the Government of India in the Ministry of Law and Justice, Department of Legal Affairs, New Delhi as Assistant Government Advocate in the Government of India without effective consultation with Rajasthan High Court as per relevant constitutional provisions.
5. The applicant being aggrieved by the action of the Government of India in regard to fixation of his salary in the lower grade than what he was getting in his parent department, sent a representation dated 01.07.2009 to the Government of India. The Full Court of the Rajasthan High Court in its meeting held on 22.07.2006 resolved to terminate the lien of the applicant w.e.f. 15.10.1994. However, the Ministry of Law and Justice, Department of Legal Affairs, Govt. of India informed vide notification dated 07.09.2006 that the applicant had been appointed substantively to the post of Assistant Govt. Advocate in the Department of Legal Affairs w.e.f. 15.10.1993. Pursuant to said notification, the High Court made a fresh request to the 6 OA No.3555/2019 Court No.1 (item No.23) State Government to terminate the applicant's lien in Rajasthan Judicial Service w.e.f. 15.10.1993 and accordingly, the lien of the applicant was terminated w.e.f. 15.10.1993.
6. It is stated that the said facts show that the Ministry of Law and Justice, Department of Legal Affairs, Govt. of India, without consulting the High Court, appointed the applicant substantively to the post of Govt. Advocate in disregard of the judgment the case of Gauhati High Court and Anr. Vs. Kuladhar Phukhan reported in 2002 SCC online SC 392. Had the consultation taken place in the matter, the interest of the applicant in the matter of pay protection would have been safeguarded and his pay would have been fixed in the pay scale of Rs.3700-5000 w.ef 15.1.1992 and Rs. 14,300-18,300 w.e.f. 20.01.1997. The Government of India vide O.M. dated 18.08.2009 rejected the representation observing that the applicant was holding the post of Assistant Government Advocate in the Department of Legal Affairs on regular basis and therefore, it was not feasible to fix his pay in the higher grade, which might have been granted to him in the Rajasthan Judicial Service.
7. The applicant, having no other efficacious remedy filed O.A. No. 2832 of 2010 before this Tribunal in which notice was issued on 08.09.2010, holding the grievance of the 7 OA No.3555/2019 Court No.1 (item No.23) applicant to be of recurring nature. However, eventually the aforesaid OA was withdrawn by the applicant on the bonafide belief that the respondent was re-fixing the pay of the applicant as sought by him. The Tribunal vide its order dated 24.04.2012 passed an order thereby allowing the applicant to withdraw the said OA no.2832 of 2010. However, the respondents did not appropriately fix the pay of the applicant, as a result of which the applicant continued to remain aggrieved.
8. Aggrieved by the aforesaid, the applicant has filed present Original Application seeking aforementioned relief.
9. On admission of the OA, notices were issued to the respondents and they have filed their counter affidavit on 13.04.2023 to which the applicant has also filed rejoinder. REPLY BY THE RESPONDENTS:
10. In rebuttal, the respondents have filed counter affidavit stating that the applicant has challenged his pay fixation done by the Department of Legal Affairs, Ministry of Law & Justices when he was appointed as Assistant Government Advocate and subsequent thereto the applicant made a representation that his pay may be fixed in the pay scale of Rs. 3700-5000 w.e.f. 15.01.1992 and in the scale of Rs.14,300-18,300 w.e.f. 20.01.1997 as he had been granted these scales in the Rajasthan Judicial Service. The applicant 8 OA No.3555/2019 Court No.1 (item No.23) quoted FR 22-B and requested that since his presumptive pay in his permanent post in Rajasthan Judicial Service was higher; his pay ought to be fixed in higher scale at the rate of Rs. 3700 w.e.f. 15.01.1992 and at the rate of 14,300 w.e.f. 20.01.1997. It is submitted that the applicant joined the Department of Legal Affairs as Assistant Government Advocate on 15.10.1991 as a Direct Recruit on the basis of recommendation of Union Public Service Commission, and his pay was fixed in the pay scale attached to the post of Assistant Government Advocate. It is further contended that his request for such upwarard revision was examined in the department, and he was accordingly informed vide OM dated 05.10.2008. He again made representation dated 01.07.2009 which considered afresh and a reply was issued to him.
