UNION OF INDIAversusR.K. CHOPRA

                         [2010] 2 S.C.R. 220


A                        UNION OF INDIA
                                v.
                          R.K. CHOPRA
                (CIVIL APPEAL NO. 1096 OF 2010)
                        FEBRUARY 01, 2010
B
    [R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.]

      Service law: Central Civil Services (Revision pay) Rules,
  1997 - Rule 7, Note 3 - Subsistence allowance, revision of
C - Entitlement of suspended government servant

         When revision of pay scale taking effect from a date prior
    to suspension - Held: Govt. servant is permitted to exercise
    option under FR23 even if the period during which he is to
    exercise the option falls within the period of suspension and
0
    then he would be entitled to the benefit of increase in pay and
    also in subsistence allowance for the period of suspension.

        When revision of pay scale taking effect from a date
  falling within the period of suspension - Held: Not entitled -
E Benefit of option for revised pay scale would accrue to him in
  respect of period of suspension only after his reinstatement
  depending on the fact whether the period of suspension was
  treated as on duty or not - Fundamental Rules - Rules 23,
  53 - Memorandum no.F.2(36)-Ests.1111158 dated 27.8.1958 -
F Constitution of India, 1950 - Article 309, proviso.

       The question which arose for consideration in the
  present appeal is whether a government servant is
  entitled to revision of subsistence allowance based on the
G pay revision effected by the Central Civil Services
  (Revision pay) Rules, 1997 which came into force on 1st
  January, 1996 while he was under suspension from
  service.


H                                220
          UNION OF INDIA v. R.K. CHOPRA                  221

    Allowing the appeal, the Court                              A

     HELD: 1.1. The claim for payment of subsistence
allowance of a Government servant is dealt within
Chapter VIII of Fundamental Rules. Rule 53 provides that
the Government servant under suspension shall be                9
entitled to subsistence allowance at an amount equal to
the leave salary which he would have drawn if he had
been on leave on half average pay or on half pay and in
addition, dearness allowance if admissible on the basis
of such leave salary. The proviso to Rule 53 (1 )(ii)(a) says
that where the period of suspension exceeds three
                                                                c
months, the authority is competent to vary the amount
subject to some restrictions. [Paras 14 and 15]_ (230-A;
231-E-F]

       1.2. Government of India order G.M.O.M. No. F-2(36)- D
 Ests/-111/58 dated 27th August, 1958 given in the Swamy's
compilation of Fundamental and supplementary Rules,
 deals with the rnvision of scale of pay while a
Government Servant is under suspension. The two
categories of cases are dealt with in that Office E
Memorandum. One refers to cases in which the revised
scale of pay takes e:ffect from a_ date prior to ·the date of
suspension and othE~r cases in which the revised scales
of pay takes effect fmm a date falling within the period
of suspension. The Fundamental Rules as well as the F
Memorandum dated 27th August, 1958 makes it clear that
if there is a revision of pay scale in respect of a post held
by a Government Servant, prior to the suspension period,
he is permitted to exercise option under FR 23, even if
the period during which he is to exercise the option falls G
within the period of suspension and then, he will be
entitled to the benefit of increase in pay and also in
subsistence allowance for the period of suspension, as
a result of such option. But if the revised pay scale takes
effect from a date falling within the period of suspension
                                                              H
    222     SUPREME COURT REPORTS             [2010] 2 S.C.R.


A then, the benefit of option, for revised pay scale will
  accrue to him in respect of the period of suspension only
  after his reinstatement depending on the fact whether the
  period of suspension is treated as duty or not. In the
  present case, the Revised Pay Rules, came into force. on
s 1st day of January, 1996 when the respondent was under
  suspension. Therefore, even if he had exercised his
  option under FR 23 for the benefit of the pay revision, the
  same would have accrued to him only after his
  reinstatement depending on the fact whether the period
c of suspension is treated as 'on duty' or not. Respondent
  was dismissed from service on 4.8.2005, therefore the
  question of the benefit of the revised pay and the
  subsistence allowance thereon on the basis of Revised
  Pay Rules did not accrue to him. [Paras 16 and 17] [231-
D G-H; 232-A; 233-D-H; 234-A]

