Delhi High Court
Raj Kumar Anand vs Union Of India & Ors. on 20 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8119/2015
Date of Decision: 20th September,2017
RAJ KUMAR ANAND ..... Petitioner
Through: Petitioner-in-person.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr.Vikram Jetly, CGSC with
Mr.Rishabh Sahu, Advocate
for UOI.
Mr.Santosh Kumar Tripathi,
ASC with Mr.Rizwan, Adv. for
R-2,5 & 6.
Mr.Kumar Rajesh Singh,
Advocate for R-7 & 8.
Dr. Virendra, Pairvi Officer,
Education Department.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present petition assails the orders dated 30.04.2014
and 14.05.2015 passed by the Central Administrative Tribunal,
Principal Bench, New Delhi in O.A. No.3253/2012 and R.A
No.33/2014, whereby the Petitioner's O.A and R.A have been
dismissed. The Petitioner had preferred the Original
Application seeking a direction to the Respondents to re-fix his
pay with respect to the upgraded pre-revised scale of Rs.7,450-
11,500/- with grade pay of Rs.4,600 in the pay band of Rs.9300-
34800/- on the date of his promotion alongwith all
consequential benefits.
2. The Petitioner had joined Respondent No. 8 - Education
Department, East Delhi Municipal Corporation Shahdara
(North) as a direct recruit to the post of Assistant Teacher
(Primary School Teacher) on 10.08.1994. As on 01.01.2006, the
Petitioner was working at this post in the pay scale of Rs. 4500-
7000/-.Subsequently, he was promoted to Trained Graduate
Teacher (Social Science) vide memorandum dated 04.01.2007
and he joined the same on 17/03.2007 in the pay scale of Rs.
5500-9000/-. On 25.04.2008, in accordance with the conditions
of the Assured Career Progression (ACP) Scheme, the
Petitioner was granted his 1st financial upgradation, placing him
in the Trained Graduate Teacher pay scale of Rs. 5500-9000/-
w.e.f. 10.08.2006.
3. The recommendations of the 6th Central Pay
Commission were brought into force by the Central Civil
Services (Revised Pay) Rules, 2008 (hereinafter referred to as
the 'Rules'), which were notified On 29.08.2008. The Rules
were brought into force retrospectively from 01.01.2006 and,
while implementing the recommendations of the 6th Central
Pay Commission, they also upgraded the pay scale of the post of
Primary School Teacher to Rs 6500-10500/- from its earlier
scale of Rs. 4500-7000/-, and of the post of Trained Graduate
Teacher to pay scale of Rs. 7450-11500/- from its earlier pay
scale of Rs. 5500-9000/-.
4. Since the revised pay rules were notified only on
29.08.2008, though made effective w.e.f. 01.01.2006, a
provision was made under Rule 5 thereof which gave an option
to those Government servants who had been placed in a higher
pay-scale between 01.01.2006 and the date of notification of the
Rules on account of promotion, upgradation etc., to elect to
switch over to the revised pay structure only from the date of
such promotion upgradation etc.
5. In consonance with Rule 5, Rule 6 provided for the
methodology for exercising this option. The Petitioner, who
had been placed in the higher pay-scale of the trained graduate
teacher with pay-scale of Rs.5,500-9,000/- w.e.f. 10.08.2006,
had, in accordance with Rule 5 & Rule 6, exercised his option to
switch over to the revised pay structure from the date of his
financial upgradation i.e. 10.08.2006. The Petitioner, therefore,
claimed that his pay had to be fixed as per Rule 11 of the Rules.
His pay had, therefore, to be fixed by adding the basic pay
applicable on the last date with the fitment tables of the higher
pay scale of Primary School Teacher(Grade II) i.e. upgraded
pre-revised pay scale of Rs.7,450-11500/- in the PB-2,
Rs.9,300-34,800 with Grade pay of Rs.4,600/- w.e.f 10.08.2006.
