Holding

The Vice‑Chairman was not empowered to appoint to the post of Registrar, so the appellant could not claim the Registrar’s salary as Rule 49 was not complied with.

Summary

Mohd. Swaleh, a Deputy Registrar of the Central Administrative Tribunal (CAT), was ordered by the Vice‑Chairman to perform the functions of the Registrar, a Group A post, under Rule 28(3) of the CAT Procedure Rules and was also given certain financial powers under Rule 13 of the Delegation of Financial Power Rules. He claimed additional remuneration equal to the pay of a Registrar, invoking Rule 49 of the Fundamental Rules which requires a formal appointment by the competent authority. The CAT rejected his claim, holding that only the President of India can appoint to Group A posts and that the Vice‑Chairman lacked such authority. The Supreme Court examined whether the power under Rule 49 could be delegated to heads of departments, noting that Appendix 3, Item 20 of the Fundamental Rules permits delegation only to those who have the power to make permanent appointments to the concerned post. Since the Vice‑Chairman could not appoint a Registrar, the delegation was invalid and Rule 49 was not complied with. Consequently, the appellant was not entitled to the Registrar’s salary and the appeal was dismissed.

Issues considered

Whether the Vice‑Chairman of the Central Administrative Tribunal can, under Rule 49 of the Fundamental Rules, appoint a Deputy Registrar to act as Registrar and thereby entitle him to the pay of the Registrar.
Whether the power conferred by Rule 49 can be delegated to heads of departments such as the Vice‑Chairman when they lack appointment authority for Group A posts.
Whether delegation of functions under Rule 28(3) of the CAT Procedure Rules and Rule 13 of the Delegation of Financial Power Rules suffices for claiming additional remuneration under Rule 49.

Legislation cited

Central Administrative Tribunal (Procedure) Rules, 1987s. Rule 28(3)
Central Civil Services (Classification, Control and Appeal) Rules, 1965s. Rule 8

Subjects

Fundamental RulesRule 49appointment authorityGroup A postCentral Administrative Tribunaladditional remunerationdelegation of powerscivil servicepay of higher post

Judgment

A MOHD. SWALEH
,.
v.
UNION OF INDIA AND ORS.

MAY 9, 1997

B
[S.B. MATMUDAR AND M. JAGANNADHA RAO, JJ.]

Se1vice Law:

Fu11dame11tal Rules-Rule 49-Appoi11tme11ts-Combi11i11g of-Pay of
c higher post-Admissibility of-Vice-Chairma11 of CAT ordered Deputy
Registrar to discharge ftmctio11s of Registrar-All Heads of Depwtme11t
delegated with the power of combi11atio11 of appointme11ts ''provided they have
power to appoillt govemme11t servallt pennane11tly to each of the posts con-
cemed''-Vice-Chaim1a11 not empowered to make appoi11tment to the post of
D !kgistra1----Held: Deputy Registrar 11ot elltitled to the pay of Registrar although
he discharged the functions of Registrar since FR 49 was 11ot complied
with-Central Administrative Tribunal (Procedure) Rules, 1987,
R.28(3)-De/egation of Financial Powers Rules, 1978.

Central Civil Services (Classification, Control and Appeal) Rules, 1965:
·-
E Rule 8.

Registrar in CA T-Appoi11ting Authority-Held : President is Appoint-
ing Authority· of Registrar because it is Group A post-!n the absence of
delegation Vice-Chainnan not empowered to make appointment to the post
F of Registrar--Central Administrative T1ibunal (Group A posts)-Recrnitment
Rules, 1988,

The appellant was appointed as Deputy Registrar, Central Ad-
ministrative Tribunal by its Chairman. Subsequently, the Vice- chairman
G CAT ordered the appellant to discharge the functions of the Registrar, a
Group A post, as envisaged by Rule 28(3) of the Central Administrative
Tribunal (Procedure) Rules, 1987. The appellant was also delegated cer-
tain financial powers under Rule 13 of the Delegation of Financial Power
Rules, 1978. The posts of Deputy Registrar, Joint Registrar and Registrar
were Group A posts under the Central Administrative Tribunal (Group A
H posts) Recruitment Rules, 1988.
298
MOHD. SWALEHv. U.O.I. 299