       1.3. The Revised pay Rules, which came into force
  on 01.01.1996 are in conformity with the FR 53 and the
  Office Memorandum issued by the Government of lnd!a.
  On a combined reading of Rules 5 and 6, it is clear that a
E Government servant under suspension on the 1st day of
  January, 1996 is entitled to exercise his option within
  three months of the date of his return to duty if that date
  is later than the date prescribed in the sub rule and if the
  intimation is not received he is deemed to have elected
F to be governed by the revised scale of pay with effect on
  and from the 1st day of January, 1996 on his return to
  duty. Respondent did not return to duty since he was
  dismissed from service and hence there was no question
  either exercising the option or the application of the
G deeming provision. [Paras 18 and 20] [234-8; 235-C-E]

        1.4. Note 3 under Rule 7 of the Central Civil Services
    (Revision Pay) Rules, 1997 states that when a
    Government servant was on leave on 1.1.1996, he would
    become entitled to pay in the revised pay scale from the
H
          UNION OF INDIA v. R.K. CHOPRA              223


date he joined duty. However, in the case of a A
Government servant under suspension, he would
continue to draw subsistence allowance based on the
then existing scale of pay and his pay in the revised pay
scale would be subject to final order on the pending
disciplinary proceedings. The Revised Pay Rules were B
framed by the President of India in exercise of the powers
 conferred by the proviso to Article 309 and clause 5 of
Article 148 of the Constitution. The proviso to Article 309
 enables the President to make Rules to regulate the
 recruitment and conditions of service of the persons c
 mentioned therein. The Rules framed by the President of
India in exercise of the powers conferred by the proviso
to Article 309 have the force of law. Further, Note 3 to
 Rule 7 of Revised Pay Rules, 1997 were not challenged.
On a combined reading of Note 3 to Rule 7 of the Revised D
Pay Rules and FR 53(1 )(ii)( a) with the clarification with
Office Memorandum dated 27th August, 1958, it is clear
that if the revision of pay takes effect from a date prior to
the date of suspension of a Government servant then he
would be entitled to benefit of increment in pay and in the E
subsistence allowance for the period of suspension, but
if the revision pay scale takes effect from a date falling
within the period of suspension then the benefit of
revision of pay and the subsistence allowances will
accrue to him, only after reinst~tement depending on the
fact whether the period of suspension is treated as duty F
or not. In view of the clear distinction drawn by the Rule
making authority between the cases in which the revised
pay scale takes effect from a date prior to the date of
suspension and a date falling within the period of
suspension, the plea of discrimination raised cannot be G
sustained especially when there is no challenge to the
Rules. The benefit of pay revision and the consequent
revision of subsistence allowance stand postponed till the
conclusion of the departmental proceedings, if the pay
revision has come into effect while the Government H
    224     SUPREME COURT REPORTS              [2010] 2 S.C.R.


A servant is under suspension. The Tribunal as well as the
  High Court committed an error in holding that the
  respondent is entitled to the benefit of Revised Pay
  Rules. [Paras 24 to 26] [236-G-H; 237-A; 237-D-H; 238-A-
  B]
B
       J.S. Kharat v. Union of India 2002-2003 (CAT) Fu// Bench
  Judgments 169; State of Maharashtra v. Chandrabhan Tale
  (1983) 3 SCC 387; Khem Chand v. Union of India 1963
  Supp. 1 SCR 229; Jagdamba Prasad Shukla v. State of U.P
C and others (2000) 7 SCC 90; P.L. Shah v. Union of India and
  Anr. (1989) 1 SCC 546; R.P. Kapur v. Union of India & Ors.
  (1999) 8 SCC 110; Umesh Chandra Misra v. Union oflndia
  1993 Supp. (2) SCC 210, referred to.
                        Case Law Reference:
D
      2002-2003 (CAT) Full
      Bench Judgments 169 referred to           Paras 4, 5, 6
      (1983) 3 sec 387           referred to    Paras 7, 8
      1963 Supp. 1 SCR 229       referred to    Paras 7, 9
E
      (2000) 7 sec 90            referred to    Paras 7, 10
      (1989) 1 sec 546           referred to    Paras 7, 11
      (1999) 8 sec 110           referred to    Paras 7, 12
F
      1993 Supp. (2) SCC 210 referred to        Paras 7, 13
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1096 of 2010.                                  ·

G       From the Judgment & Order dated 4.8.2008 of the High
    Court of Delhi at New Delhi in Writ Petition (C) No. 1899 of
    2007.

