IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8273 OF 2004

Government of India & Ors.                             …     Appellants

Versus

B. Anil Kumar & Ors.                                       … Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal against the judgment and order dated  

12.08.2003 of the Division Bench of the Andhra Pradesh High  

Court  in  Writ  Petition  No.7596  of  2003  (for  short  ‘the  

impugned judgment’).

2. The relevant facts very briefly are that the respondents  

herein were working in the post of Investigators in the  

National  Sample  Survey  Organisation,  Government  of  

India,  Ministry  of  Planning  and  Implementation,

Department of Statistics at Hyderabad, in the pay-scale  

of Rs.425-700 prior to 01.01.1986.  The next higher post  

is  the  post  of  Assistant  Superintendent.   In  the  year  

1978,  there  was  a  demand  by  the  Assistant  

Superintendents  working  in  the  operation  units  under  

the Director, National Sample Survey Organisation, that  

the  existing  pay-scale  of  Rs.470-750  of  the  post  of  

Assistant Superintendents be raised to Rs.550-900 with  

effect from 01.01.1978.  The demand was referred to the  

Board  of  Arbitration  for  adjudication  on  12.02.1985.  

When  the  reference  was  pending  before  the  Board  of  

Arbitration,  the  Central  Fourth  Pay  Commission  made  

recommendations  that  the  pay-scale  of  Assistant  

Superintendents be revised to Rs.1600-2660 with effect  

from 01.01.1986.  Thereafter, on 05.01.1989 the Board of  

Arbitration made the Award with effect from 01.05.1982  

to the effect that the Assistant Superintendents be given  

pay at the existing scale of Rs.470-750 plus a special pay  

of Rs.75/- per month and this special pay be counted as  

pay for all purposes as per the rules.  On 04.07.1989, the  

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Ministry of Finance, Department of Expenditure, issued  

an order that the Ministry has agreed to the proposal of  

the Department of Statistics to implement the Award of  

the Board of Arbitration and allow special pay of Rs.75/-  

with  effect  from  01.05.1982  to  the  Assistant  

Superintendents in the Operation Units of the National  

Sample  Survey  Organisation,  but  the  special  pay  will  

continue upto 31.12.1985 and will not be available in the  

higher  revised  scale  of  Rs.1600-2660  with  effect  from  

01.01.1986.  The respondents who were promoted to the  

post of Assistant Superintendents after 01.01.1986 were  

not given the benefit  of  the special  pay and were only  

given the  pay in  the  revised  scale  of  Rs.1600-2660 as  

recommended by the Fourth Pay Commission.   

3. Aggrieved,  the  respondents  moved  the  Central  

Administrative Tribunal, Hyderabad Bench, (for short ‘the  

Tribunal’)  in O.A. No. 827 of 2002 and by order dated  

22.01.2003 the Tribunal allowed the O.A. declaring that  

the respondents are entitled to the re-fixation of their pay  

by merging the special pay of Rs.75/-  with their basic  

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pay in the then existing pay-scale of Rs.470-750 on the  

basis  of  the  recommendations  of  the  Fourth  Pay  

Commission  with  effect  from  01.01.1986  and  for  

subsequent  corresponding  revised  pay  scales  on  the  

basis  of  the  recommendations  of  the  Fifth  Pay  

Commission and directed the appellants to take steps to  

get the pay of the respondents re-fixed accordingly and  

further directed that the respondents shall be paid all the  

arrears of salary as a result of re-fixation of their pay.

4. The appellants challenged the order dated 22.01.2003 of  

the Tribunal before the High Court and by the impugned  

judgment, the Division Bench while sustaining the order  

of  the  Tribunal  modified  the  same  directing  that  the  

respondents  would  be  entitled  to  have  the  benefit  of  

special pay of Rs.75 in the revised pay-scale of Rs.1600-

2660 as recommended by the  Fourth Pay Commission  

and  the  revised  pay-scale  of  the  respondents  as  

recommended by the Fifth Pay Commission will have to  

be  appropriately  fixed  taking  into  consideration  the  

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special  pay of  Rs.75/- and its  merger in the Fifth Pay  

Commission scales.

