Delhi High Court
Tejpal Singh Maan vs Govt. Of N.C.T. Of Delhi & Ors on 11 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 12.09.2022
% Judgment delivered on: 11.10.2022
+ W.P.(C) 14339/2005 and C.M. No. 7956/2020
TEJPAL SINGH MAAN ..... Petitioner
Through: Mr. Vidya Sagar and Mr. Amolak,
Advocates.
versus
GOVT. OF N.C.T. OF DELHI & ORS ..... Respondent
Through: Mrs. Avnish Ahlawat, Standing
Counsel, GNCTD (Services),
Mr.Nitesh Kr. Singh, Ms. Laavanya
Kaushik and Ms. Aliza Khan,
Advocates for respondents.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SATISH CHANDRA SHARMA, C.J.
1. The present writ petition is arising out of an order dated 07.12.2004,
passed in O.A. No. 704/2004 passed by the Central Administrative Tribunal
(CAT) rejecting the Original Application preferred by the Petitioner. The
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
facts of the case reveal that the Petitioner, at the relevant point of time, was
serving Trained Graduate Teacher (Science), (TGT (Science) for short) at
Government Boys Senior Secondary School No.1 Shaktinagar, Delhi-7 and
he was granted a time bound senior scale of TGT on 10.03.1996 on
completion of 12 years of qualifying service in the entry scale of TGT and
his basic pay was fixed at Rs.2000/- in the pay scale of Rs.1640-2900. That
the Central Civil Services Revised Pay Scale Rules, 1997, came into force in
September/ October 1997. However, the pay scales were upgraded w.e.f.
01.01.1996.
2. The Rules of 1997 provided that when the pay of a Government
Servant is brought over to the revised scale from a date later than 01.01.1996
his pay from such later date is to be fixed under the Fundamental Rules and
not as provided under Rule 7 of the CCS Revised Pay Rules 1997.
3. The Government of India issued an Office Memorandum dated
26.03.1998 and the same provided that the pay of the Government
employees who opt to switch over to the revised pay between 01.01.1996
and 31.12.1996, in respect of the post held by him on 01.01.1996. will also
be fixed as per Rule 7of the CCS Revised Pay Rules, 1997. The Office
Memorandum dated 26.03.1998 is reproduced as under:
"No.16(1)/16/98
Govt. of India
Ministry of Finance
Department of Expenditure
New Delhi; the March 26, 1998
Chaitra 5,1920 (Saka)
OFFICE MEMORANDUM
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
Sub: Central Civil Services (Revised Pay) Rule, 1997
Fixation of pay of Government servants who opt for
The revised scale of pay from a date subsequent to 1.1.1996
In terms of the provisions contained in Rule 9 of the Central Civil
Services (Revised Pay) Rules, 1997, where a Government servant continues
to draw his pay in the existing scale of pay and is brought over to the
revised scale from a date later than the 1 st day of January 1996, his pay
from the later date in the Revised Scale is to be fixed under the Fundamental
Rules and under Rule 7 of the said Rules.
On further consideration and in exercise of the power available under
Rule 13 of the Central Civil Services (Revised Pay) Rules, 1997, the
President is pleased to decide that the pay of Government Servants who opt
to switch over to the revised scale of pay from the date of their next
increment falling after 1.1.1996 not later than 31.12.1996 in respect of the
post held by them on 1.1.1996 shall be fixed in accordance with the
provisions of Rule 7 of the Central Civil Services (Revised Pay) Rules, 1997.
The option in the format appended as the Second Schedule to the
Central Civil Services (Revised Pay) Rules, 1997 may be exercised within 3
months from the date of issue of this O.M. The option once exercised shall
be final. The option now provided under these orders can be exercised
afresh even by those Government servants who have already exercised their
option prior to the issue of these orders to switch over to the revised scales.
However, the pay of Government Servants who opt to switch over to
the revised scales.
a) from date of increment falling subsequent to 31.12.1996 or
b) from any date after 1.1.1996, for reasons other than their date of
increment falling during 1996.
Shall be fixed under Rule 9 of the Central Civil Services (Revised
Pay) Rules, 1997
Ministry of Home affairs etc. are requested to bring the contents of
these orders to the notice of all concerned expeditiously within time so that
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
the need for extending the date of exercising an option under these orders
may not arise
In so far as persons serving in the Indian Audit & Accounts
Department are concerned, these issue after consultation with the
Comptroller & Auditor General of India.
Hindi version is enclosed.
Sd/-
(Arvind Kumar)
Deputy Secretary to the Govt. of India. "
4. It is an undisputed fact that the Petitioner opted to switch over to the
revised pay with effect from 01.01.1996 keeping in view the CCS Revised
Pay Rules 1997. The Petitioner was drawing a pay at Rs.1900/- in the pre-
revised pay scale of Rs.1400-2600 and, consequently, the pay of the
Petitioner was fixed at Rs. 6025/- in the revised pay scale of Rs.5500-9000.
5. The facts of the case further reveal that the Government of India
issued another Office Memorandum dated 30.07.1999 relaxing the rates of
option and provided that the pay of the Government employees who opt to
switch over to the revised pay between 01.01.1996 and 31.12.1997 in
respect of the post held by him on 01.01.1996 will also be fixed as per Rule
7 of the CCS Revised Pay Rules, 1997.
