Holding

The Government's decision on the year of allotment is final, allowances are excluded from 'pay' for seniority, FR 49 does not provide additional pay, and the 'Next Below Rule' does not apply to super‑time scale promotion.

Summary

D.D. Suri, an emergency recruit from the open market, was appointed to the Indian Administrative Service (IAS) in 1950 and was assigned a year of allotment of 1944 by the Government of India, affecting his seniority. He sought a higher year of allotment (1942), additional pay for holding two posts simultaneously, and promotion to the super‑time scale under the "Next Below Rule". The Supreme Court held that the Government's decision on year of allotment under the "N" formula is final and not subject to judicial interference unless arbitrary, that allowances such as Calcutta compensatory and lodging are excluded from the definition of "pay" for seniority purposes, that Fundamental Rule 49 does not entitle him to extra salary, and that the "Next Below Rule" does not apply to super‑time scale promotions. Consequently, the appeal was dismissed.

Issues considered

The validity of judicial interference under Article 226 in the Government's assignment of year of allotment under the 'N' formula.
Whether allowances (Calcutta compensatory, lodging) should be counted as 'pay' under FR 9(21)(b) for seniority calculation.
Applicability of Fundamental Rules, particularly FR 9(21)(b) and FR 49, to the appellant's case.
Whether the appellant is entitled to additional remuneration for holding two posts simultaneously.
Whether the 'Next Below Rule' (FR 30(1) second proviso) can be invoked to grant super‑time scale promotion.

Legislation cited

All India Services Acts. 1951
All India Services (Conditions of Service – Residuary Matters) Ruless. Rule 3
Constitution of Indias. Article 136, s. Article 14, s. Article 16, s. Article 226
Fundamental Ruless. FR 30(1), s. FR 49, s. FR 9(21)(b)
Indian Administrative Service (Pay) Ruless. Rule 13
Indian Administrative Service (Recruitment) Ruless. 1954
Indian Administrative Service (Regulation of Seniority) Ruless. Rule 3

Subjects

seniorityyear of allotment"N" formulaIndian Administrative ServiceFundamental Rulespay definitionallowancesFR 9(21)(b)FR 49additional payNext Below Rulesuper‑time scaleArticle 14Article 16Article 226Article 136All India Services Actemergency recruitopen market

Judgment

24

A D. D. SURI
v.
UNION OF INDIA AND ANR.
July 17, 1979

• [V. R. KRISHNA IYER AND A. P. SEN, JJ.]
Assignment of year of allotment-Indian Administrative Service (Regulation ~
of Seniority) Rules, 1954, Rule 3 read with "Open Market Emergency Recruit~
ment Scheme 'N' formula"-lnterjerence by Courts under Article 226 of the
Constitution of lndia.

C Fundamental Rules, F.R. 9(21)(b)-Concept of 'pay'-'"Pay" for purposes
of determining the "co1npleted years of actual experience" under 'N' fotfnula
does not include lodging allowauces and Calcutta compensatory allowance-
Whetlier excluding these allowances offend Articles ·14 & 16 of the Constitution.

Funda1nental Rule 49-Combination of posts and right to additional pay,
..
applicahility of, to officers, governed by Indian Administratil~e Service (Pay)
D Rules 1954, Rule 13,

"Next Below Rule'', principle of-Applicability of b~nefit under F.R. 30(1)
-Super-time scale of Indian Administrative Sen•ice.

The appellant was boro on January 7, 1915. He joined the Editorial
Staff of the Civil and Military Gazette, Lahore, towards the end of 1938 and
continued to serve the Civil and Military Gazette upto January 7, 1943,
E when he joined the Army. During th'e Second World War be was granted
an Emergency Commission in the Army w.e.f. March 7, 1943 with the rank
of Lieutenant w.e.f. June 3, 1948 but with seniority in that rank w.e.f.
September 1944. Later, Ire, having been selected by the Special Recruitment
Board as an Emergency Recruit from the "open market" was appointed to
the Indian Administrative Service on August 7, 1950 and allocated to the
Orissa Cadre.
F
As regards Emergency Recruits from the open market the year of allotment
was to be determined according to the "open Market Emergency Recruitment
Scheme" called also 'N' formula. The year of allotment in each cas'e would
be 1949-Y, where Y = Ni + t of N2. N11 means the period of previous
experience. The previous experience is the number of completed years of
actual experience of th'e officers after attaining the age of 25 and upto 31st
G December, 1948 as certified by the Special Recruitment Board. N 1 means. the
period of continuous. employment on a pay or income of not less than of
Rs. 800/- per month before 31ot December, 1944 and the 31st Dec'ember
1948, inclusive. The larger the figufe of "Y", the earlier the date of allotment
and seniority.

Th'e period of previous experience (N2) in the case of the appellant worked
B out to 8 years 11 months 25 days rounded off to 8 years (i.e. 7-1-40 to
31-12-48). The figure of N• was worked out taking the ''protection pay"
admissible to Army Officers as per F.R. 9 (21 )(b) i.e. excluding the Calcutta
D. D. SURI V. UNION 25

comp'ensator)' allowance and lodging allo\vance. Therefore, by its letter dated A
June 11, 1952, the Ministry of Home Affairs fixed the year of allotment of
the petitioner to the Indian Administrative Service as 1944. ( 1949 minus 5).
The appellant held various posts in the Indian Civil Administrative Servic'e
cadre of Orissa and was also on deputation to the Government of India
from 1952 to April 7, 1964. During this period, he was appointed as the
> Salt Commissioner and 1-lanagi1.1g Director, Hindllstan Salt Ltd, with Head- B
quarter at Jaipur. He h'eld both these posts from September 11, 1953 to
., December 23, 1963, a.nd only as Salt Commissioner till April 7, 1964, where-
after he was reverted to the State of Orissa. I-le was compulsorily retired
by the Governm·ent on June 9, 1971. By its order dated September 1, 1977.
the State Government gave him pay and allowances in the super-time scale
from November 29, 1967 to April 24, 1968 and thereafter selection grade
from April 15, 1968 to June 9, 1971. Respondent 1 rejected his representa.- C
tion (a) for refixing his year of allotment by condoning the shortage of 6
days in determining Nz and by taking into consideration allowances for pur-
poses of Ni (b) for granting the bcllefit of F.R. 49 and (c) for granting the
benefit under F.R, 30,
The appellant, therefore, filed a ·writ petition to the High Court cla.iming
three reliefs, namely, (a) Refixation of the year of allotment as 1942 instead
of 1944 in the Indian Administrative Service, alleging that by refusing to D
treat th'e Calcutta compensatory allowance and lodging allowance as pay
under FR 9 (21 )(b) and to condone the six days' shortage in determining the
number of completed years of editorial experience under 'N' formula, Res-
pondent 1, by its order dated June 11, 1952, denied him seniority, (b) Pay
as admissible under FR 49 i.e. full salary of one post and additiona.1 salary
upto "a maximum of 50% of the second post, for the period from September
11, 1961 to December 23, 1963 during which he held both the posts of Salt E
Commissioner and Managing Director, Hindustan Salt Ltd. and (c) Plac'e-
ment in the super-time sea.le w.c.f. July 24, 1962, i.e. the date when his
junior Sri V. V. Ananta Krishnan was appointed to the· super-time scale,
under the "Next Below Rule" implied in F.R. 30.
The High Court refused to grant the reliefs, prayed for, and dismissed the
Writ Petition.
F
Dismi<;sing the appeal by special leave, the Court
HELD : 1. In view of th'e categorical averment in his a.pplication for grant
of special lenve 1o this Court under .~rticle 136 of the Constitution that "h~
was no longer interested in the relief for determinatiorr of the year of allot-
ment, according to the 'N' formula, since he was on the verge of retirement"
the appellant cannot be heard to say that the Go,~ernment of India bad not
arrived at a correct decision 'in assigning 1944 as the year- of allotment to him. G
[33H-34A, 340]
(2) Normally the decision of the Goven1ment of India assigning a year
of allotm'ent to a. particular offieer under Rp:le 3 of the Indian Administrative
Service (Regulation of Seniority) Rules, 1954, or, in accordance \Vith orders
and instructions issued by the Central Government in that behalf before the
00-mmencement of thes'e Rules 1 is final and cannot be interfered by the Courts n
under Article 226 of the Constitution unless such decision was capricious or
arbitrary or in breach of the sadd Rules. The same principle should apply
to the assignment of a year of allotment under the 'N' formula. [36F]
26 SUPREME COURT REPORTS [1980] 1 S.C.I\,

