M.P. Dixit vs Lt. Governor Nct Of Delhi And Ors.
2006 Latest Caselaw 668 Del

JUDGMENT

Page 1446

S. Ravindra Bhat, J.

1. The writ petitioner in these proceedings under Article 226 of the Constitution seeks a direction to the respondents, to fix his pay scale in accordance with the CCS (Revised Pay Scale) Rules and grant him the benefit of enhancement or revised pay scale, from the date they became applicable.

2. The petitioner appeared and argued in support of his proceedings himself.

3. The petitioner claims to have been appointed as Principal of the Sarvodaya Kanya Vidyalaya, Kiran Vihar. He alleges that on 20.12.1995 an FIR was lodged naming him and six other relatives due to death of his daughter in law, within seven years of marriage. The petitioner was arrested on 21.12.1995. He remained in custody till he was admitted to bail on 26.3.1996. It is claimed that he reported to duty 27.3.1996. On 11.4.1996, an order was issued by the respondent placing the petitioner under deemed suspension w.e.f. 21.12.1995. It is claimed that the petitioner had sought for revocation at suspension and also release of subsistence allowance-which he alleges was wrongfully withheld. The subsistence allowance was released on 26.7.1996. By an order dated 10.1.1997, the amount of subsistence allowance was increased by 50% of the amount admissible and paid to him as per previous order dated 26.7.1996.

4. The petitioner made a detailed representation to the Lt. Governor seeking release of full salary, review of his suspension and fixation of pay in the new pay scales w.e.f. 1.1.1996. His representation also cited the case of two others whose suspension had been revoked even though they had been arrested, charge sheeted by the police on the basis they had been initially placed under deemed suspension.

5. The petitioner had approached the Central Administrative Tribunal with his grievances claiming review of suspension and fixation in the revised pay scales. The Central Administrative Tribunal by its decision dated 16.12.1997, directed the respondents to consider his pending representations by order dated 16.7.1997. the petitioner filed WP No. 4277/1998 against the order of the CAT. Those proceedings were disposed on 28.8.1998 by a Division Bench. The Division Bench directed as follows:

C.W. 4277 of 1998 and C.M. 8019 of 1998

We find no reason to interfere with the impugned decision of the Central Administrative Tribunal. Dismissed.

The respondent will look into the Page 1447 grievance of the petitioner regarding review of the suspension allowance in the light of revision of pay scales by the Fifth Pay Commission. The learned Counsel for the petitioner submits that a representation made by the petitioner in this behalf is already pending with the department. The department will take decision therein within four weeks and communicate the same to the petitioner. The order passed in this writ petition will not come in the way of the petitioner in agitating his grievance, if any against the decision of the department on his representation regarding revision of suspension allowance.

Copies of the order be given dusty to counsel for the parties.

6. In the meanwhile, by orders dated 10.7.1998 and 18.1.1999, the respondents revised the DA payable to the petitioner @ 4% w.e.f. 1.7.96; @ 8% w.e.f 1.1.97; @ 13% w.e.f. 1.7.97 and @ 16% w.e.f. 1.1.1998. the enhanced DA was admissible in addition to DA as on 1.1.1996. The order dated 18.1.99 entitled the petitioner to revised CCA @ Rs. 300/- per month and HRA @ 30% of the pay which he was receiving on the date of suspension i.e. 21.1.1995.

7. Pursuant to the directions of the Division Bench the respondents issued an order on 4.12.98 declining fixation in the revised pay scales w.e.f 1.1.96. The said order which has been objected to, reads as follows:

With reference to his letter dated 7.8.1998 regarding fixation of his pay in the Revised Pay Scale effecting from 1.1.1996, Shri M.P. Dixit, Principal (Under Suspension), Sarvodaya kanya Vidhyalaya, Kiran Vihar, Delhi-92 is hereby informed that his request for fixation of pay in revised scale of pay effective w.e.f. 1.1.1996 cannot be considered in terms of (i) G.I. M.F. O.M. No. 2(36) Estt-III/58 dated 27.8.1958 and (ii) note 3 below Rule 7 of CCS (RP) Rules, 1997.

(J.G. Nanda)

Administrative Officer (Vig)

8. During the pendency of criminal proceedings, the petitioner upon attaining the age of superannuation, retired from the services of the respondents on 31.12.98. By an order dated 4.2.99 his provisional pension was released.

9. The petitioner has sought several reliefs but the claims in this case were confined to revision of pay for the period 21.11.1995 to 31.12.1998, release of full salary and also fixing of proper pension. The petitioner also claims that there was an unwarranted delay of seven months in the release leave encashment of 165 days. He disputes the amount paid in that regard and submits that as per service book he had more earned leaves to his credit.

10. The petitioner submits that his brother, Sh. D.B Dixit was also implicated in the same criminal proceedings but he was granted subsistence allowance for the entire period.

11. The petitioner submits that by virtue Fundamental Rules (FR) 23 and 53 (which are applicable) he would be entitled to benefit of revision of pay as he Page 1448 continued to hold lien to the post.

12. The petitioner reiterated the contentions, raised in the writ petition and also submitted that the withholding of benefits on account of revised pay in his case was discriminatory and arbitrary. He submitted that the criminal proceedings have dragged on for more than a decade and there seems to be no end in sight. The continued payment of subsistence allowance and provisional pension on the basis of Rule 69, CCS Pension Rules has greatly prejudiced him. He also submits that other persons, who faced criminal proceedings, were reinstated in the services and granted full benefits.

