Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3537 OF 2001

Kunnashada Muthukoya … Appellant

Vs.

Administrator U.T. of Lakshadweep & Anr. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

The appellant was promoted as a lineman, a group ‘C’ post, in the

Lakshadweep Electricity department, on 2.2.1985. The pay scale of lineman

was initially Rs.85-2-95-3-110 which was revised to Rs.210-4-226-EB-4-

250-EB-5-290. The pay scale was further revised to Rs.800-15-1010-EB-

20-1150 as per Central Civil Services (Revised Pay) Rules, 1986 (for short

‘Revised Pay Rules’). The appellant gave a representation dated 1.10.1994

requesting a higher pay scale. He contended that as the post of lineman was

classified as a group C post, he should be given the benefit of the minimum

of  the  pay scales  prescribed  for  group  ‘C’ posts  under  the  Revised  Pay

Rules, that is Rs.825-15-900-EB-20-1200.

2. By Office Memorandum dated 9.8.1995 the respondent rejected the

representation of appellant for grant of the higher pay scale of Rs.825-1200.

The said memorandum stated that though the post of lineman was a group

‘C’ post, the revised pay scale applicable to the said post was that which

corresponded to pre-revision pay-scale of Rs.210-290 drawn by linemen and

therefore appellant  was  entitled  only to  the  revised  pay scale  of  Rs.800-

1150. It was also stated that the duties and responsibilities of linemen in the

Electricity  Department  differed  substantially  from  linemen  in  other

departments  (that  is  Linemen/Wireman  in  telecommunications,  Postmen/

Mailguards in Postal department etc.); that the Fourth Pay Commission had

recommended the higher pay scale of Rs.825-15-900-EB-20-1200 only for

linemen and wiremen in the Telecommunication Department on the specific

condition that their recruitment qualifications should be raised; and that the

revised pay scale of Rs.800-1150 given to the appellant  was therefore in

accordance with the fourth pay commission’s recommendations.   

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3. Feeling  aggrieved  the  appellant  approached  the  Central

Administrative  Tribunal,  Ernakulam  Bench.  The  Tribunal  allowed  the

application by order dated 28.6.1997 and quashed the O.M. dated 9.8.1995.

The Tribunal  held  that  as the appellant  was in a group ‘C’ post,  he was

entitled to the minimum pay scale applicable to group ‘C’ posts, after the

revision of pay scales; that under the CCS (Revised Pay) Rules, 1986, the

pay scale of Rs.800-1150 was a group ‘D’ pay scale and the lowest  pay

scale applicable to group ‘C’ posts was Rs.825-1200; and that therefore the

appellant  was  entitled  to  the  revised  pay  scale  of  Rs.825-1200  from

1.1.1986  with  all  consequential  benefits.  The respondents  challenged  the

said order in a writ petition (O.P.No.13965/1998) before the High Court of

Kerala. The High Court allowed the writ petition by order dated 27.1.2000

following the decision of this Court in  Union of India v. P V Hariharan

[1997 (3) SCC 568]. The High Court held that as the pay scale applicable to

the appellant before the pay revision was Rs.210-290, he was entitled only

to the corresponding revised pay scale of Rs.800-1150 under the Revised

Pay Rules, and that he was not entitled to a higher pay scale. The said order

is  challenged  in  this  appeal  by  special  leave.  The  only  question  that

therefore arises for our consideration is whether the appellant was entitled

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to the benefit of higher pay scale of Rs.825-1200 as he was holding a Group

‘C’ post.

4. In  Hariharan (supra), this Court considered a similar claim by Tool

Room Assistants in the Fisheries department, whose pay scale was initially

Rs.85-128,  revised  to  Rs.210-290.  After  the   Fourth  Pay  Commission

recommendations,  they were given the revised pay scale of Rs.800-1150.

The Tribunal held that as the post held by them was included in Group ‘C’,

they were entitled to the higher pay scale of Rs.1150-2900. Reversing the

said decision, this Court held:  

“We are unable to appreciate the reasoning or approach of the Tribunal. The  pay  scale  of  Tool  Room  Assistant  in  IFP  is  Rs.800-1150.   …. Assuming that the said post was mentioned under Group C, it may be – or may not be – an error. What is material is that the classification cannot result in change of pay scale from Rs.800-1150 to Rs.1150-2900. This is simply unimaginable. Pay scales are what are prescribed for each post by the Government which is very often done on the basis of recommendations of a Pay Commission or a similar expert body. Classification of posts has nothing  to  do  with  fixation  of  pay scales;  it  only classifies  posts  into several groups based upon the pay scales already fixed. Classification and prescribing  pay  scales  for  several  posts  are  two different  and distinct functions. The Tribunal’s order is, in our opinion, wholly unsustainable in law.”

(Emphasis supplied)

5. The learned counsel for the appellant fairly conceded that if the ratio

of Hariharan is applied, the appellant’s claim is liable to be rejected. But he

contended that the decision in  Hariharan should be considered as having

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been rendered per incurium, as it ignores Rule 5 of the Revised Pay Rules.