         Mohan Parasaran, ASG, Rashmi Malhotra, D.S. Mahra for
    the Appellant.
H
            UNION OF INDIA v. R.K. CHOPRA                    225


      R.K. Chopra (Respondent-in-person)·                            A

      The Judgment of the Court was delivered by

      K.S. RADHAKRISHNAN, J. 1. Leave granted.

      2. We are, in this case, concerned with a claim of a B
 Government servant for revision of subsistence allowance
 based on the pay revision effected by the Central Civil Services ·
 (Revision Pay) Rules, 1997, which came into force on the 1st
 day of January, 1996, while he was under suspension from
 service.                                                            c
        3. The Respondent herein was working as a Desk Officer
   in the Department of Industrial Policy and Promotion under the
   Ministry of Commerce and Industries. While so, a case was
   registered against him by Central Bureau of Investigation under   D
  the Prevention of Corruption Act and he was placed under
  suspension by the Department w.e.f. 06.06.1989 under rule 10
   (2) of the CCS (CCA) Rules 1965. Subsistence allowance due
  to him under Fundamental Rules 53 (1) (ii) (a) was paid to him
  which was later enhanced to 50% vide order No. 517199, dated
  30.05.1991. At the time of suspension he was in the scale of       E
  pay of Rs. 2000-3500 and was drawing a basic pay of Rs.
  2,825/-. While undergoing suspension he made a
  representation on 22. 7 .2002 for revision of subsistence
  allowance based on the 5th Pay Commission Report. Request
. was rejected by the Government of India, Ministry of Commerce      F
  and Industries vide Memorandum dated 29.10.2002 stating that
  a person under suspension is not entitled to draw either the
  increment during the period of suspension or get his pay fixed
  in the ·revised scale. Later he filed another representation on
  05.07.2005 reiterating the same request which was replied by       G
  Memorandum dated 18.08.2005 stating that his earlier
  representation was already rejected. Respondent was later
  dismissed from service on 04.08.2005 since he was convicted
  by the Criminal Court vide its judgment dated 30.03.2002.
                                                                     H
    226     SUPREME COURT REPORTS                 [201 O] 2 S.C.R.


A      4. The Respondent after dismissal from service
  approached the Central Administrative Tribunal (Principal
  Bench), New Delhi and filed O.A. No.29/2006 challenging the
  above-mentioned orders dated 29.10.2002 and 18.08.2005
  and sought a declaration that he was entitled to get subsistence
B allowance on the revised pay-scale with effect from 1.1.1996.
  Reliance was placed on a Full Bench order of the Tribunal in
  J.S. Kharat vs. Union of India [2002-2003 (CAT) Full Bench
  Judgments 169]. The Department took up the stand that in view
  of Note 3 to Rule 7 of Central Civil Services (Revised Pay)
c Rules, 1997, (for short 'Revised Pay Rules') the Respondent
  would not be entitled to get subsistence allowance on the
  revised pay-scale with effect from 1.1.1996. Further, it was also
  contended that the Full Bench of the Tribunal in the case of J.S.
  Kharat was not concerned with the applicability of the above-
D mentioned Rules. Rejecting the contention the Tribunal took the
  view that it would be unjust to deny the subsistence allowance
  on the basis of revised pay to the persons who stood
  suspended prior to 01.01.1996, especially when persons who
  were suspended after that date would be entitled to get
E subsistence allowance on the revised pay scale. This,
  according to the Tribunal, would lead to an anomalous situation.
  The Tribunal, however, held that since the respondent did not
  challenge the earlier communication dated 29.10.2002,
  rejecting his claim, he would not be entitled to any arrears on
  account of revised subsistence allowance till the said date.
F Further, it was ordered that he would be entitled to arrears of
  revision of subsistence allowance from 01.01.2002 till
  04.08.2005 when he was dismissed from service.