5. Miss Indira Jaising, learned Additional Solicitor General  

appearing for the appellants, submitted that the Tribunal  

and the High Court failed to appreciate that the Fourth  

Pay  Commission,  while  recommending  revision  of  the  

pay-scale of Assistant Superintendents from Rs.470-750  

to Rs.1600-2660 with effect from 01.01.1986 had taken  

into consideration the duties and responsibilities of the  

Assistant Superintendents and, therefore, the special pay  

of  Rs.75/-  given  to  Assistant  Superintendents  prior  to  

01.01.1986  pursuant  to  the  Award  of  the  Board  of  

Arbitration  would  not  be  available  to  those  who  were  

promoted as Assistant Superintendents after 01.01.1986.  

She submitted that the respondents who were promoted  

to the post of Assistant Superintendent after 01.01.1986  

would  therefore  not  be  entitled  to  the  benefit  of  the  

special  pay  of  Rs.75/-  as  awarded  by  the  Board  of  

Arbitration for fixation of their scale.  She submitted that  

the benefit  of  Rule 7(1)(B)  of  the Central  Civil  Services  

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(Revised Pay) Rules, 1986 (for short ‘the 1986 Rules’) will  

be  available  only  to  those  who  were  in  receipt  of  the  

special  pay  as  on  01.01.1986 and as  the  respondents  

were  not  Assistant  Superintendents  as  on  01.01.1986  

and were not in receipt of the special pay of Rs.75/- as  

awarded  by  the  Board  of  Arbitration,  they  were  not  

entitled  to  the  benefit  of  the  special  pay.   She further  

submitted that the respondents are also not entitled to  

the benefit of Rule 7(1)(B) of the 1986 Rules as the rule  

only applies to those who are in receipt of special  pay  

granted  by  the  Fourth  Pay  Commission  and  Assistant  

Superintendents were not given any special pay by the  

Fourth Pay Commission.  She submitted that the pay of  

the  respondents  who  were  promoted  as  Assistant  

Superintendents  after  01.01.1986  has  to  be  fixed  in  

accordance with F.R. 22(a)(1) and not in accordance with  

Rule 7(1) A or Rule 7(1)B of the 1986 Rules.

6. Miss  Jaising  submitted  that  some  of  the  aggrieved  

Assistant  Superintendents,  who  have  been  denied  the  

benefit of special pay of Rs.75/-, had filed O.A. No.695 of  

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1990 before the Central Administrative Tribunal, Madras  

Bench,   and O.A.  No.1232 of  1997 before  the  Central  

Administrative Tribunal, Hyderabad Bench, and the two  

Benches of the Tribunal disposed of the O.As. with the  

direction  to  the  applicants  to  approach  the  Anomalies  

Committee  of  the  respective  Pay  Commissions.   She  

submitted that in the present case also the Tribunal and  

the High Court, instead of allowing the benefit of special  

pay  to  the  respondents,  should  have  directed  the  

respondents  to  approach  the  authorities  for  

reconsideration  of  the  fixation  of  their  pay-scale  after  

giving the benefit of special pay as awarded by the Board  

of Arbitration.   

7. Mr. P.S.  Narasimha, learned counsel appearing for the  

respondents,  on  the  other  hand,  submitted  that  the  

Tribunal and the High Court had given good reasons to  

hold that the respondents who were promoted to the post  

of Assistant Superintendent after 01.01.1986 were also  

entitled to the benefit of special pay of Rs.75/- per month  

as awarded by the Board of Arbitration in fixation of their  

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pay  in  the  revised  pay-scales  as  recommended by  the  

Fourth Pay Commission.  He further submitted that the  

Award dated 05.01.1989 of the Board of Arbitration itself  

states  that  the  special  pay  of  Rs.75/-  per  month  as  

awarded  will  count  for  all  purposes  as  per  rules  and,  

therefore,  will  have  to  be  counted  for  the  purpose  of  

fixation of the revised pay-scale in accordance with Rule  

7(1)(B) of the 1986 Rules.   He submitted that the order  

dated 04.07.1989 of the Ministry of Finance, Department  

of Expenditure, also states that the special pay will  be  

recognized  and  be  implemented  for  the  purpose  of  

revision according to Rule 7(1)(B) of the 1986 Rules.  He  

argued that Rule 7(1)(B) of the 1986 Rules provides that  

the special pay  will be added to the existing emoluments  

for the purpose of fixation of the revised pay-scale and  

hence  the  respondents  who  had  been  promoted  as  

Assistant Superintendents were entitled to this benefit of  

addition  of  special  pay  of  Rs.75/-  per  month  in  the  

existing emoluments for  fixing their  pay in the revised  

scale.   