11. The applicant also field OA No. 2832/2010, which was dismissed as withdrawn vide Tribunal‟s order dated 24.04.2012 as the pay scale had already been granted to him. The learned counsel for the respondents states that the applicant has challenged his pay fixation done by the Department Legal Affairs, Ministry of Law & Justice when he was appointed as Assistant Government Advocate and he has also challenged the pension fixation on his retirement on attaining the age of superannuation on 30.09.2012. The 9 OA No.3555/2019 Court No.1 (item No.23) respondents further submit that the applicant was appointed as Assistant Government Advocate (AGA) in the Department of Legal Affairs, Central Agency Section w.e.f. 15.10.1991 on Direct Recruitment basis, on the recommendations of UPSC. His pay was fixed in the pay scale attached to the post of AGA and thereafter he was granted promotion on regular basis w.e.f. 03.09.2009.
Accordingly, his pay was fixed in the Pay Band-3 (Rs.15,600-39,100) with grade pay of Rs.7,600/-. The applicant retired as Deputy Government Advocate on 30.09.2012 in the Pay Scale of Rs.37,400-67000 in the Grade Pay of Rs.10,000/- and therefore, it was not feasible to fix his pay in any higher pay scale which might have been granted to him in the Rajasthan Judicial Service. The learned counsel for the respondents further submitted that as the applicant was appointed to the Grade of Assistant Government Advocate on Direct Recruitment basis and was confirmed in the entry grade of the service.
12. It was also submitted that the representation dated 01.07.2009 of the applicant was replied vide Department‟s OM dated 18.08.2009. In his representation the applicant had relied upon the provisions of FRs-22 (B) (1) providing as under:-
"Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer 10 OA No.3555/2019 Court No.1 (item No.23) in another service or cadre, and subsequently confirmed in that service or cadre.
(a) during the period of probation, he shall draw pay at the minimum of the time scale or at the probationary stages of the time scale of the service or post, as the case may be; Provided that if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under the clause, he shall draw the presumptive pay of the permanent post;
FR-9 (24) provide that presumptive pay of the post means the pay to which he would be entitled if he held the post substantively and were performing its duties. In the case of the applicant, it is submitted that he has not performed the duties of the post which he held substantively under the Rajasthan High Court. Therefore, he was not entitled to fixation of pay as claimed by him."
13. It is further stated that as per available records, the pay of applicant was notionally fixed in the pre-revised pay scale of Rs.10,000-325-15,200 vide department‟s Order No. A- 20015/041991-Admn.CAS dated 11.06.2009 on his return from deputation w.e.f. 01.09.2003 as under:-
Date Pay Scale Pay in the Pay Scale 01.09.2003 Rs.10,000-325-15200 Rs.13,575/- 01.09.2004 Rs.10,000-325-15,200 Rs.13,900/- 01.09.2005 Rs.10,000-325-15,200 Rs.14,225/- 01.01.2006 (PB-3)Rs.15,600-39100, Rs.26,460/-
G.P.Rs.7600/- (As per 6th +Rs.6600=33,060 CPC)
14. Further, on grant of Non-functional up-gradation in the PB-4, Rs.37,400-67,000/- with Grade Pay Rs.8700/- vide order No.27/2012 (F.No.A-60011/87/2011-Admn.I (LA) dated 04.04.2012, his pay was fixed vide order No. A- 24011/04/2008-Admn. dated 24.04.2012, w.e.f. 01.07.2006 as under:
11OA No.3555/2019
Court No.1 (item No.23) Event Pay in the pay Grade Pay Total Pay band Pay as on Rs.27,460/- Rs.6600 Rs.34,060 01.7.2006 in PB-
3 (Rs.15,600-
39100/-.