6. The option was required to be exercised within 6 months from the
date of the issuance of the Office Memorandum and the option was also
made available to those persons who had already exercised their option
earlier. The office memorandum dated 30.07.1999 reads as under:
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
"F. No. 7(29)-EIII(A)/97
Govt. of India/ Bharat Sarkar
Ministry of Finance/ Vitta Mantralaya
Department of Expenditure/ Vyay Vibhog
New Delhi, the 30th July, 1999
OFFICE MEMORANDUM
Sub: Central Civil Services (Revised Pay), Rule, 1997
Fixation of pay of Government servants who opt for
The revised scale of pay from a date subsequent to 1.1.1996
In terms of the provisions contained in Rule 9 of the Central Civil
Services (Revised Pay) Rules, 1997, where a Government servant continues
to draw his pay in the existing scale of pay and is brought over to the
revised scale from a date later than the IS day of January 1996, his pay from
the later date in the Revised Scale is to be fixed under the Fundamental
Rules and not under Rule 7 of the Central Civil Services (Revised Pay) Rules
1997. In fixation of these provisions it has been decided vide this Ministry's
O.M. No. 16 (1)/1C/98 dated 26 March, 1998, that the benefit of fixation of
pay under Rule 7 of the Central Civil Services (Revised Pay) Rules, 1997
may be allowed to Government servants who elect to come over to the
revised scales from the date of their increment falling after 1.1.1996 but not
later than 31.12.1996 in respect of posts held by them on 1.1.1996.
2. On further consideration and in exercise of the power available
under Rule 13 of the Central Civil Services (Revised Pay) Rules, 1997, the
President is pleased to decide that the pay of Government Servants who opt
to switch over to the revised scale of pay from the date of their next
increment falling after 1.1.1996 not later than 31.12.1997 in respect of the
post held by them on 1.1.1996 shall be fixed in accordance with the
provisions of Rule 7 of the Central Civil Services (Revised Pay) Rules, 1997.
3. The option in the format appended as the Second Schedule to the
Central Civil Services (Revised Pay) Rules, 1997 may be exercised within 6
months from the date of issue of this Office Memorandum, The option once
exercised shall be final. The option now provided under these orders can be
exercised afresh even by those Government servants who have already
exercised their option prior to the issue of these orders to switch over to the
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
revised scales from the date of increment falling on or after 1.1.1997 but not
later than 31.12.1997, However, the pay of Government Servants who opt to
switch over to the revised scales.
c) from date of increment falling subsequent to 31.12.1997 or
d) from any date after 1.1.1997, for reasons other than their date of
increment falling during 1997.
Shall be fixed under Rule 9 of the Central Civil Services (Revised Pay)
Rules, 1997.
Ministry of Home affairs etc. are requested to bring the contents of
these orders to the notice of all concerned expeditiously within time so that
the need for extending the date of exercising an option under these orders
may not arise.
In so far as persons serving in the Indian Audit & Accounts
Department are concerned, these issue after consultation with the
Comptroller & General of India.
Hindi version is enclosed.
Sd/-
(B. Kumar)
Deputy Secretary to the Govt. of India"
7. The Petitioner pursuant to the aforesaid office memorandum in the
month of August, 1999 changed his option of fixation of pay from
01.01.1996 to 10.03.1996 and as per the changed option, the pay fixation
authority has carried out a re-pay fixation of the Petitioner by fixing the pay
of the Petitioner at Rs. 6900 as on 10.03.1996 by an order dated 20.11.1999.
The pay fixation of the Petitioner was duly approved by the Pay Fixation
Officer.
8. The Petitioner started drawing the salary as per re-fixation order from
November 1999, however, the arrears of pay were not paid to the Petitioner
and the Petitioner submitted a representation on 16.08.2000, 21.09.2000,
11.10.2000 and 20.02.2001.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
9. The facts of the case further reveal that no arrears were paid to the
Petitioner and an order was issued on 17.05.2001 reducing the pay of the
Petitioner from Rs.6900 to Rs.6500 as on 10.03.1996 as well as directing
recovery against the Petitioner and the Petitioner protested in the matter
immediately by submitting a representation dated 19.09.2001. The
Petitioner also approached the Tribunal by filing an Original Application i.e.
O.A. No. 3137/2001. The Tribunal disposed of the said O.A. by an order
dated 21.11.2001 directing the Director of Education to treat the petitioner's
Original Application as his representation and to pass a reasoned order after
hearing the Petitioner. The Order was passed by the Directorate of
Education rejecting the claim of the Petitioner on 20.12.2001 and the
Petitioner preferred a second Original Application i.e. O.A. No. 1233/2002.
10. The Second Original Application preferred by the Petitioner was
disposed of by an order dated 23.09.2003 and the Respondents therein were
directed to issue a show cause notice and after receiving a reply to pass a
final order in the matter.
11. The Petitioner was served with a show cause notice as directed by the
Tribunal and, thereafter a corrigendum to the show cause notice was also
issued on 07.11.2003 and the Petitioner did submit a reply in the matter and
finally an order was passed upholding the pay fixation of the Petitioner at
Rs.6500/- w.e.f. 10.03.1996. The order dated 15.01.2004 is reproduced as
under:
GOVT. OF N.C.T OF DELHI
DIRECTORATE OF EDUCATION DISTT. NORTH
LUCKNOW ROAD, DELHI.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
No. F.DDE(N)/ 2003-4
Dated 15.1.04
ORDER
Whereas a showcase notice dated 16.10.2003 was served upon Sh.
