MISHRA AND NAVIN SINHA, JJ.]versusRAJ KUMAR ANAND

1076                SUPREME[2019]
                            COURT   REPORTS
                                  2 S.C.R. 1076             [2019] 2 S.C.R.


 A                          UNION OF INDIA & ORS.
                                         v.
                              RAJ KUMAR ANAND
                          (Civil Appeal No. 3052 of 2019)
 B                               MARCH 14, 2019
                 [ARUN MISHRA AND NAVIN SINHA, JJ.]
             Service law:
              Fixation of pay – Grant of Assured Career Progression-ACP
 C     to the respondent-trained graduate teacher under the ACP Scheme
       placing him in Trained Graduate Teacher pay scale vide order dated
       25.4.2008 w.e.f. 10.8.2006 – Subsequently, on 29.8.2008, 6 th Central
       Pay Commission enforced and Central Civil Service (Revised Pay)
       Rules, 2008 framed and notified to revise the salary from 01.01.2006
       – Revision of pay of respondent in accordance with the Rules of
 D
       2008, fixing pay u/r. 7 – Representation by respondent for fixation
       of pay u/r. 11, however, pay not fixed u/r. 11 – Application before
       the tribunal for correct fixation of pay u/r. 11 – Dismissal of
       application as also review – However, in writ petition, the High
       Court held that pay was wrongly fixed u/r. 7 and was required to be
 E     done u/r. 11 – On appeal, held: ACP was granted to the respondent
       between 01.01.2006 and 29.8.2008 i.e. the date of notification of
       2008 Rules – It was granted w.e.f. 10.8.2006 vide order dated
       25.4.2008 – Thus, the benefit of upgraded pay scale was given to
       the respondent in between the said dates– Once he has elected for
       revised pay scale w.e.f. 10.8.2006, the date on which he was placed
 F
       in the upgraded pay scale, obviously, r. 7 cannot be said to be
       applicable – Rule 11 would be applicable which deals with fixation
       of the pay in the revised pay scale in case such an option is exercised
       under the 2008 Rules – Thus, the High Court correct in applying r.
       11 as Note 2A of the r. 7 not applicable - Central Civil Service
 G     (Revised Pay) Rules, 2008: rr. 5, 7, and 11.
             Union of India & Ors. v. K.V. Rama Raju & Ors.
             2018 (2) SCALE 239 – distinguished.
                              Case Law Reference

 H     2018 (2) SCALE 239              distinguished            Para 7
                                       1076
      UNION OF INDIA & ORS. v. RAJ KUMAR ANAND                             1077


      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3052                 A
of 2019.
      From the Judgment and Order dated 20.09.2017 of the High Court
of Delhi at New Delhi in W.P. (C) No. 8119 of 2015.
                                WITH
                                                                           B
      Civil Appeal Nos.3053-3054 of 2019.
      Vikramjit Banerjee, ASG, Venkatesh, Atulesh Kumar, Kuldeep
Chauhan, Ms. Nishtha Kumar, Samarth Kashyap, Ms. Anindita Barman,
B. V. Balaram Das, Kumar Rajesh Singh, Ms. Punam Singh, Praveen
Swarup, Advs. for the Appellants.                                          C
      For Respondent: Caveator-in-person.
      The following Order of the Court was passed
                             ORDER
      1. Delay condoned.                                                   D
      2. Leave granted.
      3. The facts lie in a narrow compass. The respondent was
appointed as an Assistant Teacher (Primary School Teacher) in East
Delhi Municipal Corporation now EDMC, Education department,
Shahdara (North) on 10.08.1994. On 04.01.2007, he was promoted as          E
Trained Graduate Teacher (TGT) (Social Science) in Government of
NCT of Delhi, Directorate of Education and was posted as such on
17.3.2007. The respondent was granted ACP under the Assured Career
Progression Scheme placing him in Trained Graduate Teacher pay scale
vide order dated 25.4.2008 w.e.f. 10.8.2006.                               F
       4. Later, on 29.8.2008, 6th Central Pay Commission (in short
‘CPC’) was enforced and the rules i.e., Central Civil Service (Revised
Pay) Rules, 2008 were framed and notified to revise the salary from
01.01.2006. On 18.11.2009 pay of respondent was revised in accordance
with the Rules of 2008. A clarification was issued by the Ministry of      G
Finance, Department of Expenditure, Implementation Cell in respect of
the manner of pay fixation in the revised pay structure on 29.01.2009. A
clarification was issued on 27.1.2009. Another clarification was issued
by Government of India Ministry of Personnel, PG and Pension,
Department of Personnel & Training on 22.12.2010, with respect to the
manner of fixation of pay. As pay of the respondent was fixed under        H
1078                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