G.P.Rs.6600 after grant of annual increment Pay after RS.28,490/- Rs.8700/- Rs.37,190/-
adding increment of @3% of Rs.34,060 on grant of PB-4 (Rs.67,000 + G.P.8700/-) Pay fixed after Rs.37,400/- Rs.8700/- RS.46,100/- raising the pay in the pay band from Rs.28,490/- to Rs.37,400/- i.e. minimum of PB- 4 (Rs.37,400- 67,000/- + G.P. 8700/- Pay on grant of Rs.38,790/- Rs.8700 RS.47,490/- annual increment @ 3% of Rs.46,100/- i.e. 1383 rounding off to Rs.1390/-, w.e.f. 01.07.2007
15. On grant of Non-functional up-gradation in PB-4, Rs.37,400-67,000/- with Grade Pay Rs.10,000/-vide order No.28/2012 [F.No.A-60011/87/2011-Admn.1(LA)] dated 04.04.2012, his pay was fixed vide this Department's Order No.A-24011/04/2008-Admn.(ULA) dated 24/04/2012, w.e.f. 01.07.2006 as under:
Event Pay in the pay Grade Pay Total Pay
band
Pay as on Rs.38,790 Rs.8700/- Rs.47,490/-
18.11.2007 in
PB-4
(Rs.37,400-
67,000/-+
G.P.8700/-)
Pay fixed on Rs.40,220/- Rs.10,000/- Rs.50,220/-
12
OA No.3555/2019
Court No.1 (item No.23)
grant of NFU in
PB-4
(Rs.37,400-
67,000+ GP
Rs.10,000/-)
after granting
one increment
@ 3% i.e.,
Rs.1430/- w.e.f.
01.07.2016
Pay on grant of Rs.41,730/- Rs.10,000/- Rs.51,730/-
annual
increment @ 3
% of
Rs.50,220/-
i.e. Rs.1510 (on
rounding off
1507) as on
01.07.2008
Pay on grant of Rs.43,290 Rs.10,000/- Rs.53,290/-
annual
increment @ 3
% of Rs.51,730/-
i.e. 1560 ( on
rounding off
1552) as on
01.07.2009
Pay on grant of Rs. 44,890/- Rs.10,000/- Rs.54,890/-
annual
increment @ 3
% of Rs.53,290
i.e. Rs. 1600
(on rounding off
1599) as on
01.09.2010
Pay on grant of Rs.46,540/- Rs.10,000/- Rs.56,540/-
annual
increment @ 3
% of
Rs.54,890/-
i.e. Rs. 1650
(on rounding off
1647) as on
01.07.2011
Pay on grant of Rs. 48,240/- Rs.10,000/- Rs.58,240/-
annual
increment @ 3
% of
Rs.56,540/- i.e.,
Rs. 1700 ( on
rounding off
1696) as on
01.07.2012
16. The learned counsel for the respondents states that pension of the applicant was calculated as per the CCS (Pension) Rules, 1972. He further submitted that due regard has been paid to the provisions contained in FR 22 (B) and (C) while fixing the pay of the applicant. It is accordingly, 13 OA No.3555/2019 Court No.1 (item No.23) submitted that in view of the fact that the applicant was not performing the duties of the post which he held substantively under the Rajasthan High Court, he is not entitled to fixation of pay as claimed by him, and therefore, the Original Application is liable to be dismissed.
17. In rebuttal to the contentions of the counsel for the respondents as well as the oral arguments, the learned counsel for the applicant filed rejoinder reiterating the grounds taken in the matter. The learned counsel stated that the counter affidavit filed by the respondents does not deal with the issue involved and the questions raised by the applicant through his Original Application. The learned counsel submits that his presumptive pay in the Rajasthan Judicial Service, wherein, he was holding lien up to 22nd July 2006 and 25th April 2007 was higher than the pay fixed under the present post and scale, and accordingly, the applicant is entitled to draw the presumptive pay of his substantive post in the Rajasthan Judicial Service. It is further contended that the pay of the applicant ought to have been fixed under FR 22, and not in the terms of the scale of pay attached to the post of Assistant Government Advocate but in the presumptive pay of the Rajasthan Judicial Service in view of the fact that the applicant was still holding a lien in the Rajasthan Judicial Service. The pay 14 OA No.3555/2019 Court No.1 (item No.23) of the applicant is stated to be erroneously fixed without consultation with the High Court of Rajasthan after his appointment substantively in the post of Assistant Government counsel in the Department of Legal affairs of the Ministry of Law and Justice, thereby violating the mandate prescribed by the Hon'ble Supreme Court in the case of Guwahati High Court and another vs. Kuladhar Phukan and Another (supra). As a result of the failure on the part of the respondents to consult the High Court of Rajasthan, the pay of the applicant was fixed at four stages below the presumptive pay. The applicant was promoted as Additional District and Sessions Judge vide order dated 3rd December 1996 in the scale of 16400-20000 but was not relieved by respondent M/o law. The applicant was also nominated by the Government of India to hold the post of Chief Law Officer in Municipal Corporation of Delhi in the pay scale of 16400-20000, which he held for almost six years. However, the pay of the applicant was fixed by the respondent in the Ministry of Law in utter disregard of the rules vide order dated 12 June 2009 and further order dated April 2012. He further placed reliance on the Office Memorandum issued by Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training) on 21.07.2014, and judgment dated 16 March, 15 OA No.3555/2019 Court No.1 (item No.23) 2009 in Civil Appeal No. 1609 of 2009 with No. 1510 of 2009 in State of Rajasthan And Another vs. S.N. Tiwari and others [(2009) 4 SCC 700] passed by the Hon‟ble Supreme Court of India.