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8. Mr. Narasimha also argued that there cannot be different  

pay for persons working in the same post of  Assistant  

Superintendents as this would amount to discrimination  

and  would  be  violative  of  Articles  14  and  16  of  the  

Constitution of India.  He relied on the decisions of this  

Court  in  Telecommunication  Research  Centre  Scientific   

Officers’ (Class I)  Association & Ors. v.  Union of India &  

Ors. [(1987)  1  SCC  582]  and  M.P.  Singh,  Deputy  

Superintendent of Police, C.B.I. & Ors. v. Union of India &  

Ors. [(1987) 1 SCC 592] for the proposition that there can  

be no discrimination in matters of  pay.   He submitted  

that the Assistant Superintendents have been given the  

benefit  of  special  pay  of  Rs.75/-  after  01.01.1986 and  

that  their  revised  pay  has  been  fixed  accordingly,  

whereas the respondents who have been promoted to the  

post of Assistant Superintendent after 01.01.1986 have  

been denied the benefit of special pay while fixing their  

revised scale of pay and this amounts to discrimination  

against the respondents.  

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9. Mr.  Narasimha  finally  submitted  that  the  respondents  

were not parties to O.A. No.695 of 1990 or O.A. No.1232  

of  1997  in  which  directions  for  reconsideration  were  

given  by  the  Tribunal  and  that  they  had  separately  

moved  the  Central  Administrative  Tribunal,  Hyderabad  

Bench, and the Tribunal, after considering all the facts  

and  circumstances  of  the  case,  have  directed  the  

appellants to give the benefit  of  special  pay of Rs.75/-  

while re-fixing the revised pay-scale of the respondents  

on the basis of the recommendations of the Fourth Pay  

Commission and the directions given by the Tribunal in  

O.A.  No.695  of  1990  and  O.A.  No.1232  of  1997  to  

approach  the  authorities  for  reconsideration  were  not  

binding on them.   

10. We have read the impugned judgment and we find that  

the High Court has given good reasons for coming to the  

conclusion that the respondents, who were promoted to  

the  post  of  Assistant  Superintendent  after  01.01.1986,  

were entitled to have the benefit of Rs.75/- as special pay  

in the revised pay-scale of Rs.1600-2660.  The reasons  

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given by the High Court are: (1) in paragraphs 10.359,  

10.360, 10.361 and 10.362 of  the recommendations of  

the  Fourth Pay Commission,  which deal  with the  pay-

scale  of  Assistant  Superintendents  in  National  Sample  

Survey Organisation,  Department of  Statistics,  there  is  

no reference to the pending proceedings before the Board  

of  Arbitration and hence it  is  difficult  to hold that the  

Fourth Pay Commission has taken into consideration the  

dispute  regarding  the  pay-scale  of  Assistant  

Superintendents pending before the Board of Arbitration;  

(2) On the other hand, the Board of Arbitration has in its  

deliberations quoted in the impugned judgment referred  

to the recommendations of the Fourth Pay Commission  

that the pay-scale of Assistant Superintendents should  

be Rs.1600-2600 and yet  the Board of  Arbitration has  

awarded a special pay of Rs.75/- per month for Assistant  

Superintendents and has not restricted the grant of such  

special  pay  upto  01.01.1986;  (3)  The  special  pay  of  

Rs.75/- per month was attached to the scale of pay of  

Assistant  Superintendents  and  employees  holding  the  

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post  of  Assistant  Superintendent,  whether  prior  to  

01.01.1986  or  subsequent  to  01.01.1986,  were,  

therefore,  entitled  to  the  benefit  of  Rs.75/-  towards  

special pay.