A Even according to the appellant, he was not entitled, under the 'N' formula
as it stands, to a credit of more than 8 years. If that be so, the High Court
quite properly declined to exercise its extra-ordinary jurisdiction under Article
226 of the Constitution, inasmuch as no writ or direction could be issued,
in a matter which was essentially in the discretion of the Government, to refix
his seniority by giving credit for 9 years instead of 8 years as provided for,
as admittedly the releva'Ilt instructions require "completed years of actual
B experience", [;j,6E]
There is no qu'estion of condoning the short fall of six days by relaxation
of the relevant RUies under the powers vested in the Government of India by
the All India Services (Conditions of Service R'esiduary Matters) Rules, 1960,
since these Rules were not in force when the Government of India, Ministry
of Home Affairs, by its letter dared July 19, 1951, iSiSued a statement showing
c the years of aJlotment assigned to officers borne on the Indian Civil Adminis·
trative cadre of Orissa, wherein the year of allotment assigned to the petitioner
was 1943lf, or even at the time when the Ministry of Home Affairs by its
letter dated June 11, 1952 rejected his representation in that behalf, while
revising his year of allotment to" 1944. Further, the Government of lndi'.l.
adopted a uniform policy in this. regard and short falls of even less than
6 days have not been condoned so that there could b'e uniformity of taking
note of "completed years of service" irrespective of the short fall of ~umber
D
of days in calculating the year of allotment in every case under the 'N'
formula. The Government of India have also held that the 'Recruitment
Rules' cannot be relaxed under Rule 3. [36H-37C, 38D]
Even assuming there was a power to condone the· deficiency, thei matter
rested entirely in the discretion of the Government of India. When a decision
1n a policy matter like relaxation is left to the absolure discretion of the
E Executive, cout19 cannot interfere and issue a direction t.o the Government
of India to reconsider the matter afres-h, after a lapse of more than 25 years.
It would not only disturb the combined gradation list of the Officers belonging
1o the Indian Administrative Service, but also affect the seniority of many
officers' who have not been impleaded in these proceedings. [38G]

(3) The definition of 'pay' in the case of a military officer, introduced
F by F.R. 9 (21) (b) is for 'protection pay' when such officer is recruited in
civil service under the employment of the, Union of India, i.e.. for fixation
of his pay in slich service, as is made clear by F. Rs. 2 and 3. P.R. 2 pro-
vides that the Fundamental Rules shall apply, subject to the provisions of P.R.
3, to all Government servants whose pay is d'ebitable to civil estimates and
to any other class of Government servants to which the President ma.y, by
general or special order, declare them to be applicabl'e. F.R. 3 provides,
G that unless it be otherwise distinctly provided by or under the Rules, "Nothing
in these Rules shall apply to Government servants whose conditions of service
are governed by Army or Marine Regulations". F.R. 9(21)(b) had, therefore,
no relevance in the matter of fixing the seniority of Emerg'ency Recruits
from the "Open Market" to the Indian Administrative Service, like the peti-
tioner, 'even when they were drawn from the Army, but was applicable only in
regard to fixation of their initial pay. [39E, D, G]
H The 'pay' for purposes of determining the year of allotment under "N·'
formula of such recruits drawn from the Army was, as per the ooderlying
principles set out in the Ministry of Hom'e Affairs dated July 18, 1949, the
D. D. SURI V. UNION 27

"basic pa.y" \vhich necessarily exclude allowances. This concept of "basic A
pay" for :fixation of initial pay is reflected in the Indian Administrative Service
(Pay) Rules, 1954, which takes into account only the "initial pay". [40Gl
Th'e rule \Vhich requireSo credit to be given for the period of continuous
employment on pay or income not less than Rs. 800/- p.m., \vould apply
uniformly to all recruits drawn from different sources, namely, persons who
\\'ere previously lawyers, or employed in business houses or in Gov'ernment
service. Uniformity in such a case can only be attained by excluding allow- B
ances in every case, because the allowances which persons drawn from these
different sources v,rould be getting, would be varied in character. The Govern-
ment of India, therefore, acted fully in consonance with Articles 14 and 16 of
the Constitution. [41A-C]
The conc'ept of 'pay' under F.R. 9(21) (b) cannot be introduced for pur-
poses of regulating the year of allotmi~nt under 'N' formula,. as it relates to C
fixation of seniority and not of pay.. If the definition of 'pay' in F .R.
9 (21) (b) was to be taken note of, then Calcutta compensatory allovt·ance
and ma·rrlage allowance would also be included. Then, a rule \\'hich
makes seniority dependent upon marriage allowance, and therefore, on whether
the officer was married or not will be violative of Article 14 of th'e Consti~
tution. The inclusion of 'pay' as defined in P.R. 9(21)(b) in the 'N' formula to
include lodging allowance is not permissible as it was essentially compen£atory D
in chara..::ter. Any other construction will l'ead to manifest injustice as it
would result in discrimination between persons similarly situated i.e., bet¥.'een
an Army Officer in receipt of lodging allowance in lieu of rentMfre'e quarters
and one in occupation of such rentMfree quarters, in the ma.Her of seniority
in the Indian Administrative Service. [41G-H, 42D·E1]

( 4) The conditions of service of members of the Indian Administrative E
Service are regulated by the provisions of All India Services Act, 1951 and
the various Rules and Regulations framed thereunder, such e.s Indian AdminisM
trative Service (Recruitment) Rules, 1954, Indian Administrative Service
(Cadre) Rules, 1954, Indian Admini&trative Service (Pay) Rules, 1954, Indian
Administrative Service (Regulation of Seniority) Rules. 1954, Indian Adminis-
trative Service (Appointment by Promotion) Regulation, 1955, All India
Services (Discipline and Appeal) Rules, 1955, and 1969, All India Services F
(Conditions of SCrvice-Residuary Matters) Rules, 1960 etc. Wh.'en there is
specified provision made in regard to them on a particular subject .regulating
their conditions of service in the said A.::t and the Rules, th'e question of
applicability of the Fundamental Rules does not arise. [42GM43A]

. Even assuming that the Fundamental Rules were applicable on August 7,
1950 i.e. at th'e time when the petitioner ·was appointed to the Indian Adminis- G
" trative Service, these Fundamental Rules ceased to be applicable on the com-
ing into force of the aforesaid rules and regulations framed und'er the Act,
unless- the President by an order under F.R. 2 declared them to be so appli-
cable. [43BJ

The provisions of F.R. 49 ceas'ed to apply from the date on which the
Indian Administrative Service (Pay) Rules 1954, were brought into force,
as it makes no provision for 'additional pa.y'. Even if they were P.R. 49, H
in terms, provides that when a civil servant holds two posts, he is disentitled
to draw the salary of lioth the po•ts. All that such a civil servant becomes
28 SUPREME COURT REPORTS [1980] l S.C.R.

A entitled to is the salary of the higher .post, but no additional pay can be
allowed for pe1forming the duti'es of the lower post. Thus, the pay of one
of the posts can be allowed.

Even ~urning that the prov~ions in t_he Fundamental Rules would
continue to apply to a member of the Indian Administrative Service in regard
to which Do· sp'ecific provision is made by framing a rule under the All India
B Services. Act, 1951, and therefore, in the instant case, the appell&nt was still
governed by F.R. 49, he had no claim to any additional salary, on the
materials on record. [44A]

(5) The, intention underlying the s'econd proviso to F.R. 30(1) which
is commonly known as the "Next Below Rule" is the principle that when an
oHicer in a post (whether \Vithin the cadre of his service or not) is for any
c reason p1'evented from officiating in his turn in a post on higher scale or
grade borne on the cadre of the service to which he belongs, he may be
authorised by special order of the appropriate authority pro fon11a officiating
promotions into such scale of pay and theteupon be granted the pay of that
scale of grade, if they be more advz.ntageous to him oo each occasion on
which the officer immediately jUnior to him in the cadre of his service draws
officiating pay in that scale or grade. Th'e principle behind the so-called
D rule is evidently that an officer out of his regular line &hould not suffer by for-
. feiting acting promotion which he would otherwise have received had he
remained in his regular line. [44G-45A]

7/Je State of Mysore v. M. H. Bcl/ary, [1964] 7 SCR 471. referred to.