18. We have heard the learned counsels for both parties patiently and perused the pleading available on records carefully.
ANALYSIS:
19. The applicant was appointed as Judicial Officer in the Rajasthan Judicial Service on 13.10.1978 and was confirmed on 01.01.1981. He was further recruited directly through UPSC as Assistant Government Advocate in the Department of Legal Affairs, Ministry of Law and Justice, Government of India, New Delhi on 15.10.1991, where he joined on 25.11.1991. The applicant proceeded to work as Chief Law Officer in Municipal Corporation of Delhi (MCD) for the period from 09.06.2003 to 09.03.2009. He joined back the Department of Legal Affairs, Ministry of Law and Justice, Government of India and was posted as Assistant Govt. Advocate in Central Agency Section.
20. Earlier also the applicant filed an O.A. No. 2832 of 2010 before this Tribunal. The Tribunal vide its order dated 24.04.2012 allowed the applicant to withdraw the said OA. Not satisfied with the decision of the respondents, the 16 OA No.3555/2019 Court No.1 (item No.23) applicant challenged the pay fixation done by the respondents at the time of his appointment as Assistant Government Advocate. He has also challenged the pension fixation consequent upon his retirement on attaining the age of superannuation on 30.09.2012.
21. It is the case of the applicant that his pay ought to have been fixed as per FR 22 B & C after taking into consideration the promotions and higher pay scale given to him as a member of Rajasthan Judicial Service as he continued to hold lien on his erstwhile post in the Rajasthan Judicial Service and also in consonance with the pay fixed while he worked as Chief Law Officer in MCD in the pay scale of Rs. 16,400- 20,000/-and also in Pay Band-4 with Grade Pay of Rs 8900/-.
22. Reliance is placed on the provisions of FRs-22 (B) (1). For facility of reference, the relevant portion of the above Rule is quoted as under: -
"Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre.
(a) during the period of probation, he shall draw pay at the minimum of the time scale or at the probationary stages of the time scale of the service or post, as the case may be; Provided that if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under the clause, he shall draw the presumptive pay of the permanent post;
FR-9 (24) provide that presumptive pay of the post means the pay to which he would be entitled if he held the post substantively and were performing its duties.
17OA No.3555/2019 Court No.1 (item No.23) In the case of the applicant, it is submitted that he has not performed the duties of the post which he held substantively under the Rajasthan High Court. Therefore, he was not entitled to fixation of pay as claimed by him."
23. The Hon‟ble High Court of Delhi in LPA No. 690/2001 decided on March 3rd, 2009 (G.R. Chawla & Others vs Delhi Development Authority & Another) has held as under:-
"5. During the course of hearing, learned counsel for the parties had drawn our attention to Rule 22(I)(a)(2) and 22-B and submitted that the second question involves interpretation of the said Rules.
Relevant portions of Rule 22(I) (a) (2) and Rule 22-B read as under:
"F.R. 22(I) 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) x x x x (2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-
scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis:
Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay:
Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time- scale of the new post.
