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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: ASHOKE KUMAR BANERJEE

DATE OF JUDGMENT:       13/05/1998

BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. JAGANNADHA RAO,J.      This appeal  is preferred by the Union of India and the C.P.W.D. against  the order  of the  Central  Administrative Tribunal, Calcutta  dated 3.13.1993 passed in O.A. No. 241 f 1993.  By that order, the Tribunal directed that the "pay of the petitioner  in the  promotional post  should be fixed in terms of  F.R. 22(1)(a)(i) with effect from 1.8.1991 and all consequential benefits  including arrears  should be paid to him  within   a  period   of  3  months  from  the  date  of communication of this order".      The facts  relevant to  the case  are as  follows:  The respondent was working in the C.P.W.D. as Junior Engineer in the senior  scale Rs.  1640 -  2900 and  as he had put in 15 years  service  as  Junior  Engineer,  he  was  granted  the Assistant Engineer’s  scale of  Rs. 2000 - 3500 (in terms of Government  of  India,  Ministry  of  Urban  Development  (I Division) No.  12014\2\87 IW  II dated 22.3.1991). By giving him the necessary increment, his pay was fixed at Rs. 2600\- as on  1.2.1991 by  applying FR  22(1)(a)(i) as permitted in the said order. This was after the respondent opted for this scale. The  date of his next increment which fell n 1.2.1991 was taken  into account  while granting  him  the  increment mentioned in  the FR.  Later he  was promoted,  pursuant  to certain orders  of the  CAT in  an earlier  OA, as Assistant Engineer. He,  then filed  the present  OA claiming  that FR 22(1)(a)(i) is  to be applied to his case once again and his pay should  be refixed in the scale of 2000 - 3500 by giving him fresh benefit of the increment permitted by the said FR. The CAT  opined that  as this  was his actual promotion from the post of Junior Engineer to Assistant Engineer, and as he was    necessarily    discharging    higher    duties    and responsibilities, he  was entitled to a fresh application of the said FR 22(1)(a)(i).      The appellants contend that this would amount to giving the benefit  of FR  twice over  and this is not permissible. The respondent has been served and notices have been sent to him that  his case  will be  heard on a specific date but he has  not  chosen  to  be  present  and  we  are,  therefore, proceeding to  decide the  case on  merits, setting  him  ex

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parte.      The point  for consideration  is whether the respondent who was  drawing Rs.  1640 - 2900 as Junior Engineer and who on completion  of 15  years service  as Junior  Engineer was given benefit  of FR  22(1)(a)(i) in  the  Asst.  Engineers’ scale of  Rs.  2000  -  3500  per  OM(A)  -  11014\91  dated 22.3.1991 with  effect from  1.1.1991 is  again entitled  on regular promotion  as Asstt.  Engineer on   1.8.1991  to the benefit of the same FR 22(1)(a)(i)?      Under the  OM (A)  - 11014\91  dated  22.3.1991  it  is stated that in the C.P.W.D. the Junior Engineers Association and  Sectional   Officers  (Horticulture)  Association  made certain demands  and an  agreement was  signed on  20.3.1991 between the Government and the Association. As per the first part f  said agreement  there would  be 2  scales  of  JE/SO (Hort) in  CPWD, one  in the  scale of  Rs. 1400  - 2300 and another in the scale of Rs. 1640 - 2900. Those who completed 5 years  service in  the entry grade Rs. 1400 - 2300 will be placed in the grade of Rs. 1640 - 2900, subject to rejection of those  found unfit. This higher grade will not be treated as a  promotional one  but will  be non-functional  and  the benefit f  FR 22(1)(a)(i)  will  not  be  admissible,  while fixing the  pay in  the higher  grade, as  there will  be no change in  duties and responsibilities. We are not concerned here with  the above  portion  of  the  agreement.  We  are, however, concerned  with the  second  part  which  reads  as follows:      "(ii)  Junior   Engineers\Sectional      Officers (Horticulture),  who could      not be  promoted  to  the  post  of      Assistant       Engineers\Assistant      Directors  (Horticulture)   in  the      scale of  Rs. 2000-3500, due to non      availability of  vacancies  in  the      grade         of          Assistant      Engineer\Assistant        Directors      (Horticulture) will  be allowed the      scale         of          Assistant      Engineer\Assistant         Director      (horticulture) i.e.  Rs.  200--0  -      3500, on  a personal  basis,  after      completion of  15  years  of  total      service (Horticulture),  till their      normal  turn   for  the  functional      promotion   comes    as   Assistant      Engineer\Assistant         Director      (Horticulture).    This    personal      promotion will  be given on fitness      basis." It will  be noticed that as per this part of the O.M., those Junior Engineers  who   have completed  15 years  of service would get the scale of Rs. 200 - 3500 (which is the scale of the  promotional  post  i.e.  Assistant  Engineers\Assistant Directors (Horticulture).  This benefit  is given  to  avoid frustration of  the Junior  Engineers and Sectional Officers (Horticulture) who would otherwise be stagnating for want of vacancies in  the next promotional post. In that light, they are allowed  to draw  the scale  of Rs.  2000 -  3500  on  a personal basis,  provided they  have completed  15 years,  - till their normal turn for the functional promotion comes as Assistant Engineers\Assistant  Director (H).  This  personal promotional will be given on fitness basis.      In the  present case,  while working as Junior Engineer the respondent completed 15 years in the scale of Rs. 1640 - 2900 and he became entitled to be fitted in the scale of Rs.

