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PETITIONER: D.D. SURI

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT17/07/1979

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) KRISHNAIYER, V.R.

CITATION:  1979 AIR 1596            1980 SCR  (1)  24  1979 SCC  (3) 553

ACT:      Assignment of  year of  allotment-Indian Administrative Service (Regulation  of Seniority)  Rules 1954,  Rule 3 read with "open Market Emergency Recruitment Scheme ’N’ formula"- Interference by Courts under Article 226 of the Constitution of India.      Fundamental Rules, F.R. 9(21)(b)-Concept of ’pay’-’Pay" for purposes  of determining  the "completed years of actual experience" under  ’N’ formula     does not  include lodging allowances  and  Calcutta  compensatory  allowance-  Whether excluding these  allowances offend  Articles 14  & 16 of the Constitution.      Fundamental Rule  49-Combination of  posts and right to additional pay,  applicability of,  to officers, governed by Indian Administrative Service (Pay) Rules 1954, Rule 13.      "Next Below Rule" principle of-Applicability of benefit under F.R.  30(1) Super-time  scale of Indian Administrative Service.

HEADNOTE:      The appellant  was born  on January  7, 1915. He joined the Editorial  Staff of  the  Civil  and  Military  Gazette, Lahore, towards  the end  of 1938 and continued to serve the Civil and  Military Gazette  upto January  7, 1943,  when he joined the  Army. During the Second World War he was granted an Emergency Commission in the Army w.e.f March 7, 1943 with the rank of Lieutenant w.e.f June 3, 1948 but with seniority in that  rank w.e.f.  September 1944. Later, he, having been selected by  the Special  Recruitment Board  as an Emergency Recruit from  the "open  market" was appointed to the Indian Administrative Service  on August  7, 1950  and allocated to the Orissa Cadre.      As regards  Emergency Recruits from the open market the year of  allotment was  to be  determined according  to  the "open Market  Emergency Recruitment  Scheme" called also ’N’ formula. The year of allotment in each case would be 1949-Y, where Y  = N1  + 1/2  of N2. N2 means the period of previous experience.  The   previous  experience  is  the  number  of completed years  of actual  experience of the officers after attaining the  age of  25 and  upto 31st  December, 1948  as certified by  the Special  Recruitment Board.  N1 means  the period of  continuous employment  on a  pay or income of not

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less than  of Rs. 800/- per month before 31st December, 1944 and the 31st December 1948, inclusive. The larger the figure of "Y", the earlier the date of allotment and seniority.      The period  of previous  experience (N2) in the case of the appellant  worked out  to 8  years  11  months  25  days rounded off to 8 years (i.e. 7-1-40 to 31-12-48). The figure of N1  was worked out taking the "protection pay" admissible to Army  Officers as  per F.R.  9(21)(b) i.e.  excluding the Calcutta 25 compensatory allowance  and lodging allowance. Therefore, by its letter dated June 11, 1952, the Ministry of Home Affairs fixed the  year of allotment of the petitioner to the Indian Administrative Service as 1944. (1949 minus 5).      The appellant  held various  posts in  the Indian Civil Administrative Service  cadre of  Orissa  and  was  also  on deputation to  the Government of India from 1952 to April 7, 1964. During  this period,  he was  appointed  as  the  Salt Commissioner and Managing Director, Hindustan Salt Ltd. with Head quarter  at Jaipur.  He  held  both  these  posts  from September 11,  1953 to  December 23,  1963, and only as Salt Commissioner till  April 7, 1964, whereafter he was reverted to the  State of  Orissa. He was compulsorily retired by the Government on  June 9, 1971. By its order dated September 1, 1977, the  State Government  gave him  pay and allowances in the super-time  scale from  November 29,  1967 to  April 24, 1968 and  thereafter selection  grade from April 15, 1968 to June 9,  1971. Respondent  1 rejected his representation (a) for refixing his year of allotment by condoning the shortage of 6 days in determining N2 and by taking into consideration allowances for  purposes of  N1 (b) for granting the benefit of F.R. 49 and (c) for granting the benefit under F.R. 30.      The appellant,  therefore, filed a writ petition to the High Court claiming three reliefs, namely, (a) Refixation of the year  of allotment as 1942 instead of 1944 in the Indian Administrative Service,  alleging that  by refusing to treat the Calcutta compensatory allowance and lodging allowance as pay under  FR 9(21)(b) and to condone the six days’ shortage in determining  the number  of completed  years of editorial experience under  ’N’ formula,  Respondent 1,  by its  order dated June  11, 1952,  denied  him  seniority,  (b)  pay  as admissible under  FR 49  i.e. full  salary of  one post  and additional salary  upto a maximum of 50% of the second post, for the  period from September 11, 1961 to December 23, 1963 during which he held both the posts of Salt Commissioner and Managing Director,  Hindustan Salt Ltd. and (c) Placement in the super-time  scale w.e.f.  July 24,  1962, i.e.  the date when his  junior Sri  V.V. Ananta  Krishnan was appointed to the super-time scale, under the "Next Below Rule" implied in F.R. 30.      The High  Court refused  to grant  the reliefs,  prayed for, and dismissed the Writ Petition.      Dismissing the appeal by special leave, the Court ^      HELD: 1.  In view  of the  categorical averment  in his application for  grant of  special leave to this Court under Article 136  of the  Constitution that  "he  was  no  longer interested in  the relief  for determination  of the year of allotment, according to the ’N’ formula, since he was on the verge of  retirement" the  appellant cannot  be heard to say that the  Government of  India had  not arrived at a correct decision in assigning 1944 as the year of allotment to him. [33H-34A, 34G]      (2) Normally  the decision  of the  Government of India assigning a  year of allotment to a particular officer under

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Rule 3  of the  Indian Administrative Service (Regulation of Seniority) Rules,  1954, or,  in accordance  with orders and instructions issued by the Central Government in that behalf before the  commencement of these Rules, is final and cannot be interfered  by  the  Courts  under  Article  226  of  the Constitution  unless   such  decision   was  capricious   or arbitrary or in breach of the said Rules. The same principle should apply  to the assignment of a year of allotment under the ’N’ formula. [36F] 26      Even according  to the  appellant, he was not entitled, under the ’N’ formula as it stands, to a credit of more than 8 years.  If that  be so,  the  High  Court  quite  properly declined to  exercise its  extra-ordinary jurisdiction under Article 226  of the  Constitution, inasmuch  as no  writ  or direction could be issued, in a matter which was essentially in the  discretion of the Government, to refix his seniority by giving  credit for 9 years instead of 8 years as provided for,  as   admittedly  the   relevant  instructions  require "completed years of actual experience". [36E]      There is no question of condoning the short fall of six days by  relaxation of  the relevant  Rules under the powers vested in  the Government of India by the All India Services (Conditions of Service Residuary Matters) Rules, 1960, since these Rules  were not in force when the Government of India, Ministry of Home Affairs, by its letter dated July 19, 1951, issued a  statement showing  the years of allotment assigned to officers  borne on  the Indian Civil Administrative cadre of Orissa,  wherein the  year of  allotment assigned  to the petitioner was  1943 1/2,  or even  at  the  time  when  the Ministry of  Home Affairs  by its letter dated June 11, 1952 rejected his  representation in  that behalf, while revising his year  of allotment  to 1944.  Further, the Government of India adopted  a uniform  policy in  this regard  and  short falls of  even less  than 6  days have  not been condoned so that there  could be uniformity of taking note of "completed years of  service" irrespective  of the short fall of number of days  in calculating  the year of allotment in every case under the  ’N’ formula.  The Government  of India  have also held that  the ’Recruitment  Rules’ cannot  be relaxed under Rule 3. [36H-37C, 38D]      Even  assuming   there  was  a  power  to  condone  the deficiency, the  matter rested entirely in the discretion of the Government  of India. When a decision in a policy matter like relaxation  is left  to the  absolute discretion of the Executive, courts  cannot interfere and issue a direction to the Government  of India  to reconsider  the matter  afresh, after a  lapse of  more than  25 years.  It would  not  only disturb  the   combined  gradation   list  of  the  Officers belonging to  the Indian  Administrative Service,  but  also affect the  seniority of  many officers  who have  not  been impleaded in these proceedings. [38G]      (3) The  definition of  ’pay’ in the case of a military officer, introduced by F.R. 9(21)(b) is for ’protection pay’ when such  officer is  recruited in  civil service under the employment of  the Union of India, i.e., for fixation of his pay in  such service,  as is  made clear  by F. Rs. 2 and 3. F.R. 2  provides that  the Fundamental  Rules  shall  apply, subject to  the provisions  of F.R.  3,  to  all  Government servants whose  pay is  debitable to  civil estimates and to any  other   class  of  Government  servants  to  which  the President may,  by general or special order, declare them to be applicable.  F.R. 3 provides, that unless it be otherwise distinctly provided by or under the Rules, "Nothing in these Rules shall apply to Government servants whose conditions of