On appointment on regular basis to such a new post, other than to an ex cadre post on deputation, the Government servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post."18 OA No.3555/2019
Court No.1 (item No.23) "22-B. (1) Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre-
(a) During the period of probation, he shall draw pay at the minimum of the time-scale or at the probationary stages of the time scale of the service or post, as the case may be:
Provided that if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post;
(b) On confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant shall be fixed in the time-scale of the service or post in accordance with the provisions of Rule 22 or Rule 22-C, as the case may be:
Provided that the pay of Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time-scale of the service or post."
6. Rule 22-B(1) begins with a non-obstante clause and applies to all cases where a Government servant is appointed in another service or cadre as a probationer. Under Rule 22-
B(1)(a) during the period of probation such officer is entitled to pay at the minimum of the time scale or the probationary stage of the time scale of the said post to which he is appointed. Proviso to Rule 22-B(1)(a) gives pay protection during the probationary period, if the probationer is holding a permanent post in the first service on which he holds a lien or would have held the lien but for suspension relatable to the second appointment. In such cases, the probationer on appointment in the second service will be entitled to presumptive pay equal to amount being paid to him in his first service.
7. Rule 22-B(1)(b) applies after a probationer is confirmed. Upon confirmation, the Government servant is entitled to same pay as would be payable in accordance with Rule 22 or Rule 22-C whichever is applicable. The question whether after confirmation Rule 22-B or Rule 22 would apply, is answered by the language of Rule 22-B(1)(b) itself as the said clause stipulates that the pay scale of the appellants after confirmation will be fixed in terms of Rule 22 or Rule 22 C. It has not been argued before us that Rule 22-C is applicable. Thus upon confirmation Rule 22 is applicable to the appellants.
8. Fundamental Rule 22(I)(a)(2) quoted above is the relevant sub-Clause which applies as duties and responsibilities of the appellants in the respondent-DDA and CPWD are same. The 19 OA No.3555/2019 Court No.1 (item No.23) said sub-Clause stipulates that the Government servant after confirmation will be entitled to draw initial pay at the stage of the time scale which the Government servant was enjoying in the first post held by him on regular basis and if there is no such stage, the stage next above the pay in the first post held by him on regular basis. The first proviso stipulates that the employee is entitled to minimum pay scale in the new post, if it is higher than the pay in the first post which was held by him. The first proviso is not applicable in the present case. In view of the above, the appellants on confirmation will be entitled to fixation of pay under Fundamental Rule 22(I)(a)(2) read with other Fundamental Rules, if applicable. The second question is accordingly answered in favour of the appellants and it is held that on completion of the probation period and on confirmation, the appellants will be entitled to fixation of their pay in terms of Fundamental Rule 22(I)(a)(2).
9. We do not think that the respondents can rely upon the undertakings given by the appellants to deny them benefit of the statutory rules. To rely upon the undertakings and not apply Fundamental Rule 22 will be contrary to the statutory rules and therefore bad in law. Undertakings to the extent they are contrary to the statutory Rules cannot be applied. It does appear that the appellants in this case were compelled and forced to give the said undertakings at the time of appointment by the respondents. It cannot be said that the said undertakings were given out of free- will and without force or coercion. Even if the appellants have given the said undertakings, the respondent-DDA being a statutory authority is bound by Fundamental Rules and cannot act contrary to the Fundamental Rules or ignore the same. This will be contrary to law.
10. The respondent themselves have ignored the undertakings and followed the Fundamental Rules in other cases and given other employees benefit of past service. We do not accept the contention of the respondent that other cases were of old/earlier appointed employees and the administrative branch had treated them differently. The facts of other cases and the case of the appellants are identical. The undertakings and the relevant Fundamental Rules applicable are the same. The question relates to applicability of the Rules and in that context we find that no distinction can be made between the case of the appellants and other cases, wherein benefit of past service has been given.
11. Lastly, we find that the representations of the appellants after filing of the writ petition were considered and thereafter referred to the Government of India. Government of India in their opinion dated 6th December, 1993 has opined that resignations given by the appellants herein to the CPWD before taking up employment with the respondent-DDA were a technical formality. Therefore during the probation period, the pay of the appellants will be fixed under Rule 22-B and thereafter under the normal Rules. The normal Rules refers to Rule 22, in view of Rule 22-B(1)(b). The respondent has 20 OA No.3555/2019 Court No.1 (item No.23) therefore misunderstood the opinion of the Union of India. The first question is accordingly decided.