The 'Next Below Rule' is not a rule of any independent application. It
sets out only the guiding principles for application in any cas'e in which the
E President or the Governor proposes to regulate an officiating pay by special
order under the second proviso to F.R. 30(1). The condition precedent to
the application of the 'Next Below Rule' must, therefore, be fulfilled in each
individual c<M;e before any action can be taken under this proviso. [45F1

(6) The promotion to a post in super-time scale involves. an element of
selection and is not by mere seniority. As a rule of universal application.
F the brnefit of the "Next Below Rule" though available in ,-ie selection grade
has never b'een extended when there is a promotion to a post in super-time
scale in the Indian Adn1inistrative Service for considerations of policy,
nMnely, ( l) the length of s.ervice which officers in States have to put in
before they g'et promotion to super-time scale is not uniform; (ii) Most of
the States have got Divisional Commissioners, while some States do not have

G
this post; (iii) The posts of Secretaries in some States carry pay in &uper-time
scale while in others these posts carry pay in the senior scale, and (iv) An
officer might be good enough to be a Divisional Co~ssioner, but might
.•
not be good enough to be Joint Secretary to the Govemment of India..
[45G.46B-D]
The process of a,ppointment to the super-time scale is by selection. When
the element of" selection comes in, this pron1otion must be subject only to the
claims of exceptional merit and suitability, and is not a matrer of right.
H Promotion to the super-time scale is, therefore, not a matter of course. The
Officer must stand the test of suitability and his integrity mllst be beyond
doubt. For this purpose there is a Senior Selection Committee \Vhich pre-
D. D. SURI v. UNION (Sen, !.) 29

pares a. select list of suitable offic:ers which must be approved by the Union A
Public Service Commission. The Senior ·Selection Committee has to prepare
a p'anel of names for each grade and submit the same for approval to the
Union Public Service Commission as well as to the Government of India,
Ministry of Home Affairs. The select list has to be reviewed and revised
every )l'eair, and the Senior Selection Committee meets annually. The essence
l of holding Selection Committee meeting annually is that each annual proceed-
ing is independent of the other. That is why a9 soon as the proceedings of B
th'e new Selection Committee are approved by the Union Public Service Com-
mission, the proceedings of the earli'er Selection Committee becomes in-
operative, No manner of continuity can, therefore, be imput'ed to the pro-
- ceedings of the various Selection Committees. [48 D-F]

Jn the instant case, the appellant cannot claim as a right the super-time
scale merely cm the basis of his seniority among the members of the Indian C
Administrative Service belonging to the Orissa cadre, if he was 'consciously'
passed over by the Senior Sel'ection Committee or Government of India,
Ministry of Home Affairs. [48 C,G]

Union of India v. M. L. Capoor, [1973] 3 SCC 836, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1419 of 1971. D
Appeal by Special Leave from the Judgment and Order dated
24-11-1970 of the Orissa High Court in O.J.C. No. 466/66.
D. D. Suri (In person).
K. K. Venugopal, Addi. Sol. Genl. of India, R. B. Datar and
Girish Chandra for Union of India. E
L. N. Sinha and G. S. Chatterjee for the State of Orissa.
The Judgment of the Court was delivered by
SEN J.-This appeal, by special leave, is directed againsl the judg-
ment and order of the High Court of Orissa, dated November 24, 1970, 'fl'
dismissing the appellant's writ petition for fixation of his year of allot-
ment in the Indian Administrative Service as 1942 instead of 1944 and
for giving necessary benefits to him in the fixation of his pay.
The facts of this case are complicated and involved. It is never-
theless necessary to unravel these complicated facts, in order to appre- G
ciate clearly what are the questions which must be dealt with in this
appeal. The appellant having been selected by the Special Recruit-
ment Board as an Emergency Recruit from the 'Open Market', was
appointed to the Indian Administrative Service on August 7, 1950 and
all.ocated to the Orissa cadre. He was born on January 7, 1915, and
joined the Editorial Staff of the Civil & Military Gazette, I..,allore, to- B
wards the end of 1938. He continued to serve the Civil & Military
Gazette upto January 7, 19.43 when he joined the Army. During the
\
\

30 SUPREME COURT REPORTS [1980] 1 S.C.R.

A Second World War, he was granted an Emergency Commission in the
Army w.e f. March 7, 1943 with the rank of Lieutenant w.e.f. June 3,
1948 but with seniority in that rank ~.e.f. September 9, 1944.
The Government of India, Ministry of Home Affairs, New Delhi,
by lefter dated July 19, 1951, forwarded a statement showing the
11 years of allotment assigned to various officers borne on the Indian Civil
Administrative cadre of Orissa. The year of allotment assigned to the
petitioner was 1943! for purposes of seniority, on the basis of his parti-
culars as available at that time. On receiving his representation, the
Ministry of Defence· was requested fo furnish information regarding the
particulars of his pay and allowances drawn by him during the period
c December 31, 1944 to December 31, 1948. As the information fur-
nished by the Ministry of Defence did not tally with those furnished by
the petitioner in his application for recruitment to the Indian Adminis-
trative Service to the Special Recruitment Board, he was asked to explain
the discrepancy between the particulars furnished by him and those fur-
nished by the MiniStry of Defence. He was also asked to explain why
D his seniority should not be calculated on the basis of the information
furnished by the Ministry of Defence according to which his year of allot-
ment should have been 1945. On receiving his reply, the Government
of India, Ministry of Home Affairs, by its letter dated June 11, 1952
decided after due consideration that his 'protection pay' should be treated
E as part of his pay, the allowances like the Calcutta Compensatory and
Lodging allowances etc. were not to be counted as part of his pay. It
was further decided that the deficiency of six days in counting the num-
ber of completed years of actual experience could not be condoned. The
Government of India, Ministry of Home Affairs, accordingly, fixed the
year of allotment of the petitioner to the Indian Administrative Service
F as 1944.
The appellant has had a chequered career. It appears that the
petitioner faced heavy weather in the State of Orissa, from where in
1952 he was sen~ out on deputation to the Government of India i.e.
after he had served the State Government of Orissa for a period of little
G less than two years. Thereafter, he remained continuously on deputa-
tion with the Government of India for 12t years till he reverted to his
parent State on April 23, 1965, despite the objection of the then Chief
Minister. He served as Deputy Secretary to the Government of
India in the Ministry of Transport from 1955 to 1961. On April 1,
1961 he proceeded on long leave. On his return from leave, the peti-
H tioner was appointed as the· Salt Commissioner and Managing Director,
Hindustan Salt Ltd. with headquarters at Jaipur. He held both the
posts until December 23, 1963 and only as Salt Commissioner till
D. D. SURI v. UNION (Sen, J.) 31