       5. Aggrieved by the order passed by the Tribunal, the
G Union of India took up the matter before the Delhi High c·ourt.
  vide Writ Petition (Civil) No.1899/2007. The High Court
  following its earlier judgment in Commissioner of Police v.
  Randhir Singh [Writ Petition (Civil) No. 713/2008 decided on
  29.01.2008] dismissed the appeal holding that it did not find
H
             UNION OF INDIA v. R.K. CHOPRA                          227
                [K.S. RADHAKRISHNAN, J.]
 any infirmity in the order of the Full Bench of the Tribunal in J.S.       A
 Kharat's case (supra). Aggrieved by the said order dated
 04.08.2008, this appeal has been preferred by the Union of
 India.

         6. Shri Mohan Parasaran, Additional Solicitor General of           B
    India submitted that the Tribunal as well as the Delhi High Court
· have not properly appreciated the scope of Note 3 to Rule 7
    of the Revised Pay Rules. Learned counsel submitted that the
  'Full Bench of the Tribunal in J.S. Kharat's case (supra) was
    primarily concerned with the interpretation of Rule 6(1) the            C
    Railway Servants (Revised Pay) Rules 1986 and the validity of
    Note 3 to Rule 7 of the Revised Pay Rules, was not an· issue
    before the Tribunal. Learned counsel also submitted that the
    High Court and Tribunal have failed to appreciate that the
   payment of subsistence allowance is based on leave salary
  · (not pay) admissible during half pay leave and leave salary             D
 · linked to pay drawn immediately before proceeding on leave.
. Learned counsel submitted that the respondent is, therefore,
    not entitled to the benefit of subsistence allowance linked to
   pay or revised pay which he would have drawn but for being
   placed under suspension. Learned counsel also submitted that             E
   the Government of India's decisions 3 (e) below FR 53 shows
   that the subsistence allowance cannot be revis·ed with
   retrospective effect and in the instant case the respondent was·
   dismissed from service and the question of revision of
   subsistence allowance did not arise. Learned counsel also                F
   pointed out that there was no challenge to the validity of Note -
   3 to Rule 7 of Revised Pay Rules and the Tribunal committed
   an error in failing to apply to the said note to rule 7 to the instant
   case. The respondent appeared in person and submitted that
   there is no illegality in the order passed by the Tribunal which         G
   was confirmed by the High Court.

      7. We notice both the High Court as well as the Tribunal
 has placed heavy reliance on the order of Full Bench of the
 tribunal in J. S._Kharat's case (supra) and took the view that the
                                                                            H
    228      SUPREME COURT REPORTS                 [201 O] 2 S.C.R.


A delinquent officer would be entitled to enhanced subsistence
  allowance on the basis of the upward revision of pay based on
  the 5th Central Pay Commission Report, implemented by the
  Revised Pay Rules. Reference was also made to the decisions
  of this Court in State of Maharashtra vs. Chandrabhan Tale
B [(1983) 3 SCC 387]; Khem Chand vs. Union of India [ 1963
  Supp. 1 SCR 229]; Jagdamba_Prasad Shukla vs. State of U.P
  and others [(2000) 7 SCC 90]; P.L. Shah vs. Union of India
  and Anr. [(1989) 1 SCC 546]; R.P. Kapur vs. Union of India
  & Ors,, [(1999) 8 SCC 110]; and Umesh Chandra Misra vs.
c Union of India [1993 Supp. (2) SCC 210]
       8. We notice that in none of the aforesaid judgments the
  validity of Note 3 to rule 7 of the Revised Pay Rules came up
  for consideration. In Chandrabhan's case (supra), this Court
  was examining the validity of the second proviso to Rule 151
D (1) (ii) (b) of the Bombay Civil Service Rules, 1959 which
  prescribed payment of subsistence allowance at the rate of Rs.
  1 per month. Court struck down the· proviso as void and
  unreasonable and ordered that the Civil Servant is entitled to
  the normal subsistence allowance. The above ruling is of no
E assistance to the respondent.

