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The only issue that requires to be decided in the instant case is that whether the benefit of non-functional upgradation granted as a consequence of the implementation of the report of the 6th Central Pay Commission to the applicant from 03.01.2006 shall take effect from 01.01.2006 or shall be reckoned from the same date on which it has been granted to the applicant. The applicant has challenged the DOP&T OM dated 25.09.2009 impugned in this case whereby, as a matter of clarification, the request of the applicant for granting non-functional upgradation w.e.f. 01.01.2006 is stated to be impermissible.

2. The facts of the case are that both the applicants, who are Members of the Indian Economy Service (hereinafter referred to as IES) from 1982 and 983 Batches respectively, are presently working as Advisors under respondent nos. 1 & 2 in Pay Band-4 (hereinafter referred to as PB) in the pay scale of Rs.37,400-67,000/- with Grade Pay of Rs.10,000/-. Admittedly, the IES is an organized Group A Service. The 6th Central Pay Commission in order to remove the stagnation prevailing in the Central and all other All India Services had recommended for providing an upgradation in PB-3 or PB-4 by granting a higher pay scale on non-functional basis whenever any IAS officer of a particular batch is posted at the Centre within these Pay Bands, to the officers of the afore specified categories senior to such IAS officers joining by two years or more. This recommendation was accepted by the Government of India and notified vide the Gazette Notification dated 29.08.2008 to this very effect and it was further reiterated in the OM dated 24.04.2009. The case of the applicants is that one Atanu Chakraborty, IAS (GJ:1985) and one P. Raghvendra, IAS (HY: 1985) were appointed at the level of Joint Secretary with the Government of India w.e.f. 08.11.2005 and 27.10.2005 reseptively. Both these officers have been given the benefit of upgradation in PB-4 w.e.f. 01.01.2006, whereas the applicants have been given the afore benefit of upgradation in PB-4 w.e.f. 03.01.2006 ignoring their rightful claim of revision of the pay scale w.e.f. 01.01.2006 on the basis of the posting of aforesaid two IAS officers at the Centre in 2005 itself. The case of the applicants is that drawing parity with the IAS officers would extend to grant non-functional upgradation benefit w.e.f. 01.01.2006 at par with them and not from two days thereafter.

The objective of granting non-functional upgradation was to remove the stagnation and to draw two years parity with the IAS officers in PB-3 & PB-4 joining the Government of India. The effective date for implementation has been provided from 01.01.2006 in the Gazette Notification dated 29.08.2008 and reiterated vide OM dated 24.04.2009 of the DOP&T. What has been provided in the Gazette Notification cannot be withdrawn or curtailed by means of a clarification issued by the Department.

The applicants are admittedly more than two years senior to the IAS officers under reference that being Atanu Chakraborty, IAS (GJ:1985) and one P. Raghvendra, IAS (HY: 1985). The objective of putting in place the non-functional upgradation would not be fully met in the case that the entitled officers were only to be upgraded from the date after 01.01.2006. It is imperative for the sake of complete parity and implementation of the Scheme to the letter and spirit that the date provided in the notification as 01.01.2006 should be respected.

5. The learned counsel for the respondents has vehemently opposed the plea of the applicant stressing the ground that while the Gazette Notification has provided the general rules, the procedure has been clarified vide OM dated 25.09.2009. As such, there is absolutely no contradiction between the Gazette Notification and the Clarification. The latter is only supplementary by nature.

6. Now we take up examination of the issue. Admittedly, it was the 6th Central Pay Commission which had made the recommendation for introduction of the non-functional upgradation which had not been there hitherto. The 6th Pay Commission had recommended to the Government to consider batch-wise parity while empanelling and/or posting of officers at the Centre between respective batches of IAS and other Organized Group A Service with the gap being restricted to two years. Whenever any IAS officer of a particular batch gets posted in the Central to a particular grade carrying a specific Grade Pay in PB-3 & PB-4, grant of higher pay scale on non-functional basis to the officers belonging to the bathes of Organized Group A Services, senior by two years or more, should be given by the Government. Drawing of parity of two years for grant of non-functional upgradation to the IAS officers being posted at the Centre has been considered necessary by the 6th Central Pay Commission in order to remove the relative stagnation prevailing in Services other than the IAS while maintaining a reasonable differential of two years with the latter. The recommendations of the Pay Commission were considered by the Cabinet and are enshrined in the Central Civil Services (Revised Pay) Rules, 2008. In addition, there is a Resolution of the Government published vide the Gazette Notification dated 29.08.2008 which, inter alia, provides:-