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

3. The facts lie in a narrow compass. The Respondent was appointed as an Assistant Teacher (Primary School Teacher) in East Delhi Municipal Corporation now EDMC, Education department, Shahdara (North) on 10.08.1994. On 04.01.2007, he was promoted as Trained Graduate Teacher (TGT) (Social Science) in Government of NCT of Delhi, Directorate of Education and was posted as such on 17.3.2007. The Respondent was granted ACP under the Assured Career Progression Scheme placing him in Trained Graduate Teacher pay scale vide order dated 25.4.2008 w.e.f. 10.8.20064. Later, on 29.8.2008, 6th Central Pay Commission (in short CPC) was enforced and the Rules i.e., Central Civil Service (Revised Pay) Rules, 2008 were framed and notified to revise the salary from 01.01.2006. On 18.11.2009 pay of Respondent was revised in accordance with the Rules of 2008. A clarification was issued by the Ministry of Finance, Department of Expenditure, Implementation Cell in respect of the manner of pay fixation in the revised pay structure on 29.01.2009. A clarification was issued on 27.1.2009. Another clarification was issued by Government of India Ministry of Personnel, PG and Pension, Department of Personnel & Training on 22.12.2010, with respect to the manner of fixation of pay. As pay of the Respondent was fixed Under Rule 7 and not Under Rule 11 of the Rules 2008, he filed a representation for fixation of pay in terms of proviso to Rule 5 of the Rules, 20085. As pay was not correctly fixed, the Respondent filed an original application before Central Administrative Tribunal for correct fixation of the pay Under Rule 11 of the Rules, 2008. The Tribunal vide order dated 17.05.2012 in O.A. No. 2475/2011 directed the concerned authorities to pass a speaking order deciding on Respondents representation. Thereafter the Respondent filed a comprehensive representation to the Director, Directorate of Education and also submitted a copy of the same to the Deputy Education Officer, MCD. The same was rejected on 24.7.2012. The Assistant Director also passed an order dated 7.8.2012 declining the prayer made by the Respondent. Again, the Respondent filed the original application before the Central Administrative Tribunal. The original application and review both were dismissed6. Aggrieved thereby, a Writ Petition was filed by the Respondent before the High Court. The Division Bench of the High Court allowed it and opined that it was Rule 11 which was attracted and not the provisions of Rule 7 in view of the fact that the Respondent was granted the upgraded pay scale of ACP w.e.f. 10.8.2006 and he has opted for revision of pay from that date. Thus, fixation was wrongly done Under Rule 7. It was required to be done as per provisions contained Under Rule 11 of Rules, 2008.

Reasoning:
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.