Case: Union of India (UOI) and Ors Vs. Raj Kumar Anand and Ors

(where applicable) which is higher than the stage in the revised pay band at which the pay of a government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former. (iii) the pay in the pay band will be determined in the above manner. In addition to the pay in the pay band, grade pay corresponding to the existing scale will be payable. ........................ Note 2A- Where a post has been upgraded as a result of the recommendations of the Sixth Code of Civil Procedure as indicated in part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition. Illustration 4A in this regard is in the Explanatory Memorandum to these rules. Rule 11. Fixation of pay in the revised pay structure subsequent to the 1st day of January, 2006 - Where a government servant continues to draw his pay in the existing scale and is brought over to the revised pay structure from a date later than the 1st day of January 2006, his pay from the later date in the revised pay structure shall be fixed in the following manner: (i) Pay in the pay band will be fixed by adding the basic pay applicable on the later date, the dearness pay applicable on that date and the pre-revised dearness allowance based on rates applicable as on 1.1.2006. This figure will be rounded off to the next multiple of 10 and will then become the pay in the applicable pay band. In addition to this, the grade pay corresponding to the pre-revised pay scale will be payable....... 10. It is apparent from the first proviso to Rule 5 of Rules of 2008, that option was given to the government servant to continue to draw the pay scale until the date on which his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that pay scale. 11. Second proviso to Rule 5 which is attracted also made it clear that where the government servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of these Rules on account of promotion, upgradation of pay scale etc., the government servant may elect to switch over to the revised pay structure from the date of such promotion, upgradation etc. 12. It is not in dispute that the ACP was granted to the Respondent between 01.01.2006 and 29.8.2008 i.e., the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the Respondent in between the aforesaid dates. 13. Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable. 14. Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the Appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made Under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first Schedule to the Rules 2008. The Respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed Under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case. 15. Coming to the decision rendered by this Court in K.V. Rama Raju and Ors. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of Appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju and Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. It is not in dispute that the ACP was granted to the Respondent between 01.01.2006 and 29.8.2008 i.e., the date of notification of Rules 2008. It was granted w.e.f. 10.8.2006 vide order dated 25.4.2008. Thus, the benefit of upgraded pay scale was given to the Respondent in between the aforesaid dates13. Once he has elected for revised pay scale w.e.f. 10.8.2006, the date on which he was placed in the upgraded pay scale, obviously, Rule 7 cannot be said to be applicable. It is Rule 11 which is applicable14. Rule 7 deals with the fixation of initial pay in the revised pay structure as per the 6th Central Pay Commission. Note 2A to Rule 7 relied upon by the Appellants makes it vivid that where a pay scale has been upgraded on the recommendation of Central Pay Commission as indicated in para B and C of the first Schedule of the Rules of 2008, the fixation has to be made Under Rule 7. However, it was not the case of upgradation of the post as a result of the recommendation of the 6th Pay Commission and Schedule of Rules of 2008, but it was under ACP scheme which is a different scheme than the one as provided in the first Schedule to the Rules 2008. The Respondent has opted for revision of pay scale from the date of upgradation in the ACP scale w.e.f. 10.08.2006. Obviously, his pay has to be fixed Under Rule 11 which deals with fixation of the pay in the revised pay scale in case such an option is exercised under the Rules of 2008. The Division Bench of the High Court was absolutely correct in applying Rule 11 as Note 2A of Rule 7 is not applicable in the case15. Coming to the decision rendered by this Court in K.V. Rama Raju and Ors. (supra), it does not appear from the facts that it was a case of exercising option from the date of upgradation under ACP that came for consideration before this Court. It is not clear whether it was a case of upgradation as a result of the recommendation of the 6th Pay Commission or independent thereto. In both the cases consequences are different. In the earlier exigency Rule 7 is attracted and in the later one Rule 11 of Rules of 2008 is attracted for fixation of pay. Thus, the decision cannot be an authority on the aforesaid issue which has not been decided. Apart from that, it was not the case of Appellants that upgraded pay scale has been brought about by 6th Pay Commission as per provisions contained in Schedule of the Rules 2008 as provided in Note 2A of Rule 7. Thus, the decision in K.V. Rama Raju and Ors. (supra) is wholly distinguishable and cannot be applied to such cases where upgradation has been made otherwise than as per Schedule to Rules of 2008 framed as per recommendations of 6th Pay Commission and option is exercised in the aforesaid manner.