The Respondents, however, decided to fix his pay in accordance
with clause (A) (i) & (ii) of Rule 7 of the Rules, which provides
for fixation of pay under the revised pay structure from
01.01.2006 i.e. the date of the implementation of the 6th Central
Pay Commission.
6. Aggrieved by the fixation of his pay by the Respondents,
by considering his pre-revised pay-scale 5,500-9,000/-, the
Petitioner approached the Tribunal. The Tribunal vide its
impugned order rejected his Original Application by relying
upon its earlier judgment passed in O.A. No.1108/2011 in the
case of "Government School Teachers Association, Delhi &
Ors. v. Union of India & Ors". In these circumstances the
Petitioner has approached this Court by way of the present
petition.
7. The Petitioner, who appears in person, has raised a short
submission that once he had opted to switch over to the revised
pay structure only from the date of his financial upgradation i.e.
10.08.2006, his pay was required to be fixed as per Rule 11 of
the Rules by applying the multiplier factor of 1.86 to the
upgraded pay of the post which he was holding on 10.08.2006.
He submits that the Respondents have wrongly calculated his
pay w.e.f. 01.01.2006 by applying the multiplier factor with
reference to the pre-revised pay scale of the lower post i.e.
Primary School Teacher (Grade III) by ignoring the upgradation
of the pay-scale of the post i.e., by applying multiplier factor to
the pay-scale of Rs.5,500-9,000/-.
8. He submits that the Respondents have wrongly applied
Rule 7 to him by ignoring the fact that in accordance with Rule
5, he had opted to switch over to the revised pay structure from
the date of his upgradation of higher pay scale Grade II of
Primary School Teacher i.e. 10.08.2006 for pay fixation. The
Petitioner further submits that the said issue has been already
decided by the Central Administrative Tribunal, Allahabad
Bench, though the said order of the Tribunal has been
challenged before the Allahabad High Court, but in view of the
fact that no stay has been granted, the same has been
consistently directed to be implemented in respect of various
Government servants all over the country by orders of High
Court of Punjab & Haryana; High Court of Bihar; High Court of
Telegana & Andhra Pradesh, and; even by this Court.
9. In furtherance to his submission that his pay should be
fixed as per the revised pay structure from 10.08.2006, the
Petitioner has given, in a tabular form, the manner in which-
according to him, his pay ought to be calculated as per the
Rules. The table is being reproduced, as such, for the sake of
convenience:-
1. Existing scale of pay Rs.5500-9000
(PRT Grade- II) (Corresponding
Grade Pay of
Rs.4200)
2. Pay Band applicable to PB-2 Rs.9300-
post of PRT (Grade-I) 34800
3. Upgraded to the scale Rs.7450-
of pay to the post of 11500(Corresp
PRT (Grade-II) -onding Grade
Pay of
Rs.4600)
4. Existing basic pay as Rs.5875
on 10.8.2016
5. Pay after 10928
multiplication by as (Rounded off
factor of 1.P86 to Rs.10930)
6. Pay in the Pay Band Rs.10930
PPB-2
7. Pay in the pay band Rs.13860
after including benefit
of bunching in pre-
revised scale of
Rs.5500-9000 if
applicable
8. Grade Pay attached to Rs.4600
the scale of Rs.7450-
11500
9. Revised basic pay-total Rs.18460
of pay in pay band and
grade pay
10. Per contra, Mr. Kumar Rajesh Singh, appearing on behalf
of the Respondents, while supporting the impugned judgment,
submits that the claim of the Petitioner is misconceived. He
further submits that the Respondents have rightly fixed the pay
of the Petitioner by application of Rule 7(1) Note 2A, which
states that where the post have been upgraded as a result of
recommendations of the 6th CPC, the fixation of pay would be
done by multiplying the pre-revised basic pay as on 01.01.2006
by a factor of 1.86, and, thereafter, adding the grade-pay of the
upgraded pay scale thereto.
11. We have considered the submissions made by the
Petitioner and learned counsel for the Respondents and perused
the material on record.