T.P.S.Mann with the direction to submit his reply with regard to his pay
fixation and Sh. Maan has furnished his reply on 20.10.2003 wherein he has
referred the judgment of Hon'ble CAT, O.M. dated 263.98 and O.M. dated
30.7.99. Besides this Sh.Maan has also referred to certain typographical
errors in the Show Cause Notice dated 16.10.2003 which have been rectified
by an order dated 7.11.2003 and has been accepted by said Sh.Mann as he
has not made any representation to the amendment made.
Whereas the Hon'ble Court has decided O.A. No. 1233 of 2002
holding that
"(a) the impugned orders are quashed
(b) Before passing any such order, a show cause notice should be
served to the applicant; and (c) after the reply which must be filed within 15
days of the receipt of the same, the respondents may pass a speaking order
which should be communicated to the applicant". And
Whereas Sh. Maan has taken a plea that as per the judgment/order of
Hon"ble CAT the part (a) should be implemented first whereby he contends
that his earlier pay should be restored and he should be paid arrears arising
out of such restoration and then issue show cause notice later i.e. (b) of the
judgment. It is made clear that the order of CAT does not mean to
understand that the pay of Sh. Maan was erroneously fixed and it should be
restored and he be paid arrears by the orders of CAT clearly indicates that
as no show cause notice was served to Sh. Maan, which was necessary while
civil rights were affected and, therefore, the Hon'ble CAT has quashed the
order on technical ground i.e. violation of principle of Natural Justice. The
order of CAT does not speak on the merits of the case and directed to issue
show cause notice and thus the part (b) was to be implemented first which
has been done in the instant case and, therefore, the plea taken by Sh. Maan
is not tenable in the light of the judgment of Hon'ble CAT and,
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
Whereas Sh. T.P.S.Mann while working as TGT in Govt. Boys Senior
Secondary School, NO.1, Shakti Nagar, Delhi as on 1.1.96 in the pay scale
of Rs. 1400-2600 and drawing salary at the state of Rs. 1900/- was accorded
the revised pay scale of Rs. 5500-175-9000 and his pay was fixed at the
stage of Rs. 6025/- in the revised pay scale w.e.f. 1.1.96 in the light of rule 7
of CCS (Revised Pay) Rules 1997 as per option exercised by. Sh. Mann
under Rule 6 of the said Rules.
And Whereas, Sh. Mann while working in the senior scale of TGT i.er.
1640-2900 and drawing pay @ Rs. 2000/- on 10.3.96 was fixed @ 6500/- in
the revised scale of Rs. 6500-200-10500 w.e.f. 10.3.96 with date of next
increment on 1.3.97, as per provisions of FR 22 (1) (A) (2)
And whereas subsequent to above fixation of pay Sh.Mann changed
his option stating that his pay should be fixed in the revised scale of Rs.
6500-200-10500 directly in the senior scale w.e.f.10.3.96 and relying on the
option of Sh. Mann, the office refixed his pay in the revised scale of senior
scale w.e.f. 10.3.96 @ 6900/- with DNI1.3.97 and
Whereas Sh.Mann in his reply to the showcause notice dated
16.10.2003 has referred to para 3 (b) of O.M. dated 26.3.98 wherein it has
been mentioned "From any date after 1.1.96 for the reasons other than their
date of increment falling during 1996 shall be fixed under rule 9 of the
Central Civil Services (Revised Pay) Rules 1997. Sh.Mann has also stated
that the same language has been mentioned in the O.M. dated 30.7.1999 and
Whereas the Rule 7 clearly speaks that the pay of such officers shall
be fixed under rule 9 of CCS (R.P) Rules 1997 which postulates as under.
Where Government servant continues to draw his pay in the existing
scale and is brought over to revised scale from a date later than the 1 st day
of January 1996 his pay from the later date in the revised scale shall be
fixed under FUNDAMENTAL RULES" and therefore it is made clear that
under the normal fundamental rules the benefit of hunching is not allowed
which is admissible only in the case of the fixation of pay under Rule 7 of
CCS 51 (RP) Rules 1997 and therefore as per Fundamental Rules the pay
of Sh. Mann was liable to be fixed @ 6500/- w.e.f. 10.3.96 and has been
fixed rightly and
Whereas the case of Sh.Maan has been examined in the light of the
provisions of relevant rules and in the light of the instructions/provisions of
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
various O.M. and the undersigned is of the opinion that Sh.Maan has no
valid reasons to get his pay fixed @ 6900/- w.e.f. 10.3.96 being contrary to
the existing instruction.
And now therefore it is apparent that the contention of Sh. Mann
made in his various representations regarding fixation of pay in the senior
scale @, 6900/-w.e.f. 10.3.96 is not tenable and the undersigned is of the
considered view that the pay fixed from 1.1.96 @ 6025/- and subsequently
from 10.3.96 @ 6500/- is absolutely correct in the light of the aforesaid
provisions and it is also well settled law that the wrong cannot be allowed to
perpetuate and should be discontinued as soon as it is noticed.
