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 OJC No 46666
D D Suri In person
K K Venugopal Addl
of India R B Datar and Girish Chandra for Union of India
L N Sinha and G section 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 he joined the Army
During the 30 Second World War he was granted an Emergency Commission in the Army we f March 7 1943 with the rank of Lieutenant wef June 3 1948 but with seniority in that rank wef 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 194312 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 ie 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 12 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 wef 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 section 52 read with section 51 e of the Prevention of Corruption Act 1947 on a charge of having assets to the tune of Rs 32947690 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 73 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 ie the date of suspension till June 9 1971 ie 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 ie 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 FR 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 FR 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 VV 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 wef
July 24 1962 to June 9 1971 ie 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 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
 ie 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 ie 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 ie 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 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 FR 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 30000  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 years which short fall should have been waived by the Government and ii he being a regular Army Officer the definition of pay  in FR 921 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  N112 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 InstructionsOrders 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 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 194312 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
On the basis of the decision referred to in para 1i 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 2352 AIS dated the 26th April 1952 will therefore be immediately below Sri ST Merani section No 12 and above Sri SS Murthi section 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 FR 921 b FR 921b 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
 FR 2 provides that the Fundamental Rules shall apply subject to the provisions of FR 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
It is however provided by FR 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 FR 921 b is for protection pay  when such officer is recruited in civil service under the employment of the Union of India ie 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 FR 921 b
FR 921 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 FR 921 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 1000 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 ie 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 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 pm 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 pm
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 FR 921b 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 1000 ie 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 FR 921 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 FR 921 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 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
 ie 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 FR 921 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 ie 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 FR 921 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 ie 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 FR 49 The short question for consideration is whether the appellant was entitled under FR 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 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 FR 49 were not applicable to him after the Indian Administrative Service Pay Rules 1954 were brought into force and even if they were FR 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 FR 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 FR 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 2250 was also considered but his representation was rejected on the ground that the said incumbent had already been drawing Rs 2250 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 entitled to be given an additional pay under FR 49 ie 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 FR 301 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 vs 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 225 Est
III46 dated April 2 1947 All India Services Manual 2nd ed
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 19540 Ests dated the 9th June 1942 proposes to regulate officiating pay by special orders under the second proviso to Fundamental Rule 301
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 FR 301
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 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 2500 1252 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 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 ie 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 ie 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 vs ML Capoor1
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 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 RN 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
NVK Appeal dismissed


Summary:
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 wef March 7 1943 with the rank of Lieutenant wef June 3 1948 but with seniority in that rank wef 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  12 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 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 ie 7 1 40 to 31 12 48
The figure of N1 was worked out taking the protection pay admissible to Army Officers as per FR 921b ie 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 FR 49 and c for granting the benefit under FR 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 921b 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 ie 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 wef
July 24 1962 ie the date when his junior Sri VV Ananta Krishnan was appointed to the super time scale under the Next Below Rule implied in FR 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 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 12 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 FR 921b is for protection pay  when such officer is recruited in civil service under the employment of the Union of India ie for fixation of his pay in such service as is made clear by F Rs 2 and 3
FR 2 provides that the Fundamental Rules shall apply subject to the provisions of FR 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
FR 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 service are governed by Army or Marine Regulations
FR 921b 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 pm 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 FR 921b 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 FR 921b 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 FR 921b 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 ie 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 ie at the time when the petitioner 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 FR 2 declared them to be so applicable
43B The provisions of FR 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 FR 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 FR 49 he had no claim to any additional salary on the materials on record
44A 5 The intention underlying the second proviso to FR 301 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 vs M H Bellary   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 FR 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
45G46B 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 vs ML Capoor   referred to