12. In view of the above findings, the Appeal is allowed. It is held that the appellants' salary during the probation period will be fixed in accordance with Rule 22-B and upon confirmation under Rule 22."
24. The Hon‟ble Supreme Court of India in Civil Appeal No. 1609 of 2009 with No. 1610 of 2009 (State of Rajasthan and another vs S.N. Tiwari and others) decided on March, 16, 2009 has held as under:-
"17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post.
18. This Court in Ramlal Khurana v. State of Punjab observed that: (SCC p. 102, para 8) "8. Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed."
19. The term "lien" comes from the Latin term "ligament" meaning "binding". The meaning of lien in service law is different from other meanings in the context of contract, common law, equity, etc. The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed. (See Triveni Shankar Saxena v. State of U.P.4)
20. The High Court upon appreciation of the material available on record found that lien of the respondent employee always continued in the Department of Economics and Statistics. His urgent temporary appointment as homoeopathic doctor vide order dated 3- 12-1980 was not a substantive appointment for any definite period. The mere fact that the respondent employee continued to work for a long period itself would not result in loss of lien in the parent Department of Economics und Statistics. That even after the respondent employee joined as homoeopathic doctor in ESI 21 OA No.3555/2019 Court No.1 (item No.23) Corporation in 1980 the parent department treated the respondent employee as belonging to its own cadre. We find no infirmity in the order passed by the High Court.
21. Be it noted that no objections were raised when the respondent employee gave his option on 8-4-1991 duly informing all the concerned that f his lien in the Subordinate Statistical Service had to be maintained for the purposes of promotions to higher posts/protection of financial interests, etc. In such view of the matter the respondent employee always had his lien in his parent department. The State at this stage cannot be allowed to turn round and say that the respondent employee did not retain lien against his post in the parent department."
25. In view of law laid down in catena of judgments of Hon‟ble Courts, „Lien‟, in service law connotes the right of public servant to hold the post substantively to which he is appointed. In Triveni Shankar Saxena Vs. State of UP 1992 SCC (L & S) 440, the Hon‟ble Supreme Court pointed out that the word "lien" originally means "binding" from the Latin word "ligamen" and its lexical meaning was "right to retain". "Right to retain" which is also reflected in the definition of "lien" in various service rules, e.g., Rule 9 (13) of Fundamental Rules, provides that „lien‟ means the title of Government Servant to hold substantively either immediately or on a termination of a period or periods of absence, a permanent post, including a tenure post to which she has been appointed substantively. The existence of such „lien‟ and the incidents thereof are dependent upon the service rules by which the public servant is governed. The concept of „lien‟ in public service (including civil service) is not of any substantial significance.
22OA No.3555/2019 Court No.1 (item No.23)
26. In the matter of Ram Lal Khurana Vs. State of Punjab (1989) 4 SCC 99 (supra) it was held that the lean connotes the right of public servant to hold the post substantively to which he is appointed. It is an incident of substantive appointment to a post. It is a singular concept since in public services substantive appointment is made against a particular post.
27. In Ram Lal Khurana Vs State of Punjab (supra), the Hon‟ble Supreme Court has noted that generally when a person with „lien‟ against a post is appointed substantively to another post, he acquires a „lien‟ against the latter post and the „lien‟ against his previous post automatically disappears. There is nothing like a „lien‟ on a post unless a person was made permanent in a post.
28. In the matter of Parshotam Lal Dhingra Vs. Union of India AIR 1958 SC 36, the Hon‟ble Supreme Court pointed out that a substantive appointment to a permanent post in public service, confers normally on the servant so appointed, a substantive right to the post and he becomes entitled to hold a „lien‟ on the post. This „lien‟ is defined in Fundamental Rules Section III, Chapter II, Rule 9 (13) as a title of a Government Servant to hold substantively a permanent post including the post to which he has been appointed substantively. Lien is a concept related to holding 23 OA No.3555/2019 Court No.1 (item No.23) of post. Hence, a person might hold a lien on a post but not a lien on a place. It is also a firmly accepted principle of service jurisprudence that no Government servant can simultaneously have two liens against two posts in two different cadres. For example, a Government servant who on his own opts to obtain a substantive appointment to an ex- cadre post cannot turn around and say that he still retained lien against his post in the parent department. The lien will commence from the date of appointment to the permanent post and not from any date anterior to such appointment. „Lien‟ goes with permanent service and flows out of title to, or permanency in, a post and is unknown in the case of a temporary Government servant. Further, illegally acquiring a public post and continuing to do so by abuse of process of court does not create any equity nor does the question of adverse possession of lien on a post arise.
