Holding

A government servant who has already received the benefit of FR 22(1)(a)(i) while still in the lower post is not entitled to a fresh application of the rule on subsequent promotion to the higher post.

Summary

The respondent, Ashoke Kumar Banerjee, was a Junior Engineer in the CPWD. After completing 15 years of service, he was granted the Assistant Engineer pay scale on a personal basis under an Office Memorandum and his pay was fixed using FR 22(1)(a)(i). Later, when he was functionally promoted to Assistant Engineer, he sought a fresh application of the same rule for another pay fixation. The Central Administrative Tribunal allowed the claim, holding that the promotion entitled him to the benefit. The Union appealed, arguing that the rule could not be enjoyed twice. The Supreme Court held that because the respondent had already received the benefit of FR 22(1)(a)(i) while still a Junior Engineer, he could not claim it again on promotion, as the rule requires moving from a lower scale to a higher scale, which had already occurred. Consequently, the appeal was allowed and the CAT order set aside.

Issues considered

Whether a government servant who has already availed the benefit of FR 22(1)(a)(i) on personal promotion can claim the same benefit again upon functional promotion to the same higher post

Legislation cited

Fundamental Ruless. 22(1)(a)(i)

Subjects

Service lawFundamental Rulespay fixationpromotionpersonal promotionfunctional promotionCentral Administrative TribunalCPWDdouble benefit

Judgment

A UNION OF INDIA AND OTHERS
v.
ASHOKE KUMAR BANERJEE

MAY 13, 1998

B [SUJATA V. MANOHAR AND M. JAGANNADHA RAO, JJ.)

Service Law-Fundamental Rules-FR 22(J)(a)(i)-Benefit under- j
Whether could be availed twice-Respondent working as Junior Engineer
and after the completion of J5 year's he was granted Assistant Engineer
C Pay scale-On his promotion to the post of Assistant Engineer, he again
claimed the benefit of pay fixation-Held, not entitled to pay frx:ation again
under FR 22(/)(a)(i) in Assistant Engineer's pay scale.

The respondent while working as Junior Engineer in the pay-scale of
Rs. 1640-2900, was granted Assistant's Engineer pay scale of Rs. 2000-
D 3500 on personal basis on completion of 15 years of service as Junior
Engineer. His pay was fixed under FR 22(l)(a)(i). Respondent availed the
benefit of pay fixation under FR 22(1)(a)(i) from the date of next increment ,,A
Later on the respondent was promoted as Assistant Engineer on functional
basis in the pay scale of Rs. 2000-3500. He claimed that FR 22(l)(a)(i) be
applied to his case once again and his pay should be refixed in the scale of
E Rs. 2000-3500 by giving him fresh benefit of the increment permitted by the
said FR which was rejected by the appellant. Respondent then filed a petition
in the Central Administrative Tribunal claiming the above benefit. The petition
was allowed on the ground that as this was his actual promotion from the
post of Junior Engineer to the post of Assistant Engineer, and as he was
necessarily discharging higher duties and responsibilities, he was entitled
p to a fresh fixation of pay under FR 22(1 )(a)(i). Hence this appeal. .,

It was contended by the appellants that Tribunal's direction would
amount to giving the respondent the benefit of FR twice over and the same
was not permissible.

Allowing the appeal, this Court
G
HELD : I. The respondent having received the same benefit in advance,
while working as Junior Engineer and while not actually functioning as an
Assistant Engineer, is not entitled to the same benefit of fresh fitment in the -1
.
scale of Rs. 2000-3500 when he is promoted as Assistant Engineer. This is
because on actual promotion as Assistant Engineer, he is not being fitted into
H the "time scale of the higher post" as stated in FR 22(l)(a)(i). That situation
414
U.0.1. v. A.K. BANERJEE [M. JAGANNADHA RAO, J.] 415

--'c.. was already over when he got benefit on completion of 15 years. Further, the A
respondent is a junior officer in the category of Junior Engineers and he

-- has already got the benefit on the basis of the same FR; then he would be
getting more than his seniors, who might have got promoted earlier and
night have got benefit of FR 22(l)(a)(i) only once. Such an anomaly is not
intended by FR 22(l)(a)(i). (418-D-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2699of1997.
B

From the Judgment and Order dated 3.12. 93 of the Central Administrative
Tribunal, Calcutta in O.A. No. 241 of 1993.

P.P. Malhotra, Ms. Binu Tamta and (Vineet Malhotra) for C.V.S. Rao for
the Appellants. c
In-person for the Respondent.