This is issued in pursuance of direction of Hon'ble CAT in OA No.1233 of
2003 dated 23.09.2003
Sd/-
(Dr. R.K. Sharma)
Dy. Director of Education
Distt. North.
Sh. T.P.S. Mann
Through Head of the School"
12. The Petitioner preferred a third Original Application before the CAT
and the CAT has dismissed the third O.A. i.e. O.A. No. 704/2004 after
hearing the parties at length. The operative portion of the order passed by
the Tribunal as contained in paragraphs 5 to 9 reads as under:
"5. The main point raised by the applicant was that his pay
was fixed earlier at Rs. 6025/- in the pay scale of Rs.5500-
9000/-. At that time there was a provision that when any
employee opts a date later than 1.1.96, his pay was required to
be fixed as per Rule 9 of the CCS(Revised Pay) Rules, 1997. As
per that rule, no benefit of bunching was admissible at that
time. Bunching means that fixation of pay shall ensure that
every employee gets atleast one increment in the revised pay
scale for every three earned increments in the existing scale of
pay. Later on, two O.M.s dated 26.3.1998 and 30.7.1999 were
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
issued by Govt. Para 2 of the CM dated 30.7.1999 reads as
under:
"On further consideration and in exercise of the power
available under Rule 13 of the Central Civil Services (Revised
Pay) Rules, 1997, the President is pleased to decide that the
pay of Government servants who opt to switch over to the
revised scale of pay from the date of their increment falling on
or after 1.196 but not later than 31.12.97 in respect of the post
held by them on 1.1.96, shall also be fixed in accordance with
the provisions of Rule 7of the Central Civil Services (Revised
Pay) Rules, 1997"
6. The applicant changed his option for the purpose of pay
fixation from 1.1.96 to 10.3.96. He was drawing a basic pay of
Rs.200/- on 10.3.96 in the pay scale of Rs.1640-2900/-. His pay
was rightly fixed at Rs.6900/- as per ready reckoner at page 21
filed with the rejoinder, giving him the benefit of bunching as
per Rule 7 of the CCS(Revised Pay) Rules, 1997, as provided
for in the OM dated 30.7.99. His pay could not, therefore, be
reduced to Rs.6500/- by the respondents.
7. On the other hand, the respondents have taken the stand
that if a Govt. servant continues to draw his pay in the existing
scale and is brought over to the revised scale from a date later
than the 1.196, his pay from the later date in the revised scale is
required to be fixed under FRs and under FRs, the benefit of
bunching is not allowed which is available only in the case of
fixation of pay under Rule 7 of the CCS(Revised Pay Rules,
1997. His pay has, therefore, been rightly fixed at Rs.6500/-
w.e.f. 10.3.96.
8. It is observed that the provision in both the O.Ms provide
that if an employee opts to switch over to the revised scale of
pay from the date of his increment falling on or after 1.1.1996
but not later than 31.12.1997, in respect of post held by him on
1.1.1996, his pay shall be fixed in accordance with the
provisions of Rule 7 of the CCS(Revised) Pay Rules, 1997. The
case of the applicant falls within the purview of this provision
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
in the Rule. On 1.1.1996, he was a TGT in the pay scale of
Rs.1400-2600 and was drawing a basic pay of Rs.1900/- in that
scale. After introduction of the revised pay scale of Rs.5500-
9000 w.e.f. 1.1.1996, as a result of implementation of the 5 th
Central Pay Commission recommendations, the corresponding
pay in the revised scale works out to Rs.5762/- but after giving
him the benefit of bunching of 3 increments, his pay was fixed
at Rs.6025/- p.m. Later he opted for fixation of pay from the
date of his next increment as on 10.3.1996. It may be stated
that according to the provision made in para 2 of the O.M.
dated 30.7.199 reproduced in para 5 above, the revision in the
pay scale from the date of increment falling after 1.1.1996, is to
be made in respect of the post held by the applicant on
1.1.1996. In other words, he cannot take the benefit of the post
and the scale of the post held by him later than 1.1.1996. On
1.1.1996, he was holding the post of TGT in the scale of
Rs.1400-2600 and not the senior scale of Rs.1640-2900 which
scale was granted to him only on 10.3.1996. Accordingly, he
was entitled to an increment in the same of Rs.1400-2600 and
his pay stood at Rs.1950/- on 10.3.1996 in the pre-revised scale
of Rs.1400-2600 (Revised Rs.5500-9000). The corresponding
pay in revised scale works out to Rs.5911/- p.m. according to
the Model Table 23 for fixation of pay. However, his pay was
notionally fixed at Rs.6200/- after giving him the benefit of
bunching of four increments. On this date, he was also granted
the senior scale of Rs. 6500-10,500. Now his pay was required
to be fixed in the senior scale. After giving him the benefit of
one increment of Rs.175/- on Rs.6200/-under FR 22(1) (a) (1),
his pay works out to Rs.6375/-. Since there is no stage of
Rs.6375/- in the pay scale of Rs.6500-10,500/-, he was granted
the minimum of the pay scale and his pay was rightly fixed at
Rs.6500/- on 10.3.96. It would thus be seen that the applicant
was required to be given the benefit of bunching and additional
increment in the scale of pay held by him on 1.1.1996 and not
in the scale held by him on a subsequent date. However, the
Department had earlier inadvertently fixed his pay at Rs.6900/-
by giving him the benefit in the senior scale of Rs.6500-10,500,
which was not in accordance with the instructions contained in
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
the two O.Ms referred to above. When this mistake came to
their notice, they rectified the same and refixed his pay at Rs.