11. We would like to give, in addition, a few more reasons in  

support  of  the  conclusion  of  the  High  Court  that  the  

respondents, who were promoted to the post of Assistant  

Superintendents  after  01.01.1986,  are  entitled  to  have  

the benefit of Rs.75/- as special pay in the revised pay-

scale  of  Rs.1600-2660 as recommended by  the  Fourth  

Pay Commission.   The recommendations of  the Fourth  

Pay Commission were implemented by the 1986 Rules.  

Rule 7(1)(A) of the 1986 Rules covers cases of employees  

whose existing emoluments do not include special  pay,  

Rule  7(1)(B)  covers  cases  of  employees  whose  existing  

emoluments include special pay, but special pay has not  

been continued with the revised scale of pay and Rule  

7(1)(C)  covers  cases  of  employees  whose  existing  

emoluments  include  special  pay,  but  in  whose  case  

special pay has been continued with the revised scale of  

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pay.   All  those  employees  who  were  Assistant  

Superintendents as on 01.01.1986 for whom special pay  

was awarded by the Board of Arbitration with effect from  

01.05.1982 and for whom special pay did not continue  

with the revised scale of pay would, therefore, be covered  

under Rule 7(1)(B) and not under Rule 7(1)(A) or 7(1)(C)  

of the 1986 Rules.  This is the reason why the Ministry of  

Finance, Department of Expenditure, in its letter dated  

04.07.1989  directed  that  pay  in  the  revised  scale  of  

Rs.1600-2660 with effect from 01.01.1986 will  be fixed  

under Rule 7(1)(B) of the 1986 Rules.   

12. The  contention  of  the  appellants,  however,  is  that  the  

respondents,  who were  Investigators  as  on 01.01.1986  

and  were  promoted  to  the  post  of  Assistant  

Superintendent after 01.01.1986, would not be covered  

under Rule 7(1)(B) of the 1986 Rules and that on such  

promotion their pay would be fixed under F.R. 22(a)(1),  

the relevant portion of which is quoted hereinbelow:

“F.R.22:  The  initial  pay  of  a  Government  servant  who is appointed to a post on a time scale of pay is  regulated as follows:-

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(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 such pay has  accrued  or  rupees  twenty  five  only,  (now Rs.100)  which is more.”

A plain reading of F.R. 22(a)(1), quoted above, would show that  

where  a Government servant  holding a post  is  promoted 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 such pay has accrued.  

Thus,  on  promotion  to  a  post  carrying  duties  and  

responsibilities of greater importance, a Government servant is  

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entitled to his initial pay “in the time scale of the higher post”.  

In the present case, the higher post to which the respondents  

were  promoted  after  01.01.1986  was  the  post  of  Assistant  

Superintendent.   If,  therefore,  the special  pay of Rs.75/- as  

has been awarded by the Board of Arbitration is for the higher  

post of Assistant Superintendent,  the respondents would be  

entitled to the benefit of special pay, but if the special pay was  

only for the Assistant Superintendents then serving, and not  

for  the  post  of  Assistant  Superintendent,  the  respondents  

would not be entitled to the benefit of special pay having been  

promoted after 01.01.1986.

13.  ‘Special Pay’ has been defined in F.R. 25 as:  

“an  addition,  of  the  nature  of  pay,  to  the  emoluments of a post or of a Government servant,  granted in consideration of (a) the specially arduous  nature of the duties; or (b) a specific addition to the  work or responsibility”.   

Hence,  special  pay  can  be  attached  to  either  ‘a  post’  or  ‘a  

Government servant’.    

14.     We find that the reference that was made to the Board  

of  Arbitration  was  whether  the  pay-scale  of  Assistant  

Superintendent  of  the  Field  Operations  Division  of  NSSO,  

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Government  of  India,  be  revised  from  the  existing  scale  of  

Rs.470-750 to Rs.550-900 with effect from 01.01.1978 and the  

Board of Arbitration gave the following Award:  

“The Assistant Superintendents of the FOD of the  NSSO, Government of India, shall be given pay at  the existing scale of Rs.470-750 plus a special pay  of Rs.75/- per month.  This special pay shall count  as pay for all  purposes as per rules.  This award  shall take effect from 1st May 1982”

It is thus clear from a perusal of the reference and the award  

of the Board of Arbitration that the special pay of Rs.75/- per  

month  was  for  the  post  of  Assistant  Superintendent  in  the  

existing scale of pay of Rs.470-750 is irrespective of who held  

the  post.   Therefore,  the  respondents,  who  have  been  

promoted  to  the  post  of  Assistant  Superintendent  after  

01.01.1986, would be entitled to the benefit of special pay of  

Rs.75/- per month in the fixation of its initial pay.