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. This appeal is preferred by the Union of
India and the C.P.W.D. against the order of the Central Administrative Tribunal, D
Calcutta dated 3.12.1993 passed in O.A. No. 241 of 1993. By that order, the
).._
Tribunal directed that the "pay of the petitioner in the promotional post
should be fixed in terms ofF.R. 22(l)(a)(i) with effect from 1.8.1991 and all
consequential benefits including arrears should be paid to him within a period
of 3 months from the date of communication of this order".
The facts relevant to the case are as follows: The respondent was E
working in the C.P.W.D. as Junior Engineer in the senior scale Rs. 1640 - 2900
and as he had put in 15 years service as Junior Engineer, he was granted the
Assistant Engineer's scale of Rs. 2000 - 3500 (in terms of Government oflndia,

-' Ministry of Urban Development. (I Division) No. 12014\2\87 IW II dated
22.3.1991). By giving him the necessary increment, his pay was fixed at Rs.
2600 as on 1.2.1991 by applying FR 22(1 )(a)(i) as permitted in the said order. F
This was after the respondent opted for this scale. The date of his next
increment which fell on 1.2.1991 was taken into account while granting him
the increment mentioned in the FR. Later he was promoted, pursuant to
certain orders of the CAT in an earlier OA, as Assistant Engineer. He, then
filed the present OA claiming that FR :?2(1)(a)(i) is to be applied to his case
once again and his pay should be refixed in the scale of 2000 - 3500 by giving G
him fresh benefit of the increment permitted by the said FR. The CAT opined
•... that as this was his actual promotion from the post of Junior Engineer to
Assistant Engineer, and as he was necessarily discharging higher duties and
responsibilities, he was entitled to a fresh application of the said FR 22(l)(a)(i).

The appellants contend that this would amount to giving the benefit of H
416 SUPREME COURT REPORTS [1998]3 S.C.R.

A FR twice over and this is not permissible. The respondent has been served ,..
11
and notices have been sent to him that his case will be heard on a specific
date but he has not chosen to be present and we are, therefore, proceeding
to decide the case on merits, setting him ex parte.

The point for consideration is whether the respondent who was drawing
B Rs. 1640 - 2900 as Junior Engineer and who on completion of 15 years service
as Junior Engineer was given benefit ofFR 22(l)(a)(i) in the Asst. Engineers'
scale of Rs. 2000 - 3500 as per OM(A)- 11014\91dated22.3.1991 with effect
from 1.1.1991 is again entitled on regular promotion as Asstt. Engineer on
1.8.1991 to the benefit of the same FR 22(l)(a)(i)?

C Under the OM (A) - 11014\91 dated 22.3.1991 it is stated that in the
C.P. W.D, the Junior Engineers Association and Sectional Officers (Horticulture)
Association made certain demands and an agreement was signed on 20.3 .1991
between the Government and the Association. As per the first part of said
agreement there would be 2 scales of JE/SO (Hort) in CPWD, one in the scale
of Rs. 1400 - 2300 and another in the scale of Rs. 1640 - 2900. Those who
D completed 5 years service in the entry grade Rs. 1400 - 2300 will be placed
in the grade of Rs. 1640 - 2900, subject to rejection of those found unfit. This
higher grade will not be treated as a promotional one but will be non- ---4
functional and the benefit of FR 22(l)(a)(i) will not be admissible, while fixing
the pay in the higher grade, as there will be no change in duties and
responsibilities. We are not concerned here with the above portion of the
E agreement. We are, however, concerned with the second part which reads as
follows:

"(ii) Junior Engineers\Sectional Officers (Horticulture), who could not
be promoted to the post of Assistant Engineers\Assistant Directors
(Horticulture) in the scale of Rs. 2000-3500, due to non availability of
vacancies in the grade of Assistant Engineer\Assistant Directors
F (Horticulture) will be allowed the scale of Assistant Engineer\Assistant
Director (horticulture) i.e. Rs. 2000-3500, on a personal basis, after
completion of 15 years of total service as Junior Engineer/Sectional
Officer (Horticulture), till their normal tum for the functional promotion
comes as Assistant Engineer\Assistant Director (Horticulture). This
personal promotion will be given on fitness basis."
G
It will be noticed that as per this part of the O.M., those Junior Engineers who
have completed 15 years of service would get the scale of Rs. 2000 - 3500
(which is the scale of the promotional post i.e. Assistant Engineers\Assistant J
Directors (Horticulture). This benefit is given to avoid frustration of the Junior
Engineers and Sectional Officers (Horticulture) who would otherwise be
H stagnating for want of vacancies in the next promotional post. In that light,
U.0.1. v. A.K. BANERJEE [M. JAGANNADHA RAO, J.] 417

-' they are allowed to draw the scale of Rs. 2000 - 3500 on a personal basis, A
• provided they have completed 15 years, -till their normal tum for the functional

-- promotion comes as Assistant Engineer\Assistant Director (H). This personal
promotional will be given on fitness basis.