6500/- instead of Rs.6900/- The final decision in this regard has
now been taken by the respondents after giving due opportunity
to the applicant by issuing a show cause notice and the position
has been explained in detail in the order dated 15.1.2004
(Annexure-A). In our opinion, his pay has rightly been fixed at
Rs.6500/- w.e.f10.3.1996, in terms of the relevant rules and
instructions on the subject.
9. As a result of the above discussions, we do not find any
merit in the OA and the same is dismissed, without any order as
to costs."
13. Learned Counsel while arguing the matter before this Court has raised
various grounds and it has been vehemently argued that the Department as
well as the Tribunal have erred in law and on facts by holding that the
Department had originally fixed the pay of the Petitioner at Rs.6900/- by
granting him the benefit in the senior pay scale of Rs.6500/-10500
inadvertently and the Tribunal has also erred in law and on facts in
upholding the pay fixation at Rs.6500/- w.e.f. 10.03.1996.
14. Learned Counsel has further argued before this Court that the
Tribunal has committed an error in law and on facts and it was the
applicant's case that his pay was fixed earlier at Rs.6025 in the pay scale of
Rs.5500-9000/- and at that point of time there was a provision that when any
employee opts a date later than 01.01.1996, his pay was required to be fixed
as per Rule 9 of the CCS Revised Pay Rules, 1997. As per that rule, no
benefit of bunching was admissible. (Bunching means that fixation of pay
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
shall ensure that every employee gets at least one increment in the revised
pay scale for every 3 earned increments in the existing scale of pay).
15. The Petitioner has argued before this Court that the Office
Memorandum dated 26.03.1998 and 30.07.1999 were issued by the
Government of India and paragraph 2 of the Office Memorandum dated
30.07.1999 provides for pay fixation keeping in view Rule 7 of the Central
Civil Services Revised Pay Rules, 1997. Therefore, after he has changed the
option revising the cut-off date for grant of higher pay scale from 1.1.1996
to 10.03.1996, his pay was rightly fixed at Rs.6900/- and by no stretch of
imagination it could have been reduced to Rs.6500/-
16. The Petitioner has also raised a ground stating that the grant of senior
scale of pay to the Petitioner on 10.03.1996 on completion of 12 years of
service should have been treated as a grant of increment and as the said
grant falls between 01.01.1996 and 31.12.1997, he is entitled to opt for
switching over to the revised scale w.e.f. 10.03.1996.
17. The Petitioner's contention is that by treating his option from
10.03.1996, he should have been fixed in the revised pay scale under Rule 7
of the CCS (Revised Pay) Rules 1997 by giving him the benefit of bunching
and the Tribunal has erred in law and on facts in not granting him the benefit
as prayed for.
18. Learned Counsel for the Petitioner has also argued before this Court
that the Tribunal has committed an error in law and on facts by taking into
account the Petitioner's pay in the revised pay scale as Rs.1950/- (Basic pay)
in the pre-revised scale of Rs.1400-2600 as on 10.03.1996 and, in fact, the
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
Petitioner's basic pay as on 10.03.1996 in the pre-revised pay scale is
Rs.2000 in the pay scale of Rs.1640-2900.
19. The Petitioner's sole grievance is that he has not been given the
benefit of the Office memorandum dated 30.07.1999 in the matter of pay
fixation and the findings arrived at by the Tribunal are erroneous in nature.
20. It is the case of the Petitioner that the department, instead of giving
him his arrears, reduced his pay. The Petitioner has submitted that pursuant
to Order dated 21.11.2001 of the Ld. CAT, the Director of Education called
the Petitioner to his office on 12.12.2001 and on that date, the Petitioner was
given only two minutes to put forward his case, pursuant to which Order No.
FS/ DE/ 2001/ 8262-63 was passed wherein the Order No. SNI/ 2001 dated
17.05.2001 was further confirmed and it was erroneously held that no
arrears are payable to him. Further, there were many other similar cases like
the case of the petitioner, but only his pay has been decreased. The
Petitioner has submitted that the Ld. Tribunal committed an error in
applying a reasoning which was not put forward by any of the parties in
their contentions before the Ld. CAT. It is the case of the Petitioner that the
post held by the Petitioner on 01.01.1996 and also on 10.03.1996 was the
same, the only difference was that he was granted a senior scale on the same
post, as on 10.03.1996 due to the length of his service. Thus, on this
premise, the entire reasoning of the Impugned Order falls. The fact that he
was given a time bound senior scale on 10.03.1996 due to completion of 12
years of service, cannot be construed to mean that the post he held as on
01.01.1996, changed as on 10.03.1996, it is only an increment which has
been granted to the Petitioner.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
21. The Petitioner has cited paragraph 3 of the O.M. dated 30.07.1999
and submitted that in accordance with the same, it is Rule 7 of the Revised
Pay Scale which shall be applicable to him and not Rule 9. Further, the
Petitioner has stated that in accordance with paragraph 22.43 of the
recommendations of the 5th Central Pay Commission, the senior pay scale
cannot be treated as a promotional scale. The Petitioner submits that the
ACP Scheme which was implemented on 09.08.1999 consists of a
promotional scale scheme, however, the same is not applicable to the instant
case as the Petitioner's case relates to fixation of pay as on 10.03.1996. It
was submitted that the finding of the Ld. Tribunal that the pay of the
Petitioner was fixed as per Fundamental Rule 22 (1)(a)(1) is incorrect and
the same was fixed as per Fundamental Rule 22 (1)(a)(2) as is substantiated
by Order dated 15.01.2004. The Petitioner further submits that it is only
Rule 7 of the Revised Pay Scale which is applicable to his case and not the
Fundamental Rules. Accordingly, in the pre-revised scale, his pay of Rs.
