[Circular Memo No. 47260-A/709/A1.FR.II/97 Finance & Planning (FW-FR-II)
Dept. Dt. 20-4-1998]
Ref. :- 1. S. C. Judgement dated 13-3-1989, in C.A. Nos. 307-316 of 1998
A.P. High Court Judgement dated 25-2-1993 in W.P. No. 16101 of 1989 & Batch filed by Sri G. Padma Reddy & Others
Govt. Circular Memo. No. 15502/230/FR.II/93, Dt. 17-5-1990
APAT Judgement, Dt. 10-11-1997 in R.P. No. 29 of 1982 filed by Sri Ambadas.
Order : —It has been the experience of this Department that inspite of clear orders, several proposals are being received on issues like (i) Stepping up of pay of senior on par with junior (ii) Fixation of pay in terms of FR. 22B in the cases where the promotion post is also having the same scale of pay of feeder category and (iii) payment of arrears for the notional duty periods, where in the appointment/regularisation/promotion was given with retrospective effect on various reasons. Hence, it is felt necessary to issue consolidated instructions based on that brief so that the Departments may use them while disposing of the cases on the above issues.
1. Stepping up of Pay of senior on par with Junior :
The Hon'ble Supreme Court in their Judgement in Civil Appeal Nos. 307-316 of 1988 etc., reported in 1989 (2) SCC 290 in State of Andhra Pradesh & Others vs. G.Srinivasa Rao and Others . went into the question whether payment of less salary to a senior than his junior in the same cadre having the same pay scale is violative of the principle of equal pay for equal work enshrined in Article 39(d) read with Articles 14 and 16 of Constitution of India. The Apex Court while allowing the appeals of the State Government in their judgement dated 13-3-1989, inter alia observed as follows :
“Equal pay for equal work” does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would exfacie be arbitrary but if there are justifiable grounds in doing so, the seniors cannot invoke the equality doctrine. To illustrate, whether pay fixation is done under valid statutory Rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or as incentive for efficiency ; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the Judgements of the High Court/Tribunal.
"The argument based on Rule 27 was never raised before the High Court/Tribunal. There is neither any material on the record nor any justification before us to direct the appellant authorities to act under Rule 27 of the Fundamental Rules. The respondents may be, if so, advised to approach the appropriate authorities for any such relief."
"The appeals are accepted. Judgements of the Andhra Pradesh High Court and the Andhra Pradesh Tribunal are set-aside and the writ petitions/ applications of the respondents before the High Court/Tribunal are dismissed. There will be no order as to costs."
"The respondents are white-collared salaried persons and it may be too harsh for them to refund the salary already paid to them. Therefore in the interest of justice, we direct that the additional salary paid to them as a result of High Court/Tribunal Judgements upto 31-3-1989 shall not be recovered from them."
Based on the Judgement detailed instructions were issued in the memo 3rd cited regarding stepping up of pay and also for recovery of the excess payments due to wrong pay fixations of stepping up of pay.
2. Fixation of pay in terms of FR.22-B. where the feeder and promotion categories have the same scale of pay :
Proposals are being received from various Heads of Departments for clarification regarding allowing the benefit of FR.22-B, where the feeder and promotion categories have the same scale of pay, on the plea that, the promotion category involves higher duties and responsibilities in comparison with the feeder category.
According to FR. 30(2), the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made on the same scale of pay as the permanent post, other than a tenure post, on which he holds a lien or would hold a lien, had his lien not been suspended or on scale of pay identical therewith.
A Division Bench of the Hon'ble High Court in W.P. No. 16101 of 1989 and batch in its judgements dated 23-2-1993 in G. Padma Reddy & Others vs. Government of Andhra Pradesh , reported in 1993 (1) ALT 5115 which went into the question as to "when persons holding the posts of Examiner, Copyist, Reader in the A.P. Judicial Service are promoted to the Post of Junior Assistant (LDC) carrying the same time scale of pay, they are not entitled to have their pay fixed in the promotion post at the stage next above the pay notionally arrived at by increasing their pay in the lower post by one increment as per FR. 22-B", while dismissing the plea of the petitioners, inter alia observed as follows : "On a plain reading of the language of FR. 22-B., learned counsel for the petitioner contended that, the petitioners are entitled to the benefit of FR. 22-B However, learned Government Pleader drew our attention to the last proviso of FR.22-B as extracted above, and contended that where both the posts, viz. () promoted, carry the same time scale of pay, then the proviso to FR.22 will apply in such a situation. On a reading of the proviso, it is clear that if a Government servant previously held a permanent or temporary post on the same time scale of pay, then proviso to FR.22 will apply. Thus, it is necessary to refer to FR.22 along with proviso in so far as they are relevant for the purpose of present discussion. Proviso to FR. 22 refers to identical situations as are referred to by the last proviso to FR.22-B as extracted above.
() promoted post as well as lower post from which the person is.
Sub-clause (2) of the proviso to FR.22 is to the effect that a Government servant who is appointed substantively to a tenure post on a time scale identical with that of another tenure post which he has previously held substantively or he has previously officiated, then his initial pay shall not be less than the pay other than special pay, personal pay or emoluments classed as pay under Rule 9 (21)(a)(iii), which he drew on the last occasion.