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service are  governed by  Army or  Marine Regulations". F.R. 9(21)(b) had,  therefore, no  relevance  in  the  matter  of fixing the  seniority of  Emergency Recruits  from the "Open Market" to  the  Indian  Administrative  Service,  like  the petitioner, even when they were drawn from the Army, but was applicable only  in regard to fixation of their initial pay. [39E, D, G]      The ’pay’  for purposes  of  determining  the  year  of allotment under  ’N’ formula of such recruits drawn from the Army was,  as per  the underlying  principles set out in the Ministry of Home Affairs dated July 18, 1949, the 27 "basic  pay"  which  necessarily  exclude  allowances.  This concept of  "basic pay"  for  fixation  of  initial  pay  is reflected in  the Indian Administrative Service (Pay) Rules, 1954, which takes into account only the "initial pay". [40G]      The rule  which requires  credit to  be given  for  the period of  continuous employment  on pay  or income not less than Rs.  800/- p.m.,  would apply uniformly to all recruits drawn from  different  sources,  namely,  persons  who  were previously lawyers,  or employed  in business  houses or  in Government service.  Uniformity in  such a  case can only be attained by  excluding allowances in every case, because the allowances which  persons drawn from those different sources would  be   getting,  would  be  varied  in  character.  The Government of  India, therefore,  acted fully  in consonance with Articles 14 and 16 of the Constitution. [41A-C]      The concept  of ’pay’  under F.R.  9(21)(b)  cannot  be introduced for  purposes of regulating the year of allotment under ’N’  formula, as  it relates  to fixation of seniority and not  of pay. If the definition of ’pay’ in F.R. 9(21)(b) was  to   be  taken  note  of,  then  Calcutta  compensatory allowance and  marriage allowance  would also  be  included. Then, a  rule which  makes seniority dependent upon marriage allowance, and therefore, on whether the officer was married or not  will be violative of Article 14 of the Constitution. The inclusion  of ’pay’  as defined  in F.R. 9(21)(b) in the ’N’ formula  to include lodging allowance is not permissible as it  was essentially  compensatory in character. Any other construction will  lead to  manifest injustice  as it  would result in  discrimination between persons similarly situated i.e.,  between   an  Army  Officer  in  receipt  of  lodging allowance  in   lieu  of   rent-free  quarters  and  one  in occupation of  such rent-free  quarters, in  the  matter  of seniority in the Indian Administrative Service. [41G-H, 42D- E]      (4) The  conditions of service of members of the Indian Administrative Service  are regulated  by the  provisions of All India  Services Act,  1951 and  the  various  Rules  and Regulations framed thereunder, such as Indian Administrative Service (Recruitment)  Rules,  1954,  Indian  Administrative Service (Cadre)  Rules, 1954,  Indian Administrative Service (Pay) Rules, 1954, Indian Administrative Service (Regulation of Seniority)  Rules, 1954,  Indian  Administrative  Service (Appointment  by  Promotion)  Regulation,  1955,  All  India Services (Discipline  and Appeal) Rules, 1955, and 1969, All India Services  (Conditions  of  Service-Residuary  Matters) Rules, 1960  etc. When  there is specified provision made in regard to  them on  a particular  subject  regulating  their conditions of  service in  the said  Act and  the Rules, the question of  applicability of the Fundamental Rules does not arise. [42G-43A]      Even  assuming   that  the   Fundamental   Rules   were applicable on  August 7,  1950 i.e.  at the  time  when  the petitioner  was   appointed  to  the  Indian  Administrative

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Service, these  Fundamental Rules ceased to be applicable on the coming into force of the aforesaid rules and regulations framed under the Act, unless the President by an order under F.R. 2 declared them to be so applicable. [43B]      The provisions of F.R. 49 ceased to apply from the date on which the Indian Administrative Service (Pay) Rules 1954, were brought  into force,  as  it  makes  no  provision  for ’additional pay’.  Even if  they were  F.R.  49,  in  terms, provides that  when a  civil servant  holds two posts, he is disentitled to  draw the  salary of both the posts. All that such a civil servant becomes 28 entitled to  is the  salary  of  the  higher  post,  but  no additional pay  can be  allowed for performing the duties of the lower  post. Thus,  the pay  of one  of the posts can be allowed.      Even assuming  that the  provisions in  the Fundamental Rules would  continue to  apply to  a member  of the  Indian Administrative  Service  in  regard  to  which  no  specific provision is  made by  framing a  rule under  the All  India Services Act,  1951, and therefore, in the instant case, the appellant was  still governed by F.R. 49, he had no claim to any additional salary, on the materials on record. [44A]      (5) The intention underlying the second proviso to F.R. 30(1) which  is commonly  known as  the "Next Below Rule" is the principle that when an officer in a post (whether within the cadre of his service or not) is for any reason prevented from officiating  in his  turn in  a post on higher scale or grade borne on the cadre of the service to which he belongs, he may  be authorised  by special  order of  the appropriate authority proforma officiating promotions into such scale of pay and thereupon be granted the pay of that scale of grade, if they  be more  advantageous to  him on  each occasion  on which the  officer immediately junior to him in the cadre of his service  draws officiating  pay in  that scale or grade. The principle behind the so-called rule is evidently that an officer out  of  his  regular  line  should  not  suffer  by forfeiting acting  promotion which  he would  otherwise have received had he remained in his regular line. [44G-45A]      The State of Mysore v. M. H. Bellary, [1964] 7 SCR 471, referred to.      The ’Next  Below Rule’ is not a rule of any independent application. It  sets out  only the  guiding principles  for application in  any case  in  which  the  President  or  the Governor proposes  to regulate an officiating pay by special order under the second proviso to F.R. 30 (1). The condition precedent to  the application of the ’Next Below Rule’ must, therefore, be  fulfilled in  each individual case before any action can be taken under this proviso. [45F]      (6)  The  promotion  to  a  post  in  super-time  scale involves  an  element  of  selection  and  is  not  by  mere seniority. As  a rule  of universal application, the benefit of the  "Next Below  Rule" though available in the selection grade has never been extended when there is a promotion to a post  in  super-time  scale  in  the  Indian  Administrative Service for considerations of policy, namely, (1) the length of service  which officers  in States  have to put in before they get  promotion to super-time scale is not uniform; (ii) Most of  the States have got Divisional Commissioners, while some States  do not  have this  post;  (iii)  The  posts  of Secretaries in  some States  carry pay  in super-time  scale while in  others these  posts carry pay in the senior scale, and (iv)  An officer might be good enough to be a Divisional Commissioner, but  might not  be good  enough  to  be  Joint Secretary to the Government of India.