2000 came after 6 increments, thus, as per bunching benefits, two
increments are applicable to him as per the Revised Pay Scale, thus, he is
entitled to Rs. 6900 as his pay and the Tribunal has erroneously held that the
Petitioner would not be entitled to benefit of bunching. The Petitioner
submits that in accordance with Rule 3(3) of Revised Pay Rules, the post of
TGT envisages three scales (i) Entry, (ii) senior and (iii) select. Further, that
the Petitioner fell under the senior scale as on 10.03.1996.
22. Learned counsel for the Petitioner has placed heavy reliance upon a
judgment delivered in the case of R.K. Sabharwal and Others v. State of
Punjab and Others, (1995) 2SCC 745.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
23. We have heard learned counsel for the parties at length and perused
the record.
24. The undisputed facts of the case reveal that the Petitioner is aggrieved
by the order dated 15.01.2004 by which the pay of the Petitioner has been
fixed at Rs.6500 w.e.f. 10.03.1996. The Petitioner while working as TGT in
Govt. Boys Senior Secondary School, Shakti Nagar, Delhi was drawing a
salary at the stage of Rs.1900 as on 01.01.19996 in the pay scale of Rs.1400-
2600.
25. The pay scale of the Petitioner was revised pursuant to the
recommendations of the Sixth Pay Commission keeping in view the CCS
(Revised Pay) Scale Rules, 1997 as per the option exercised by him only
under Rule 6 of the said Rules.
26. The Petitioner while working in the senior scale of TGT i.e. Rs.1640-
2900 and drawing the pay at the stage of Rs.2000 as on 10.03..1996 was
fixed at Rs.6500 in the revised pay scale of Rs.6500-10500 w.e.f.
10.03.1996 with the next date of increment on 01.03.1997 keeping in view
the provisions of Fundamental Rule 22 (1) (A) (2).
27. The Petitioner later on changed his option stating that his pay should
be fixed in the revised pay scale of Rs.6500-10500 directly in the senior pay
scale w.e.f. 10.03.1996 and keeping in view the option submitted by him, his
pay was fixed in the revised scale of senior scale w.e.f 10.03.1996 at the
stage of Rs.6900.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
28. The Petitioner's pay fixation at the stage of Rs.6900 in the pay scale
of Rs.6500-10500 was erroneous keeping in view the Rule 7 and 9 of the
CCS (Revised Pay) Scale Rules, 1997.
29. Rule 7 and 9 of the CCS (Revised Pay) Scale Rules, 1997 reads as
under:
"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 rule 6 to be
governed by the revised scale on and from the 1st day of
January, 1996, 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 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 manner, namely:-
(A) in the case of all employees-
(i) an amount representing 40 per cent of the basic pay in
the existing scale shall be added to the 'existing emoluments'
of the employee;
(ii) after the existing emoluments have been so increased, the
pay shall thereafter be fixed in the revised scale at the stage
next above the amount thus computed.
Provided that -
(a) if the minimum of the revised scale is more than the
amount so arrived at, the pay shall be fixed at the minimum of
the revised scale;
(b) if the amount so arrived at is more than the maximum of the
revised scale, the pay shall be fixed at the maximum of that
scale.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
Provided further that
where in the fixation of pay, the pay of Government servants
drawing pay at more than four consecutive stages in an
existing scale gets bunched, that is to say, gets fixed in the
revised scale at the same stage, the pay in the revised scale of
such of these Government servants who are drawing pay
beyond the first four consecutive stages in the existing scale
shall be stepped up to the stage where such bunching occurs,
as under, by the grant of increment(s) in the revised scale in
the following manner, namely:
(a) for Govt. servants drawing pay from the 5th upto the 8th
stage in the existing scale - by one increment
(b) for Govt. servants drawing pay from the 9th upto the 12th
stage in the existing scale, if there is bunching beyond the 8th
stage - by two increments
(c) for Govt. servants drawing pay from the 13th upto the
16th stage in the existing scale, if there is bunching beyond the
12th stage - by three increments
If by stepping up of the pay as above, the pay of d
Government servant gets fixed at a stage in the revised scale
which is higher than the stage in the revised scale 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.
Provided also that -
The fixation thus made shall ensure that every employee will
get atleast one increment in the revised scale of pay for every
three increments [inclusive of stagnation increment(s), if any]
in the existing scale of pay.