15. In our considered opinion, the 1986 Rules and F.Rs.  

22 and 25 have to be read consistent with the equality clauses  

in  Articles  14  and  16  of  the  Constitution  and  so  read,  all  

Assistant  Superintendents  who  are  performing  the  same  

nature of duties and responsibilities would be entitled to the  

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special  pay  and to  deny  such benefit  of  special  pay  to  the  

respondents, who have been promoted to the post of Assistant  

Superintendents after 01.01.1986, would violate of Articles 14  

and 16 of the Constitution.  In support of this view, we may  

now cite the authorities.

16. In M.P. Singh, Deputy Superintendent of Police, C.B.I. & Ors.  

v. Union of India & Ors. (supra), this Court held:

“10. From the foregoing discussion it emerges that  the  Special  Pay  that  was  being  paid  to  all  the  officers in the cadre of  Sub-Inspectors,  Inspectors  and Deputy Superintendents of Police in the Central  Investigating  Units  of  the  Central  Bureau  of  Investigation  has  nothing  to  do  with  any  compensation for which the deputationists may be  entitled  either  on  the  ground  of  their  richer  experience or on the ground of their displacement  from their parent departments in the various States,  but  it  relates  only  to  the  arduous  nature  of  the  duties  that  is  being  performed  by  all  of  them  irrespective of the fact whether they belong to the  category of the “deputationists” or to the category of  the  “non-deputationists”.  That  being  the  position,  the classification of the officers working in the said  cadres into two groups, namely, deputationists and  non-deputationists  for  paying  different  rates  of  Special Pay does not pass the test of classification  permissible  under  Articles  14  and  16  of  the  Constitution  of  India  since  it  does  not  bear  any  rational relation to the object of classification.”

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17.     Similarly,  in  Telecommunication  Research  Centre  

Scientific Officers’ (Class I)  Association & Ors. v.  Union of  

India & Ors. (supra), this Court held:

“10. Following the decision of this Court in Randhir  Singh v. Union of India ((1982) 1 SCC 618)  and the  decision  of  this  Court  in  (M.P.  Singh v.  Union  of  India  (1987) 1 SCC 592  (Writ Petition Nos. 13097- 13176  of  1984  decided  today)  we  hold  that  the  direct  recruits  (to  which  category  the  petitioners  belong) in the Telecommunication Research Centre  are entitled to the Special Pay at the same rates at  which it is paid to the transferred officers working  in that centre with effect from the date from which  the  transferred  officers  have  been  drawing  the  Special Pay. We accordingly direct Respondent 1 —  Union of India to pay the Special Pay to the direct  recruits  with  effect  from  the  date  on  which  the  transferred officers commenced to draw the Special  Pay up to date and to continue to pay it in future  also as long as the transferred officers continue to  get  it.  The  arrears  of  the  Special  Pay  up to  date  payable to the direct recruits shall be paid within  four months from today.”

18.        Once the Court holds that under the 1986 Rules read  

with the  Fundamental  Rules and Articles  14 and 16 of  the  

Constitution, the respondents were entitled to the benefit  of  

special  pay along with the  revised scale  of  pay of  Rs.1600-

2660 as  recommended by  the  Fourth  Pay  Commission,  the  

Court  can  itself  grant  the  relief  and  need  not  direct  the  

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respondents to move the Government for reconsideration for  

fixation of their pay-scales.

19.     For the aforesaid reasons, we sustain the impugned  

judgment of the High Court and dismiss this appeal with no  

order as to costs.

………………………..J.                                                                (Markandey Katju)

………………………..J.                                                                (A. K. Patnaik)

New Delhi, May 11, 2010.    

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