The appellant's representation for payment of additional remunera- A
tion for discharging the duties of the post of Registrar was rejected by the
Central Administrative Tribunal. The Tribunal held that a person could
be paid remuneration of higher post only if he was formally appointed to
'the post by the competent authority vide Rule 49 of the Fundamental
Rules. The Tribunal further held that the Appointing Authority for all B
Group A posts was the President of India. Being aggrieved, the appellant
preferred the present appeal.

On behalf of the respondent it was contended that under Rule 8 of
the Central Civil Services (Classification, Control and Appeal) Rules, 1965 C
the President of India was the appointing authority to the post of Registrar
which was a Group A post; that since the President had not delegated this
power to the Chairman or Vice-Chairman of the Central Administrative
Tribunal, there was no compliance of Rule 49 of the Fundamental Rules
and, therefore, the appellant was not entitled to the pay of Registrar.
D
Dismissing the appeal, this Court

HELD : 1. Item .20 of the Table in Appendix 3 to the Fundamental
Rules had been delegated to All Heads of Departments "provided that they
have power to appoint Government servant permanently to each of the post E
concerned". Vice-Chairman of the Central Administrative Tribunal was not
empowered to make appointment to the post of Registrar, which could he
made by the Central Government only. Hence, the appellant is not entitled
to the salary of the Registrar though he discharged the functions of the
Registrar under the order of the Vice-Chairman, since there was no com·
pliance of Rule 49 of the Fundamental Rules. F
[304-H; 305-A-B; 306-C-D; 306-F-G]
State of West Bengal v. B.K Monda/ & Sons, AIR (1962) SC 779, held
inapplicable.

2. The post of Registrar is a Group A post under the Central G
Administrative Tribunal (Group A posts) Recruitment rules, 1988. The
President of India is the appointing authority of Group A post and this
power has not been delegated to the Vice-Chairman of the Central Ad·
ministrative Tribunal. The Vice-Chairman is, therefore, not empowered to
make appointment to the post of Registrar. [305-G-H; 307-E] H
300 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4412 of
1996.

From the Judgment and Order dated 4.5.95 of the Central Ad-
ministrative Tribunal in Jodhpur, in O.A. No. 342 of 1994.

B Rajinder Sachar, Sushil K. Jain and AP. Dhamija for the Appellant.

P.P. Malhotra, Shashi Kiran for Anil Katiyar for the Respondents.

The Judgment of the Court was delivered by

C M. JAGANNADHA RAO, J. The appellant has filed this appeal
against the order of the Central Administrative Tribunal, Jodhpur Bench,
Jodhpur dated 4.5.1995 dismissing O.A. No. 342 of 1994, rejecting the
appellant's claim for additional remuneration for holding current/addition-
al of a higher post.
D
The appellant was working as Deputy Registrar (Admn.) in the High
Court of Rajasthan. On 9.3.1988, the Chairman, Central Administrative
Tribunal appointed the appellant as Deputy Registrar, on deputation in the
scale of Rs. 3000-100-3500-125- 4500 initially for a period of one year.
Appellant was relieved in the High Court and he joined in the new post
E on deputation on 29.4.1988.

By an order dated 29.4.1988, the Vice-Chairman of the Tribunal, in
exercise of his powers under Rule 13 of the Delegation of Financial Power
Rules, 1978 and as Head of Department, declared the appellant Deputy
F Registrar as head of the Office of the Central Administrative Tribunal at
Jodhpur and directed that he will exercise powers to incur recurring and
non-recurring contingent expenditure to the extent of Rs. 500 for main-
tenance, upkeeping, repairs of staff cars and miscellaneous expenditure. It
was also stated in that order that the above delegation of powers would be
G subject to the observance of usual economy instructions, provisions of rules
·and regulations and availability of funds.