        9. In Khem Chand's case this Court was examining the
  validity of Rule 12(4) of the CCS (CC&A) Rules 1957 which
  has nothing do with the question involved in the present case.
F This Court was generally explaining the scope and effect of a
  suspension order stating that the real effect of a suspension
  order is that though a Government servant continues to be a ,
  member of the Service he is not permitted to work during the
  p-eT1-od of suspension and he is entitled to subsistence
G allowance which is normally Jess than the salary.

         10. In Jagdamba Prasad Shukla's case (supra)
    subsistence allowance was denied to the Government Servant
    since he had omitted to furnish the certificate as required under
    the U.P. Fundamental Rules 53(2) indicating that he was not
H
            UNION OF INDIA v. R.K. CHOPRA                     229
              [K.S. RADHAKRISHNAN, J.]

employed elsewhere during the period of suspension. Non              A
payment of subsistence allowance, this Court held, has vitiated
the departmental enquiry and the consequent removal order.

      11. In P.L. Shah's_case (supra) this Court was dealing with
a case of reduction of subsistence allowance from 50% to 25%         8
of salary. Order was challenged before the Tribunal which
dismissed the petition on the ground of delay. This Court set
aside the orders of the Tribunal and the matter was remanded
for fresh consideration, holding that the subsistence allowance
should be sufficient for the bare sustenance in this world in        C
which prices of the necessaries of life are increasing every day
on account of conditions of inflation obtaining in the country. It
was held that since Government Servant cannot engage himself
in any other activity during the period of suspension and the
amount of subsistence allowance payable to the Government
Servant be reviewed from time to time when proceedings drag          D
on long time even though there may be no express rule insisting
of such review.

     12. In R.P. Kapur's case (supra), this Court was dealing
with the scope of Railway Services (Pension) Rules, 1993 and         E
the effect of Note 1 and proviso to Rule 50 and the Court took
the view that the above-mentioned proviso is not applicable to
a case of compulsory retirement. The scope of Note 3 to Rule
7 was not in issue in R.P. Kapur's case.
                                                                     F
      13. In Umesh Chandra Misra's case (supra), this Court
was dealing with the case of a railway employee who was
denied subsistence allowance at the rate of 75% of the salary
for the period from May 20, 1976 to February 17, 1977 and
this Court directed the respondents to pay him the subsistence
allowance from November 20, 1975 to May 19, 1976 at the rate         G
of 50 per cent of the salary and from May 20, 1976 to February
17, 1977 at the rate of 75 per cent of the salary with interest
on both the amounts with a further direction that the subsistence
allowance be paid on the basis of the revised scale of pay. The
legality of Note 3 to Rule 7 was never an issue in that case.        H
    230           SUPREME COURT REPORTS                 [201 O] 2 S.C.R.


A       14. The claim for payment of subsistence allowance of a
    Government servant is dealt with in Chapter VIII of Fundamental
    Rules. FR 53 which relevant for our purpose reads follows:-

          "F.R.53.(1) A Government servant under suspension or
          deemed to have been placed under suspension by an
B
          order of the appointing authority shall be entitled to the
          following payments, namely:-

           (i)      xxxx xxxx      xxxx             xxxx

c          (ii)     in the case of any other Government servant-

           (a)     a subsistence allowance at an amount equal to the
                   leave salary which the Government servant would
                   have drawn, if he had been on leave on half average
                   pay or on half-pay and in addition, dearness
D
                   allowance, if admissible on the basis of such leave
                   salary;

                   Provided that where the period of suspension
                   exceeds three months, the authority which made or
E                  is deemed to have made the order of suspension
                   shall be competent to vary the amount of
                   subsistence allowance for any period subsequent
                   to the period of the first three months as follows:-

           (i)     the amount of subsistence allowance may be
F
                   increased by a suitable amount, not exceeding 50
                   per cent of the subsistence allowance admissible
                   during the period of the first three months, if, in the
                   opinion of the said authority, the period of
                   suspension has been prolonged for reasons to be
G                  recorded in writing, not directly attributable to the
                   Government servant;