Explanation - For the purpose of this clause "existing
emoluments" shall include,
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
(a) the basic pay in the existing scale:
(b) dearness allowance appropriate to the basic pay
admissible at index average 1510 (1960=100), and
(c) the amounts of first and second instalment of
interim relief admissible on the basic pay in the existing
scale;
(B) in the case of employees who are in receipt of
special pay/allowance in addition to pay in the existing
scale which has been recommended for replacement by a
scale of pay without any special pay/allowance, pay
shall be fixed in the revised scale in accordance with the
provisions of clause (A) above except that in such cases
"existing emoluments" shall include -
(a) the basic pay in the existing scale;
(b) existing amount of special pay/allowance;
(c) admissible dearness allowance at index
average 1510 (1960=100) under the relevant orders; and
.
(d) the amounts of first and second instalments of interim
relief admissible on the basic pay in the existing scale and
special pay under the relevant orders;
(C) in the case of employees who are in receipt of special pay
component with any other nomenclature in addition to pay in
the existing scales, such as personal pay for promoting small
family norms, special pay to Parliament Assistants Central
(Deputation on Tenure) Allowance, etc., and in whose case the
same has been replaced in the revised scale with corresponding
allowance/pay at the same rate or at a different rate, the pay in
the revised scale shall be fixed in accordance with the
provisions of clause (A) above. In such cases the allowance at
the new rate as recommended shall be drawn in addition to pay
in the revised scale of pay;
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
(D) in the case of medical officers who are in receipt of non-
practising allowance, the pay in the revised scale shall be fixed
in accordance with the provisions of clause (A) above except
that in such cases the term "existing emoluments" shall not
include NPA and will comprise only the following.-
(a) the basic pay in the existing scale;
(b) dearness allowance appropriate to the basic pay and
non-practising allowance admissible at index average 1510
(1960=100) under the relevant order; and
(c) the amounts of first and second instalments of interim
relief admissible on the basic pay in the existing scale and non-
practising allowance under the relevant orders,
and in such cases, non-practising allowance at the new rates
shall be drawn in addition to the pay so fixed in the revised
scale.
Note 1 - The Government servants drawing pay upto the stage
of Rs.1030 in the existing scale of Rs.775-12-871-14-955-15-
1030-20-1150 shall be fixed in S-2 scale of pay and those
drawing pay beyond the stage of Rs.1030 shall be fixed in S-3
scale of pay.
Note 2 - Where the increment of a Government servant falls on
1st day of January, 1996, he shall have option to draw the
increment in the existing scale or the revised scale.
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 scale of pay and his pay in the
revised scale of pay will be subject to final order on the
pending disciplinary proceedings.
Note 4 - Where a Government servant is holding a permanent
post and is officiating in a higher post on a regular basis and
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
the scales applicable to these two posts are merged into one
scale, the pay shall be fixed under this sub-rule with reference
to the officiating post only, and the pay so fixed shall be treated
as substantive pay.
The provisions of this Note shall apply, mutatis mutandis, to
Government servants holding in an officiating capacity posts on
different existing scales which have been replaced by a single
revised scale.
Note 5 - Where the existing emoluments as calculated in
accordance with clause (A), clause (B), clause (C) or clause
(D), as the case may be, exceed the revised emoluments in the
case of any Government servant, the difference shall be allowed
as personal pay to be absorbed in future increases in pay.
Note 6 - Where in the fixation of pay under sub-rule (1), pay, of a
Government servant, who, in the existing scale was drawing
immediately before the 1st day of January, 1996 more pay than
another Government servant junior to him in the same cadre, gets
fixed in the revised scale at a stage lower than that of such junior,
his pay shall be stepped upto the same stage in the revised scale as
that of the junior.
Note 7 - Where a Government servant is in receipt of personal
pay on the 1st day of January, 1996, which together with his
existing emoluments as calculated in accordance with clause
(A), clause (B), clause (C) or clause (D), as the case may be,
exceeds the revised emoluments, then, the difference
representing such excess shall be allowed to such Government
servant as personal pay to be absorbed in future increases in
pay.
Note 8 - In the case of employees who are in receipt of
personal pay for passing Hindi Pragya, Hindi Typewriting,
Hindi Shorthand and such other examinations under the "Hindi
Teaching Scheme", or on successfully undergoing training in
cash and accounts matters prior to the 1st day of January, 1996,
while the personal pay shall not be taken into account for
purposes of fixation of initial pay in the revised scales, they
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
would continue to draw personal pay after fixation of their pay
in the revised scale on and from the 1st day of January, 1996 or
subsequently for the period for which they would have drawn it
but for the fixation of their pay in the revised scale. The
quantum of such personal pay would be paid at the appropriate
rate of increment in the revised scale from the date of fixation of
pay for the period for which the employee would have continued
to draw it.
Explanation -For the purpose of this Note, "appropriate rate of
increment in the revised scale" means the amount of
increment admissible at and immediately beyond the stage
at which the pay of the employee is fixed in the revised scale.
Note 9 - In cases, where a senior Government servant promoted
to a higher post before the 1st day of January, 1996 draws less
pay in the revised scale than his junior who is promoted to the
higher post on or after the 1st day of January, 1996, the pay of
the senior Government servant should he stepped up to an
amount equal to the pay as fixed for his junior in that higher
post. The stepping up should be done with effect from the date
of promotion of the junior Government servant subject to the
fulfilment of the following conditions, namely:-
(a) both the junior and the senior Government servants
should belong to the same cadre and the posts in which
they have been promoted should be identical in the same
cadre.
(b) the pre-revised and revised scales of pay of the lower and
higher posts in which they are entitled to draw pay
should be identical.