April 7, 1964, whereafter he was reverted to the State of Orissa. On A
his reversion to the State, he was first appointed as Managing Director,
State Warehousing Corporation, a post usually held by an Additional
District Magistrate, but later on allowed to officiate in the super-t'ime
scale as Revenue Divisional Commissioner, Sambalpur w.e.f. October
24, 1965, by reverting an officer junior to him. While the petitio~r
B
was serving as Commissioner of L'and Reforms, Orissa, a prosecution
was launched against him on November 24, 1967 u/s. 5 (2) read with
s.5(1) (e) of the Prevention of Corruption Act, 1947, on a charge of
having assets to the tune of Rs 3,29,476.90 disproportionate to his
income. There was a search of his house at Cuttack on 3cnd after
November 27, 1967, and he was placed under suspension by the Gov- c
ernment of Orissa on November 28, 1967 under Rule 7(3) of the All
India Services (Discipline and Appeal) Rules, 1955. Eventually, the
prosecution ended in an acquittal. The petitioner was compulsorily
retired by the Go,vemment on June 9, 1971. On September 1, 1977,
the State Government after the order of acquittal, issued an order
directing that the period from November 29, 1967 i.e. the date of sm- D
pension, till June 9, 1971, i.e., the date of his retirement; shall be
treated as period· spent on duty. It also made consequential directions
in the matter of pay and allowances, treating him in the super-time
grade from November 29, 1967 to April 24, 1968 and, thereafter in
the selection grade, from April 25, 1968 till June 9, 1971.
E
The questions sought] to be raised by the appellant who appeared
in person, are no doubt of a wide and general importance. The ques-
tion still remains whether one of them, i.e., regarding the year of allot-
ment need or could be decided at all. Three questions arise for deter-
mination on his submissions : First, whether the Court has the juris-
F
diction or the power to make a direction requiring the Government of
India, to re-fix the year of allotment of the petitioner as 1942 instead
of 1944 as determined, respecting his seniority in the Indian Adminis-
trative Service, from which he has retired; secondly, whether the Fun-
damental Rules applied to the petitioner, and if so, whether he was
entitled under P.R. 49 for the period from September 11, 1961 to G
December 23, 1963 during which he simultaneously held both the
posts of the Salt Commissioner and the Managing Director, Hindustan
Salt Ltd. with headquarters at Jaipur in the State of Rajasthan, to the
full salary of one post and additional salary upto a maximum of 50%
of the second post, which salary has been denied to him; and thirdly,
whether the Next Below Ruk implied in P.R. 30 was applimble to the H
petitioner while he was serving in connection with the affairs of the
Union. inasmuch as his junior in the Orissa cadre, Shri V. V. Anant-
32 SUPREME COURT REPORTS [1980] 1 S.C.R.
1~
A krishnan was appointed in the super-time scale on July 24, 1962 and
he was thus entitled to the benefit of the same and had to be pillced in
the super-time scale w.e.f. July 24, 1962 to June 9, 1971, i.e., the date
of his retirement.
But the whole structure of this argument has no real foundation.
B
• The Union of India and the State of Orissa filed counter-affidavits
and denied the petitioner's right to relief on any of the grounds.
In its elaborate judgment, the High Court carefully considered all
the aspects and took the view that the considered decision of the Gov-
ernment of India, Ministry of Home Affairs, on the representation of
c the petitioner reached after due consideration, cannot be interfered
with. They had decided not to condone the deficiency of six days in
counting the number of completed years of actual experience, nor take
into account compensatory allowance like Calcutta Compensatory
allowance and the lodging allowance, in calculating his pay, for deter-
mining the year of allotment. Further, the High Court observed that
D
the failure of the petitioner to explain the discrepancy between the
particulars as furnished by him "and those furnished by the Ministry of
Defence, his failure to produce any records to show what the informa-
tion of the Ministry of Defence was or even the reply that he had ulti-
mately sent to the Government of India in trying to explain the dis-
E crepancy, coupled with the fact that he had neither produced the im-
pugned order of the Government of India fixing 1944 as the year of
allotment, nor had he furnished the details of his pay and allowances
from time to time in respect of the period in question, w."re fatal
to the petitioner's case. It also observed that in the absence of any
good reason being shown to justify intervention by the Court in the
F exercise of its writ jurisdiction, the contention regarding the yca.r of
allotment cannot be accepted.
The High Court also held in the alternative, that the Government
of India had arrived at the correct year of allotment in respect of the
petitioner. In determining the number of completed years in the
G 'N' formula, the Government was not duty bound under Rule 3 to relax
the same, and its refusal to condone the deficiency of six days, it could
.,
not be mid that the Government had Dot Jcalt with the case in a just
and equitable manner. In its view, the benefit claimed by the peti-
tioner, to say the least, would be in direct contravention of the re-
quirement that no fraction of a year was to be taken into account. On
H a proper reading of the 'N' formula, it was not possible to re'ad into the
same the im,position of a duJy on the Government to relax the require-
ments in appropriate cases, nor would the Government be justified in
D. D. SURI v. UNION (Sen, J.) 33

making a departure from the plain meaning of the instructions in a par- A
ticular case, merely on the ground of hardship. According to the High
Court, the word 'pay' in the context of the relevant Rules and Instruc-
tions, included enly such allowances as were intended to form an addi-
tion to pay and not compensatory allowances like Calcutta City
Allowance and Lodging Allowance etc., i.e., allowances which were
essentially compensatory in ·character and were intended to be reim- B
bursed to the Government servant for the expenditure incurred by
him in the course of hls duty and, therefore, they could not be taken
to form part of 'pay' as referred to in the instructions. It lastly held
that it was not disputed before it with regard to the applicability of
the 'Next Below Ruic', that promotion to a post in super-time scale c
involves an element of selection and not mere seniority, and that there
!
was nothing to show that the Government of India ever failed to apply
their mind to the case of the petitioner in respect of his claim to the
benefit of the 'Next Below Rule', nor was it argued before it that the
Government of India acted ma/a fide or in an arbitrary manner. From
the language of the clarificatory letter of the Secretary of State for
India in Council, dated April 2, 1947, it was clear that no Officer can
claim as of right promotion to a post carried in super-time scale
under the 'Next Below Rule'. It merely embodies the guiding princi-
ples governing promotion to such post which involves an element of.
selection and not mere seniority.
E
There can be no doubt, in our opinion, agreeing with the decision
of the High Court, that the petitioner was not entitled to any relief.
The High Court has, io our mind, reached a just and correct decision.

At the very outset, we tried to impress on the petitioner that his F'
main relief, i.e. with respect to fixation of the year of allotment ac-
cording to tl1e 'N' formula, had become infructuous, as he had already
retired irom service and only the subsidiary_ relief i.e., for giving neces-
sary benefits to him in the fixation of hls pay remains which is nothlng
but a monetary claim, for the enforcement of which the remedy lay
)
.... elsewhere. But the petitioner who appeared in person persisted in (;.
arguing all the points raised particularly the one regarding fixation of
the year of allotment saying that he was doing it for the 'benefit of
others'. We have, therefore, no alternative but to deal with the
appeal on merits.

We fail to comprehend what relief the petitioner can be granted Hi
in this appeal. In his application for grant of special leave to this
Court under Article 136 of the Constitution, the petitioner has cate-
34 SUPREME COURT REPORTS (1980] 1 S.C.R.
A gorically stated that 'he was no longer interested in the relief for de-
termination of the year of allotment', according to the 'N' formula,
since he was on the verge of retirement, and that the arguments
advanced on his behalf in the High Court were, therefore, only con·
fined to 'his entitlement to additional pay under F.R. 49', irrespective
B of the fact whether he was given the benefit under the 'Next Belaw rule
or not.' In this connection, he avers :..:_
"2. In the said writ petition, your petitioner had prayed
for the following reliefs from the respondents : -
(a) Proper fixation of his year of allotment in the Indian
C Administrative Service;
(b) Grant to the petitioner of the necessary benefits under
Fundamental Rule 49 and 'Next Below Rule' in the
fixation of his pay at a rate higher than the super-time
scale pay of the IAS from 11-9-1961, the date on
which he took over concurrently the two appointments
0
of Salt Limited, and at super-time scale pay from
23-12-1963 when he held the appointment of Salt
Commissioner only."
"4. That the petitioner was much less interested ill the
adjudication of the claim stated in sub-para (a) in view of
E his ilnpending retirement fronl service".