          -(ii)    the amount of subsistence allowance, may be
                   reduced by a suitable amount, not exceeding 50
H                  per cent of the subsistence allowance admissible
              UNION OF INDIA v. R.K. CHOPRA                      231
                [K.S. RADHAKRISHNAN, J.]
               during the period of the first three months, if, in the   A
               opinion of the said authority, the period of
               suspension has been prolonged due to reasons, to
               be recorded in writing, directly attributable to the
               Government servant;
                                                                         B
      (iii)   the rate of dearness allowance will be based on the
              increased or, as the case may be, the decreased
              amount of subsistence allowance admissible under
              sub-clauses (i) and (ii) above.

      (b)     Any other compensatory allowances admissible               C
              from time to time on the basis of pay of which the
              Government servant was in receipt on the date of
              suspension subject to the fulfillment of other
              conditions laid down for the drawal of such
              allowances.                                                D

              :xxxx .:xxxx    :xxxx
     15. The said Rule provides that the Government servant
under suspension shall be entitled to subsistence allowance at
an amount equal to the leave salary which the Government                 E
servant would have drawn if he had been on leave on half
average pay or on half pay and in addition, dearness allowanGe
if admissible on the basis of such leave salary. The proviso to
Rule 53 (1)(ii) (a) says that where the period of suspension
exceeds three months, the authority is competent to vary the             F
amount subject to some restrictions.

     16. We may in this connection refer to a Government of
India order G.M.O.M. No. F-2(36)-Ests/-111158 dated 27th August,
1958 given in the Swamy's compilation of Fundamental and                 G
supplementary Rules, which deals with the revision of scale of
pay while a Government Servant is under suspension. The two
categories of cases have been dealt with in that Office
Memorandum. One refers to cases in which the revised scale
of pay takes effect from a date prior to the date of suspension
                                                                         H
    232      SUPREME COURT REPORTS                · [201 O] 2 S.C.R.


A   and other cases in which the revised scales of pay takes effect
    from a date falling within the period of suspension.

          Office Memorandum reads as follows:-

       . "(2) Revision of scale of pay while under suspension-A
B        question having arisen as to whether a Government servant
         under suspension might be given an option to elect any
         revised scales of pay which might be introduced in respect
         of t~e post held by him immediately prior to suspension is
         revised, the Government of India have decided as follows:-
c
                 1. Cases in which the revised scale of pay takes
                 effect from a date prior to the date of suspension.

                In such cases the Government servant should be
          allowed to exercise the option under FR 23 even if the
D
          period during which he is exercise the option falls within
          the period of suspension. He will be entitled to the benefit
          of increase in pay, if any, in respect of the duty period
          before suspension, and also in the subsistence
          allowance, for the period of suspension, as a result of
E         such option.

                 2. Cases in which the revised scale of pay takes
                 effect from a date falling within the period of
                 suspension.
F                                                              .
          (a) Under suspension a Government servant retains a lien
          on his substantive post. As the expression 'holder of a
          post' occurring in FR 23.includes also a person who holds
          a lien or a suspended lien on the post even though he may
          not be actually holding the post, such a Government
G         servant should be allowed the option under FR 23 even
          while under suspension: The benefit of option will,
          however, practically accrue to him in respect of the period
          of suspension, only after his reinstatement depending on·

H
            UNION OF INDIA v. R.K. CHOPRA                     233
              [K.S. RADHAKRISHNAN, J.] ·
     the fact whether the period of suspension is treated as         A
     duty or not.

     (b) A Government servant who does not retain a lien on a
     post the pay of which is changed, is not entitled to exercise
     the option under FR 23. If, however, he is reinstated in the    8
     post and the period of suspension is treated as duty, he
     may be allowed to exercise the option after such
     reinstatement. In such cases, if there is a time-limit
     prescribed for exercising the option and such period had
     already expired during the p~riod of suspension, a
     relaxation may be made in each individual case for              c
     extending the period duri.ng which the option may be
     exercised.