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2000 -  3500   of Assistant  Engineers and got his pay fixed accordingly at  Rs. 2600  by giving  him the  benefit of the increment as  stated in  FR 22(1)(a)(i)  and as permitted by the second part of the OM. This was because, even though the O.M is  dated 22.3.1991,  it was  agreed that  benefit of FR 22(2)(a)(i) would be given from 1.1.1991.      Thereafter, Respondent  was  actually  or  functionally promoted as  Assistant Engineer  on  1.8.1991  and  he  then wanted benefit  of FR  22(1)(a)(i) to  be given  to him once again  as   he  had   then   assumed   higher   duties   and responsibilities of  a superior  post functionally. Question is whether his claim is justified? FR 22 reads as follows:      F.R. 22(1):  The initial  pay of  a      Government servant who is appointed      to a post on a time-scale of pay is      regulated as follows :      (a) (1)  Where a Government servant      holding a post, other than a tenure      post, in a substantive or temporary      or officiating capacity is promoted      or  appointed   in  a  substantive,      temporary or  officiating capacity,      as the  case may be, subject to the      fulfillment  of   the   eligibility      conditions  as  prescribed  in  the      relevant  Recruitment   Rules,   to      another post  carrying  duties  and      responsibilities     of     greater      importance than  those attaching to      the post  held by  him, his initial      pay in the time-scale of the higher      post shall  be fixed  at the  stage      next above the notional pay arrived      at by increasing his pay in respect      of  the  lower  post  held  by  him      regularly by  an increment  at  the      stage at  which pay has accrued  or      rupees twenty-five  only, whichever      is more.           Save in  cases of  appointment      on deputation  to an ex-cadre post,      or to  a post  on ad hoc basis, the      Government servant  shall have  the      option, to  be exercised within one      month from the date of promotion or      appointment, as the case may be, to      have the  pay fixed under this rule      from the  ate of  such promotion or      appointment  or  to  have  the  pay      fixed initially at the stage of the      time-scale of  the new  post  above      the pay  in the lower grade or post      from  which   he  is   promoted  on      regular basis, which may be refixed      in accordance with this rule on the      date of  accrual of  next increment      in the  scale of  the  pay  of  the      lower grade or post. In cases where      an ad  hoc promotion is followed by      regular appointment  without break,      the option  is admissible  as  from      the      date       of      initial      appointment\promotion,   to   b   e      exercised within one month from the

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    date of such regular appointment.           Provided    that    where    a      Government servant  is, immediately      before his promotion or appointment      on regular  basis to a higher post,      drawing pay  at the  maximum of the      time-scale of  the lower  post, his      initial pay  in the  time-scale  of      the higher  post shall  be fixed at      the  stage   next  above   the  pay      notionally arrived at by increasing      his pay  in respect  of  the  lower      post held  by him  on regular basis      by an  amount  equal  to  the  last      increment in  the time-scale of the      lower post  or rupees  twenty-five,      whichever is more."      In our  view, the  respondent having  received the same benefit in  advance, while  working as  Junior Engineer  and while not  actually functioning as an Assistant Engineer, is not entitled  to the  same benefit  of fresh  fitment in the scale of  Rs. 2000 - 3500 when he is promoted on 1.8.1991 as Assistant Engineer.  This is  because as  on 1.8.1991, he is not being fitted into the "time-scale of the higher post" as stated in  the FR.  That situation was already over when the OM was applied to him on his completion of 15 years. For the applicability  of  the  FR  22(1)(a)(i)  it  is  not  merely sufficient that  the officer  gets a promotion from one post to another  involving higher duties and responsibilities but another condition  must also  be satisfied,  namely, that he must be moving from a lower scale attached to the lower post to a  higher scale attached to a higher post. If, as in this case, the benefit of the higher scale has already been given to him  by virtue  of the  OM there  is  no  possibility  of applying this part of the FR which says.      "his initial  pay in the time scale      of higher  post shall  b e fixed at      the stage  next above  the notional      pay arrived  at by  increasing  his      pay in  respect of  the lower  post      held  by   him  regularly   by   an      increment at  the  stage  at  which      such  pay  has  accrued  or  rupees      twenty -  five only,   whichever is      more".      Further, the  respondent is  a junior  officer  in  the category of  Junior Engineers  and he  has already  got  the benefit of the FR on completion of 15 years. It he is to  be given a  second benefit on the basis of the same FR, then he would be  getting more  than his seniors, who might have got promoted earlier  and might  have  got  benefit  of  the  FR 22(1)(a)(i) only  once. Such  an anomaly  was not  obviously intended by the FR.      For the  aforesaid reasons,  the appeal  is allowed and the order  of the  Tribunal is  set  aside  and  the  OA  is dismissed. In  the circumstances,  there will be no order as to costs.