"the petitioner's main interest was in his claim stated
in detail in sub-clause ( b) of para 2, particularly its porlion
relating to his entitlement of extra remuneration under Fun-
damental Rule 49 for holding two independent posts con-
F currently, which involved arrears of pay amounting to over
30,0001-." (Emphasis supplied)
In that situation, the petitioner cannot be heard to say that the
Govermnent of India had not arrived at a correct decision in assign-
ing 1944 as the year of allotment to him. Even if he were entitled
G to do so, the contention meocits no consideration.
The learned Additional Solicitor-General has, at our request,
placed before us all the relevant records of the Ministry of Home
Affairs, Ministry of Finance _and the Ministry of Law & Justice which
bare upon the questions at issue. On a perusal of these records, it is
ff quite clear that the Government of India evolved uniform policy as a
matter of principle to deal with such questions. In the light of the
set principles, all the demands of the appellant were considered at
D. D. SURI v. UNION (Sen, !.) 35

each stage, and found that they could not be, accepted, keeping m A
view the desirability of uniformity of policy in such matters.
In support of the contention regarding the year of allotment, the
appellant's submission is twofold, namely, (i) the Government of
• India were in error in not condoning the deficiency of six days in
reckoning the completed years of his service after attaining the age B
of 25 years. He has wrongly been given credit for only 8 years in-
stead of 9 years as there was a short fall of six days to complete 9
years, which short fall should have been waived by the Government,
and (ii) he being a regular Army Olficer, the definition of 'pay' in
F.R. 9(21) (b) was attracted, so that in determining the year of
allotment, 'pay' would also include allowances like Lodging Allow- c
ances. We are afraid, none of the contentions can prevail.

f It is common ground that as regards Emergency Recruits from the
'Open Market', the year of allotment was to be determined according
to the 'Open Market Emergency Recruitment Scheme', embodied in
the instructions of the Government of India for the preparation of a D
common gradation list for the officers of the Indian Civil Service cadre
in each State issued on July 7, 1950. The relevant instructions ad-
verted to, so far as material, (hereinafter referred to as 'N' formula)
read as follows : -
"IV Emergency Recruits from the 'Open Market' : E
These otficers should be given an year of allotment on
the basis of the following rules below :
(1) The number of completed years of actual experience
of the officers after attaining the age of 25 and upto
the 31st December, 1948 as certified by the Special Re- F
cruitment Board 'l';ill be the period of previous ex-
perience to be taken into account.
This period will be divided into two parts, N1 and N2
as below :
(a) N1 means the period of continuous employment G
on· a pay or income of not less than Rs. 800 per
month between 31st December, 1944, and the 31st
December, 1948, inclusive.
(b) N2 means the entire period of previous experience
to be taken into account, exclusive of Nl. H
(2) The year of allotment in each case will be 1949-Y,
where Y = Nl+t of N2."
36 SUPREME COURT REPORTS (1980) 1 S.C.R.

A These instructions .form a part of counter-affidavit filed on behalf
of the Union of India and are printed in the All India Services Manu.
al, Second Edition, at p. 774, with the heading "Executive Instruc-
tions/Orders issued by the Government of India under the Indian
Administrative Service (Regulation of Seniority) Rules, 1954".
B The year of allotment : 'N' formula :

Rule 3 of the Indian Administrative Service (Regulation of Senio-
•
'><.
rity) Rules, 1954, so far as relevant, reads :-
"3. Assignment of year of allotment-(!) Every officer
shall be assigned a year of allotment in accordance with
c the provisions hereinafter contained in this rule.
(2) The year of allotment of an officer in service at the
commencement of these rules shall be the same as has been A

assigned to him or may be assigned to him by the Central
Government in accordance with the orders and instructions
D in force immediately ~fore the commencement of these
rules."
Even according to the appellant, he is not entitled, under the 'N'
formula as it stands, to a credit of more than 8 years. If that be so,
the High Court quite properly declined to exercise its extra-ordinary
E jurisdiction under Article 226 of the Constitution inasmuch as no writ
or direction could be issued, in a matter which was essentially in the
discretion -of the Government, to re-fix his seniority by giving credit
for 9 years instead of 8 years as provided for, as admittedly the re-
levant instructions require 'completed years of actual experience'.
F Normally, the decision of the Government of India assigning a
year of allotment to a particular officer under Rule 3 of the Indian
Administrative Service (Regulation of Seniority) Rules, 1954, or in
accordance with orders and instructions issued by the Central Govern-
ment in that behalf before the commencement of these Rules, is final
and cannot be interfered by the Courts under Article 226 of the Con-
G stitution unless such decision was capricious or arbitrary or in breach
of the said Rules. The same principle should apply to the assignment
of a year of allotment under the 'N' formula.
The contention that the Government of India should have condoned
the shon fall of six days by relaxation of the relevant Rules under the
e powers vested in it by the All India Services (Conditions of Service-
Residuary Matters) Rules, 1960, can hardly be accepted. These
Rules were not in force when the Government of India, Ministry of
D. D. SURI v. UNION (Sen, !.) 37

_, Home Affairs, by their letter dated July 19, 1951 issued a statement
showing their years of allotment assigned to officers borne on the
' Indian Civil Administrative Service cadre of Orissa, wherein the year
of allotment assigned to the petitioner was 1943:!-, or even at the
~
time when the Mi1'1istry of Home Affairs by its letter dated June 11,
1952 rejected his representation in that behalf, while revising his year
of allotment to 1944. The relevant records of the Government of B
·I
• India, Ministry of Home. Affairs disclose that the Government of
'"' India adopted a uniform policy in this regard and short falls of even
less than 6 days have not been condoned so that there could be uni-
I formity of taking note of 'completed years of service', irrespective of
the short fall of number of days, in calculating the year of allotment c
in every case under the 'N' fonnnla.
The question of relaxation was considered at the highest level as
l admitted by the petitioner himself. The records of the Government of
India, Ministry of Home Affairs, disclose that by letter dated June 1 L
1952, the Government of India after dne consideration, rejected the
representation of the petitioner, by issuing an order to the following D
effect : -
"I am directed to say that the Government of India have
carefully considered the points raised by Sri Suri in his
representation. The decisions thereon are as follows : -
(i) Considering the circumstances in which the pay scale in E
the Army was generally reduced and a 'protection
pay' was given, the Government of India consider that
it would only be fair that the 'protection pay' granted
to Sri Suri during his service in Army shouldi be "treated
as part of his basic pay for purposes of determining
his seniority. F
(ii) The Calcutta Compensatory Allowance and the Lodging
, -\ Allowance drawn by Sri Suri during the period October
.f 1944 to August 1947, cannot be treated as part of pay
for computing Nl or N2.
(iii) Sri Suri has represented that the completed years of
•• service after attaining the age of 25 upto the 31st
G

December 1948, calculated in accordance with the
formula falls short of one additional year in his case
because ~f a shortage of six days. He has requested
that this deficiency should be condoned. The Govern-
ment of India have rejected similar requests for con- H
donation of even shorter periods and regret, therefore,
that they are unable to accede to th~ request.
38 SUPREME COURT REPORTS [1979] 3 s {;,II_

A 2. On the basis of the decision referred to in para 1 (i)
above, Shri Snri's revised year of allotment works out
to be 1944. His position in the Orissa Indian Civil
Administrative gradation List (forwarded with the
Ministry of Home Affairs letter No. 213/52-AIS, dated
the 26th April, 1952) will therefore be immediately
B
below Sri S. T. Mcrani (S. No. 12) and above Sri
S. S. Murthi (S. No. 33). The.serial numbers of Sri •
'w.
Murthi and officers below him in the list may be
changed accordingly." (Emphasis supplied).
The matter did not rest at that. Thereafter, the All India Services
C (Conditions of Service-Residuary Matters) · Rules, 1960 were
framed, and by Rule 3 the Central Government were conferred power
to relax the rules and regulations regulating the conditions of service
appointed to an All India Service, in any particular case, on the ground
'undue hardship', as they may consider it necessary for dealing with
D the case in a just and equitable manner. A doubt was raised whether
the power of relaxing rules was intended to be applicable to 'Recruit-
ment Rules' also. The Government of India have h~ld that the 'Re-
cruitment Rules' cannot be relaxed under Rule 3. Nevertheless, the
petitioner kept on making representations and the question was reconsi-
dered on occasions more than once as reflected in the order of Sri ••
E Govind Ballabh Pant, Minister for Home Affairs, dated June l, 1958,
which reads : - "--
"Sri Snri's case h.as been considered more than once. I
do not find, however, any adequate reasons for revising the
orders already passed. It would be difficult to condone the
defficiency even if it be of only 7 days in the case of only
F one officer. The rule which gave an advantage to married
officers cannot apply to him as he was not married at the
time." (Emphasis supplied).
Even assuming there was a power to condone the deficiency, the
matter rested entirely in the discretion of the Government of India.
G
When a decision in a policy milter like this is left to the absolute
discretion of the Executive, we do not see how the Conrts can inter-
fere and issue a direction to the Government of India to reconsider
the matter afresh, after a lapse of more than 25 years. It would not
only disturb the combined gradation list of the officers belonging to ...
the Indian Administrative Service, but also affect the seniority of •
H many officers who have not been impleaded in these· proceedings.
May be, many of them may have died or retired and even as regards
the others, they may have been confirmed in the super-time grade.
D. D. SURI v. UNION (Sen, !.) 39