      17. The above mentioned Rules as well as the
 Memorandum makes it clear that if there is a revision of scale      D
of pay in respect of a post held by a Government Servant, prior
to the suspension period, he is permitted to exercise .option
under FR 23, even if the period during which he is to exercise
the option falls within the period of suspension and then, he will
be entitled to the benefit of increase in pay and also in            E
subsistence allowance for the period of suspension, as a result
of such option. But if the revised scale of pay takes effect from
a date falling within the period of suspension then, the benefit
of option, for revised scale of pay will accrue to him in respect
of the period of suspension only after his reinstatement             F
depending on the fact whether the period of suspension is
treated as duty or not. In the present case, the Revised Pay
Rules, came into force on 1st day of January, 1996 when the
respqndent was under suspension. Therefore, even if he had
exercised his option under FR 23 for the benefit of the above        G
pay revision, the same would have accrued to him only after
his reinstatement depending on the fact whether the period of
suspension is treated as 'on duty' or not. So far as the
respondent is concerned, he was dismissed from service on
4.8.2005, therefore the question of the benefit of the revised       H
    234          SUPREME COURT REPORTS              [201 O] 2 S.C.R.


A pay and the subsistence allowance thereon on the basis of
  Revised Pay Rules did not accrue to him.

        18. The Revised pay Rules, which came into force on
    01.01.1996 in our view are in conformity with the FR 53 and
    the above-mentioned Office Memorandum issued by the
8
    Government of India.

         19. Rule 5 of Revised Pay Rules deals with drawal of pay
    in the revised scales which reads as follows:-

c         "5. Drawal of pay in the revised sca/es.-Save as
          otherwise provided in these rules, a Government servant
          shall draw pay in the revised scale applicable to the post
          to which he is appointed:

          Provided that a Government servant may elect to continue
D
          to draw pay in the existing scale until the date on which
          he earns his next or any

          subsequent increment in the existing scale or until he
          vacates his post or ceases to draw pay in that scale.
E
          xxxx xxxx                   xxxx
    Rule 6 which deals exercise of option reads as follows:-

          6. Exercise of Option.-- (1) The option under the
F         proviso to Rule 5 shall be exercised in writing in the form
          appended to the Second Schedule so as to reach the
          authority mentioned in sub-rule (2) within three months of
          the date of publication of these rules or where an existing
          scale has been revised by any order made subsequent to
G         that date, within three months of the date of such order.

           Provided that.-

           (i)    in the case of a Government servant who is, on the
                  date of such publication or, as the case may be,
H                 date of such order, out of India on leave or
              UNION OF INDIA v. R.K. CHOPRA                      235
                 [K.S. RADHAKRISHNAN, J.]
              deputation or foreign service or active service, the      A
              said option shall be exercised in writing so as to
              reach the said authority within three months of the
              date of his taking charge of his post in India; and

       (ii)   where a Government servant is under suspension
                                                                        8
              on the 1st day of January, 1996, the option may
              be exercised within three months of the date of his
              return to his duty if that date is later than the date
              prescribed in this sub-rule.

              xxxx xxxx     xxxxx                                       c
     20. On a combined reading of Rules 5 and 6, it is clear
that a Government servant under suspension on the 1st day of
January, 1996 is entitled to exercise his option within three
months of the date of his return to duty if that date is later than     0
the date prescribed in the sub rule and if the intimation is not
received he is deemed to have elected to be governed by the
revised scale of pay with effect on and from the 1st day of
January, 1996 on his return to duty. Respondent herein did not
return to duty since he was dismissed from service and hence            E
there was no question either exercising the option or the
application of the deeming provision.

     21. Rule 7 deals with the fixation of initial pay in the revised
scale , which reads as follows:-
                                                                        F
    "7. Fixation of initial pay in the revised scale. - (1) The
    initial pay of a Government servant who elects, or is
    deemed to have elected under sub-rule (3) of the Rule 6
    to be governed by the revised scale on and from the 1st
    day of January, 1996, shall, unless in any case the                 G
    President by special order otherwise directs, be fixed
    separately in respect of his substantive pay in the
    permanent post on which he holds a lien or would have
    held a lien if it had not been suspended, and in respect
    of his pay in the officiating post held by him, in the following
                                                                        H
    236      SUPREME COURT REPORTS                  (2010] 2 S.C.R.


