15U Writ Fetitipn (S) No. 81S pf 2008 Pstitioner Pr^^pnt" P. Satyanarayan S/o. Late P. HanumanSu, agsd about 70 years, Retirsd Lectursr, R/o. Shopai Patnam, District Bastar (CG). Versus 1) State of Madhya Pradesh, Department of Triba! Dsveiopment through Its Principa! Secretary, Bhopai (MP). 2) Staie of Chhattisaarh, Deoartment of Tribal Deveiopmerst through its Principal Secretar/, u.K.ynawan, Kaipur (CG). 3) Asstt. Commissioner, Tribai Development. South Bastar Dantewada, Chhattlsgarh State. ' 41 The Joint Director of Treasury, Account & Penslon, Raipur (CG). it Petition under Articie 226 of the Consfrtution of Indial !s Mr. .J.1 Shri A.S. Rajput, Shri A.S. Kachhawaha, Dy. Advocate e petitioner. Generai forthe (Passed on 27'" March inthis DCtition, a auestion or iaw involved is whether the emplovee oyhe State Government is entitfed to benefits of initial pay in the time scate ot' higher post on belng appointed to another post carrying duties and responsibiHtles of greater importance In accordance v/ith Fundamentai Rules (forshort, "FR") 22-D ofthe M.P.Fundamentai Ruies. 2) Learned counsei appearing for tne pstitioner submits tha{ the Master was promoted to the post of ernoner. 'A'nije worKina Lecturer;.; carrying higher responsibilities on 12-1-1996 (Annexure P/1). He was not given the benefits under FR 22-D. He retlred from sen/ice after attaining the age of superannuation on 31-3-1997 (Annexure P/2). The petitioner made a representation dsted 29-11-2006 (Annexure P/4) to the respondents-authorities, but no action has been taken so far. Learned counse! further subrnits that the FR are made by the Secretary of State in Council under Section 96-B of the Government of india Act, includina the orders issued bv the Secretan? of State, Government of india and Auditor- General and the Suppiementan/ Ruies framed bv the iocai Government which are appiicable to the service conditions of governrnent employees and have attained the status of rutes framed under Article 309 of the Constitution of india. Thus, FR cannot be superceded by any executive instructions. 3) Per contra, Shri A.S. Kachhawaha, Deputy Advocate Generai appearing for the State submits that the post of Head Master as weti as Lscturer carry the same pay scate, though Head Mastsrs are Ctass employees and the Lecturers are C!ass il gazetted officers/empioyees. On que:-y, whether Head Master can be posted as Lecturer if belonging So the same cadre, there is no response and no document in support of the coniention has been fiied. Learned counsel further submits that the post of Lecturer has not been notified as a post carrying highsr responsib'iity. Again on query, as to whether there is some system to notify a particuiar post that carries higher responsibiiity, Shri Kachhawaha offers no response. No ^y,documsnt in support thereof has been fiied. 4) i have heard learned counsel •appearing for the parties, perused pieadings and documents appended thereto. 5) Fundamental Rule 22-D reads as under: "F.R. 22-D )1- Notvflthstandinganythlng coniained in thess rules, where a Government servant hoiding a post In a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary, or officiating capacity to another post ^rryil^n dutl^S SHd r^SDQHSlbilltlSS Qf C?f©3tSr importance than those attaching io the post heia' by hjm, his initiaS pay in the time-scaie to the higher post, sha!! be fixed at the stage of next above the pay nofionally am'ved at by increasing his pay jn respect of the iovver post by one sncrement at the stage at which such pay has accrued: Provided that the provisions of this rule, shali not appjy where Govsrnnient servant holding a Ctess- 1 post in a sui'ssantive, semporary or officiating capacify is promoted or appoirsied 'n a substantive, ary or ofticiating capacaty to a nigher post is a Ciass-1 post. visions of sus-ruie jy.- (2) of ru!e 31, shal! not be appiicabte in any case wnere me inrtiai pay is ftxea unaer tnis ruie: Provided aiso that where a Government servant is mmediateiy before his promotion or apposntrrsent to a higher post, drawing pay at the maximum of the time scaies (one or more stases abovs ths maximum of the tlme scals ,'n the form of stagnation aliowance) of the iower posi, his initlai pay in the time scale of the higher post shall be fixsd at ths stage next above ths pay nofionaii'y arrived at by increasing 'nis pay in respect of the lower post by an amount equa! to the iast increment in the time scate of the lov/er oost. Provided further that the provisions of this ruie shail not appiy v/hers a Govsrnment servant Is promoted or appointsd to a higher post in the scaie of pay which Is 'dentical with the scale or pay of the lower post but is distinguished by an addition of a special pay only. in such cases the incumbents witl ^et only the specia.' pay m addjtton fo their pay In the iower posi. Expianation - 'tncremsnt' tbr the purposes of fixation of pay under this ruie, shouSd be taken to mean actua! increase in pay and not passage from one stage to another. The term 'stage next above' occurring in thjs ruie, means the siage in the time- scaie which is next in amount above the pay notionaiiy am'ved at !R rsspect of the iow'er post by one increment at the stage at which such pay has ^^ni iraH (2) If, howevsr, the Government sen/ant has atready officlated inn this higher post prsviously, hls „, pay shatl e fixed under the provisions of rule 22-A (b) if, it is more