The High Court, therefore, rightly, in our opinion, held that there ~
could be no interference in such matters.
'N' Formula and F.R. 9(21) (b)
F.R. 9(21) (b) readg : -
"(b) In the case of a military officer, in receipt of the
B
rates of pay introduced on July 1, 1924, pay includes the
amount which he receives monthly, under the following
designations : -
(i) pay of appointment, lodging allowance and marriage
allowance; and
"(ii) pay of rank, command pay, additional pay, Indian
c
Army allowanoe, lodging allowance and marriage
allowance."
F.R. 2 provides that the Fundamental Rules shall apply, subject
to the provisions of F.R. 3, to all Government servants whose pay
is debitable to civil estimates and to any other class of Government D
servants to which the President may by general or special order de-
clare them to be applicable. It is, however, provided by F.R. 3
that unless it be otherwise distinctly provided by or nnder the rules,
nothing in these Rules shall apply to Government servants whose
conditions of service are governed by Army or Marine Regulations.
_j
It is, therefore, obvious that the definition of 'pay' in the case of a
military officer, introduced by F.R. 9(21) (b), is for 'protection pay',
when such officer is recruited in civil service under the employment
of the Union of India, i.e., for fixation of his pay ln such service.
For this limited purpose, the term 'pay' not only includes the 'rank
•' pay' but also command pay, additional pay etc., and, 'allowances'
hke lodging allowance and marriage allowance are treated as part of
'pay'. If a military officer had been receiving any of these allow-
ances, they will fall under the head 'pay' under F.R. 9(21)(b).
F.R. 9 (21 )(b) had, therefore, no relevance in the matter of fixing
the· seniority of Emergency Recruits from the 'Open Market' to the
Indian Administrative Service, like the petitioner, even where they G-
were drawn from the Army, but was applicable only in regard to fix-
ation of their initial pay.
It is, however, argued that the petitioner was a regular Army
Officer at the time when he was appointed as an Emergency Recruit
from the 'Open Market' and, therefore, his pay for purposes of cal· II
culating the year of allotment was regulated by F.R. 9(21) (b}, in the
absence of any provision to the contrary.
4-475SC!j79
40 SUPREME COURT REPORTS (1980] 1 S.C.R.

A The argument appears to be somewhat attractive but on deeper
considerations must be rejected. The underlying principles on which
the 'N' formula was evolved by the Government of India are set out
in the letter of the Ministry of Home Affairs, dated July 18, 1949, the
subsfance of which reads :
t
B "4. No decision has yet been reached about the seniority
to be accorded to candidates from the 'Open Market'
appointed to the IAS on the recommendation of the Special
Recruitment Board. There were two alternative methods
by which seniority of such officers should be determined,
viz. (a) on the principle of the 'basic pay' or (b) related
c to the experience which the candidates concerned had gain-
ed in their respective employment, profession or busin•css.
The 'basic pay' of the Emergency Recruits drawn from the
'Open Market' had been fixed mainly on the basis of age.
As regards (a) it was felt that if seniority is to follow
strictly the basic pay, the initial 'basic pay' would be sub-
D ject to a maximum of Rs. 660 /- for the jnnior-scale and
Rs 1,000 /- in the senior-scale which represents the pay ad-
missible in the tenth year of service at the age of 36. The
alternative method of approach, i.e., to relate seniority of
the new recruits to be length of his actnal experience in the
previous employment, business or profession, wonld be fair
E to the recruits themselves inter se as it would maintain a
distinction on the basis of their 'actual experience'. It was,
therefore, proposed that credit should be given to the
Emergency Recruits for the purpose of determining their
seniority in the IAS at the rate of six months in every year
of experience which such recruits may have after the age of
25."
The 'pay' for purposes of determining the year of allotment nnder
'N' formula of such recruits like the petitioner was, therefore, the
'basic pay' which must necessarily exclude allowances. This concept
of 'basic pay' for fixation of initial pay is reflected in the Indian Ad-
G ministrative Service (Pay) Rules, 1954 which takes into account only
the 'initial pay'.
It has been stated on behalf of the Union of India that the Special
Recruitment Board, for this recruitment, interviewed candidates who
were already employed under the Government or in commercial firms
H or business houses and in public or local bodies as well llS members
of the legal profession and others and out of 153 candidates selected,
115 were Government servants, 15 were from commercial firms and
D. D. SURI v. UNION (Sen, J.) 41

business houses, 8 from public and local bodies, 4 from legal profes- A
sion and l l from other sources. The rule which requires credit tl> be
given for the period of continuous employment on pay o.r income not less
than Rs. 800/- p.m. would, therefore, apply uniformly to persons who
• were previously lawyers or employed in business houses or in Gov-
ernment services. Uniformity in such a case can only be attained
by excluding allowances in every case, because the allowances which B
persons drawn from these different sources would be getting, would
be varied in character. The Government of India, therefore, acted
fully in consonance with Articles 14 and 16 of the Constitution in
excluding allowances in computing the pay. The amount of Rs 800/-
p.m. was taken as a basis as it was the first stage in the senior time c
scale of pay of officers in the Indian Administrative Service. In this
scale, the amount of Rs 800 /- is the 'basic pay' without including
allowances.
Under these circumstances, tlJe decision taken from the beginnin.!l
wa.s that allowances would not be included in computing the pay and
D
as long as this decision is applied uniformly, without exception, the ap-
pellant can have no grievance in tlJis regard. to seniority specifically as
allowances would have to be added uniformly to all other persons in
the seniority list. Thus, the definition of 'pay' in F.R. 9(21) (b) is
applicable only for tlJe fixation of 'pay' of a Government servant who
had been recruited from the armed Forces. In such a case, the total E
S'a]ary including such allowances as falling within the definition, is
taken note of. The petitioner admittedly was given an initial pay of
Rs 1,000/- i.e. much higher than officers appointed to the Indian
Administrative Service on the result of the competitive examinations.
Here we are not concerned with the fixation of pay of the petitioner
but with regard to the Rules r~<>ting to the fixation of his seniority F
which would take note of the period prior to his recruitment to the
Indian Administrative Service and for that purpose the 'basic pay'
alone was relevant. The concept of pay under F.R. 9(21) (b) can-
not, therefore, be introduced for purposes of regulating the year of
allotment under 'N' formula/, as it relates to fixation of seniority and
not of pay. The matter falls to be regulated by the interpretation G
placed by the Government of India, Ministry of Home Affairs in their
letter dated July 18, 1949.
If the definition of 'pay' in F.R. 9(21) (b) was to be taken note
of, then Calcutta compensatory allowance and marriage allowance
would also be included. Obviously, a rule which makes seniority H
dependent upon marriage allowance and, therefore, on whether the
officer was married or not will be violative of Article 14 of the Consti-
42 SUPREME COURT REPORTS (1980] 1 S.C.R.

A tution. The appellant gave up before the High Court his claim to
,
the inclusion of marriage allowance though cove.red by the defmition
of pay, and in this Court his claim for the inclusion of Calcutta Com-
pensatory Allowance. In dealing with the question, the High Court
has observed that the word 'pay' in the context of the relevant Rules
and Instructions included only such allowances as were intended to
B form an >addition to pay and not compensatory allowance like Calcutta
City Allowance and Lodging Allowance etc., i.e., allowances which
were essentially compensatory in character and were intended to be
reimbursed to the Government servant for the expenditure incurred
by him in the course of his duty and, therefore, they could not be
taken to form part of 'pay' as referred to in the 'N' formula. We Clln-
c not see that the appellant is on a better footing as regards lodging
allowance, which is usually given to Ai;my Officers in lieu of rent-free
quarters. They become at once disentitled to such allowance the
moment they are allotted quarters. Lodging allowance is, therefore,
essentially compensatory in nature. The inclusion of pay as defined
D in F.R. 9(21) (b) in the 'N' formula to include the Lodging allowance,
is not permissible as the appellant would have to claim the a,pplication
of the definition of 'pay' in its full rigour or not at all. Any other
construction will lead to manifest injustice as it would result in dis-
crimination between persons similarly situated, i.e., between an Army
Officer in receipt of lodging allowance in lieu of rent-free quar(ers and
E one in occupation of such rent-free quartes, in the matter of seniority
in the Indian Administrative Service. The inevitable conclusion,
therefore, is that the definit'ion of 'pay' in F.R. 9 (21) (b) was not
applicable for purposes of fixation o[ seniority of the appellant.