12. Since the issue involved relates to the effect of Rule 5,6,7
& 11 of the Rules we deem it appropriate to reproduce the
relevant portions of the same:
"5. Drawal of pay in the revised pay structure - Save as
otherwise provided in these rules, a Government servant shall
draw pay in the revised pay structure applicable to the post to
which he is appointed;
Provided that a Government servant may elect to continue
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.
Provided further that in cases where a Government
servant has been placed in a higher pay scale between
1.1.2006 and the date of notification of these Rules on
account of promotion, upgradation of pay scale etc., the
Government servant may elect to switch over to the revised
pay structure from the date of such promotion, upgradation,
etc.
Explanation 1 - The option to retain the existing scale
under the provisos to this rule shall be admissible only in
respect of one existing scale.
Explanation 2 - The aforesaid option shall not be
admissible to any person appointed to a post on or after the
1st day of January, 2006, whether for the first time in
Government service or by transfer from another post and he
shall be allowed pay only in the revised pay structure.
Explanation 3 - Where a Government servant exercises the
option under the provisos to this rule to retain the existing
scale in respect of a post held by him in an officiating
capacity on a regular basis for the purpose of regulation of
pay in that scale under Fundamental Rule 22, or any other
rule or order applicable to that post, his substantive pay
shall be substantive pay which he would have drawn had he
retained the existing scale in respect of the permanent post
on which he holds a lien or would have held a lien had his
lien not been suspended or the pay of the officiating post
which has acquired the character of substantive pay in
accordance with any order for the time being in force,
whichever is higher."
"6. Exercise of Option
(1) The option under the provisos 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 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, date of such
order, out of India on leave or deputation or foreign service
or active service, the 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
on the 1st day of January, 2006, 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.
(2) The option shall be intimated by the Government
servant to the Head of his Office.
(3) If the intimation regarding option is not received
within the time mentioned in sub-rule (1), the Government
servant shall be deemed to have elected to be governed by
the revised pay structure with effect on and from the 1st day
of January, 2006.
(4) The option once exercised shall be final.
Note 1 - Persons whose services were terminated on or after
the 1st January, 2006 and who could not exercise the option
within the prescribed time limit, on account of discharge on
the expiry of the sanctioned posts, resignation, dismissal or
discharge or disciplinary grounds, are entitled to the benefits
of this rule.
Note 2 - Persons who have died on or after the 1st day of
January, 2006 and could not exercise the option within the
prescribed time limit are deemed to have opted for the
revised pay structure on and from the lst day of January,
2006 or such later date as is most beneficial to their
dependents, if the revised pay structure is more favourable
and in such cases, necessary action for payment of arrears
should be taken by the Head of Office.
Note 3 - Persons who were on earned leave or any other
leave on 1.1.2006 which entitled them to leave salary will be
allowed the benefits of this rule."
"7. Fixation of initial pay in the revised pay structure:
(1) The initial pay of a Government servant who elects, or is
deemed to have elected under sub-rule (3) of rule 6 to be
governed by the revised pay structure on and from the 1st
day of January, 2006, shall, unless in any case the President
by special order otherwise directs, be fixed separately in
respect of his substantive pay in the permanent post on which
he holds alien 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 manner, namely :-
(A) In the case of all employees:-
(i) the pay in the pay band/pay scale will be determined
by multiplying the existing basic pay as on 1.1.2006 by
a factor of 1.86 and rounding off the resultant figure to
the next multiple of 10.
(ii) if the minimum of the revised pay band/ pay scale is
more than the amount arrived at as per (i) above, the
pay shall be fixed at the minimum of the revised pay
band/ pay scale;
Provided further that:-
Where, in the fixation of pay, the pay of
Government servants drawing pay at two or more
consecutive stages in an existing scale gets bunched, that
is to say, gets fixed in the revised pay structure at the same
stage in the pay band, then, for every two stages so
bunched, benefit of one increment shall be given so as to
avoid bunching of more than two stages in the revised
running pay bands. For this purpose, the increment will be
calculated on the pay in the pay band. Grade pay would
not be taken into account for the purpose of granting
increments to alleviate bunching.