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                                                [45G,46B-D]      The process  of appointment  to the super-time scale is by selection.  When the  element of selection comes in, this promotion must  be subject only to the claims of exceptional merit  and  suitability,  and  is  not  a  mater  of  right. Promotion to  the super-time  scale  is,  therefore,  not  a matter of  course.  The  Officer  must  stand  the  test  of suitability and his integrity must be beyond doubt. For this purpose there is a Senior Selection Committee which pre- 29 pares a  select list  of suitable  officers  which  must  be approved by  the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and  submit the  same for approval to the Union Public Service Commission  as well  as to  the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised  every year,  and the Senior Selection Committee meets annually.  The essence  of holding Selection Committee meeting  annually   is  that   each  annual   proceeding  is independent of  the other.  That  is  why  as  soon  as  the proceedings of  the new  Selection Committee are approved by the Union  Public Service Commission, the proceedings of the earlier Selection  Committee becomes  inoperative. No manner of continuity  can, therefore, be imputed to the proceedings of the various Selection Committees. [48 D-F]      In the  instant case,  the appellant  cannot claim as a right the  super-time scale  merely  on  the  basis  of  his seniority among  the members  of the  Indian  Administrative Service  belonging   to  the   Orissa  cadre,   if  he   was ’consciously’ passed  over by the Senior Selection Committee or Government of India, Ministry of Home Affairs. [48 C, G]      Union of  India v.  M.L.  Capoor,  [1973]  3  SCC  836, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1419 of 1971.      Appeal by  Special Leave  from the  Judgment and  Order dated 24-11-1970  of the  Orissa High  Court in  O.J.C.  No. 466/66.      D. D. Suri (In person).      K. K. Venugopal, Addl. Sol. Genl. of India, R. B. Datar and Girish Chandra for Union of India.      L. N.  Sinha and  G. S.  Chatterjee for  the  State  of Orissa.      The Judgment of the Court was delivered by      SEN J.-This  appeal,  by  special  leave,  is  directed against the  judgment and order of the High Court of Orissa, dated November  24, 1970,  dismissing the  appellant’s  writ petition for fixation of his year of allotment in the Indian Administrative Service  as 1942  instead  of  1944  and  for giving necessary benefits to him in the fixation of his pay.      The facts of this case are complicated and involved. It is  nevertheless  necessary  to  unravel  these  complicated facts, in order to appreciate clearly what are the questions which must  be dealt  with in  this  appeal.  The  appellant having been  selected by the Special Recruitment Board as an Emergency Recruit  from the  ’Open Market’, was appointed to the Indian  Administrative Service  on August  7,  1950  and allocated to  the Orissa  cadre. He  was born  on January 7, 1950, and joined the Editorial Staff of the Civil & Military Gazette, Lahore,  towards the  end of  1938. He continued to serve the Civil & Military Gazette upto January 7, 1943 when

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he joined the Army. During the 30 Second World  War, he was granted an Emergency Commission in the Army  w.e f.  March 7,  1943 with the rank of Lieutenant w.e.f. June  3, 1948  but with seniority in that rank w.e.f. September 9, 1944.      The Government  of India, Ministry of Home Affairs, New Delhi, by  letter dated July 19, 1951, forwarded a statement showing the  years of allotment assigned to various officers borne on  the Indian  Civil Administrative  cadre of Orissa. The year of allotment assigned to the petitioner was 19431/2 for purposes  of seniority,  on the basis of his particulars as available  at that time. On receiving his representation, the Ministry of Defence was requested to furnish information regarding the particulars of his pay and allowances drawn by him during  the period  December 31,  1944 to  December  31, 1948. As  the  information  furnished  by  the  Ministry  of Defence did not tally with those furnished by the petitioner in  his   application  for   recruitment   to   the   Indian Administrative Service  to the Special Recruitment Board, he was asked to explain the discrepancy between the particulars furnished by  him and  those furnished  by the  Ministry  of Defence. He  was also  asked to  explain why  his  seniority should not  be calculated  on the  basis of  the information furnished by  the Ministry of Defence according to which his year of  allotment should  have been  1945. On receiving his reply, the Government of India, Ministry of Home Affairs, by its  letter   dated  June   11,  1952   decided  after   due consideration that his ’protection pay’ should be treated as part  of   his  pay,   the  allowances   like  the  Calcutta Compensatory and  Lodging allowances  etc. were  not  to  be counted as  part of his pay. It was further decided that the deficiency of  six days  in counting the number of completed years of  actual  experience  could  not  be  condoned.  The Government of  India, Ministry of Home Affairs, accordingly, fixed the  year of allotment of the petitioner to the Indian Administrative Service as 1944.      The appellant  has had  a chequered  career. It appears that the  petitioner faced  heavy weather  in the  State  of Orissa, from  where in 1952 he was sent out on deputation to the Government  of India  i.e. after he had served the State Government of  Orissa for  a period  of little less than two years. Thereafter,  he remained  continuously on  deputation with the  Government of  India for  12  1/2  years  till  he reverted to  his parent State on April 23, 1965, despite the objection of  the then  Chief Minister.  He served as Deputy Secretary to  the Government  of India  in the  Ministry  of Transport from  1955 to  1961. On April 1, 1961 he proceeded on long  leave. On his return from leave, the petitioner was appointed as  the Salt  Commissioner and  Managing Director, Hindustan Salt  Ltd. with  headquarters at  Jaipur. He  held both the  posts until  December 23,  1963 and  only as  Salt Commissioner till 31 April 7,  1964, whereafter  he was  reverted to the State of Orissa.  On  his  reversion  to  the  State,  he  was  first appointed   as    Managing   Director,   State   Warehousing Corporation, a  post usually  held by an Additional District Magistrate, but  later on allowed to officiate in the super- time scale  as Revenue  Divisional  Commissioner,  Sambalpur w.e.f. October  24, 1965,  by reverting an officer junior to him. While  the petitioner  was serving  as Commissioner  of Land Reforms, Orissa, a prosecution was launched against him on November  24, 1967 u/s. 5(2) read with s. 5(1) (e) of the Prevention of  Corruption Act,  1947, on  a charge of having

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assets to the tune of Rs 3,29,476.90 disproportionate to his income. There  was a  search of  his house at Cuttack on and after November  27, 1967, and he was placed under suspension by the  Government of Orissa on November 28, 1967 under Rule 7(3) of  the All  India  Services  (Discipline  and  Appeal) Rules,  1955.   Eventually,  the  prosecution  ended  in  an acquittal. The  petitioner was  compulsorily retired  by the Government on  June 9, 1971. On September 1, 1977, the State Government after  the order  of acquittal,  issued an  order directing that  the period  from November  29, 1967 i.e. the date of suspension, till June 9, 1971, i.e., the date of his retirement, shall  be treated  as period  spent on  duty. It also made  consequential directions in the matter of pay and allowances,  treating  him  in  the  super-time  grade  from November 29,  1967 to  April 24, 1968 and, thereafter in the selection grade, from April 25, 1968 till June 9, 1971.      The questions  sought to be raised by the appellant who appeared in  person, are  no doubt  of a  wide  and  general importance. The  question still remains whether one of them, i.e., regarding  the year  of allotment  need  or  could  be decided at  all. Three  questions arise for determination on his  submissions:   First,  whether   the  Court   has   the jurisdiction or  the power to make a direction requiring the Government of  India, to re-fix the year of allotment of the petitioner as 1942 instead of 1944 as determined, respecting his seniority  in the  Indian Administrative  Service,  from which he  has retired;  secondly,  whether  the  Fundamental Rules applied  to the  petitioner, and if so, whether he was entitled under  F.R. 49  for the  period from  September 11, 1961 to  December 23,  1963 during  which he  simultaneously held both  the  posts  of  the  Salt  Commissioner  and  the Managing Director,  Hindustan Salt Ltd. with headquarters at Jaipur in  the State of Rajasthan, to the full salary of one post and  additional salary  upto a  maximum of  50% of  the second post,  which salary  has  been  denied  to  him;  and thirdly, whether  the Next Below Rule implied in F.R. 30 was applicable  to  the  petitioner  while  he  was  serving  in connection with  the affairs  of the  Union. inasmuch as his junior in the Orissa cadre, Shri V.V. Anant- 32 krishnan was  appointed in  the super-time scale on July 24, 1962 and he was thus entitled to the benefit of the same and had to  be placed  in the  super-time scale  w.e.f. July 24, 1962 to June 9, 1971, i.e., the date of his retirement.      But the  whole structure  of this  argument has no real foundation.      The Union  of India  and  the  State  of  Orissa  filed counter-affidavits and  denied  the  petitioner’s  right  to relief on any of the grounds.      In its  elaborate judgment,  the High  Court  carefully considered all  the aspects  and  took  the  view  that  the considered decision  of the Government of India, Ministry of Home  Affairs,  on  the  representation  of  the  petitioner reached after  due consideration, cannot be interfered with. They had  decided not  to condone the deficiency of six days in  counting   the  number  of  completed  years  of  actual experience, nor  take into  account  compensatory  allowance like  Calcutta   Compensatory  allowance   and  the  lodging allowance, in  calculating his pay, for determining the year of allotment.  Further, the  High Court  observed  that  the failure of the petitioner to explain the discrepancy between the particulars  as furnished  by him and those furnished by the Ministry  of Defence, his failure to produce any records to show  what the information of the Ministry of Defence was or even  the reply  that  he  had  ultimately  sent  to  the