Relying on the decisions of this Court in Nirmal Jeet Kaur v. State of M.P.

[2004 (7) SCC 558] and  Central Board of Dawoodi Bohra Community v.

State  of  Maharashtra [2005  (2)  SCC 673],  he  submitted  that  a  decision

rendered  per  incurium is  not  a  binding  precedent.  According  to  the

appellant, having regard to Rule 5 of the Revised Pay Rules, the revision of

pay of a government servant should be with reference to the class of post

held by him and not with reference to the pay scale earlier applicable to him.

He therefore contended that as the appellant held a Group ‘C’ post, the pay

scale applicable to Group ‘C’ government servants should be extended to

him.  

6. The principles enunciated in Hariharan is that ‘classification of posts

has  nothing  to  do  with  fixation  of  pay  scales”  and  “classification  and

prescribing  pay  scales  for  different  posts  are  two  different  and  distinct

functions”. These are well settled principles of service jurisprudence. The

question  therefore is  whether Rule 5  of  CCS (Revised  Pay) Rules,  1986

carves out any exception to the said general principles of service law, or

lays down a different principle, and if so whether Rule 5 had been wrongly

ignored.   

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7. The  Revised  Pay  Rules  were  made  to  implement  the

recommendations made by the Fourth Pay Commission. A brief reference to

the relevant provisions of the said Rules will be necessary to consider the

appellant’s contention.

7.1) Sub-Rules  (2),  (3),  and  (5)  of  Rule  3  define  the  terms  ‘Existing

Scale’, ‘Present Scale’ and ‘Revised Scale’.  ‘Existing Scale’ in relation to a

Government servant means the present scale applicable to the post held by

the Government servant as on 1.1.1986. ‘Present Scale’ in relation to any

post specified in Column 2 of the First Schedule, means the scale of pay

specified against that post in Column 3 thereof. ‘Revised Scale’ in relation

to any post specified in column (2) of the First Schedule means the scale of

pay  specified  against  that  post  in  column  (4)  thereof  unless  a  different

revised scale is notified separately for that post. Rule 4 provides that from

the date of commencement of the revised pay rules (1.1.1986), the scale of

pay of every post specified in column (2) of the First Schedule shall be as

specified against it in column (4) thereof.  

7.2) Rule 5 relied on by the appellant,  relating to drawal of pay in  the

revised scales is extracted below :       

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“5.  Drawal of pay in the revised scales  : Save as otherwise provided in these  rules,  a  Government  servant  shall  draw pay in  the  revised  scale applicable to the post to which he is appointed.

Provided that a government servant may elect to continue to draw pay in the  existing  scale  until  the  date  on  which  he  earns  his  next  or  any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.

Explanations 1, 2, 3 : x x x x x (omitted as not relevant)”  

Rule  6  provides  how the  option  under  the  proviso  to  Rule  5  should  be

exercised.

7.3) The First  Schedule to the Revised Pay Rules consists of two parts.

Part A relates to “revised scales for posts carrying present scales in Groups

D,  C  &  B  except  posts  for  which  different  revised  scales  are  notified

separately.”  Part  B  relates  to  “revised  scales  of  pay  for  certain  other

categories of staff.” The relevant entries in the First Schedule are extracted

below:

THE FIRST SCHEDULE (See Rules 3 & 4) – PART A (Revised scales for posts carrying present scales in Group D, C & B except posts for which different revised scales are notified separately)  

Sl.No. (1)

Post (2)

Present scale (3)

Revised scale (4)

GROUP ‘D’  x x x x x

3. All  posts  carrying  present scales specified in Column 3.

(a) x x x x x (b) x x x x x (c)210-4-226-EB-4-250-EB-5-290

800-15-1,010-EB-20-1,150

GROUPS ‘C’ AND ‘B’

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4. All  posts  carrying  present scales specified in column 3.  

225-5-260-6-290-EB-6-308  x x x x x

825-15-900-EB-20-1,100

8. The Central Government has issued an Explanatory Memorandum to

understand  and  implement  the  CCS  (Revised  Pay)  Rules,  1986.  The

explanation given therein in regard to Rule 5 is extracted below:

“Re :  Rule 5. The intention is  that  all  Government servants should be brought over to the revised scales except those who elect to draw pay in the  existing  scales.  Those  who  exercise  the  option  to  continue  on  the existing scales of pay will  continue to draw the dearness pay, dearness allowance, ad hoc dearness allowance and interim reliefs at the rates in force on the 1st January, 1986 and the dearness pay will  count towards house rent and compensatory allowances, emoluments for pension, etc. to the  extent  it  so  counted  on  the  said  date.  If  a  Government  servant  is holding a permanent  post  in  a substantive capacity and officiating in a higher post or would have officiated in one or more posts but for his being on deputation etc., he has the option to retain the existing scale only in respect of one scale. Such a Government servant may retain the existing scale applicable to a permanent post or any one of the officiating posts. In respect of the remaining posts he will necessarily have to be brought over to the revised scales.”     