By another order dated 5.5.1988, the Vice Chairman permitted the
appellant to exercise all the powers and functions of Registrar as envisaged ·
by Rule 28(3) of the Central Administrative Tribunal (Procedure) Rules,
H • 1987. This order was passed because the post of Registrar of the Tribunal
MOHD. SWALEH v. U.0.1. [M. J/\G/\NN ADI-I/\ RAO,J.] 301

at J odhpur, at that time, was vacant. A

On 30.8.1990, appellant made a representation for payment of addi-
tional remuneration for discharging the duties of the post of Registrar.
Meanwhile, the appellant's deputation was being extended from time to
time. The appellant made a further representation date 15.3.1991 for B
additional remuneration. By an order dated 20.11.1991, his request was
rejected by the Principal Bench of the Central Administrative Tribunal,
Delhi stating as follows :-

"In this connection, attention is invited to F.R. 49 where it has been C
specifically mentioned that a person can be paid remuneration of
a higher post only if he is formally appointed to the post with the
order of the Competent Authority. A Section Officer or Deputy
Registrar directed to hold the current charge of the post of Deputy
Registrar/Joint Registrar/Registrar is not entitled to additional pay
as Appointing Authority for all group A posts is the President of D
India".

It was also stated in that order that merely because under Rule 28(3) of
the Central Administrative (Procedure)/Rules, certain powers and func-
tions of the Registrar had been delegated to the appellant on 5.5.1988 by E
the Chainnan/Vice Chainnan, did not help and could not be construed as
a formal appointment to the post as envisaged by F.R. 49.

In other words, the Principal Bench, Delhi, on the administrative
side, rejected the claim of the appellant on the ground that though the
appellant was directed by orders of the Vice-Chairman dated 4.4.1988 to F
exercise all powers and functions of the Registrar as per Rule 28(3) of the ·
Central Administrative Tribunal (Procedure) Rules, 1987, that was not
sufficient for purposes of Rule 49 of the F.R. for allowing additional
remuneration to the appellant.
G
When the appellant moved the Central Administrative Tribunal,
Jodhpur on the Judicial Side by filing 0.A. No. 342/1994, the said Jodhpur
Tribunal by order dated 4.5.1995 rejected the O.A. and upheld the order
dated 20.12.1991 passed by the Central Administrative Tribunal, Principal
Bench, on the administrative side. H
302 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A It is against this order dated. 4.5.1995 passed on the Judicial Side by
the Tribunal Jodhpur, that the appellant has preferred this appeal.

In this appeal, we have heard the learned senior counsel for the
appellant Shri Rajinder Sachar and the learned counsel for the Union of
India, Ms. Shashi Kiran.
B
It is true that the appellant who was on deputation in the Central
Administrative Tribunal, Jodhpur as Deputy registrar was conferred cer-
tain additional powers and functions under the orders passed by the Vice
Chairman of the Tribunal, as stated above, one under Rule 13 of the
C Delegation of Financial Power Rules, 1978 and another under Rule 28{3)
of the Central Administrative Tribunal {Procedure) Rules, 1987. The rejec-
tion of the appellant'.s request for additional remuneration for discharging
the duties of the Registrar was, however, based upon the language and
terms of Rule 49 of the Fundamental Rules.

D Now Delegation of Financial Power Rules, 1978 do not contain any
provision for payment of additional remuneration for performing the func-
tion of a higher post, Similarly, the Central Administrative Tribunal (Pro-
cedure) Rules, 1987 which permit the Chairman/Vice-chairman of the
Central Administrative Tribunal to delegate to the Deputy Registrar, any
E of the powers and functions of the Registrar, do not also contain any
provision for payment of additional remuneration. The only relevant
provision in that behalf referred to by counsel on both sides is Rule 49 of
the Fundamental Rules, it was in fact this Rule that was referred to by the
Principal Bench of the Tribunal at Delhi while rejecting the claim of the
appellant for additional remuneration. We shall, therefore, set out the
F relevant part of Rule 49 of the Fundamental Rules. It reads as follows :-

