^^ (p' Petitionei I?^ ^ ^ ^'?ST:3^1^ics^ A Hnqa:T H -M ^^ ^^ ^ ^-^'IH^!S iip*a URT OF CHHATTiSGARH: BSLASPUF wr!t Peti A9S1 Ved Prakash Pandey, sged about S3 ysars, son of Late Shri S.P. Pandey, retired Principai, Govemment High School - Patthaigaon, Dlstrict Jashpur (CG), present address - Shivdhari Coiony Near Pratappur Naka, Ambikapur, Disa. Surouja (CG). y.f^y^^^^'.f^^f^ ^'unucHi.i? Versus 1) State of Chhatlisgarh, through Secretary, Department of School Educatjon, Dsu ><aiyan Singh Bhawan, Raipur (CG). 2) The Director. DeDartment of Schoo! Education, Raipur (C<S). 3) The District Education Oificer, Education ashDur (CG). Distt. JashDur (CG). (Writ Petition under Articie 226/227 ofthe Constitution of india) (SB: Hon'bte Mr. K. Agnihotri, J) Hr^s^nt' Shri A.N. Bhakta, counseiforthe petitioner. Shri A.S. Kschhawaha. Dv. Advocate Gsnera! f< the State. ORDE! (Passed on 27>n March 2008) in this petition, a quesiion o? taw invoivsd is whether the employee of the State Governme"t is entitled to benefits of initiai pay in the time scals of hiaher oost on belna apaointed to anothsr oost car'ving duties and responsib'iities of greater importance in accordance with Fundamenta! Ruies (for shori:, "FR") 22-D ofthe M.P. Fundamenia) Ruies. 2) Learned counsei aDpearina for the p8titioner subm'ts that the oetitioner, white working as Assistant D'strict Schooi inspector (for short, ADSi") was promoted to the post of Lecturer carrying h'ghsr responsibiiities 1- on 13-7-1972 (Annexurep/1). He was not given the benefits under FR 22- D. He retired from service after attainins ths age of superannuason on 13-7- 2005 (Annexure P/2). The petitioner whlle in service made reprssentations dsted 25-6-1998 and 13-7.2005 (Anenxurss P/S and P/9) to the U'its ?A<-^'^y^'^'c'-.-s ? ^AVf^'f^sK>-^T^'*-<^ ^? '^ ^^-F^ ^f^^^^T^ ^^<^ ins-^"^ffty; '^^s^^?^ c/^ -?o ^ 1 ^^ /?- y*i is3SpVs-iySHl^~<dUuit?i!U^S, OL<£ i'iU <^iJUU(1 1?S^ U^Sji ^^^t^u S»y icts. L-Ss®l? T's iv<^|ra^<¥* f^-i iyT>i'w^^^ T^<^^ •^^i^Ti ^••'?5 •P?t^-^. ?<^'S/^1?'S ^*1.^. ^ '^•^^ ';^^^^'y*^'^^&'^J ^'^ :^'^fJS'^-ffi ^ ?i Tunnsr suKsmiis iHci inQ ~r< sr^ ITISQS c'v '^ns oscrs'tQi'v or O'IBIS ir Counci! under SeiAion 96-8 of the Government of India Act, including the orders issued bv the Secretan/ of State, Government of india and Auditor- Generai and the Suoplsmentan/ Ruies framed bv the iocai Government which are sDDiicabis to the sen.'ice conditlons of aovernment erriDlovees and have attained ths ststus of ruies framsd under Article 309 of the Constitution of india. Thus, FR cannct be supsresded by any executivs instructions. 3) Per contra. Shri A.S. Kachhawaha, Deputv Advocgte Generai appearing for the Stste submits ftat the post of AD!S as weiS as Lecturer carry the same pay scale, though ADSis are Class ili employees and the Lecturers ars CIassl! gazetted off!cers''smp!oyees. On quero, whether ADSI can fae posted as Lecturer if beionging to ths same cadre, there is no ,'esDonse and no docurnent In s'upDOrt of the contention has been tiied. Learned cou'nsel further sufamits that ths post of Lecturer has not been notified as a oost carrving higher responslbility. Again on query, asto whether ttiere is some system to notlfy a psrticuiar post that carries higher resoonsibiiitv. Shri Kachhawaha offers no resoonse. No document in support thereof has been filed. 4) ! i have heard fsarned counsei appearing for the parties, perused pleadings and documents appendsd thereto. 5) Fundamenta! Rute 22-D reads as under: "F.R. 22-D )1- Notwithstsnding anything contained i" ru!es, whsre 3'GovsrnmsRt servant holding a post in a substantive, temporary or officfating capaciSy, Is promoted or appointed In a substantjvs, temporary, or officiating capaclty to another post carrylng a'uiies and respQnsjbjlltles of grsater importance than those attaching to the post held by him, his inidai pay in the lime-scale to the higher post, sha'i be Sxed at the stage of next abov®the pay notionaiiy arrsved at m increasmg his pay sn respecs of ihs lower post by one increment at the stage at wnic?'] sucn pay nas acerued: Provjded that the provisions of