advantageous." Thus, non-abstante clause which begins with the iing anything contained in these ruies wili have precedence 22-D is of the same nature. Subsequent other ruies of FR. Fl circuiars/executive instructions, it Is wei! settled, cannot over-ride the ruies. Bare oerusal of the FR 22-D makes it ciear that a Government servant hotding a post in a substantive, temporar/ or officiating capacity, is promoted or appointed in a substantive, temporary, or officiating capacity to another post carrying duties and responsibilities of greater importance than those atiaching to the post held by him, his initiai pay in the time-scaie to the higher post, shail be fixed at the stage of next above the pay notionaily arrived at by increasing his pay in respect of the tower post by one increment at that stage. The day an employee is promoted to the higher post carrying higher resDonsibilitv. ha becomes entitied to the benefits under FR 22-D from that dav. 7) Mr. A.S. Rajput, iearned counse! appearing for the petitioner has cited decision of the M.P. Admlnistrative Tribunal In OA.No. 224 of 92 ( Smt. Kuntl Saxena Vs. ,Stats of M.P. and othersi wherein the Tribunal obssn/ed as unde; ^w. 'We therefore, committing our decision only on the basis of the piain language provided in proviso No.1 to the Fundamentai Ruies 22-D this provsso only realize that the benefits of this ruis shail not be given jOvemment sewant where the higher posf of the scaie identified which the scale of pay of the lower post but Is djstlnguishsd by a speclai pay only, the state has post to brought to our notice that any speciai pay was attached in fhe highsr post. We, therefore heid thaf this proviso which in rolied upon by the state does not debar the aDDlicant from getting the pay fixed as per ruies F° 22 (D)(l). According'y, we dirsct that the applicant is entitied io the bsnefits of FR 22-D and is entltlsd to get hers pay fix in accordance with F.R.22-D (1) the appiicant wi!i be entitied to ali benefits of fixation of pay receivlng the arrears and of getting pension gratuity and other benefits fixed accoraingly, benefit shouid be given wlthln a period of slx months from today." ?) The above stated order of the Tribunal passed in Smt. Kunti Saxena (supra) was taken to the Supreme Court, whlch was dismisssa' by the SuDreme Court in ADril, 1S94. On the basis of decision in Kunti Saxena (supra), the M.P. State Administrative Tribunai in the case of Mansharam Yadav Vs. Govt. of M.P. and others' passed the foHowing order,. "As reoards the anaivsis of duties and responsibillties of ths post of Hsad and Lscturer, thsrs coutd be no goiden scaie to weigh the responsibiiities assigned to an office. Ths post of promoi'on ordinarily be taken to be a post of higher rssponsibiiities unless it is covered under any of the p-rovisJORS of F.R. 22-D. The respondents falled to show that at the ilme of promofc'on, the appiicants were getting maxlmum or they wsre givsn additional 'pay for ths post of promotlon nor they couid show that the promotions were made of any of the applicants from Ciass-! post In subslantive, temporaiy or officiating capacity to a higher post which is a!so a —I" ~s 9) A division bench o* High Court of Madhya Pradesh st Jabaipur in Ramssh Kumar Mishra Vs. State of M.P. and others' obssr-.'ed as under: "6 Fundamentai Rule 22 dsals wsth the inltiat pay on appointment to post on tsme scale pay. !t jndicated as to now me inrtiai suostantive pay o? a uovernment se"/ant who is appointed substent'vely to a post on a time scaie of pay, is to be regulated. The reievant part of Fundamenta! Rule 22(a)(l) reads as under' "F.R. 22. 'nitial pay on appointment to post on tlme-scale pay.- ^SE. The initial substantive pav of a GovernmenS sen/ant who Is appointed substantiveiy to a post on a tlme-scaie of pay is regulated as foliows:- (a) If he holds a lien on a permanent post, othsr than a tenure post, or woula' hoid a lien on such a post had his lien not been suspended.- IS'S" (II) MPLSR 145 1979(3)MPSLP.232 II IL (b) When appointment to the new post invoives the assumption of duties or responsibilltles of greater importance (as interpreted for purposes of ruie 30) than those attaching to such permanent post, he wii! draw as initia! pay the s^ge of the tirne scale next above his substantive pay in respect of the oid post.: We have oniy to consider the case where the appointment to the new post involves assumptlon of the duties or responsibilities of greater importance than those attachinj to the eariier post. According to this rule, if th° Government servant had a 'ien on a permanent post his iniiia! pay was to be fixed irs accordance with this rule. This Fundamentai Rues undoubtediy seeks to fix in!tia!!y pay of a Government servant hoiding a iien on one post and, who *//as appointed as another substantive post under the Government." 10) !t has been heid in identicai oetition i.e.. Writ Petition No (Chinta Mani Gupta Vs. State of C.G. and others) which has t of by this Court today, that Lectursr Is a promotionat post. i7of20S s^ 11) 1t is ciear from above that the post of lecturer Js a promotionai post. Contention of iearned counse! for the State that the pay scale of Head 'Nasters and Lscturers is simiSar, is not supported by any document. 12) In view ofthe foregoing, the petitioner is entiUed to the beneflts of FR 22-D. Accordingiy, the petitlon is allowed. No ord^r asto costs. Sd/- Satish K. Agnihotri ^^[_ Judge ^y..