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Government of  India in  trying to  explain the discrepancy, coupled with  the fact  that he  had  neither  produced  the impugned order of the Government of India fixing 1944 as the year of  allotment, nor  had he furnished the details of his pay and  allowances from  time to  time in  respect  of  the period in  question, were fatal to the petitioner’s case. It also observed  that in  the absence of any good reason being shown to  justify intervention  by the Court in the exercise of its  writ jurisdiction, the contention regarding the year of allotment cannot be accepted.      The High  Court also  held in the alternative, that the Government of  India had  arrived at  the  correct  year  of allotment in  respect of  the petitioner. In determining the number of completed years in the ’N’ formula, the Government was not  duty bound  under Rule 3 to relax the same, and its refusal to  condone the deficiency of six days, it could not be said that the Government had not dealt with the case in a just and  equitable manner. In its view, the benefit claimed by the  petitioner, to  say the  least, would  be in  direct contravention of  the requirement that no fraction of a year was to be taken into account. On a proper reading of the ’N’ formula, it  was not  possible to  read into  the  same  the imposition  of  a  duty  on  the  Government  to  relax  the requirements in  appropriate cases, nor would the Government be justified in 33 making  a   departure  from   the  plain   meaning  of   the instructions in  a particular  case, merely on the ground of hardship. According to the High Court, the word ’pay’ in the context of  the relevant  Rules and  Instructions,  included only such allowances as were intended to form an addition to pay and  not  compensatory  allowances  like  Calcutta  City Allowance and Lodging Allowance etc., i.e., allowances which were essentially compensatory in character and were intended to  be   reimbursed  to   the  Government  servant  for  the expenditure incurred  by him  in the course of his duty and, therefore, they  could not be taken to form part of ’pay’ as referred to  in the instructions. It lastly held that it was not disputed  before it  with regard to the applicability of the ’Next  Below Rule’,  that promotion  to a post in super- time scale  involves an  element of  selection and  not mere seniority, and  that there  was nothing  to  show  that  the Government of  India ever  failed to apply their mind to the case of  the petitioner  in respect  of  his  claim  to  the benefit of  the ’Next  Below Rule’, nor was it argued before it that  the Government  of India  acted mala  fide or in an arbitrary manner.  From the  language of  the  clarificatory letter of the Secretary of State for India in Council, dated April 2,  1947, it was clear that no Officer can claim as of right promotion  to a post carried in super-time scale under the ’Next  Below  Rule’.  It  merely  embodies  the  guiding principles governing  promotion to  such post which involves an element of selection and not mere seniority.      There can  be no  doubt, in  our opinion, agreeing with the decision  of the High Court, that the petitioner was not entitled to  any relief.  The High  Court has,  to our mind, reached a just and correct decision.      At  the  very  outset,  we  tried  to  impress  on  the petitioner that  his  main  relief,  i.e.  with  respect  to fixation of  the year  of allotment  according  to  the  ’N’ formula, had  become infructuous,  as he had already retired from service and only the subsidiary relief i.e., for giving necessary benefits to him in the fixation of his pay remains which is  nothing but  a monetary claim, for the enforcement of which  the remedy  lay elsewhere.  But the petitioner who

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appeared in  person persisted  in  arguing  all  the  points raised particularly  the one  regarding fixation of the year of allotment saying that he was doing it for the ’benefit of others’. We have, therefore, no alternative but to deal with the appeal on merits.      We fail to comprehend what relief the petitioner can be granted in  this appeal.  In his  application for  grant  of special leave  to  this  Court  under  Article  136  of  the Constitution, the petitioner has cate- 34 gorically stated  that ’he  was no  longer interested in the relief  for   determination  of   the  year  of  allotment’, according to  the ’N’  formula, since he was on the verge of retirement, and that the arguments advanced on his behalf in the High  Court  were,  therefore,  only  confined  to  ’his entitlement to  additional pay  under F.R. 49’, irrespective or the fact whether he was given the benefit under the ’Next Below rule or not.’ In this connection, he avers:-           "2. In the said writ petition, your petitioner had      prayed for the following reliefs from the respondents:-      (a)   Proper fixation  of his  year of allotment in the           Indian Administrative Service;      (b)   Grant to the petitioner of the necessary benefits           under Fundamental Rule 49 and ’Next Below Rule’ in           the fixation  of his pay at a rate higher than the           super-time scale  pay of  the IAS  from 11-9-1961,           the date  on which  he took  over concurrently the           two appointments  of Salt  Limited, and  at super-           time scale  pay from  23-12-1963 when  he held the           appointment of Salt Commissioner only."           "4. That  the petitioner  was much less interested      in the adjudication of the claim stated in sub-para (a)      in view of his impending retirement from service".           "the petitioner’s  main interest  was in his claim      stated  in   detail  in   sub-clause  (b)  of  para  2,      particularly its portion relating to his entitlement of      extra  remuneration   under  Fundamental  Rule  49  for      holding  two   independent  posts  concurrently,  which      involved arrears  of pay  amounting to  over 30,000/-."      (Emphasis supplied)      In that  situation, the  petitioner cannot  be heard to say that  the Government  of India  had  not  arrived  at  a correct decision  in assigning 1944 as the year of allotment to him.  Even if  he were  entitled to do so, the contention merits no consideration.      The learned  Additional Solicitor-General  has, at  our request, placed  before us  all the  relevant records of the Ministry of  Home  Affairs,  Ministry  of  Finance  and  the Ministry of  Law &  Justice which bare upon the questions at issue. On a perusal of these records, it is quite clear that the Government  of India  evolved uniform policy as a matter of principle  to deal  with such  questions. In the light of the set  principles, all  the demands  of the appellant were considered at 35 each stage,  and found  that they  could  not  be  accepted, keeping in  view the desirability of uniformity of policy in such matters.      In support  of the  contention regarding  the  year  of allotment, the  appellant’s submission  is twofold,  namely, (i) the  Government of  India were in error in not condoning the deficiency  of six days in reckoning the completed years of his  service after  attaining the age of 25 years. He has wrongly been  given credit  for only  8 years  instead of  9 years as  there was  a short  fall of six days to complete 9

