M^ lUi 01 Wnt.Petjtjon_i'S|:No,_13SOof2007 Petitioners 1) Smt. Abha Kak. Vtf/o. Shri A.K. Kak, aged ibout 81 years, Lecturer, Government Higher Secondary Schooi, Pa!i, Block - Paii, Dist. Korba (CG). 2) BabuSal Prajapati. S;o. Shri R.K. Prajapati, aged about 57 ysars, Lecturer, Govsmment Higher Secondary Schooi, Kusumkasa, Btock Bondi, Disi. Durg (CG). tersus 1)' State of Chhattisgarh through the Secretary, Triba! Wsifare Department, Mantraiaya, D.K.S. Bhawan, Raipur (CG). 2) The Commissioner. Tribal- Welfare Chhattjsgarh Government, Raipur (CG). 3) The Assistant Commissionsr, TribaE Welfare, Distt. Korba (CG). 4) The Assistant Commlssioner, Tribal Weffare, Dist: Durg (CG). (Writ Petition under Articie 226 of the Constitution of india] (SB: Hon'bie Mr. Satish K. Agnihotri, J.) Shri A.S. Rajput, counsei for the petitloneK. Shri A.S. Kachhav/aha, Dv. Advocate Generai for the State. (Passed on 27th March !n ihis petition, a question of iaw involved is whether the empioyees of the State Government are entitled to benefits of initia! oay in the time scaie of higher post on being appolnted to another post carrolng duties and rssponsibiiities of greater importance jn accordance with Fundamentai Ruies (for short, "FR") 22-D orthe M.P. Fundamenta! Rules. ^ 2) Learned counsel appearing for the petitioners submits that the petitioners, while working as Head Masters were promoted to the post of Lecturers carrying higher responsibilities on 11-1-1991 (Annexure P/2). They were not given benefits under FR 22-D. The petitioners made a representation dated 2S-1-2007 (Annexure P/4) to the respondents- authorities, but no action has been taken so far. Learned counsel further submits that the FR are made by the Secretary of State in Council under Section 96-B of the Govemment of india Act, including the ordsrs issued by the Secretar/ of SSate, Government of india and Auditor-GeneraS and Supplementary Ruies framed by the toca! Government to the serojce conditions of aovernment empiovees status of rules framed under Articie 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 Thus, FR cannot be superceded by any executive instructions. 3) Per contra, Shri A.S. Kachhawaha, Deputy Advocate Generai appearlng for the State submits that the post of Head Master as weil as LecSurer carry the same pay scale, though Head Masters are CSass I!! Lecturers are Ciass li On auerv, whether Head Master can be oosted as Lecturer if betonging to fhe same cadre, ihere is no response and no document in support of the contention has been filed. Learned counsei further submits that the post of Lecturer has not been notified as a post carrying higher responsibility. Again on query, as to whether there is some system to notify a particular post that carries hiaher resDonsibitity, Shri Kachhawaha offers no resoonse. No document in support ti lereof has been filed. 4) S have heard iearned counsel appearing for the parties, perused pSeadings and documents appended thereto. M$ 5) Fundamentai Ruie 22-D resds as under: "F.R. 22-D )1- Notoithstanding anything contained in these ruies, whers a Govemment ser.'arit hoiding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary, or officiating capacity to another post carmng duties and responsibiiities of greater iniportance than those attachsng to the post heid by him, his Initiai pay in the tims-scaie to ihe higher post, shall be flxed at the stage of next abovs the pay noiionaiiy arrived at by increasing his pay In respect of the iower post by one increment st the stage at v/hich such pay has accrued: Provided that the Drovisions of this ruie, shali not appiy where Government servant holding a Ciass- 1 post in a substantsve, temporary or officiatins capacity Is promoted or appointed in a substantsve, temporary or officiating capacify io a h'gher post which Is a C!ass-1 post. Provided further that the orovisions of sub-rule (2) of ru!e 31, shall not be appiicabie sn any cass where the initiai pay is fixed under this ruie: Provided also that Vi/here a Government sen/ant is Immediatejy before his prorrsotjon or appointment to a hlgher post, drawing pay at the maximum of the tirne scaies (one or more stages above the maximum of ths tlme scale in the form of siagnation aliowance) of the Sower post, h's initial pay In the time scale of the higher post shail be fixed at the stage next above ths pay notionaliy arrived at by increasing his pay 'm respecf of the iower post by an amouni equal to the last incremeni in the time scate oTthe iovrerpost. Provided further that ths srovisions of this rule shali not appiy where a Government ser.'ant Is promofed or appointed to a higher posi in the scais of pay whlch is identical with the scaie of pay of the iower post but is distsnguished by an addition of a specia! pay only. !n such cases the incumbents wii! jet onEy the speciai pay in addition to thelr pay Jn th< lower post. Explanation - 'lncrement' for the purposes of fixation of pay undsr thls rule, shouid be taken to mean actuai increase in pay and not passage from one stags to anothes'. The term 'stage next above' occurring in this ruie, means the stage in the time- scate which is next in amount above the pav notionaily arrived at in respect of the iower post by l<£ one increment at the stage at which such pay has accured. (2) If, however, the already offlciated inn this higher pay shail e fixecs under the if, it Is mors advantageous." sen/ant