Fundamental Rules and their applicability :
F'
It is not necessary for our purposes to deal with the larger ques-
tion as to whether the Fundamental Rules regulate the conditions of
service of members of the Indian Administrative Service. As at pre-
sent advised, we are inclined to think thut their conditions of service
are regulated by the provisions of All India Services Act, 1951 and
G
the various Rules and Regulations framed thereunder, such as Indian
Administrative Service (Recruitment) Rules, 1954, Indian Adminis-
trative Service (Cadre) Rules, 1954, Indian Administrative Service
(Pay) Rules, 1954, Indian Administrative Service (Regulation of
Seniority) Rules, 1954, Indian Administrative Service (Appointment
H by Promotion) Regulation, 1955, A][ India, Services (Discipline &
Appeal) Rules, 1955 and 1969, All India Services (Conditions of
Service-Residuary Matters) Rules, 1960 etc. When there is speci-
D. D. SURI v. UNION (Sen, !.) 43

-~ fie provision made in regard to them on a particular subject regulating A
' their conditions of service in the said Act and the Rules, the question
of applicability of the Fundamental Rules does not arise.
Even assuming that the Fundamental Rules were •applicable on
August 7, 1950 i.e. at the time when the appellant was appointed to
the Indian Administrative Service, these FllJldamentaJ Rules ceased B
to be applicable on the coming into force of the aforesaid rules and
regulations framed under the Act, unless the President by an order
under F. R. 2 declared them to be so applicable.
Combination of posts and right to Additional Pay under F.R. 49 :
The short question .for consideration is whether the appellant was c
entitled under F.R. 49 !or the period from September 11, 1961 to,
December 23, 1963 during which he simultaneously held both the
posts of the Salt Commissioner and the Managing Director, Hindnstan
Salt Ltd., wi1h headquarters at faipur, to the full salary of one post
and additional salary of a maximum of 50% of the second post. The
answer must clearly be in the negative. The provisions of P.R. 49 D
were not applicable to him after the Indian Administrative Service
(Pay) Rules, 1954 were brough.t into force; and even if they were,
P.R. 49, in terms, provides that when a civil servant holds two posts.
be is disentitled to draw the salary of both the posts. All that such
a civil servant becomes entitled to is the salary of the higher post, but
E
no additioml salary can be allowed for performing the duties of the
lower post. Thus, the pay of one of the posts can be allowed.
Furthermore, the rules relating to pay applicable in 1962 were the
Indian Administrative Service (Pay) Rules, 1954 which make no
provision for additional pay.
Rule 13 of the said Rules reads as follows F
"13. Repeal and saving.-Any rules corresponding to
these rules and in force immediately before the commence-
ment of these-rules are hereby repealed:
Provided that any order made or action taken under the
rules so repealed shall be deemed to have been made or G
taken under the corresponding provisions of these rules."
It would thus follow that the provisions of Fundamental Rules in
regard to pay, even if applicable, ceased to apply from the date on
w\Jich the Indian Administrative Service (Pay) Rules, 1954 came into
force. The appellant therefore, would normally not be entitled to H
invoke P.R. 49 in regard to the salary paid to him when be was
simultaneously holding the fwo posts in question.
44 SUPREME COURT REPORTS [1980) 1 S.C.R.

A Even assuming that the provisions in the Fundamental Rules
would continue to apply to a member of the Indian Administrative
Service in regard to which no specific provision is made by framin<'
a rule under the All India Services Act, 1951 and, therefore, the
appellant was still governed by F.R. 49, he had no claim to any addi-
tional salary. The records of the Government of India, Ministry of
B
Home Affairs disclose that the ground on which the claim of the
appellant was rejected was that at the time the post of Managing
Director, Hindustan Salt Ltd. was brought into existence, there was
a down-grading of the posts of Salt Commissioner having regard to the
diminution in the nat\:ire of duties and responsibilities attached to the
c said post. Normally, this should have resulted in a reduction in the
scale of pay of the post of Salt Commissioner, but the Government of
India, on due application of mind, refrained from doing so, purely on
consideration of his additional charge, and continued the post in the
same scale of pay as a result of which the appellant in fact, obtained
monetary benefit. For this reason, the Finance Ministry did not agree
D to any extra remuneration over and above the scale of Rs. 1800-2000/-
to the Salt Commissioner-cum-Managing Director.
The grievance of the appellant that his successor-in-office to the
post of Salt Commissioner, Jaipur was given a pay of Rs. 2,250/-
was also considered, hut his representation was rejected on the ground
E that the said incumbent had already been drawing Rs. 2,250/ when \._
he was asked to hold the post of Salt Commissioner, Jaipur. The
relevant records disclose again a full and detailed application of mind
to the issues involved.

Thus there was no question of the appellant being entitled to be
F given an additional pay under F.R. 49 i.e. full salary of one post and
additional salary upto a maximum of 50% of the other post, for the
period from Sepetember 11, 1961 to December 23, 1963, during

G
which he simultaneonsly held both the posts.
'Next Below Rule'
The intention underlying the second proviso to F.R.30(1) which
-
is commonly known as the 'Next Below Rule' is the principle that
when an officer in a post (whether within the cadre of his service or
not) is for any reason prevented from officiating in his turn in a post
on higher scale or grade borne on the cadre of the service to which
he belongs, he may be authorised by special order of the appropriate
R authority pro forma officiating promotions into such scale of pay and
thereupon be granted the pay of that scale or grade, if they be more
advantageous to him on each occasion on which the offic.er imme-
D. D. SURI v. UNION (Sen, !.) 45

cliately junior to him in the cadre of his service draws officiating pay
' in that scale or grade. The principle behind the so-called rule is evi-
dently that an officer out of his regular line should not suffer by for-
feiting acting promotion which he would otherwise have received had
he remained in his regular line : The State of Mysore v. M. H. Bel-
lary. (')
B
The real implications of the 'Next Below Rule' as defined in the
Secretary of State for India's ruling clarified by the Government of
India, Ministry of iFinance by letter no. 2(25)-Est.III/46, dated April
2, 1947 : All India Services Manual, 2nd ed. pp. 765-66, in so far
as they bear upon the claim or right to the benefits thereunder in
respect of the appellant, are extracted below : - c
"The so-called 'rule' is not a; rule of any independent
application. It sets out o'.nly the guiding principles for appli-
cation in any case in which the Governor-General in
Council, or the Governor exercising his individual judgment
in virtue of the powers conferred on him by the Secretary D
of State's Rule of the 14th April, 1942 (published with
Home Department Notification No. 195140 Ests., dated the
9th June 1942), proposes to regulate officiating pay by
special orders under the second proviso to iFundamental
Rule 30(1). The condition precedent to the application of
the 'Next Below Rule' must, therefore, be fulfilled in each E
individual case before action may be taken under this pro-
viso."
It would thus appear that the 'next Below Rule' is not a rule of any
independent application. It sets out only the guiding principles for
application in any case in which the President or the Governor pro-
poses to regulate an officiating pay by special order under the second

• proviso to iF.R. 30( I). The condition precedent to the application
of the 'Next Below Rule' must, therefore, be fulfilled in each indivi-
dual case before any action can be taken under this proviso.
It was not disputed before the High Court with regard lo the
G
'Next Below Rule' that promotion to ~ post in super-time scale in-
volves an element of selection and not mere seniority. The Govern-
ment of India, Ministry of Home Affairs, intimated the petitioner in
June 1965 that his representation for fixation of pay in the super-time
scale on the basis of the 'Next Below Rule' had been rejected. It was,
therefore, accepted before the High Court that there was due appli- B
cation of mind by the Government of India to the case of the peti-
(L) [1964] 7 S.C.R. 471.
46 SUPREME COURT REPORTS [1980] 1 S.C.R.