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years, which  short fall  should have  been  waived  by  the Government, and  (ii) he  being a  regular Army Officer, the definition of ’pay’ in F.R. 9(21) (b) was attracted, so that in determining  the year  of  allotment,  ’pay’  would  also include allowances  like Lodging  Allowances. We are afraid, none of the contentions can prevail.      It is  common ground that as regards Emergency Recruits from the  ’Open Market’,  the year  of allotment  was to  be determined  according   to  the   ’Open   Market   Emergency Recruitment Scheme’,  embodied in  the instructions  of  the Government  of   India  for  the  preparation  of  a  common gradation list  for the officers of the Indian Civil Service cadre in  each State  issued on  July 7,  1950. The relevant instructions adverted  to, so  far as material, (hereinafter referred to as ’N’ formula) read as follows:-           "IV Emergency Recruits from the ’Open Market’:           These  officers   should  be   given  an  year  of      allotment on the basis of the following rules below:      (1)  The number of completed years of actual experience           of the  officers after attaining the age of 25 and           upto the  31st December,  1948 as certified by the           Special Recruitment  Board will  be the  period of           previous experience to be taken into account.           This period will be divided into two parts, N1 and      N2 as below:           (a)   N1 means the period of continuous employment                on a  pay or  income of not less than Rs. 800                per month  between 31st  December, 1944,  and                the 31st December, 1948, inclusive.           (b)   N2  means  the  entire  period  of  previous                experience  to   be   taken   into   account,                exclusive of N1.      (2)  The year of allotment in each case will be 1949-Y,           where Y = N1+1/2 of N2." 36      These instructions  form a  part  of  counter-affidavit filed on behalf of the Union of India and are printed in the All India  Services Manual,  Second Edition, at p. 774, with the heading  "Executive Instructions/Orders  issued  by  the Government of  India under the Indian Administrative Service (Regulation of Seniority) Rules, 1954".           The year of allotment: ’N’ formula:      Rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, so far as relevant, reads:-           "3. Assignment  of  year  of  allotment-(1)  Every      officer shall  be  assigned  a  year  of  allotment  in      accordance with the provisions hereinafter contained in      this rule.           (2) The year of allotment of an officer in service      at the commencement of these rules shall be the same as      has been  assigned to  him or may be assigned to him by      the Central  Government in  accordance with  the orders      and  instructions   in  force  immediately  before  the      commencement of these rules."      Even according  to the  appellant, he  is not entitled, under the ’N’ formula as it stands, to a credit of more than 8 years.  If that  be so,  the  High  Court  quite  properly declined to  exercise its  extra-ordinary jurisdiction under Article 226  of the  Constitution inasmuch  as  no  writ  or direction could be issued, in a matter which was essentially in the discretion of the Government, to re-fix his seniority by giving  credit for 9 years instead of 8 years as provided for,  as   admittedly  the   relevant  instructions  require ’completed years of actual experience’.      Normally, the  decision  of  the  Government  of  India

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assigning a  year of allotment to a particular officer under Rule 3  of the  Indian Administrative Service (Regulation of Seniority) Rules,  1954, or  in accordance  with orders  and instructions issued by the Central Government in that behalf before the  commencement of these Rules, is final and cannot be interfered  by  the  Courts  under  Article  226  of  the Constitution  unless   such  decision   was  capricious   or arbitrary or in breach of the said Rules. The same principle should apply  to the assignment of a year of allotment under the ’N’ formula.      The contention that the Government of India should have condoned the  short fall  of six  days by  relaxation of the relevant Rules  under the  powers vested  in it  by the  All India Services  (Conditions  of  Service-Residuary  Matters) Rules, 1960, can hardly be accepted. These Rules were not in force when the Government of India, Ministry of 37 Home Affairs,  by their  letter dated July 19, 1951 issued a statement showing  their  years  of  allotment  assigned  to officers borne  on the  Indian Civil  Administrative Service cadre of  Orissa, wherein  the year of allotment assigned to the petitioner  was 19431/2,  or even  at the  time when the Ministry of  Home Affairs  by its letter dated June 11, 1952 rejected his  representation in  that behalf, while revising his year  of allotment  to 1944. The relevant records of the Government of  India, Ministry of Home Affairs disclose that the Government  of India  adopted a  uniform policy  in this regard and  short falls  of even  less than  6 days have not been condoned  so that  there could  be uniformity of taking note of  ’completed years  of service’,  irrespective of the short fall  of number  of days,  in calculating  the year of allotment in every case under the ’N’ formula.      The  question  of  relaxation  was  considered  at  the highest level  as admitted  by the  petitioner himself.  The records  of  the  Government  of  India,  Ministry  of  Home Affairs, disclose  that by  letter dated  June 11, 1952, the Government of  India after  due consideration,  rejected the representation of the petitioner, by issuing an order to the following effect:-           "I am directed to say that the Government of India      have carefully considered the points raised by Sri Suri      in his  representation. The  decisions thereon  are  as      follows:-      (i)   Considering the  circumstances in  which the  pay           scale in  the Army  was generally  reduced  and  a           ’protection pay’  was  given,  the  Government  of           India consider that it would only be fair that the           ’protection pay’  granted to  Sri Suri  during his           service in  Army should be "treated as part of his           basic  pay   for  purposes   of  determining   his           seniority.      (ii)  The   Calcutta  Compensatory  Allowance  and  the           Lodging Allowance  drawn by  Sri Suri  during  the           period October  1944 to  August  1947,  cannot  be           treated as part of pay for computing N1 or N2.      (iii) Sri Suri has represented that the completed years           of service  after attaining the age of 25 upto the           31st December  1948, calculated in accordance with           the formula  falls short of one additional year in           his case because of a shortage of six days. He has           requested that this deficiency should be condoned.           The Government  of  India  have  rejected  similar           requests for  condonation of  even shorter periods           and regret,  therefore, that  they are  unable  to           accede to the request.

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38      2.    On  the basis of the decision referred to in para           1(i) above,  Shri Suri’s revised year of allotment           works out  to be  1944. His position in the Orissa           Indian   Civil   Administrative   gradation   List           (forwarded  with  the  Ministry  of  Home  Affairs           letter No. 2/3/52-AIS, dated the 26th April, 1952)           will  therefore  be  immediately  below  Sri  S.T.           Merani (S.  No. 12)  and above Sri S.S. Murthi (S.           No. 33).  The serial  numbers of  Sri  Murthi  and           officers below  him in  the list  may  be  changed           accordingly." (Emphasis supplied).      The matter  did not  rest at  that. Thereafter, the All India Services  (Conditions  of  Service-Residuary  Matters) Rules,  1960   were  framed,  and  by  Rule  3  the  Central Government were  conferred power  to  relax  the  rules  and regulations regulating  the conditions  of service appointed to an  All India  Service, in  any particular  case, on  the ground ’undue  hardship’, as  they may consider it necessary for dealing  with the case in a just and equitable manner. A doubt was  raised whether  the power  of relaxing  rules was intended to  be applicable  to ’Recruitment Rules’ also. The Government of  India have  held that the ’Recruitment Rules’ cannot be relaxed under Rule 3. Nevertheless, the petitioner kept  on   making  representations   and  the  question  was reconsidered on occasions more than once as reflected in the order of Sri Govind Ballabh Pant, Minister for Home Affairs, dated June 1, 1958, which reads:-           "Sri Suri’s  case has  been considered  more  than      once. I  do not find, however, any adequate reasons for      revising  the   orders  already  passed.  It  would  be      difficult to  condone the  deficiency even  if it be of      only 7  days in  the case of only one officer. The rule      which gave  an advantage  to  married  officers  cannot      apply to  him as  he was  not  married  at  the  time."      (Emphasis supplied).      Even  assuming   there  was  a  power  to  condone  the deficiency, the  matter rested entirely in the discretion of the Government  of India. When a decision in a policy matter like  this  is  left  to  the  absolute  discretion  of  the Executive, we  do not  see how  the Courts can interfere and issue a  direction to  the Government of India to reconsider the matter  afresh, after  a lapse of more than 25 years. It would not  only disturb  the combined  gradation list of the officers belonging to the Indian Administrative Service, but also affect the seniority of many officers who have not been impleaded in  these proceedings.  May be,  many of  them may have died  or retired  and even  as regards the others, they may have been confirmed in the super-time grade. 39 The High  Court, therefore,  rightly, in  our opinion,  held that there could be no interference in such matters.           ‘N’ Formula and F.R. 9(21) (b):      F.R. 9(21)(b) reads:-           "(b) In the case of a military officer, in receipt      of the  rates of  pay introduced  on July  1, 1924, pay      includes the  amount which  he receives  monthly, under      the following designations:-           (i)   pay of  appointment, lodging  allowance  and                marriage allowance; and            "(ii) pay  of rank,  command pay, additional pay,                Indian Army  allowance, lodging allowance and                marriage allowance."      F.R. 2 provides that the Fundamental Rules shall apply, subject to  the provisions  of F.R.  3,  to  all  Government