has post previousiy, his of rule 2-2-A (b) 6) Thus, non-abstente ciause whlch begins with the "Notwithstanding anything contained in these rules wili have precedence over othsr ru!es of FR. FR 22-D is of the same nature. Subsequent circuiars/'executive instructions, it Is v/eli settled, cannot over-ride the rules. sars perusal of the FR 22-0 makes it cEear that a Government ser»ant holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a su'&stantive, temporary, or officiatlng capacity to another oost carr./lna duties and resDonslbitlties of areater imDortance than those attaching to the 'oost heid bv hlm, his initlal oav in the time-scais to the hlgher post, shail be fixed at the stage of next above the pay notionaliy arrived at by increasing his pay in respect of the lower post by one increment at that stege. The day an empioyee is promoted to the higher posi carry'ing higher responsibility. he becomes entitied to the benef'ts under FR 22-D from that day. 7) Mr. A.S. Rajput, leamed counsel appearing for the petitioners has cited decision ofthe M.P. Admsnistrative Tribunal in O.A.No. 224 of 92 ( Smt. Kunti Saxena Vs. State of M.P. and othersi wheresn She Tribunai obseroed as under; "We therefore, committing our decteion oniy on the basis of the plain ianguage provided in proviso No.1 to the Fundamentai Rules 22-D this proviso oniy reaiize that the benefits of thls ru!e shaii not be giyen iovernment sen/ant where the hlgher post of the scaie sdentifisd which the scale of pay of the lower post but is distinguished by a speclal pay only, fhe state has post to brought to our notlce fhat any special pay was attached in the higher post. We, therefore heid thatthis proviso which in roiied upon by ^ -A. the state does not debar the applicant from getting the pay fixed as per rules FR 22 (D)(i). Accordingly, we direct that the appiicant is entitied to the benefits of FR 22-D and is entitied to gei here pay fix in accordance with F.R.22-D (1) ihe appiicant wi!! be entitied to aii benefits ot' fixation of pay receiving the arrears and of gettlng pension gratuity and other benefits fixed accordingiy, benefit shouid be given withln a period of six months from today." ^- 8) The above stated order of the Tribunai passed in Smt. Kunti Saxena (supra) was taken to the Supreme CourS, whlch was dismissed by the Supreme Court in Aprii, 1994. On the basis of decision in Kunti Saxena (supra), the M.P. State Administrative Tribunai in the cass of Mansharam Yadav Vs. Ooyt. Qf N3.P. aid others' passed ths fQ'iowing order. "As regards the anaiysis of a'uties and responsibiiities of the post of Head Master and Lecturer, there could be no goiden scate to weigh the responsibiiities assigned to an offlce. The post of promotiQn ordinarily be taken to be a post of higher responsibiiities unless it ss coversd under any of the provislons of F.R. 22-D. The respondents failed to show that at the time of promotion, the appiicants W9F9 QSttlHC! iTt3XlsT1UH1 OF thQV W8FS olvsn 8ddit!on3l pay for the pos't of promotion nor they couid show that the promotlons were made of anv of the appllcants from Ciass-! post In substantivs, temporaiy . • or offsciating capacsfr/ to a higher post wRich is also a C-iass-1 " 9) A division bench of High Court of Madhya Pradesh at Jabs iamesh Kumar MJshra Vs. State of M.P. and others obsen/ed ss instiai pay on it indicated as to Government seroant on a time scaie of Fundamentai Ruie 22 deais appointment to post on tlme scaie how ihe initial substantive pay of who is appointed substantiveiy to a pay, is to be regulated. The reieva Ru!e 22(a)(i) reads as under" "F.R. 22. Initiai pay on appointment to post on tlme-scate pay- ' 1999 (ii)MPLSR 145 2 i979 (3) IvlPSLR 232 6 '• _i ^ The initiai substantive pay of a Government ssrvant who is appointed substanfiveiy to a post on a time-scale of pay is reguiated as toiio'A's:- (a) !f he holds a iien on a permanent posi, Qther than a 'tenure post, or wouid hoid a iien on such a post had his llen not been suspendsd.- fb) When appointment to the new post involves the assumption of dutles or responsibiiities of greater imporSancs (as interpreted for purposes of rule 30) than. those attaching to such psrmsnent post, he wii! draw as initiai pay the stage of the time scaie next above his substantive pay in respect of ths otd post.: We have oniy to consider the case where the appointment to the new post Invoives assumption of the duties or responsjbitines of greater importance than those attaching to the eariler post. Accordjng to this ru!e, if the Government servant had a sien on a perrnanent post his Initia! pay was to be fixed in accordance with this ruie. This Fundamenta! Rues undoubtedfy seeks to fix initialiy pay of a Govemment sewant hoiding a lien on one posf and, who was appointed as another substantiye post under tne Uovernment." 10) it has held in identical petition i.e 2004 (Chinta Mani Gupta Vs. State of C.G. ai it Petiti othere) whi ' / . 4797 of has been disposed of by this Court todav that Lecturer is / 11) tt is ciear from above that the post of iscturer is a promotionai post. Contention of learned counsel for the State thai ths oav scale of Head Masters and Lecturers is simiiar, is not supported by any document. 12) In view of the foregoing, the petitioners are entitied to ths 'oenefits of FR 22-0. Accordinglv. the oetition is aiiowed. No order asto costs. Raju Sd/- Satish K. Agnihotri Judge