(c) the senior Government servants at the time of promotion
have been drawing equal or more pay than the junior.
(d) the anomaly should be directly as a result of the
application of the provisions of Fundamental Rule 22 or
any other rule or order regulating pay fixation on such
promotion in the- revised scale. If even in the lower post,
the junior officer was drawing more pay in the pre-
revised scale than the senior by virtue of any advance
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
increments granted to him, provision of this Note need
not be invoked to step up the pay of the senior officer.
The order relating to refixation of the pay of the senior officer
in accordance with the above provisions should be issued under
Fundamental Rule 27 and the senior officer will be entitled to
the next increment on completion of his required qualifying
service with effect from the date of refixation of pay.
x x x x x x x x x x
x
9. Fixation of pay in the revised scale subsequent to
the 1st day of January,1996 - Where a Government
servant continues to draw his pay in the existing scale
and is brought over to revised scale from a date later
than the 1st day of January 1996, his pay from the later
date in the revised scale shall be fixed under the
Fundamental Rules and for this purpose his pay in the
existing scale shall have the same meaning as of existing
emoluments as calculated in accordance with clause(A),
clause(B), clause(C) or clause(D), as the case may be, of sub-
rule(i) of rule 7 except that the basic pay to be taken into
account for calculation of those emoluments will be the basic
pay on the later date aforesaid and where the Government
servant is in receipt of special pay or non-practising allowance,
his pay shall be fixed after deducting from those emoluments an
amount equal to the special pay or non-practising allowance,
as the case may be, at the revised rates appropriate to the
emoluments so calculated."
30. The aforesaid Rules provide that, in case, a Government servant
continues to draw his pay in the existing scale and is brought over to revised
scale from the date later than 1st January, 1996, his pay from the later date in
the revised scale shall be fixed under Fundamental Rules i..e at Rs.6500/-
w.e.f. 10.03.1996.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
31. The erroneous pay fixation i.e. fixing his pay at the stage of Rs.6900
as on 10.03.1996 was contrary to the statutory provisions and in those
circumstances an order was passed fixing his pay at the stage of Rs.6500/-
w.e.f. 10.03.1996 as well as recovery was also ordered against him.
32. In the considered opinion of this Court, the Tribunal was justified in
upholding the pay fixation.
33. The undisputed facts of the case make it very clear that on
01.01.1996, the Petitioner was holding the post of TGT in the scale of
Rs.1400-2600 and was not in the senior scale of Rs.1640-2900. The pay
scale of Rs.1640-2900 was granted only on 10.03.1996 and accordingly he
was entitled to an increment in the scale of Rs.1400-2600 and his pay stood
at Rs.1950/- on 10.03.1996 in the pre-revised scale of Rs.1400-2600 which
was revised to Rs.5500-9000. The corresponding pay in the revised pay
scale comes to Rs. 5911/- per month according to Model Table 23 for
fixation of pay.
34. The pay of the Petitioner was notionally fixed at Rs.6200/- after
giving him the benefit of bunching of 4 increments and he was also granted
the senior scale of pay of Rs.6500-10500.
35. The Petitioner was granted the benefit of 1 increment of Rs. 175/- at
the stage of Rs.6200 keeping in view the Fundamental Rule 22 (1) (A) (2)
making his pay at Rs. 6375.00/-. However, as there was no stage of
Rs.6375/- in the pay scale of Rs.6500-10500, he was granted the minimum
pay scale and his pay was fixed at Rs.6500 as on 10.03.1996.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
36. This Court is of the considered opinion that the Petitioner was entitled
for bunching and additional increment in the pay scale held by him on
01.01.1996 and not in the pay scale held by him on a subsequent date. The
Department initially committed a mistake by fixing his pay at Rs.6900/- in
the pay scale of Rs.6500-10500 which was contrary to the Office
Memorandums dated 26.03.1998 and 30.07.1999 and the moment the
mistake was detected, it was rectified by the Respondents. The Respondents
have also followed the Principles of Natural Justice and fairplay while
passing the impugned order and the Tribunal was justified in upholding the
order in the matter of pay fixation of the Petitioner. However, as the
Petitioner is a class III employee, the question of recovery in the peculiar
facts and circumstances of the case, as it is creating undue hardship is not at
all justified keeping in view the Judgment delivered in the case of State of
Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334].
37. Resultantly, the pay fixation fixing the Petitioner's pay at Rs.6500/-
w.e.f. 10.03.1996 is upheld and the recovery order against the Petitioner is
hereby quashed.
38. Reliance placed by the Petitioner on R.K. Sabharwal (supra) is
misplaced. The aforesaid judgment relates to promotion and reservation and
in the aforesaid case the Hon'ble Supreme Court was dealing with an issue
of computation of percentage of reservation and it was held that the same
has to be done in relation to the number of posts comprising the cadre and
not in relation to the vacancies. The aforesaid judgment relied upon is
certainly not applicable in the facts and circumstances of the present case.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
39. The petition is dismissed. The pay fixation done by the authority is
upheld. However, the recovery is quashed. No order as to costs.
(SATISH CHANDRA SHARMA)
CHIEF JUSTICE
(SUBRAMONIUM PRASAD)
JUDGE
OCTOBER 11, 2022
N.Khanna
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:11.10.2022
15:25:40