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servants whose  pay is  debitable to  civil estimates and to any  other   class  of  Government  servants  to  which  the President may by general or special order declare them to be applicable. It  is, however,  provided by F.R. 3 that unless it be  otherwise distinctly  provided by or under the rules, nothing in  these Rules  shall apply  to Government servants whose conditions  of service  are governed by Army or Marine Regulations. It  is, therefore,  obvious that the definition of ’pay’  in the  case of  a military officer, introduced by F.R. 9(21)  (b), is  for ’protection pay’, when such officer is recruited  in civil  service under  the employment of the Union of  India, i.e.,  for fixation  of  his  pay  in  such service. For  this limited  purpose, the term ’pay’ not only includes the ’rank pay’ but also command pay, additional pay etc., and,  ’allowances’ like lodging allowance and marriage allowance are  treated as  part  of  ’pay’.  If  a  military officer had  been receiving  any of  these allowances,  they will fall  under the  head ’pay’  under F.R. 9(21) (b). F.R. 9(21) (b)  had, therefore,  no relevance  in the  matter  of fixing the  seniority of  Emergency Recruits  from the ’Open Market’ to  the  Indian  Administrative  Service,  like  the petitioner, even  where they  were drawn  from the Army, but was applicable  only in  regard to fixation of their initial pay.      It is,  however,  argued  that  the  petitioner  was  a regular Army Officer at the time when he was appointed as an Emergency Recruit from the ’Open Market’ and, therefore, his pay for  purposes of  calculating the  year of allotment was regulated by F.R. 9(21) (b), in the absence of any provision to the contrary. 40      The argument  appears to  be somewhat attractive but on deeper  considerations  must  be  rejected.  The  underlying principles on  which the  ’N’ formula  was  evolved  by  the Government of  India are  set  out  in  the  letter  of  the Ministry of Home Affairs, dated July 18, 1949, the substance of which reads:           "4. No  decision has  yet been  reached about  the      seniority to  be accorded  to candidates from the ’Open      Market’ appointed  to the  IAS on the recommendation of      the  Special   Recruitment  Board.   There   were   two      alternative methods by which seniority of such officers      should be  determined, viz. (a) on the principle of the      ’basic pay’  or (b) related to the experience which the      candidates concerned  had gained  in  their  respective      employment, profession  or business. The ’basic pay’ of      the Emergency Recruits drawn from the ’Open Market’ had      been fixed  mainly on  the basis of age. As regards (a)      it was felt that if seniority is to follow strictly the      basic pay,  the initial ’basic pay’ would be subject to      a maximum  of Rs.  660/- for  the junior-scale  and  Rs      1,000/- in  the senior-scale  which represents  the pay      admissible in  the tenth  year of service at the age of      36. The alternative method of approach, i.e., to relate      seniority of  the new  recruits to  be  length  of  his      actual experience  in the previous employment, business      or profession, would be fair to the recruits themselves      inter se  as it  would maintain  a distinction  on  the      basis of  their ’actual experience’. It was, therefore,      proposed that  credit should  be given to the Emergency      Recruits for the purpose of determining their seniority      in the  IAS at  the rate of six months in every year of      experience which  such recruits  may have after the age      of 25."      The ’pay’  for purposes  of  determining  the  year  of

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allotment under  ’N’  formula  of  such  recruits  like  the petitioner  was,  therefore,  the  ’basic  pay’  which  must necessarily exclude  allowances. This concept of ’basic pay’ for fixation  of initial  pay is  reflected  in  the  Indian Administrative Service  (Pay) Rules,  1954 which  takes into account only the ’initial pay’.      It has been stated on behalf of the Union of India that the  Special   Recruitment  Board,   for  this  recruitment, interviewed candidates  who were  already employed under the Government or  in commercial firms or business houses and in public or  local bodies  as well  as members  of  the  legal profession and  others and  out of  153 candidates selected, 115 were  Government servants, 15 were from commercial firms and 41 business houses,  8 from  public and  local bodies,  4  from legal profession  and 11  from other sources. The rule which requires credit  to be  given for  the period  of continuous employment on  pay or  income not  less than  Rs. 800/- p.m. would,  therefore,  apply  uniformly  to  persons  who  were previously lawyers  or employed  in business  houses  or  in Government services.  Uniformity in  such a case can only be attained by  excluding allowances in every case, because the allowances which  persons drawn from these different sources would  be   getting,  would  be  varied  in  character.  The Government of  India, therefore,  acted fully  in consonance with Articles  14 and  16 of  the Constitution  in excluding allowances in  computing the pay. The amount of Rs 800/-p.m. was taken as a basis as it was the first stage in the senior time scale  of pay  of officers in the Indian Administrative Service. In this scale, the amount of Rs 800/- is the ’basic pay’ without including allowances.      Under these  circumstances, the decision taken from the beginning was  that allowances  would  not  be  included  in computing the  pay and  as long  as this decision is applied uniformly, without  exception, the  appellant  can  have  no grievance  in  this  regard  to  seniority  specifically  as allowances would  have to  be added  uniformly to  all other persons in the seniority list. Thus, the definition of ’pay’ in F.R.  9(21)(b) is  applicable only  for the  fixation  of ’pay’ of  a Government  servant who  had been recruited from the armed Forces. In such a case, the total salary including such allowances  as falling  within the definition, is taken note of.  The petitioner admittedly was given an initial pay of Rs  1,000/- i.e.  much higher  than officers appointed to the Indian  Administrative Service  on  the  result  of  the competitive examinations. Here we are not concerned with the fixation of  pay of  the petitioner  but with  regard to the Rules relating  to the fixation of his seniority which would take note  of the  period prior  to his  recruitment to  the Indian Administrative  Service  and  for  that  purpose  the ’basic pay’  alone was  relevant. The  concept of  pay under F.R. 9(21) (b) cannot, therefore, be introduced for purposes of regulating the year of allotment under ’N’ formula, as it relates to  fixation of seniority and not of pay. The matter falls to  be regulated  by the  interpretation placed by the Government of  India, Ministry  of  Home  Affairs  in  their letter dated July 18, 1949.      If the  definition of ’pay’ in F.R. 9(21) (b) was to be taken note  of, then  Calcutta  compensatory  allowance  and marriage allowance would also be included. Obviously, a rule which makes seniority dependent upon marriage allowance and, therefore, on whether the officer was married or not will be violative of Article 14 of the Consti- 42