"F.R.49.-The Central Government may appoint a government ser-
vant already holding a post in a substantive or officiating capacity,
to officiate, as a temporary measure, in one or more of other
independent posts at one time under the Government, in such case,
G his pay is regulated as follows :-

(i) where a government servant is formally appointed to hold full
charge of the duties of a higher post in the same office as his own
and in the same cadre/time of promotion, in addition to his
H ordinary duties, he shall be allowed the pay admissible to him, if
MOHD.SWALEHv. U.O.I.[M.JAGANNADHARAO,J.] 303

he is appointed to officiate in the higher post, unless the Com- A
petent Authority red~ces his officiatip,g pay ~der Rule 35; but no
additional pay shall, however, be allowed for performing the duties
of a lower post :

(ii) ................................ :........................................... .
B
(iii) ············································································
(iv) ......... ~ ................................................................. .

(v) .................................................... ;........................ .
.. (vi) ........................................................................... .
c
A reading of Fundamental Rule 49 makes it clear that the Central Govern-
ment can appoint a government servant to "officiate" in another post an{i
in such a case where he is formally appointed to hold full charge of the;
duties of a higher post in the same office as his own and in the same D
cadre/time of promotion · In addition to his ordinary duties • he shall be
allowed pay admissible to his ordinary duties · he shall be allowed pay
admissible to him, as if he is appointed to officiate in th!f higher post.
Under sub-clause (1) of Rule 49, it is, therefore, for the Central Govern-
ment to appoint a government servant already holding a post to officiate E
in another independent post and when he is formally appointed to hold full
charge of the duties of the higher post in the same office as his own and
in the same Centre/line of promotion (ht!re, the Registrar) only then he
shall be allowed the pay admissible to him, as if he was appointed to
officiate in the higher post, in the present case, there is no order of the
Central Government appointing the appellant in an officiating capacity in F
the higher post. Therefore, in terms, Rule 49 of the F.R. is not satisfied.

It is, however, argued for the appellant that the order of the Vice-
chairman of the Jodhpur·Bench of the Tribunal permitting the appellant
under Rule 28(3) of the Central Administrative Tribunal (Procedure) G
Rules, 19,87 is sufficient for the purpose of Rule 49 of the Fundamental
Rules. ": ·
' .
In order to appreciate this contention, it is necessary to find out
whether the Vice-Chairman could, without the sanction of the Central
Government, have passed an order conferring the powers and functions of H
304 SUPREME COURT REPORTS (1997) SUPP.1 S.C.R.

A the Registrar so as to enable the Deputy Registrar to claim the pay
admissible to the post of Registrar. Rule 28(3) reads as follows:

"Rule 28(3): In the absence of the Registrar, the Deputy Registrar [
or any other officer to whom the powers and functions of the
Registrar are delegated by the Chairman or Vice-Chairman, as the
B case may be, may exercise the powers and functions of the
Registrar."

Under Rule 28(3), for the purposes of discharging the powers and
functions of the Registrar, an order of the Chairman or Vice-chairman,
C would no doubt be sufficient.

But, in order to claim the pay of the post of the Registrar, an order
under rule 28(3) of the aforesaid rult; alone is not, in our opinion, sufficient.
The right to claim the pay is squarely governed by Rule 49 of the Fun- I, .

damental Rules.
D
We have stated that there is no order of the Central Government
passed under Rule 49 in favour of the appellant. The next question is
whether the Central Government has delegated the power under Rule 49
to the Chairman/Vice-Chairman of the Central Administrative Tribunal. If,
E however it is established that the powers of the Central Government under
Rule 49 are delegated to the Chairman or Vice-Chairman, then, of course,
the Deputy Registrar upon whom the powers and functions of the Registrar
are conferred, can certainly claim the pay of the Registrar.