 A     Rule 7 and not under Rule 11 of the Rules 2008, he filed a representation
       for fixation of pay in terms of proviso to Rule 5 of the Rules, 2008.
              5. As pay was not correctly fixed, the respondent filed an original
       application before Central Administrative Tribunal for correct fixation of
       the pay under Rule 11 of the Rules, 2008. The Tribunal vide order dated
 B     17.05.2012 in O.A. No.2475/2011 directed the concerned authorities to
       pass a speaking order deciding on respondent’s representation. Thereafter
       the respondent filed a comprehensive representation to the Director,
       Directorate of Education and also submitted a copy of the same to the
       Deputy Education Officer, MCD. The same was rejected on 24.7.2012.
       The Assistant Director also passed an order dated 7.8.2012 declining
 C     the prayer made by the respondent. Again, the respondent filed the
       original application before the Central Administrative Tribunal. The original
       application and review both were dismissed.
               6. Aggrieved thereby, a Writ Petition was filed by the respondent
       before the High Court. The Division Bench of the High Court allowed
 D     it and opined that it was Rule 11 which was attracted and not the provisions
       of Rule 7 in view of the fact that the Respondent was granted the
       upgraded pay scale of ACP w.e.f. 10.8.2006 and he has opted for revision
       of pay from that date. Thus, fixation was wrongly done under Rule 7. It
       was required to be done as per provisions contained under Rule 11 of
 E     Rules, 2008.
              7. Mr. Vikramjit Banerjee, learned ASG on behalf of Union of
       India urged that Rule 7 is clearly attracted. Note 2A of Rule 7 clearly
       provides the mode of fixation of salary in such an exigency. Thus, the
       fixation has been rightly done. The Tribunal was right in dismissing the
 F     original application and the Division Bench of the High Court has erred
       in law in applying Rule 11 of the Rules 2008. He has placed reliance on
       the decision rendered by this Court in Union of India & Ors. v. K.V.
       Rama Raju & Ors.-2018 (2) SCALE 239.
              8. The respondent who has appeared in person has supported the
 G     decision of the High Court and has contended that once he has opted for
       revision of pay under the Rules of 2008 w.e.f. 10.8.2006, the date on
       which upgraded pay scale was made available under ACP scheme before
       Rules of 2008 were notified, the pay fixation was required to be done
       under Rule 11 of Rules of 2008 and no case for interference is made out
       with the decision rendered by the Division Bench of the High Court.
 H
      UNION OF INDIA & ORS. v. RAJ KUMAR ANAND                                  1079


      9. Rule 5, Rule 7 and Rule 11 of the Rules 2008 are required to be        A
considered. Rule 5, 7 and 11 are extracted hereunder:
      Rule 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.                                                    B
      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             C
      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.                                                          D
      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,       E
      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   F
      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
                                                                                G
      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.
      Rule 7. Fixation of initial pay in the revised pay structure:
                                                                                H
1080          SUPREME COURT REPORTS                      [2019] 2 S.C.R.