In the case of pay scales in higher administrative
grade (HAG) in the pay band PB-4, benefit of increments
due to bunching shall be given taking into account all the
stages in different pay scales in this grade. In the case of
HAG+ scale, benefit of one increment for every two stages
in the pre-revised scale will be granted in the revised pay
scale.
If by stepping up of the pay as above, the pay of a
Government servant gets fixed at a stage in the revised
pay band/ pay scale (where applicable) which is higher
than the stage in the revised pay band at which the pay of
a Government servant who was drawing pay at the next
higher stage or stages in the same existing scale is fixed,
the pay of the latter shall also be stepped up only to the
extent by which it falls short of that of the former.
(iii) The pay in the pay band will be determined in the
above manner. In addition to the pay in the pay band,
grade pay corresponding to the existing scale will be
payable.
Note - Illustration 1 on the above is provided in the
Explanatory Memorandum to these Rules.
"11. Fixation of pay in the revised pay structure
subsequent to the 1st day of January, 2006. - Where a
Government servant continues to draw his pay in the
existing scale and is brought over to the revised pay
structure from a date later than the 1st day of January,
2006, his pay from the later date in the revised pay structure
shall be fixed in the following manner:-
(i) Pay in the pay band will be fixed by adding the
basic pay applicable on the later date, the dearness pay
applicable on that date and the pre-revised dearness
allowance based on rates applicable as on 1.1.2006. This
figure will be rounded off to the next multiple of 10 and will
then become the pay in the applicable pay band. In addition
to this, the grade pay corresponding to the pre-revised pay
scale will be payable. Where the Government servant is in
receipt of special pay or non-practising allowance, the
methodology followed will be as prescribed in Rule 7 (i),
(B), (C) or (D) as applicable, except that the basic pay and
dearness pay to be taken into account will be the basic pay
and dearness pay applicable as on that date but dearness
allowance will be calculated as per rates applicable on
1.1.2006."
13. Before we advert to the issue to be decided, we deem it
appropriate to also refer to Para (I) & (II) of Section I and entry
No.XVII (I) of Section II of Part B of the Rules, which in our
view are relevant for deciding the controversy, in hand.
"PART - B
REVISED PAY SCALES FOR CERTAIN COMMON
CATEGORIES OF STAFF
Section I
(i) The revised pay scale mentioned in Column (5)
and (6) of this part of the Notification for the posts
mentioned in Column (2) have been approved by the
Government. The initial fixation as on 1.1.2006 will
be done in accordance with Note 2 below Rule 7 of
Notification.
(ii) On account of merger of pre-revised pay scale
of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500,
some posts which presently constitute feeder and
promotion grades will come to lie in an identical
grade. The specific recommendations about some
categories of these posts made by the Pay Commission
are included section II of Part B. As regards other
posts, the posts in these three scales should be
merged. In case it is not feasible to merge the posts in
these pay scales on functional considerations, the
posts in the scale of Rs.5000-8000 and Rs.5500-9000
should be merged, with the post in the scale of
Rs.6500-10500 being upgraded to the next higher
grade in pay band PB-2 i.e. to the grade pay of
Rs.4600 corresponding to the pre-revised pay scale of
Rs.7450-10500. In case a post already exists in the
scale of Rs.7450-11500, post being upgraded from the
scale of Rs.6500-10500 should be merged with the
post in the scale of Rs.7450-11500."
S.L Correspondin Para
. g Pay Band & No. of
No. Post Present Revised Pay Grade Pay the
Scale Scale Repo-
Pay Grade
rt
Band Pay
(1) (2) (3) (4) (5) (6) (7)
XV TEACHERS
II
1 Primary School Grade III Grade III PB- 4200
Teacher 4500-7000 6500-10500 2
Grade II Grade II 4600
5500-9000 7450-11500 PB-
Grade I Grade I 4800
6500- 7500-12000
10500 PB-
# Posts of Education Officer/Assistant Director of Education stand
merged with post of Deputy Director of Education.