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tution. The  appellant gave  up before  the High  Court  his claim to  the inclusion of marriage allowance though covered by the  definition of  pay, and  in this Court his claim for the inclusion of Calcutta Compensatory Allowance. In dealing with the question, the High Court has observed that the word ’pay’ in  the context of the relevant Rules and Instructions included only  such allowances  as were  intended to form an addition to pay and not compensatory allowance like Calcutta City Allowance  and Lodging Allowance etc., i.e., allowances which were  essentially compensatory  in character  and were intended to  be reimbursed to the Government servant for the expenditure incurred  by him  in the course of his duty and, therefore, they  could not be taken to form part of ’pay’ as referred to  in the  ’N’ formula.  We cannot  see  that  the appellant  is   on  a  better  footing  as  regards  lodging allowance, which  is usually  given to Army Officers in lieu of rent-free  quarters. They  become at  once disentitled to such  allowance  the  moment  they  are  allotted  quarters. Lodging allowance is, therefore, essentially compensatory in nature. The inclusion of pay as defined in F.R. 9(21) (b) in the ’N’  formula to  include the  Lodging allowance,  is not permissible  as  the  appellant  would  have  to  claim  the application of the definition of ’pay’ in its full rigour or not at  all. Any  other construction  will lead  to manifest injustice as  it  would  result  in  discrimination  between persons similarly situated, i.e., between an Army Officer in receipt of  lodging allowance  in lieu of rent-free quarters and one  in occupation  of such  rent-free quartes,  in  the matter of  seniority in  the Indian  Administrative Service. The inevitable conclusion, therefore, is that the definition of ’pay’  in F.R.  9(21) (b) was not applicable for purposes of fixation of seniority of the appellant.          Fundamental Rules and their applicability:      It is  not necessary  for our purposes to deal with the larger question as to whether the Fundamental Rules regulate the  conditions   of  service   of  members  of  the  Indian Administrative  Service.  As  at  present  advised,  we  are inclined to  think that  their  conditions  of  service  are regulated by  the provisions of All India Services Act, 1951 and the  various Rules  and Regulations  framed  thereunder, such as  Indian Administrative  Service (Recruitment) Rules, 1954, Indian  Administrative Service  (Cadre)  Rules,  1954, Indian Administrative  Service  (Pay)  Rules,  1954,  Indian Administrative  Service  (Regulation  of  Seniority)  Rules, 1954,  Indian   Administrative   Service   (Appointment   by Promotion) Regulation,  1955, All India Services (Discipline &  Appeal)   Rules,  1955   and  1969,  All  India  Services (Conditions of  Service-Residuary Matters)  Rules, 1960 etc. When there is speci- 43 fic provision made in regard to them on a particular subject regulating their  conditions of  service in the said Act and the Rules,  the question of applicability of the Fundamental Rules does not arise.      Even  assuming   that  the   Fundamental   Rules   were applicable on  August 7,  1950 i.e.  at the  time  when  the appellant  was   appointed  to   the  Indian  Administrative Service, these  Fundamental Rules ceased to be applicable on the coming into force of the aforesaid rules and regulations framed under the Act, unless the President by an order under F. R. 2 declared them to be so applicable.      Combination of  posts and right to Additional Pay under F.R. 49:      The short  question for  consideration is  whether  the appellant was  entitled under  F.R. 49  for the  period from

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September 11,  1961 to  December 23,  1963 during  which  he simultaneously held  both the posts of the Salt Commissioner and  the   Managing  Director,  Hindustan  Salt  Ltd.,  with headquarters at  Jaipur, to  the full salary of one post and additional salary  of a  maximum of  50% of the second post. The answer  must clearly  be in the negative. The provisions of F.R.  49 were  not applicable  to him  after  the  Indian Administrative Service  (Pay) Rules,  1954 were brought into force; and  even if  they were,  F.R. 49, in terms, provides that when a civil servant holds two posts. he is disentitled to draw  the salary of both the posts. All that such a civil servant becomes  entitled to  is the  salary of  the  higher post, but no additional salary can be allowed for performing the duties  of the  lower post.  Thus, the pay of one of the posts can be allowed. Furthermore, the rules relating to pay applicable in  1962 were  the Indian  Administrative Service (Pay) Rules,  1954 which  make no  provision for  additional pay.      Rule 13 of the said Rules reads as follows:-           "13. Repeal and saving.-Any rules corresponding to      these  rules   and  in  force  immediately  before  the      commencement of these rules are hereby repealed:           Provided that any order made or action taken under      the rules so repealed shall be deemed to have been made      or taken  under the  corresponding provisions  of these      rules."      It would thus follow that the provisions of Fundamental Rules in  regard to pay, even if applicable, ceased to apply from the  date on  which the  Indian Administrative  Service (Pay) Rules,  1954 came into force. The appellant therefore, would normally  not be  entitled to invoke F.R. 49 in regard to the salary paid to him when he was simultaneously holding the two posts in question. 44      Even assuming  that the  provisions in  the Fundamental Rules would  continue to  apply to  a member  of the  Indian Administrative  Service  in  regard  to  which  no  specific provision is  made by  framing a  rule under  the All  India Services Act,  1951 and,  therefore, the appellant was still governed by  F.R. 49,  he had  no claim  to  any  additional salary. The  records of the Government of India, Ministry of Home Affairs  disclose that the ground on which the claim of the appellant  was rejected was that at the time the post of Managing Director,  Hindustan Salt  Ltd.  was  brought  into existence, there  was a  down-grading of  the posts  of Salt Commissioner having  regard to  the diminution in the nature of duties  and responsibilities  attached to  the said post. Normally, this  should have  resulted in  a reduction in the scale of  pay of  the post  of Salt  Commissioner,  but  the Government of  India, on  due application of mind, refrained from doing  so, purely  on consideration  of his  additional charge, and continued the post in the same scale of pay as a result of  which the  appellant in  fact, obtained  monetary benefit. For this reason, the Finance Ministry did not agree to any  extra remuneration  over and  above the scale of Rs. 1800-2000/- to the Salt Commissioner-cum-Managing Director.      The grievance  of the  appellant that his successor-in- office to  the post of Salt Commissioner, Jaipur was given a pay   of   Rs.   2,250/-was   also   considered,   but   his representation was  rejected on  the ground  that  the  said incumbent had  already been  drawing Rs.  2,250/ when he was asked to  hold the  post of  Salt Commissioner,  Jaipur. The relevant  records   disclose  again   a  full  and  detailed application of mind to the issues involved.      Thus there  was no  question  of  the  appellant  being

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entitled to  be given  an additional  pay under F.R. 49 i.e. full salary of one post and additional salary upto a maximum of 50% of the other post, for the period from Sepetember 11, 1961 to  December 23,  1963, during  which he simultaneously held both the posts.                      ‘Next Below Rule’      The intention  underlying the  second proviso  to  F.R. 30(1) which  is commonly  known as  the ’Next Below Rule’ is the principle that when an officer in a post (whether within the cadre of his service or not) is for any reason prevented from officiating  in his  turn in  a post on higher scale or grade borne on the cadre of the service to which he belongs, he may  be authorised  by special  order of  the appropriate authority pro  forma officiating  promotions into such scale of pay  and thereupon  be granted  the pay  of that scale or grade, if  they be more advantageous to him on each occasion on which the officer imme- 45 diately junior  to him  in the  cadre of  his service  draws officiating pay in that scale or grade. The principle behind the so-called  rule is  evidently that an officer out of his regular  line   should  not   suffer  by  forfeiting  acting promotion which  he would  otherwise have  received  had  he remained in  his regular  line: The State of Mysore v. M. H. Bellary. (1)      The real  implications of  the  ’Next  Below  Rule’  as defined  in  the  Secretary  of  State  for  India’s  ruling clarified by the Government of India, Ministry of Finance by letter no.  2(25)-Est.III/46, dated April 2, 1947: All India Services Manual,  2nd ed. pp. 765-66, in so far as they bear upon the  claim or  right  to  the  benefits  thereunder  in respect of the appellant, are extracted below:-           "The  so-called  ’rule’  is  not  a  rule  of  any      independent application.  It sets  out only the guiding      principles for  application in  any case  in which  the      Governor-General in Council, or the Governor exercising      his  individual   judgment  in  virtue  of  the  powers      conferred on  him by  the Secretary  of State’s Rule of      the 14th  April, 1942  (published with  Home Department      Notification No.  195/40  Ests.,  dated  the  9th  June      1942), proposes  to regulate officiating pay by special      orders under  the second  proviso to  Fundamental  Rule      30(1). The  condition precedent  to the  application of      the ’Next  Below Rule’ must, therefore, be fulfilled in      each individual  case before  action may be taken under      this proviso." It would  thus appear  that the  ’next Below  Rule’ is not a rule of  any independent  application. It  sets out only the guiding principles  for application in any case in which the President  or   the  Governor   proposes  to   regulate   an officiating pay by special order under the second proviso to F.R. 30(1).  The condition  precedent to  the application of the ’Next  Below Rule’ must, therefore, be fulfilled in each individual case  before any  action can  be taken under this proviso.      It was  not disputed  before the High Court with regard to the  ’Next Below Rule’ that promotion to a post in super- time scale  involves an  element of  selection and  not mere seniority.  The   Government  of  India,  Ministry  of  Home Affairs, intimated  the petitioner  in June  1965  that  his representation for  fixation of  pay in the super-time scale on the  basis of the ’Next Below Rule’ had been rejected. It was, therefore,  accepted before  the High  Court that there was due  application of  mind by  the Government of India to the case of the peti-