We shall, therefore, examine whether the powers of the Central
F Government under F.R. 49 have been delegated to the Chairman/Vice-
Chairman of the Central Administrative Tribunal. Under F.R.6, the
Central Government can delegate to any of its officers, subject to any
conditions which it may think fit to impose, any power conferred upon it
by the Fundamental Rules .except the powers relating to (a) making rules
G (b) powers conferred by Rules 6, 9(6)(b), 44, 45A to 45C, 83, 108A, 119,
121 and 127(c) and by the first proviso to clause (1) of Rule 30. It is clear
that Rule 49 powers of the Central Government can be delegated. If need
be, Appendix 3 to the Fundamental Rules contains a table of various
delegations made under F.R.6. Item 20 of this Table does show that the
H power of the Central Government under Rule 49 has been delegated to
MOHD.SWALEHv. U.0.1.[M.JAGANNADHARAO,J.) 305

"All Heads of Depaltments", but column (5) of the Table, which deals with A
the extent of power delegated, imposes certain conditions. It says :

"Full power, provided that they have power to appoint government
servant permanently to each of the post concerned.".

In other words, assuming that the Chairman of the Principal Bench B
of the Central Administra~ive Tribunal or the Vice-Chairman of the
Benches are "Heads of Department", the powers of the Central Govern-
ment under Rule 49 are exercisable by them as per the above delegation
in Appendix 3 to the F.R., provided that such Heads of Departments have
the power to appoint the concerned government servant to the higher post. C
In the facts of this case, therefore, if it is established that the Chair-
man/Vice-Chairman can appoint the Registrar of the Bench at Jodhpur,
then when the said Chairman/Vice-Chairman orders that the Deputy
\\ Registrar will exercise the powers and functio1;1s of the Registrar, the pay
attributable to the post of Registrar can be claimed by the Deputy
Registrar. D

The next question, therefore, is whether the Chairman/Vice-Chair-
man are the appointing authorities for the post of Registrar of the Bench
of the Tribunal. We shall, therefore, refer to the relevant rules in this
behalf.
E
Now, unda the Central Administrative Tribunal (Gr::mp A posts)
Recruitment Rules, 1988, the post of the Registrar (Principal Bench) in the
scale of Rs. 5900-6700, Registrar (other Benches) in the scale of Rs.
4900-5700, Joint Registrar in the scale of ,Rs. 3700-5000 and Deputy
Registrar in the scale of Rs. 3000-4500 arc Group A posts. F
U ndcr the Central Civil Services (Classification, Control and Appeal
Rules), 1965, Rule 4 states that the Civil services under the Union shall be
classified as Class A, B, C and D posts. Under Rule 6A the word (group)
has to be substituted for the word 'class' wherever the word 'class' occurs. G
The appointments to Class I (i.e. Group A) service and posts are to be
made by the President of India as per Rule 8 of the C.C.A. Rules. The
proviso to Rule 8, however, says that the President may, by a general or
special order and subject to such conditions as he may specify in such
order, delegate to any other authority the power to make such appoint-
ments so far class II, III, IV (i.e. group B, C, D) are concerned. Rule 9 H
306 SUPREME COURT REPORTS [1997] SUPP. l s.c.R.,

A states that the appointing authorities are specified in the schedule to CCA
Rules, 1985. In other words, the power of the President to appoint persons
to Group B,C,D posts has been delegated but not the powe~ to appoint to
Group A posts. We have stated that the posts of Registrar, Joint Registrar
and Deputy Registrar are group A posts.