this rule. shati not apply whers Government se.'van? hold'ng a Class- 'i post JR a su0star<uve, ternporaiy or oTnciating capacity is promoted or appolnted jn g substantive, temporary or ofnciating capacity to a higher post which is a Ciass-1 post. Provided further that the Drovisions of sub-rute (2) of rule 31, shall nof be applicab.te In any case where the initial pav is fixed under ihls ruie: Provided aiso thgt where a Government servant is immediately bsfors his promotion or appointment to a higher post, drawsng pay at the maxiiTiurn or ihe cme scaies (one or mcrs stages above the niaximum of ihs time scaie in the form of stagnation aiiowance) of ihe iower post, his initia! pay in the tlme sca'e af the hiflher post sha'i b8 fixed at the stage nexi abovs fhe pay notionaiiy arrjved at by increasins his oay ;n respect ot tne lower oost bv an amount equal to the Sast increment in ths time sca!e of tlis iower post. 'yrf*^^ .^?/st/*h.^tf "^y :r'irt^lL^^^it* 4'i^/h'^ -^s.* iirt^ P^.^.^K^ .Ts'/^.i ^r*^y<?/<*. ^tT '^^1'?^ si*? li^-/^ ^TOvic^G yurcnsf THSI iH^ prov^sious oi xnis rui© shaii not appsy where a Govemmsnt servant is promotsd or ap&ointed to a higher post In ths scale oi pay which 's idenscal w!th the scale of pay of the iower post but is distinguished by an addition of a specja! pay on!y. )n such casss the incumbents wii ^SiS^ /!;nh.'/ ^^!m S?^S/>!'>5| •f^JSV iy^. *sJ^^;fl/^.n f/ls f^;fflli" ?^L/'i^..f ^ fl^ff" ^y^ vu'f^ a.1i a^ S|Js?'v;Gis p^y IU ^a^UsiiVi ? iU ii i'ss'is p'<-3y ^' *H^ ;^^v y^,r;< lowe Exciianation - 'increnient' for the Durposes of fixation of pay under this ruie, shoutd be teken to mean actuai increase in pay and not passage t'rom one stage to another. The term 'stage nsxt above' occurring' in this ruie, means the stags in the time- scsie which is next in amount above the pay "oSonaily arrived at in respsct of ths iower post by ene incrernent at the sfage . at which such pay has "krl!irsrii ' • •<^'^^-»fltt <WiW? [I (2) if. howsvsr, the Government sewant has afready officjated Snn this hsgher post prevlousSy, his ^»ii»*H°¥E--. ./'^^s''^ f€°n%\ 'i'sisa;..- % 8 '''^sSBftt g I. ^"~SS S 't. %,^./ oav sha!! e fixed under the provisions of ruie 22-A K i , it is more advantageous." 3) Thus, rson-abstante clause which bessns with the word 'Nobvithstanding anything contai"ed in these rulss w!!! have precedence over other ruies of FR. FR 22-D is of the san- 'e. Subseauent circulars/executive instructions, it is weii settied, cannot over-ride the rules. Sar® oerusal of the FR 22-D makes it clear that a Govern?7ient servant holding a post in a substantive, temporary or officiatiRg capacity, is promoted or appointed in a substant've, temporary, or officiatirsg capacity to another post carrying duties and responsibilifies of greater importance than those efachina to the oost heid bv him. his initial pav in the tims-scale to the higher post, shal! be ftxed at the stage of next above the pay notionally arrived at by increasina his oav in resDect of the towsr Dost bv one increment at that stage. The day an empioyee is promoted to the higher post carrying higher resDonsibiiity. he becomes entitled to ths bensfits under FR 22-D from that dav. 7) Mr. A.N. Bhate, iearned counsei appearing for the pstltionsr has clted decision of the M.P. Adminlstrative Tribunal in O.A.No. 224 of S2 { Smt. Kunti Saxena Vs. Stats of syi.P. and othersl wherein the Tribuna! obssrved i!yl jw iS !"' rf? ?^<s;! . ^^'•.^i^ ^ ^t V*^: ?^V T?^?'•r^ ?^ .^7^-' ?tu ^L^'i'^'1'^^.1^ ^'^t^^1.^ ^h^?fli •^•^tJi4v l:y>:<CTt ijyrT^T^ui3>rE^ ^^s yy^iSsu^i' ..ys'uv uu {.HS basis of the piain ianguags provided in proviso No.1 to the FuRdamentai Rules 22-D this provjso oniy rsaiSzs that ihs benefits of this ruis shai! not be aive" government ser»ant wnere me nigner post or ins sca'e identifisd which the scaie of DSV of the lower post but is d'stinguished by a spsclai pay oniy, ths state has post to brousht to our notice thai: anv speciai pay was attached in the higher post. We, thererore held thai this proviso wnich in rolieci upon oy ths stste does not debar th& spplicsnt from setting fhe pay ^xed as per rutes FR 22 (D){1). .Aceordingiy, v/e 6»ecttnst tne appiicant is entitiea to t'ne senetiis ot FR 22-D and is entltisd to get here pay flx In accordance with F.R.22-D (1) the appiicanf wiil be '/'fr 9 "SB. ~\-''.. '••fl % !k '^.