 A     (1) The initial pay of a government servant who elects, or is deemed
       to have elected under sub-rule (s) 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 a lien or would have held a lien
 B
       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
 C     multiplying the existing basic pay as on 1.1.2006 by a factor of
       1.86 and rounding off the resultant figure to be 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
 D     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
 E     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
 F     bunching.
       In the case of pay scales in higher administrative grade (HAG) in
       the pay band, PB-4 benefits 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
 G     for every two stages in the pre-revised scale will be granted in
       the revised pay scale. In 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
 H
       UNION OF INDIA & ORS. v. RAJ KUMAR ANAND                                1081


      in the same existing scale is fixed, the pay of the latter shall also    A
      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.                                      B
      ……………
      Note 2A- Where a post has been upgraded as a result of the
      recommendations of the Sixth CPC as indicated in part B or Part
      C of the First Schedule to these Rules, the fixation of pay in the
      applicable pay band will be done in the manner prescribed in             C
      accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying
      the existing basic pay as on 1.1.2006 by a factor of 1.86 and
      rounding the resultant figure to the next multiple of ten. The grade
      pay corresponding to the upgraded scale as indicated in Column 6
      of Part B or C will be payable in addition. Illustration 4A in this      D
      regard is in the Explanatory Memorandum to these rules.
      Rule 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       E
      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               F
      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…....”
                                                    (emphasis supplied)
                                                                               G
       10. It is apparent from the first proviso to Rule 5 of Rules of 2008,
that option was given to the government servant to continue to draw the
pay scale until the date on which his next or any subsequent increment
in the existing scale or until he vacates his post or ceases to draw pay in
that pay scale.
                                                                               H
1082                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


 A           11. Second proviso to Rule 5 which is attracted also made it clear
       that where the 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.
 B
             12. It is not in dispute that the ACP was granted to the respondent
       between 01.01.2006 and 29.8.2008 i.e. the date of notification of Rules
       2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus,
       the benefit of upgraded pay scale was given to the respondent in between
       the aforesaid dates.
 C
             13. Once he has elected for revised pay scale w.e.f. 10.8.2006,
       the date on which he was placed in the upgraded pay scale, obviously,
       Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable.
              14. Rule 7 deals with the fixation of initial pay in the revised pay
 D     structure as per the 6th Central Pay Commission. Note 2A to Rule 7
       relied upon by the appellants makes it vivid that where a pay scale has
       been upgraded on the recommendation of Central Pay Commission as
       indicated in para B and C of the first Schedule of the Rules of 2008, the
       fixation has to be made under Rule 7. However, it was not the case of
       upgradation of the post as a result of the recommendation of the 6th Pay
 E     Commission and Schedule of Rules of 2008, but it was under ACP scheme
       which is a different scheme than the one as provided in the first schedule
       to the Rules 2008. The respondent has opted for revision of pay scale
       from the date of upgradation in the ACP scale w.e.f. 10.08.2006.
       Obviously, his pay has to be fixed under Rule 11 which deals with fixation
 F     of the pay in the revised pay scale in case such an option is exercised
       under the Rules of 2008. The Division Bench of the High Court was
       absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not
       applicable in the case.
              15. Coming to the decision rendered by this Court in K.V. Rama
 G     Raju & Ors. (supra), it does not appear from the facts that it was a
       case of exercising option from the date of upgradation under ACP that
       came for consideration before this Court. It is not clear whether it was
       a case of upgradation as a result of the recommendation of the 6th Pay
       Commission or independent thereto. In both the cases consequences
       are different. In the earlier exigency Rule 7 is attracted and in the later
 H
        UNION OF INDIA & ORS. v. RAJ KUMAR ANAND                               1083


one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the       A
decision cannot be an authority on the aforesaid issue which has not
been decided. Apart from that, it was not the case of appellants that
upgraded pay scale has been brought about by 6th Pay Commission as
per provisions contained in Schedule of the Rules 2008 as provided in
Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju & Ors. (supra)
                                                                               B
is wholly distinguishable and cannot be applied to such cases where
upgradation has been made otherwise than as per Schedule to Rules of
2008 framed as per recommendations of 6th Pay Commission and option
is exercised in the aforesaid manner.
       16. Resultantly, we have no hesitation to hold that the appeal is
bereft of merit. Pay fixation has to be done under Rule 11 and not Rule        C
7 as discussed. Let pay revision be worked out and arrears, if any, be
paid within a period of 3 months from today.
        17. The appeals deserve to be dismissed and are hereby dismissed.
        18. Parties to bear their own costs.                                   D
Nidhi Jain                                                Appeals dismissed.




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