14. We find that the parties are ad-idem on the issue that the
upgraded pay scale of Primary School Teacher Grade (II) w.e.f.
01.01.2006 is Rs.7,450-11,500/- with a Grade pay of
Rs.4,600/- while the pre-revised pay scale was that of
Rs.5,500-9,000/-. The only narrow controversy between the
parties thus is while applying the multiplier factor of 1.86,
which pay scale is to be used-pre-revised scale of Rs.5,500-
9,000/- or the upgraded scale of Rs.7,450-11,500/-. The
Petitioner insists that it has to be the upgraded scale of
Rs.7,450-11,500/- while as per the learned counsel for the
Respondents, it has to be the pre-revised scale of Rs.5,500-
9,000/-.
15. The undisputed facts which emerge from the submissions
of the parties, are that the Petitioner had elected to opt for
switching over to the revised pay structure only from the date
of his promotion/upgradation which, admittedly, was on
10.08.2006. The logical corollary thereto, would be that, his
pay has to be fixed as per Rule 11, which is the only Rule
dealing with fixation of pay in case of an Government servant
who opts to switch over to the revised pay structure from the
date of promotion/upgradation earned between 01.01.2006 and
29.08.2008 (i.e. the date of notification of the Rules). Rule 7-
on which the Respondents rely to justify the manner in which
they have fixed the pay of the Petitioner, is not at all applicable
in case of Government servants like the Petitioner, who opt to
switch over to the revised pay structure only upon
promotion/upgradation. We are of the view that Rule 7 is
applicable only to those Government servants who elect, or are
deemed to have elected, to be governed by the revised pay
structure on and from 01.01.2006 itself. The reliance by the
Respondents on Rule 7, to fix the pay of the Petitioner is thus
misplaced, and his pay ought to be fixed with reference to Rule
11.
16. We may now refer to the order dated 09.08.2012 of the
Tribunal, passed by the Allahabad Bench in O.A. No.293/2011
wherein while dealing with the same issue, the Tribunal, has
interpreted the manner of pay fixation in accordance with Rule
5, 7, and 11 of the Rules. Even though the said case related to
Section Officers, unlike the present case which relates to a
Teacher, we find that this decision of the Tribunal is based on
interpretation of the same Rules with which we are concerned
in the present case. We are informed that the Union of India
has filed a writ application before the Allahabad High Court,
challenging the order of the Tribunal, but since no stay was
granted, the said order of the Tribunal stands implemented on
22.08.2013.
We deem it appropriate to reproduce the relevant findings of
the Tribunal which read as under:-
"As per Rule 5 regarding drawal of pay in the revised pay
structure, a Government servant shall draw pay in the
revised pay structure applicable to the post to which he is
appointed provided that in cases where a government servant
has been placed in a higher pay scale between 01.01.2006
and the date of notification of these rules on account of
promotion, up-gradation of pay scale etc., the Government
servant may elect to switch over to the revised pay structure
from the date of such promotion, up-gradation etc. Meaning
thereby an option has to be called and it left to the
Government servant to opt the date of re-fixation of his pay.
As per Rule 7 regarding fixation of initial pay in the revised
structure, the pay in the pay band /pay scale was to be
determined by multiplying the existing basic pay as on
01.01.2006 by a factor of 1.86 and rounding off the resultant
figure to the next multiple of 10. As per Rule 11, which
stipulated the method of fixation of pay in revised pay
structure subsequent to the 1st day of January 2006, where a
government servant continues to draw in the existing scale
and is brought over to the revised pay structure from a date
later than the 1st day of January 2006 , his pay from the later
date in the revised pay structure shall be fixed by adding the
basic pay applicable on the later date. After accepting the
recommendation of 5th CPC the posts were up-graded in pay
scale of Rs. 1450-11500. Subsequently by merging the post of
the applicants in pay scale of Rs. 7500-12000 w.e.f.