In the present case, while working as Junior Engineer the respondent
completed 15 years in the scale of Rs. 1640 -2900 and he became entitled to B
be fitted in the scale of Rs. 2000 - 3500 of Assistant Engineers and got his
pay fixed accordingly at Rs. 2600 by giving him the benefit of the increment
as stated in FR 22(1 )(a)(i) and as permitted by the second part of the OM.
This was because, even though the O.M is dated 22.3.199 I, it was agreed that
benefit of FR 22(l)(a)(i) would be given from 1.1.1991.

Thereafter, Respondent was actually or functionally promoted as
c
Assistant Engineer on 1.8.1991 and he then wanted benefit of FR 22(1)(a)(i)
to be given to him once again as he had then assumed higher duties and
responsibilities of a superior post functionally. Question is whether his claim
is justified? FR 22 reads as follows:

F.R. 22(1) : The initial pay of a Government servant who is appointed
D
to a post on a time-scale of pay is regulated as follows :
>-- -
(a) (I) Where a Government servant holding a post, other than a
tenure post, in a substantive or temporary or officiating capacity is
promoted or appointed in a substantive, temporary or officiating
capacity, as the case may be, subject to the fulfilment of the eligibility E
conditions as prescribed in the relevant Recruitment Rules, to another
post carrying duties and responsibilities of greater importance than
those attaching to the post held by him, his initial pay in the time-
scale of the higher post shall be fixed at the stage next above the
notional pay arrived at by increasing his pay in respect of the lower
post held by him regularly by an increment at the stage at which pay F
has accrued or rupees twenty-five only, whichever is more.

Save in cases of appointment on deputation to an ex-cadre post,
or to a post on ad hoc basis, the Government servant shall have the
option, to be exercised within one month from the date of promotion
or appointment, as the case may be, to have the pay fixed under this G
rule from the date of such promotion or appointment or to have the
pay fixed initially at the stage of the time-scale of the new post above
the pay in the lower grade or post from which he is promoted on
regular basis, which may be refixed in accordance with this rule on the
date of accrual of next increment in the scale of the pay of the lower
grade or post. In cases where an ad hoc promotion is followed by H
418 SUPREME COURT REPORTS (1998] 3 S.C.R.

A regular appointment without break, the option is admissible as from
the date of initial appointment\promotion, to be exercised within one
month from the date of such regular appointment.

Provided that where a Government servant is, immediately before
his promotion or appointment on regular basis to a higher post,
drawing pay at the maximum of the time-scale of the lower post, his
B initial pay in the time-scale of the higher post shall be fixed at ihe
stage next above the pay notionally arrived at by increasing his pay
in respect of the lower post held by him on regular basis by an amount
}
equal to the last increment in the time-scale of the lower post or
rupees twenty-five, whichever is more."
C In our view, the respondent having received the same benefit in advance,
while working as Junior Engineer and while not actually functioning as an
Assistant Engineer, is not entitled to the same benefit of fresh fitment in the
scale of Rs. 2000 - 3500 when he is promoted on l.8.1991 as Assistant
Engineer. This is because as on 1.8.1991, he is not being fitted into the "time-
scale of the higher post" as stated in the FR. That situation was already over
D when the OM was applied to him on his completion of 15 years. For the
applicability of the FR 22(1)(a)(i) it is not merely sufficient that the officer gets
a promotion from one post to another involving higher duties and
responsibilities but another condition must also be satisfied, namely, that he
must be moving from a lower scale attached to the lower post to a higher scale
attached to a higher post. If, as in this case, the benefit of the higher scale
E has already been given to him by virtue of the OM there is no possibility of
applying this part of the FR which says.

"his initial pay in the time scale of higher post shall be fixed at the
stage next above the notional pay arrived at by increasing his pay in
respect of the lower post held by him regularly by an increment at the
stage at which such pay has accrued or rupees twenty - five only,
F
whichever is more".
Further, the respondent is a junior officer in the category of Junior
Engineers and he has already got the benefit of the FR on completion of 15
years. If he is to be given a second benefit on the basis of the same FR, then
he would be getting more than his seniors, who might have got promoted
G earlier and might have got benefit of the FR 22(1)(a)(i) only once. Such an
anomaly was not obviously intended by the FR.

For the aforesaid reasons, the appeal is allowed and the order of the
Tribunal is set aside and the OA is dismissed. In the circumstances, there will
be no order as to costs.
H R.K.S. Appeal allowed.