13. The respondents? stand is that during pendency of criminal proceedings, an employee has to be treated as under suspension in accordance with Rule 10 of the CCS(CCA) Rules. The petitioner was accordingly treated as having been under suspension w.e.f 21.12.1995 i.e. the date of his detention. The respondents defend the belated sanction of subsistence allowance by stating that they had no information about the petitioner's arrest; they were intimated about it on 27.3.1996. the subsistence allowance was initially sanctioned on 26.7.96 and later enhanced, on 10.1.97.

14. The respondents have relied upon an office memorandum No. 2 (36)/Estt- III/58 dated 27.8.58 to say that benefit of revision and fixation of pay in revised scales would accrue after finalisation of the case, of a suspended employee. They also rely upon Note 3 to Rule 7 of the CCS (Revised Pay) Rules 1997 for the submissions that a Government servant under suspension would continue to draw subsistence allowance based on existing pay scale and revision of his pay scale could be subject to final orders. It is therefore claimed that there is no infirmity in the opinion of the respondents declining revision of pay scales.

15. The above narrative would show that the petitioner was in judicial custody for about a period of three months as a result by virtue of Rule 10(2) of CCS(CCA) Rules the respondents had to, and did, suspend him from the services during the pendency of criminal proceedings. Subsistence allowance was sanctioned in July 1996 and later enhanced, in January 1997. The petitioner had approached the courts on an earlier occasion when the relief granted was a direction to consider his representation. The respondents considered the representation and rejected it. In the meanwhile the petitioner received enhanced DA, from time to time and was also given benefit of increased CCA and House Rent Allowance. Admittedly the petitioner retired w.e.f. 31.12.98; his provisional pension was fixed in February 1999 and he continues to draw the same because the criminal proceedings have not ended. The narrow question therefore, is whether the respondents position declining revised pay scale and consequent revision in pension etc is illegal or arbitrary.

16. The respondents have relied upon Note 3 to Rule 7 of the CCS revised pay Rules 1997. Those rules granted the pay revisions pursuant to recommendations of 5th Pay commission and were made effective from 1.1.1996. The concerned Rule namely Note 3 to Rule 7 reads as follows: 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 Page 1449 shall continue to draw subsistence allowance based on existing scale of pay and his pay in the revised scale of pay will be subject to final order on the pending disciplinary proceedings.

17. Rule 10(2) of the CCS(CCA) Rules enacts that a Government servant is deemed to be placed under suspension with effect from the date of his detention if he is detained in custody whether on criminal charge or otherwise, for a period exceeding 48 hours. Under FR 53(1)(ii)(a) of the Fundamental Rules Supplementary Rules, a public employee such as the petitioner, placed under suspension is entitled to subsistence allowance. That provision prescribes the rate of subsistence allowance as well as the circumstances when it can be enhanced. As per Rule 69 of the CCS (Pension) Rules 1972, employees under suspension who retire from services would be entitled to fixation of provisional pension on the basis of prescribed formula. The benefit of pay revision would under normal circumstance ensure in favor of those under suspension since the new pay scales would have the effect of replacing the old ones. However, this situation was foreseen in 1958 when a clarification was issued by way of OM No. F.2(63)-Est III/58 dated 27.8.1958. The said memorandum reads as follows:

2. Cases in which the revised scale of pay takes effect from a date falling within the period of suspension (a) Under suspension a Government servant retains a lien on his substantive post. As the expression 'holder of a post' occurring in F.R. 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 servant should be allowed the option under F.R. 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 the fact whether the period of suspension is treated as 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 F.R. 23. If, however, he is reinstated in the 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 period of suspension, a relaxation may be made in each individual case for extending the period during which the option may be exercised.

18. The net result of above discussion is that benefit of pay revision in effect stands postponed by virtue of the OM of 1958 and Note 3 to Rule 7 of the revised pay rules till conclusion of judicial proceedings. The logic behind this appears to be that the public servant is already in receipt of subsistence allowance (and as in the present case enhanced subsistence allowance) on the basis of the pre revised pay scale. Therefore, he is not put to grave hardship. An employee like the petitioner superannuating from service is also entitled to provisional pension. The fixation of pay in the revised pay scales and also release of full pension would depend upon, and await, the Page 1450 ultimate outcome of the pending proceedings. In the event the employee is exonerated, the cloud created by such pending proceedings clears and the competent authority would have to pass an appropriate order, in the light of the final order, releasing the benefits. In the event of conviction, however, the entitlement itself is at jeopardy. Therefore in either case, at the point in time when proceedings have not culminated, the Rule making authority in its wisdom, considered it appropriate to keep its options open. I see no arbitrariness or perversity in such an approach because in the event of petitioner's eventual acquittal the respondents would have to pass a proper order both on the issue of revised pay scale as well as full pension admissible by granting the benefit of qualifying service, in the light of the final order. For these reasons I do not find that the respondents, committed any illegality or impropriety in not releasing revised pay scale benefits to the petitioner. So far as the question of withholding of leave encashment and other dues, are concerned, I am of the opinion that there is insufficient material to come to a finding on those aspects.

19. In the light of the above discussion, I hold that the petitioner is not entitled to the relief claimed by him. It is however, made clear that upon the final judgment in the criminal proceedings, he shall inform the outcome to the respondents who are directed to issue an appropriate order in accordance with law on the question as to entitlement of petitioner to revised pay scale and full pension within six weeks of receipt of such intimation from him.

20. The writ petition is accordingly disposed off. Rule made absolute in the above terms. No costs.