A         manner, namely:-

                 xxx xxx         xxx
                 xxx xxx         xxx
B         Note 3. Where a Government servant is on leave on the
          1st day of January, 1996, he shall become entitled to pay
          in the revised scale of pay from the date he joins duty. In
          case of Government servant under suspension, he shall
          continue to draw subsistence allowance based on existing
c         scale of pay and his pay in the revised scale of pay will .
          be subject to final order on the pending disciplinary
          proceedings."

         22: The word "Existing scale" has been defined under Rule
    3 (2) which reads as under:
D
        "existing scale" in relation to a Government servant means
        the present scale applicable to the post held by· the
        Government servant (or as the case may be, personal
       ·scale applicable to him) as on the 1st day of January, 1996
E       whether in a substantive or officiating capacity."

         23. The word 'Revised scale' has been defined under Rule
    3(5), which reads as under:

          "revised scale" in relation to any post specified in column
F         2 of the First Schedule means the scale of pay specified
          against that post in column 4, thereof unless a different
          revised scale is notified separately for that post;".

       24. Note 3 under Rule 7, therefore, indicates when a
G Government servant was on leave on 1.1.1996, he would
  become entitled to pay in the revised scale of pay from the date
  he joined the du.ty. However, in the case of. a Government
  servant under suspension, he would continue to draw
  subsistence allowance based on the then existing scale of
H
             UNION OF INDIA v. R.K. CHOPRA                      237
               [K.S. RADHAKRISHNAN, J.]

  pay and his pay in the revised scale of pay would be subject         A
  to final order on the pending disciplinary proceedings.

       25. The Revised Pay Rules were framed by the President
  of India in exercise of the powers conferred by the proviso to
  Article 309 and clause 5 of Article 148 of the Constitution. The     B
  proviso to Article 309 enables the President to make Rules to
  regulate the recruitment and conditions of service of the
  persons mentioned therein. The Rules framed by the President
  of India in exercise of the powers conferred by the proviso to
  Article 309 have the force of law. Further, Note 3 to Rule 7 of      C
  Revised Pay Rules, 1997 were not challenged.

        26. On a combined reading of Note 3 to Rule 7 of the
   Revised Pay Rules and FR 53(1)(ii)(a) with the clarification with
   Office Memorandum dated 27th August, 1958 it is clear that if
  the. revision of pay takes effect from a date prior to the date of   D
  suspension of a Government servant then he would be entitled
  to benefit of incremef'.lt in pay and in the subsistence allowance
  for the period of suspension, but if the revision scale of pay
  takes effect from a date falling within the period of suspension
  then the benefit of revision of pay and the subsistence              E
  allm.yances will accrue to him, only after reinstatement
  depending on the fact whether the period of suspension is
· treated as duty or not. In view of the clear distinction drawn by
  the Rule makihg authority between the cases in which the
  Revised scale of pay takes effect from a date prior to the date      F
  of suspension and a date falling within the penod of suspension,
  the plea of discrimination raised cannot be sustained especially
  when there is no challenge to the Rules. The benefit of pay
  revision and the consequent revision of subsistence allowance
  stand postponed till the conclusion of the departmental              G
  proceedings, if the pay revision has come into effect while the
  Government servant is under suspension. So far as the present
  case is concerned, the Revised Pay Rules came into force on
  1st January, 1996 when the respondent was under suspension
  and later he was dismissed from service on 04.08.2005 and
                                                                       H
    238     SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A   hence the benefit of pay revision or the revision of subsistence
    allowance did not accrue to him. The Tribunal as well as the
    High Court have committed an error in holding that the
    respondent is entitled to the benefit of Revised Pay Rules. We,
    therefore, allow the appeal and set aside those orders.
B
       27. We are informed that the respondent herein has filed
  an appeal against the order of conviction passed by the
  Criminal Court and the same is pending consideration and if
  he is acquitted in appeal, the disciplinary authority would take
C appropriate decision on the respondent's claim for revised pay
  scale and the subsistence allowance in accordance with law.

    D.G.                                          Appeal allowed.