A tioner in respect of his claim to the benefit of the 'Next Below Rule'
and that there was nothing to show that the Government had acted
mala fide or in an arbitrary manner in rejecting his claim.
The Additional Solicitor General placed before us voluminous re-
cords showing that, as a rule of universal application, the benefit of
B the 'Next Below Rule' has never been extended when there is pro-
motion to a post in super-time scale. This is a problem which has
faced the Government of Tndia on numerous occasions and eventual-
ly the Government reached a uniform decision that the 'Next Below
Rule, should not be applictl lo a super-time scale post, carrying
Rs. 2,500 .. 125/2-2750 for considerations of policy which are these:
c (i) Tho kngth of Service which officers in States have to put in before
they get promotion to super-time scale is not uniform, (ii) Most of
the States have got Divisional Commissioners, while some States do
not have this post, (iii) The posts of Secretaries in some States carry
pay in super-time scale while in other these posts carry pay in the
senior scale; and (iv) An officer might be good enough to be a
0 Divisional Commissioner, but might not be good enough to be Joint
Secretary to the Government of India.
The benefit of the 'Next Below Rnle' is available in the selection
grade but this benefit h'as not so far been allowed to the members of
the Indian Administrative Service in the super-time scale. The con-
E siderations on which this policy of the Central Government is based
are contained in the note of Sri L. P. Singh which is reproduced be-
low
"The length of service which officers in different States
have to put in before they get promotion is not uniform.
In some States, officers become Commissioners in the 15th
I' or 16th year of service, in some, even officers who have put
in 20 years service in the Indian Civil Service are still draw-
ing pay in the senior time scale. Again while most States
have got Divisional Commissioners, some have not. Fur-
ther, Secretaries to Government in West Bengal, Maharash-
tra and Gujarat are allowed special rates of remuneration.
..
1 -

G Again, while an officer may be good enough to be a Divi-
sional Commissioner, he may not necessarily be good enough
to be a Joint Secretary to the Government of India."
It appears that the State Government of Tamil N adu made a refe-
rence on the subject, and, the matter was studied in depth by the
fl various ministries. The Ministry of Home Affairs was not unfavour-
ably inclined. It expressed that since new guide-lines have been
evolved and the State Governments have been requested to constitute
D. D. SURI v. UNION (Sen, J.) 47

a Screening Committee for considering the cases of the members of A
the Indian Adminisirative Service for appointments to posts carrying
pay in super-time scale, the benefit of' super-time scale should be ex-
tended to officers on deputation with the Government of India under
' the 'Next Below Rule'. It, however, agreed that there cannot be
complete uniformity at any particular time, since the length of ser-
JI
vice wh:ch officers in different States have to put in before they get
promotion is not uniform but expressed that this criterion loses much
of its force with the passage of time and that the view that an officer
might be good enough to be a, Divisional Commissioner and might
not be good enough to be the Joint Secretary to the Government .of
India, hits at the very root of the system of Administration which
we have adopted in this Country. It further expressed that the fact
c
that most of the States have got Divisional Commissioners while some
States do not have these posts, has no relevance. It, therefore, pro-
posed that officers belonging to the Indian Administrative Service
should be given pro forma promotion to the super-time scale by the
State Government under the 'Next Below Rule' so that the service D
rendered by such officer from the date of such promotion, will count
for the purpose of fixation of initial pay, on reversion to the present
cadre, and also for the purpose of increments, and the benefit should
·be allowed on 'one for one basis'. It was also suggested in the alter-
native, that if the benefit of the 'Next Below Rule' could not be ex-
tended to such officer and if he is detained by the Government in a E
!owe~ post at the Centre against bis wishes and in public interest,
he should be given the 'higher pay' on personal basis, i.e,, as a mea-
sure personal to him within the frame-work of the policy quoted
above. When the matter was referred to the Ministry of Finance, it
did not agree to either proposal, and the Ministry of Law rightly
pointed out : F

"It is not appropriate to raise the scale of ex-cadre post
to that of super-time scale merely becanse the incumbent
has become due for promotion to the super-time scale, The
pay attached to a post is with regard to the nature of the
duties and responsibilitie's and not with reference to the enti- G
tlements of the incumbents."

As regards, the scope of the protection of pay envisaged by the pro-
viso to sub-rule (2) of Rule 6 of the Indian Administrative Service
(Cadre) Rules, the Law Ministry advised that :
H
"The concept of the basic pay which the officer would
have drawn but for his deputation is limited to the basic
48 SUPREME COURT REPORTS (1980] 1 S.C.R.

A pay of the post to which he would have been promoted in
the natural course of things but not to a post like a snper-
time scale to which appointment is not only on the basis of
seniority bnt also merit and suitability."
Thus the present position is that the benefit or the 'Next Below
B Rule is available at the first stage of selection i.e. al the time of
appointment in the selection grade but not at the second stage, name-
ly, at the time of promotion to the super-time scale.
It is, therefore, abundantly clear that the appellant cannot claim
as a right the super-time scale merely on the basis of his seniority
among the members of the Indian Administrative Service belonging to
c the Orissa cadre. The process of appointment to the super-time scale
is by selection. When the element of selection comes in, this pro-
motion must be subject only to the claims of exceptional merit and
suitability, and is not a matter of right: Union of India v. M. L.
Capoor('). Promotion to the super-time scale is, therefore, not a
matter of course. The officer must stand the test or suitability and
D
his integrity must be beyond doubt. For this purpose, there is a
Senior Selection Committee which prepares a select list of suitable
officers which must be approved by the Union Public Service Com-
nuss10n. The Senior Selection Committee has to prepare a panel
of names for each grade and submit the same for approval to the
E Union Public Service Commission as well as to the Government of
India, Ministry of Home Af!'airs. The select list has to be reviewed
and revised every year, and the Senior Selection Committee meets
annually. The essence of holding Selection Committee meeting an-
nually is that each annual proceeding is independent of the other.
That is why as soon as the proceedings of th~ new Selection Committee
are approved by the Union Public Service Commission, the proceed-
ings of the earlier Selection Committee become inoperative. No
manner of continuity can, therefore, be imputed to the proceedings of
the various Selection Committees. It is not the petitioner's case that
his name was ever brought into the select list by the Senior Selection
Committee and approved by the Government of India, Ministry of
G Home Affairs, for appointment in the selection grade. If the petitioner
was 'consciously' passed over by the Senior Selection Committee or the
Government of India, Ministry of Home Affairs, then there is no
question of the applicability of the 'Next Below Rule'.
Much stress was, however, laid on the Jetter of Sri R. N. Mohanti,
Joint Secretary to the Government of Orissa, Political & Services
H
Department, dated May 7, !963, addressed to the petitioner in re-
ri> 119731 sec 836.
D. D. SURI v. UNION (Sen, J.) 49

ply to. his letter dated March 15, 1963 for the submissio11 that had
he remained in his parent cadre, he would have been promoted and
' drawn pay in the super-time scale. It was urged that the petitioner
should have been given pro forma promotion ii_nd the higher scale of
• pay in the super-time grade under the 'Next Below Rule' because his
junior in his. parent cadre had been promoted to such scale of pay
or granted 'higher pay', on personal basis to compensate for the fin- B
ancial loss suffered by him due to his retention in a lower post at the
Centre. We are afraid, the contention must be rejected. The afore-
mentioned letter only stated that his case would have been 'consider-
ed' in the normaJ course for appointment to the selection grade as
well as to a super-time scale post, had he continued under the State
Government. It did not at all mention nor could it be construed to
c
mean that he was entitled for appointment to a post in super-time
scale on account of his seniority on the basis of the 'Next Below Rule'.
In any event, the letter, we are afraid, cannot take the place of the
recommendation of the Senior Selection Committee.
In the result, the appeal fails and is dismissed. There shall be D
no order as to costs.

N.V.K. Appeal dismissed.