9. The position that emerged from a combined reading of the provisions

of  the  Revised  Pay  Rules  in  the  context  of  the  question  raised  by  the

appellant was as follows :  

(i) As from 1.1.1986, the scale of pay of every post specified in column

(2) of the First Schedule was as specified against it  in column (4) of the

First Schedule.  

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(ii) Part  A of the First  Schedule did not  individually name the several

posts for which the revised pay scales were prescribed. It grouped the posts,

with  reference  to  the  existing  (pre-revision)  pay  scale  and  prescribed  a

single revised pay scale. Therefore in regard to posts covered by Part A (that

is   posts  excluding  those  specified  in  Part  B)  the  entitlement  of  a

government servant to the revised scale of pay was with reference to the

existing  scale  of  pay  (that  is  pre-revised  scale  applicable  to  him as  on

1.1.1986 when the revised scales of pay came into effect). All posts carrying

a  particular  pay scale  before  the  revision,  were  given  the  corresponding

revised pay scale shown in the First Schedule. The pay revision was thus

with reference to the existing pay scale drawn by the government servant

and not with reference to the ‘post’ held by him.  

(iii) Part  B of First  Schedule,  on the other  hand,  specifically described

certain  posts,  as for example, Junior Engineer,  Technical  Supervisor etc.,

while prescribing the revised pay scales. In regard to posts described in Part

B, both the ‘post’ and the existing scale of pay became relevant for finding

out the corresponding revised scale of pay.

(iv) The Revised Pay Rules did not change the classification of posts. The

fact that the First Schedule classified the pay scales for convenience under

the  headings  ‘Group  D’  and  ‘Groups  C  &  B’  did  not  mean  that  a

government servant working  in Group ‘C’ but whose existing scale of pay

was shown under the heading Group ‘D’, could ignore his existing scale and

claim the benefit of a revised scale corresponding to some other higher pre-

revised scale of pay.  

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(v) The object and intent of Rule 5 was to bring all government servants

covered by the Revised Pay Rules to the revised scales except those who

elected to continue to drawing pay in the existing scales.   

10. The contention of appellant that pay revision should be with reference

to post  held and not  existing pay scales,  if  accepted would  have lead to

confusion, uncertainty and inconsistency. Its effect, in the case of appellant,

would have been to first upgrade the existing pay scale from Rs.210-4-226-

EB-4-250-EB-5-290  to  Rs.225-5-260-6-290-EB-6-308  and  then  grant  the

revised  pay scale  corresponding  to  such  upgraded  higher  pay scale  with

effect from 1.1.1986. Rule 4 read with First Schedule made it clear that the

government servant was only entitled to the revised pay scale corresponding

to his existing pay scale (and not any other revised pay scale corresponding

to  some  higher  pre-revised  scale).  Rule  5  does  not  mean  that  if  a

government servant  was in a post classified as a Group ‘C’ post with an

existing pay scale shown in the First Schedule as a Group ‘D’ pay scale, the

government servant would get the pay scale applicable to a Group ‘C’ post.

In fact there are several revised pay scales in Part A of the First Schedule

for Group ‘C’ posts. If the contention of the appellant was to be accepted,

and the revised pay scale to be given to him was to be delinked from the

existing pay scale, then he could have chosen any of the several revised pay

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scales  corresponding  to  pay  scales  shown  as  Group  ‘C’  scales  (that  is

Rs.825-1200 or Rs.950-1400 or 950-1500 or 975-1540 etc) as he did not fit

into any of the existing pay scales of Group ‘C’. Obviously such a course

was clearly impermissible. All that Rule 5 provided was that except those

who exercised  option to  continue  to  draw pay in  the  existing  pay scale,

others should draw their pay only in the revised pay scale corresponding to

his  existing  pay  scale  and  that  he  could  not  draw any  other  pay  scale.

Further a person who fell under part A of First Schedule could not draw the

pay provided in Part B of First Schedule and vice versa.  

11. It is also of some relevance to note that Rule 5 in the Revised Pay

Rules  is  not  a  new provision,  but  same  as  Rule  5  of  the  Central  Civil

Services (Revised Pay) Rules, 1973 relating to the earlier pay revision. The

said  rule  had  never  been  interpreted  in  the  manner  suggested  by  the

Appellant. Be that as it may.  

12. For  the  reasons  aforesaid,  the  contention  that  Hariharan (supra)

ignored  Rule  5  and  should  therefore  be  considered  as  per  incurium is

untenable. The said contention is rejected. The appeal is therefore dismissed

as having no merit.

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…………………………..J. (R. V. Raveendran)

New Delhi;       …………………………J. August 29, 2008.                                 (P. Sathasivam)

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