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46 tioner in  respect of  his claim to the benefit of the ’Next Below Rule’  and that  there was  nothing to  show that  the Government had  acted mala fide or in an arbitrary manner in rejecting his claim.      The  Additional  Solicitor  General  placed  before  us voluminous records  showing that,  as a  rule  of  universal application, the  benefit of the ’Next Below Rule’ has never been extended  when there  is promotion  to a post in super- time scale. This is a problem which has faced the Government of India on numerous occasions and eventually the Government reached a uniform decision that the ’Next Below Rule, should not be  applied to  a super-time  scale post,  carrying  Rs. 2,500-125/2-2750 for  considerations  of  policy  which  are these: (i)  The length  of Service  which officers in States have to put in before they get promotion to super-time scale is not  uniform, (ii) Most of the States have got Divisional Commissioners, while  some States  do not  have  this  post, (iii) The  posts of  Secretaries in some States carry pay in super-time scale while in other these posts carry pay in the senior scale; and (iv) An officer might be good enough to be a Divisional  Commissioner, but  might not be good enough to be Joint Secretary to the Government of India.      The benefit  of the  ’Next Below  Rule’ is available in the selection  grade but  this benefit  has not  so far been allowed to  the members of the Indian Administrative Service in the  super-time scale.  The considerations  on which this policy of  the Central  Government is based are contained in the note of Sri L. P. Singh which is reproduced below:-           "The length of service which officers in different      States have  to put in before they get promotion is not      uniform. In  some States, officers become Commissioners      in the  15th or  16th year  of service,  in some,  even      officers who have put in 20 years service in the Indian      Civil Service  are still drawing pay in the senior time      scale. Again  while most  States  have  got  Divisional      Commissioners, some  have not.  Further, Secretaries to      Government in  West Bengal, Maharashtra and Gujarat are      allowed special  rates of remuneration. Again, while an      officer  may   be  good   enough  to  be  a  Divisional      Commissioner, he  may not necessarily be good enough to      be a Joint Secretary to the Government of India."      It appears that the State Government of Tamil Nadu made a reference  on the  subject, and  the matter was studied in depth by  the  various  ministries.  The  Ministry  of  Home Affairs was  not unfavourably  inclined. It  expressed  that since new  guide-lines  have  been  evolved  and  the  State Governments have been requested to constitute 47 a Screening  Committee for  considering  the  cases  of  the members   of   the   Indian   Administrative   Service   for appointments to  posts carrying pay in super-time scale, the benefit of  super-time scale  should be extended to officers on deputation  with the  Government of India under the ’Next Below Rule’.  It,  however,  agreed  that  there  cannot  be complete uniformity at any particular time, since the length of service which officers in different States have to put in before they  get promotion is not uniform but expressed that this criterion  loses much  of its force with the passage of time and  that the view that an officer might be good enough to be a Divisional Commissioner and might not be good enough to be  the Joint  Secretary to the Government of India, hits at the  very root  of the  system of Administration which we have adopted  in this Country. It further expressed that the fact  that   most  of   the  States   have  got   Divisional

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Commissioners while some States do not have these posts, has no  relevance.   It,  therefore,   proposed  that   officers belonging to  the Indian  Administrative Service  should  be given pro  forma promotion  to the  super-time scale  by the State Government  under the  ’Next Below  Rule’ so  that the service rendered  by such  officer from  the  date  of  such promotion, will count for the purpose of fixation of initial pay, on  reversion to  the present  cadre, and  also for the purpose of  increments, and the benefit should be allowed on ’one  for   one  basis’.   It  was  also  suggested  in  the alternative, that  if the  benefit of  the ’Next Below Rule’ could not  be extended to such officer and if he is detained by the  Government in a lower post at the Centre against his wishes and  in public  interest,  he  should  be  given  the ’higher pay’  on personal basis, i.e., as a measure personal to him  within the  frame-work of  the policy  quoted above. When the  matter was referred to the Ministry of Finance, it did not  agree to  either proposal,  and the Ministry of Law rightly pointed out:           "It is  not appropriate  to raise the scale of ex-      cadre post  to that  of super-time scale merely because      the incumbent  has become  due  for  promotion  to  the      super-time scale.  The pay  attached to  a post is with      regard to the nature of the duties and responsibilities      and not  with  reference  to  the  entitlement  of  the      incumbents." As regards,  the scope of the protection of pay envisaged by the proviso  to  sub-rule  (2)  of  Rule  6  of  the  Indian Administrative  Service  (Cadre)  Rules,  the  Law  Ministry advised that:           "The concept  of the  basic pay  which the officer      would have  drawn but  for his deputation is limited to      the basic 48      pay of the post to which he would have been promoted in      the natural  course of  things but not to a post like a      supertime scale to which appointment is not only on the      basis of seniority but also merit and suitability."      Thus the  present position  is that  the benefit of the ’Next  Below  Rule  is  available  at  the  first  stage  of selection i.e.  at the  time of appointment in the selection grade but  not at  the second  stage, namely, at the time of promotion to the super-time scale.      It is,  therefore, abundantly  clear that the appellant cannot claim  as a  right the super-time scale merely on the basis of  his seniority  among the  members  of  the  Indian Administrative Service  belonging to  the Orissa  cadre. The process  of  appointment  to  the  super-time  scale  is  by selection. When  the element  of selection  comes  in,  this promotion must  be subject only to the claims of exceptional merit and  suitability, and  is not a matter of right: Union of India  v. M.L.  (Capoor(1). Promotion  to the  super-time scale is,  therefore, not  a matter  of course.  The officer must stand the test of suitability and his integrity must be beyond doubt.  For this purpose, there is a Senior Selection Committee which  prepares a select list of suitable officers which  must   be  approved   by  the  Union  Public  Service Commission. The  Senior Selection Committee has to prepare a panel of  names for  each grade  and  submit  the  same  for approval to  the Union  Public Service Commission as well as to the  Government of  India, Ministry  of Home Affairs. The select list  has to  be reviewed and revised every year, and the Senior  Selection Committee  meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding  is independent  of the other. That is why

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as soon  as the  proceedings of  the new Selection Committee are approved  by the  Union Public  Service Commission,  the proceedings  of   the  earlier  Selection  Committee  become inoperative. No  manner of  continuity  can,  therefore,  be imputed  to   the  proceedings   of  the  various  Selection Committees. It  is not  the petitioner’s  case that his name was  ever  brought  into  the  select  list  by  the  Senior Selection Committee and approved by the Government of India, Ministry of  Home Affairs,  for appointment in the selection grade. If  the petitioner  was ’consciously’  passed over by the Senior  Selection Committee  or the Government of India, Ministry of  Home Affairs,  then there is no question of the applicability of the ’Next Below Rule’.      Much stress  was, however,  laid on  the letter  of Sri R.N. Mohanti,  Joint Secretary  to the Government of Orissa, Political  &   Services  Department,   dated  May  7,  1963, addressed to the petitioner in re- 49 ply to  his letter  dated March 15, 1963 for the submission, that had  remained in  his parent  cadre, he would have been promoted and drawn pay in the super-time scale. It was urged that  the  petitioner  should  have  been  given  pro  forma promotion and  the higher  scale of  pay in  the  super-time grade under  the ’Next Below Rule’ because his junior in his parent cadre  had been  promoted to  such scale  of  pay  or granted ’higher  pay’, on  personal basis  to compensate for the financial loss suffered by him due to his retention in a lower post at the Centre. We are afraid, the contention must be rejected.  The aforementioned letter only stated that his case would  have been  ’considered’ in the normal course for appointment to  the selection  grade as  well as to a super- time  scale   post,  had   he  continued   under  the  State Government. It  did not  at all  mention  nor  could  it  be construed to  mean that he was entitled for appointment to a post in  super-time scale on account of his seniority on the basis of the ’Next Below Rule’. In any event, the letter, we are afraid,  cannot take  the place of the recommendation of the Senior Selection Committee.      In the result, the appeal fails and is dismissed. There shall be no order as to costs. N.V.K.                                     Appeal dismissed. 50