01.01.2006 the posts were re-designated as Assistant
Accounts Officer. As per rules of 2008 since the applicants
opted to have the revised pay scale w.e.f. the date of their
promotion i.e. after 01.01.2006 but before 31.08.2008,
therefore, as per rule 11, their pay in the Pay Band will be
fixed by adding the basic pay applicable on the last date.
Therefore, the action of the respondents in rejecting the
representation of the applicants for fixing their pay in pay
scale of Rs. 7500-12000 is illegal and against the rules. The
action of the respondents also smacks favourtism and
discriminatory as the same benefit , which the applicant
applicants are asking, has already been given to the
Assistants/ PAs of M/o Petroleum and Gas, therefore , the
impugned orders are also liable to the dismissed being
discriminatory."
17. We also find that the aforesaid decision dated 09.08.2012
of the Central Administrative Tribunal, Allahabad Bench has
been followed not only by the Chandigarh Bench, Allahabad
Bench, Hyderabad Bench, Patna Bench and the Principle
Bench, New Delhi in a number of cases but, even by this
Court, as in the case of Union of India & Ors v. B.S.
Mohanty & Ors in W.P(C) 5989/2014 this Court rejected the
Union's writ petition against the order of the Principal Bench,
Tribunal, passed by following the decision of Allahabad bench
in O.A No.293/2011(supra).
18. Coming to the present case we find that the Tribunal has,
vide the impugned order, rejected the Petitioner's claim by
relying on its earlier order dated 25.02.2012 passed in O.A.
No.1108/2012 in Government School Teacher Association &
Ors. v. Union of India & Ors. While dismissing the OA, the
Tribunal has also agreed with the contention of the
Respondents that the case of the Petitioner was covered by
Rule 7. We find that the Tribunal has, while accepting this
contention of the Respondents, completely overlooked the
provisions of Rule 7(supra) as the Rule itself depicts that the
same is applicable only to those Government servants, who
elect to be governed by the revised pay structure on and from
1st day of January, 2006. The Petitioner had, admittedly,
opted otherwise i.e. he had elected to switch over to the
revised pay structure from the date of his
promotion/upgradation which was on 10.08.2006 and,
therefore, his case could not brought under the ambit of Rule
'7'. We have also considered the Tribunal's order passed in
the aforesaid case Government School Teachers Association
(supra) relying on which order, the Tribunal has rejected the
Petitioner's Original Application. We have been informed that
even though the said order of the Tribunal in the case
Government School Teacher Association (supra) was
challenged before this Court by way of W.P.(C) 4674/2014,
but the said writ petition was withdrawn by granting liberty to
the Petitioner to approach the Tribunal by way of a review
application, as this Court found that the contentions raised by
the Counsel in respect of the Rules and the fitment-table viz-a-
viz the recommendations of the Sixth Pay Commission, had
not been raised before the Tribunal.
19. Thus, we find that the decision of the Tribunal in the case
of Government School Teachers Association (supra) has not
been tested by this Court. Having considered the order of the
Tribunal in the Government School Teachers Association
(supra), we find that the said decision of the Tribunal does not
at all deal with the interpretation of Rules and, in fact, the said
case had been dismissed only because the Applicant therein
being a Teacher Association, was seeking parity with
Assistant/Steno Cadre-which parity could not be established
and, therefore, we find no justification for relying on the said
order to reject the Petitioner's claim, which we find is fully
justified and in consonance with the Rules.
20. In these circumstances, the order of the Tribunal is not
sustainable in law and the same is set aside. The writ petition is
allowed and the Respondents are directed to fix the pay of the
Petitioner in accordance with Rule 11 by considering the
upgraded scale of the post which the Petitioner was holding
from 10.08.2006 and grant him all consequential benefits.
REKHA PALLI, J
VIPIN SANGHI, J
SEPTEMBER 20, 2017
saurabh