On a regarding of the relevant proviso, it is clear that where a person is promoted from one post to another post, both of which carry the same time scale of pay, he will not be governed by FR.22-B, but he will be governed by Clause (2) of proviso to FR.22 which is made applicable by the last proviso to FR.22-B. Where the time-scale of pay is not the same for both the posts, FR.22-B applies. But if the post he held previously and the post to which he is promoted, carry the same time scale of pay, the person will not be entitled to the benefit of FR. 22-B. Having regard to the fact that the posts of Examiner, Copyist and Reader as well as the promotion post of Junior Assistant (LDC) etc., carry the same time scale of pay with effect from 1-4-1978, the last pay drawn in the posts of Examiner, Reader and Copyist alone is protected in view of the proviso to FR.22-B. Having regard to the above, we are of the opinion that the impugned letters of the first respondent stating that the petitioners are not entitled to the benefits of FR.22-B of the FRs in view of the fact that the time-scale of pay attached to the posts are identical, are in accordance with the last proviso to FR.22-B read with the proviso to FR.22.
One more hurdle is in the way of petitioners for invoking the benefit of FR.22-B. Assuming for the sake of argument that FR.22-B applies in the case where the previous post held by an individual and the post to which he is promoted carry identical scales of pay he will have to establish that the promoted post carried duties and responsibilities of greater importance for invoking the benefit of FR.22-B. Therefore, we have to see as to what is meant by the words another post carrying duties and responsibilities of greater importance than those attaching to the post held by him occurring in FR.22-B. A reference may usefully be made to the similar language contained in FR.22 (a)(i), which is as follows : “22 (a)(i). When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purpose of Rule 30) than those attaching to such permanent post, he will draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post.”
This clause refers to FR.30 for the interpretation of post involves the assumption of duties or responsibilities of greater importance. The provisions in so far it is relevant for the present discussion is as under :
“FR.30(2). For the purpose of this rule the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended or on scale of pay identical therewith.”
This sub-rule (2) of FR-30 lays down in unmistakable terms that if the post to which the person is appointed to officiate carries the same time scale of pay of the post on which he has a lien, then it shall not be deemed to involve the assumption of duties or responsibilities of greater importance. In other words, if the time scale of pay attached to the post of Examiner, Reader or Copyist which the petitioners previously held, and on which the petitioners are holding lien, is the same in respect of the post to which they are promoted, viz., Junior Assistant (LDC) etc., then it is deemed that the promotion post of Junior Assistant etc., will not involve duties or responsibilities of greater importance. Therefore, having regard to the fact that the time scale of pay attached to these posts are identical, the promotion to the post of Junior Assistant (LDC) etc. will not involve the assumption of duties or responsibilities of greater importance. A combined reading of FR.22-B and FR.22(a)(1) and sub-rule (2) of FR 30 makes it clear that the petitioner's officiating promotion as Junior Assistants (LDC) etc., which posts carry the same time scale of pay as that of the lower post from which they are promoted, will not involve the assumption of duties or responsibilities of greater importance. On this point also, we are of the view that the ingredients of FR.22-B are not established.”
III. Arrears of salary for the notional duty periods :
The Government considered the question of laying down the procedure in regard to re-fixation of pay with consequential benefits due to revision of seniority of Government employees as a result of review of promotion and decided that while refixing the pay in such cases as a notional basis from the revised date of seniority, monetary benefit arising out of such pay fixation should be limited to duty periods only and no arrears be paid for which duty was not performed and accordingly orders in G.O. Ms. No. 163, Finance and Planning (FW-FR.II) Dept., Dt. 30-6-1978 amending FRs/H.C.S.Rs by inserting FR. 26 (aa)/CSR 40(aa) for regulating pay in such cases.
These orders were challenged in the Andhra Pradesh Administrative Tribunal, which upheld the contention of the petitioners for payment of arrears. Then the Government filed as S.L.P. in the Apex Court viz., the Hon'ble Supreme Court against the Judgement of the Andhra Pradesh Administrative Tribunal. The Hon'ble Supreme Court finally, in its judgement dated 8-5-1995 in S.L.P. (CA) No. 4437 of 1988, remitted the case back to Andhra Pradesh Administrative Tribunal and directed the Andhra Pradesh Administrative Tribunal to restore the file in R.P. No. 29 of 1982 and dispose afresh on merits without reference to its earlier judgement.
A Full Bench of the Andhra Pradesh Administrative Tribunal disposed of the said R.P. No. 29 of 1982 on 10-11-1997 and up-held G.O. Ms. No. 163, Finance & Planning (FW.FR.II) Department, Dated 30-6-1978, among others with the following observations.
"It is clear from the above observations that whether deemed promotion can also entail actual monetary benefits then the concerned employees have not worked in the post, is a question which can be agitated by the State in a case where persons who got notional promotion, have claimed monetary benefits during the notional duty periods. As already pointed out, the Supreme Court has considered this aspect in Paluru Ramakrishnaiah's case reported in AIR 1990, SC 166 and approved the observations made by the Madhya Pradesh High Court that the incumbents are not entitled for payment of arrears of salary during the notional duty period. The Supreme Court in its decision reported in 1994 (4) SLR, 15 and another decision reported in 1996 (2) SLR, 166, following the decision of Paluru Ramakrishnaiah's case which have been referred to above in extension, held that the incumbents are not entitled to arrears of salary for the notional duty period during which admittedly they had not worked. All these cases relate to determination of inter seniority and where large scale of notional promotions were given with earlier dates."
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"Considering the facts and circumstances of the case, we hold that G.O. 163, dated 10-6-1978 is not arbitrary or unconstitutional and the applicant is not entitled to arrears of pay for the notional duty period from 7-8-1959 to 13-2-198, but he is entitled to all the other consequential benefits, such as refixation of pay, increments and future promotions and fixation of pension and pensionary benefits in accordance with rules and eligibility on the basis of notional promotion give to him. R.P. is disposed of accordingly."
The attention of all the Departments is invited to the above said judgements and they are requested to dispose of the cases based on the doctrine pronounced by the courts in the above said judgements. They are also requested to keep the above orders in view and incorporate these citations in the counters wherever necessary, wherever any above issues are challenged in any Court of Law.