29. The claim of applicant needs to be tested in accordance with the position delved upon above on the canon of "lien‟ and also the claim of applicant for higher pay and other resultant benefits claimed by him as Member of Rajasthan Judicial Service and also while he worked in the Municipal Corporation of Delhi.
30. We find that the applicant was appointed as Assistant Govt. Advocate on 25.11.1991 in the Department of Legal 24 OA No.3555/2019 Court No.1 (item No.23) Affairs w.e.f. 15.10.1993 by the Ministry of Law and Justice, Department of Legal Affairs, Govt. of India. He was appointed substantively to the above mentioned post w.e.f. 15.10.1993 vide notification dated 07.09.2006. Pursuant to said notification, State Government terminated the lien of applicant in Rajasthan Judicial Service w.e.f. 15.10.1993 and the above decision was conveyed by the State Government of Rajasthan through Department of Law and Legal Affairs on 25.4.2007 (Annexure-VII) to the Registrar General of the Hon‟ble High Court of Rajasthan, Jodhpur and the applicant.
31. On 17.08.1993 (Annexure A-2), the Hon‟ble High Court of Rajasthan granted Selection Grade to the eligible officers of the Rajasthan Judicial Service w.e.f. the date and on the basis of seniority-cum-merit or merit as provided in Rule 22 of Rajasthan Judicial Service Rules, 1955. The name of applicant is contained at Serial No. 33 with date of grant of selection grade in RJS as 15.01.1992 and with further remarks that the scale was granted on the basis of seniority- cum-merit and the applicant was shown on deputation. The Hon‟ble High Court of Rajasthan vide another order dated 25.06.1999 (Annexure A-3), granted super time scale to RJS officers from the dates mentioned against their name. The 25 OA No.3555/2019 Court No.1 (item No.23) name of applicant is contained at Serial No. 61 with the date of grant of promotion as 20.01.1997.
32. The applicant was appointed as Assistant Government Advocate on 25.11.1991 in the pay scale of Rs. 3,000-100- 3,500-125-4,500 w.e.f. forenoon of 15.10.1991. In the copy marked to the applicant, it was made clear that he will be on probation for a period of two years w.e.f 15.10.1991 (FN). Further, the applicant was appointed substantively to the post of Assistant Government Advocate (General Central Service, Group „A‟) in Department of Legal Affairs w.e.f. 15.10.1993 vide order dated 07.09.2006, his claim of „lien‟ on his former post in the Rajasthan Judicial Service does not hold any ground.
33. We hold the view that the applicant would entitled to promotion as well as pay fixation only in the Selection Grade of Rajasthan Judicial Service as ordered by the Hon‟ble High Court of Rajasthan, Jodhpur on 17.8.1993 (Annexure A-2). We further hold that the applicant is not entitled to promotion and pay fixation in the Super Time Scale of Rajasthan Judicial Service Selection as he ceased to be a member of Rajasthan Judicial Service on his substantive appointment to the Post of Assistant Government Advocate in the Department of Legal Affairs w.e.f. 15.10.1993. 26 OA No.3555/2019 Court No.1 (item No.23)
34. In view of above, the Original application is partially allowed with the following directions:
(a) The applicant is entitled to promotion in the Selection Grade in the Rajasthan Judicial Service and consequential fixation of his pay as per order dated 17.08.1993 (Annexure A-2) of Hon‟ble Rajasthan High Court.
(b) The applicant shall be entitled to all consequential benefits of pay, arrears of pay and pension following from the order dated 17.08.1993. The consequential benefits shall be released by the respondents as soon as possible, but not later than 08 (eight) weeks from the date of certified copy of this order.
(c) Pending MAs, if any, stand closed. No order to as costs.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
/mk/