B No order of the President of India delegating his authority to the
Chairman or Vice-Chairman of the Central Administrative Tribunal, in
respect of appointment to the post of Registrar has been brought to our
notice, (As shown below, there is now an order of delegation so far as the
post of Deputy Registrar is concerned).
c
Once it is held that the Chairman and Vice-Chairman of the Central
Administrative Tribunal are not the appointing authorities for the post of
Registrar of a Bench of the Central Administrative Tribunal, by virtue of ,
any delegation, it must follow that the condition laid down by the Central
D Government while delegating powers under Rule 49 of the Fundamental
Rules to the Head of the Department (vide column G) of Appendix, it has
not been satisfied. The said condition would have been satisfied if the
Chairman or the Vice-Chairman of the Central Administrative Tribunal
had been delegated the power to make appointments to the post of
Registrar of a Bench of the Tribunal. If there had been such a delegation
E of power, to the Chairman or Vice-Chairman then the latter could confer
additional duties and powers attributable to the post of Registrar, to the
Deputy Registrar, for purposes of Rule 49 of the F.R. as well and in that
event, the pay of the post of th.e Registrar could be paid to the Deputy
Registrars entrusted with higher powers and duties of a Registrar. We are,
F therefore, of the view that though under Rule 88(0) of the Administrative
Tribunal (Procedure) Rules. 1987, the Chairman or the Vice-Chairman are
authorised to delegate the powers and functions of the Registrar to the
Deputy Registrar still in the absence of the power of delegation by the
Central Government for the purposes of Rule 49 of the Fundamental
Rules, the appellant who as Deputy Registrar exercised the powers and
G functions of the Registrar, could not be granted the pay attributable to the
post of the Registrar.

In fact, this position has been clarified by letters of the Central
Government. The letter dated 5th December, 1985 addressed by the
H Department of Personnel Administrative Reforms, Government of India to
MOHD. SWALEHv. U.O.I. [M.JAGANNADHARAO,J.] 307

the Chairman, Central Admini~trative Tribunal would clearly show that the A
Group 'A' post in the Tribunal shall be filled by the Chairman of the
Central Administrative Tribunal only after a reference to the department i.e.
· Department of Personnel and Administrative Reforms, for obtaining ap-
propriate orders. By the letter dated 21st May, 1987 ofthe Government of
India in No.A-12018/5/85-CAT, the Central Government has delegated to
the Chairman of the Central Administrative Tribunal the power to make B
appointment to the post of Deputy Registrar in the Central Administrative
Tribunal on deputation basis subject to the Government's Rules and in-
structions on the subject. The above two letters, therefore, would make it
very clear that the appointments to group 'A' posts (other than Deputy
Registrar) could be made by the Chairman, Central Administrative C
Tribunal only after a reference thereof to the Central Government. So far
as the post of Deputy Registrar among group 'A' posts are concerned, that
power of appointment to the post of Deputy Registrar has been delegated
to the Chairman of the Central Administrative Tribunal.

For the aforesaid reasons, we are of the view that the condition D
mentioned in Appendix 3 to the F.R. wherein the Central Government has
delegated powers under Rule 49 to the Heads of the Department namely
that the Head of the Department must have been authorised to make
appointment to the higher post, is not satisfied in the facts of this case
inasmuch as the power to appoint a Registrar has not separately been
delegated to the Chairman or Vice,Chairman of the Central Administrative E
Tribunal. Hence the additional remuneration cannot be granted as
·claimed.

Learned counsel for the appellant made a submission that the prin-
ciple of quantum merit would apply to. the facts of the case and relied upon · F
the decision of the Supreme Court in State of West Bengal v. B.K. Monda/
& Sons, AIR (1962) SC 779. In that case it was held that though the
contract for certain works was not executed as per the provision.s of Section
175(3) of the Government of India Act, still compensation could be paid
under Section 70 of the Contract Act. In our view, the said decision which G
is based on Section 70 of the Contract Act is not applicable to the present
" . situation where the field is governed by specific statutory rules, namely
Rule 49 of the Fundamental Rules.

We are, therefore, in agreement with the judgment rendered by the
Central Administrative Tribunal on the judicial side on 4.5.1995 which had H
308 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A affirmed the order of the Chairman, Principal Bench, of the Central
Administrative Tribunal dated 20.3.1991, passed on the administrative side.

The result is rather unfortunate but in view of the rule position set
out above, we have no choice but to dismiss this appeal. The appeal is
dismissed but in the circumstances there will be no order as to costs.
B
v.s.s. Appeal dismissed.

' >

,, .