^y.y ;*?^~" ' ..Ssy entitied to aj! bensflts of fixation of pay receiving the arreare and of getting pension gratuity and other Benetits rixeci accordingiy, oenerft snouid &e given within a psriod of six months from today." 8} The sbove stated ordsr of the Tribunai oassed in Smt. Kunti Saxena (supra) was taken to the Supreme Court, which was diSinissed by the Supreme Court In April, 1994. On the basis of decision in Kunti Saxena (suora). the M.P. State Administrative Tribunai in the case of. Mansharam Yadav Vs. Govt, of M.P. and others' passed ths foltcw'ng order. "As rsfiards the anaivsis of dutles and responsibiiities of the post of Head and Lecturer, thsre could be no goiden scale to weigh the responsibiiJties assigned to an offics. The post of promotlon or'dinari'y be taken to fae a posi of higher responsi&iiities uniess 'fi is covered under anv of the k. "'j~^'s ,f»e";/^^ <* Mi^¥=£?!Vii.'S- f p B n-?.n Ths respondents faiied to show that at the tjme of promotion, the appiicants wers getting maximum or they wers given additlonal pay fbr the post of promotion nor they could show thai the promotions were made of anv of the appficants from C!ass-t post in substantiv®,temporary or ofnciatlng capacity to a higher post whsch is aiso a ciass -li " 9) A djvjslon bench of High Court of Madhya Pradesh at Jabaipur ii Ramesh Kumar Mishra Vs. State of M.P. and others obseni'sd as unoer: "6 Fundamental Rute 22 dea's wth ths initial pay on apoolntment to post on tsme scate pay. !t Indlcated as to now ttie inrBal su&stantive pay or a Government seivant who is appolnted substantjvsiy to a post on a time scale of psy, is to be regulated. The reievant pa'l of Fundamentai Rule 22<'a)(T) reads as undsr" "F.R. 22. init'ai pay on appointment to post on time-scaie pay.- The initial subsiantive oav of a Government servsnt who 's appointed substantlveiy to a post on a time-scsle of pay js regusated as foitews:- (a) If he hoids a iien on a permanent post,other than a tenure post, or would hofd a iien on such a post had his lien not &een suspended.- ' I"w (II) MPLSS. 145 -1979 (3) MPSLB. 232 (b) When appo'ntinent to the new post involves the assumotion of duties or resgonsibJiities of greater iniponance ;as interprateci ?or purposss o? ruie 3U? tnan thoss att^chino to such osrrn^nant oost, hs wlil draw a^ i"itiai pay ihe stage of ihe time scate next above his substantivs gav in resoect ot the oid post.: \ ^. ^ •tf^ ^^v^ H'-^V *^;'-*^ T^L s ^fs*h .^c* .-f^ "•rf^»'"•3 /^ ,fv'.'y '^ ^L^u'. 't^ ''^'l'"- •^•^. 1> i'l< y^=i, ?-^,:^»^» r7^^.(wn •F*^ .1'"T|.-V^ •^°«•\ .f^^*~-*^^.t,1v^.^^~?'' vv©nsvs oniv ?o consios^ 'in^ Cass wn^r®in's sopo^nxn'iiBH^ v^\ *u«.j?i a^.f^tit.? »^/*>c-4' iis'-^', ;^-h i^M.— '^''••s-'i i'^f*.'f^.^":^.l^ ^\9 •'t':^^"k -W3l4ij-if? t'^.- ?.y 'r'i '<^s } s::G~'rsf pus1, isi ^Wi'y'^s si's-sijj i ^yui! = v[! y i!s5 ^Ui.i^.s tji responsi&.'ities o? grester 'mportanc®'iRan 'mose aaacn-ng to the eariier post. According to this rule, if tha Governmsnt sereant had a lien on a permanent post his initiai pay was to oe fixsd in sccordance with this ruie. This Fundamenta! Rues undoubtedjy sesks to fix in'tiaily pay of a yovernment seryant noici!ng a lien on one post and, who was appointed as another substantivs post under the Government." 105 it has bse" heid in identical setition i.s., Writ P®t'tionNo. 479'7 o* 2004 (Chinta Man; Gupta Vs. State of C.G. and others) whicn has been disposed of bythisCourt today, th&t Lsctursr is a pro??'otiona! post. .aju 11) it is ciea' from abcnre that the post of teciui'sr is a prornotiona! post. Content'on of learned counsei fcr ths Stats thst the oav scaie of ADSis and Lecturers Is siiniisr, is not suooortea tfv-am aocument- 12) !n v'sw of the foregoina. ths getitioner is entniec! to the bensfits of FR 22-D. Accord'Rgly, the petition is aiiowed. No ordsr asto costs. Sd/- Satish KAgnihotri Judge