ORDER
K.B.S. Rajan, Member (J)
1. The applicant at present functioning as Accounts Officer in the office of the 4th respondent is aggrieved by alleged wrong fixation of pay at the time of implementation of the V Central Pay Commission Recommendations.
2. The applicant was, in July, 1992, promoted as Section Officer in the grade of Rs 1640 – 2900, and was further prmoted w.e.f. 11-03-1996 as Assistant Accounts Officer in the grade of 2000 – 3200. Since his date of increment in the earlier grade was first July, he had opted at the time of his promotion to the post of Asst. Accounts Officer for fixation of pay under FR 22 (1)(a)(1) (formerly FR 22-C), vide Annexure A-19. Thus, the applicant’s pay as of 01-07-1996 was fixed at Rs 2,375/- in the scale of Rs 2,000 – 3,200/-. At the time of this promotion as well as fixation of pay, the Revised Pay Rules, 1997 were not notified. Thus, in the grade of Sr. Accounts Officer, the applicant was drawing at the time of promotion pay only in the pre-revised pay scale attached to the post as stated above.
3. The CCS (Revised Pay) Rules, 1987 were notified in 1997 and given retrospective effect from 01-01-1996. The revised pay scale for Rs 1,640 – 2,900 is Rs 5,500 – 9,000 and that for Rs 2,000 – 3,200 is Rs 6,500 – 10,500/-. The said rule, inter alia contains the following provision:
5. Drawl of pay in the revised scales – Save as otherwise provided in these rules, a Govt. Servant shall draw pay in the revised scale applicable to the post to which he is appointed.
Provided that a Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
Explanation 1 – The option to retain the existing scale under the proviso to this rule shall be admissible only in respect of one existing scale.
Explanation 2 – The aforesaid option shall not be admissible to any person appointed to a post on or after the 1st day of January, 1996, whether for the first time in Government service, or by transfer or promotion from another post and he shall be allowed pay only in the revised scale.
Explanation 3 – Where a Government servant exercises the option under the proviso to this rule to retain the existing scale in respect of a post held by him in an officiating capacity on a regular basis for the purpose of regulation of pay in that scale under fundamental rule 22, or any other rule or other applicable to that post, his sustentative pay which he would have drawn had he retained the existing scale in respect of the permanent post on which he holds a lien or would have held a lien had his lien not been suspended or the pay of the officiating post which has acquired the character of substantive pay in accordance with any order for the time being in force, whichever is higher.
4. The applicant, from his side, exercised his option for deferment of switching over to the new pay scale, w.e.f. 01-07-1996 vide Annexure A-6 and accordingly, taking his pay at Rs 2,375/- in the grade of 2,000 – 3,200/- the respondents, on the basis of table of concordance (Annexure A20) fixed the pay of the applicant in the revised pay scale of Rs 6,500 – 10,500 at Rs 7,300/-, vide Pay Fixation Proforma dated 17-10-1997 at Annexure A-20 and the applicant’s pay on the date of next increment was Rs 7,500/- as evidenced from the Annexure A-7 pay slip for Dec. 1997, which reflects the pay of the applicant as Rs 7,500/-. So far so good to the applicant. However, later on, vide impugned orders dated 02-12-1997 and 30-04-2003 (Annexure 1 and 2), the pay of the applicant as on 01-01-1996, which was Rs 2,180/- in the scale of pay of Rs 1,640 – 2,900/- was fixed in the revised pay scale of Rs 5,500 – 9,000 at Rs 6,725/- with the date of next increment as on 01-07-1996 and since there was a revision of pay scale of Section Officer from Rs 5,500 – 9000 to Rs 6500 – 10500, his pay was fixed at Rs 7,100/- with the date of next increment as on 01-07-1996. This has resulted in a recurring loss to the applicant and hence he had represented against the same and vide Annexure A-8 communication dated 29-05-1998, the respondents negatived his claim stating that Rule 5 read in conjunction with Note 2 stipulates that the said Rule 5 is not applicable to those persons who have been promoted on or after the 1st January, 1996. The matter, at the request of the applicant was taken up at the level of CGDA, vide Annexure A-9 order dated 19-08-1998 and the CGDA had opined as under:
As per Explanation No. 2 under Rule 5 of RPR, 1997, option under Rule 5 shall not be admissible to any person appointed to a post on or after the 1st day of January, 1996, whether for the first time in Govt. service or by transfer or promotion from another post and he shall be allowed pay only in the revised pay scale. As Shri Sahab Singh was promoted to A.A.O w.e.f. 11-03-1996, the option cannot be taken into account for fixation of pay.
5. The matter was taken up further with the Ministry of Defence, which had, after examination by its Finance Wing, refused to accede to the request of the applicant and held that the pay under the Revised Pay Rules, 1997 was to be fixed w.e.f. 01-01-1996. Annexure A10 communication dated 25-11-1998 refers. Applicant’s further representation dated in regard to fixation of pay was not considered and returned, as is clear from Annexure A 11 communication dated 03-03-2000.
6. While so, the Respondents have upgraded the pay scale of Asst. Accounts Officer from Rs 6,500 – 10,500 to Rs 7,450 – 11,500/- vide order dated 29-03-2003 and according to the table of concordance, vide Annexure A-20, pay of Rs 2,375/- in the pre revised pay scale of Rs 2,000 – 3,200/- has corresponding pay of Rs 7,900/- in the revised scale of Rs 7450 – 11500/-. The revision was made notional from 01-01-1996 and actual from 19-02-2003. In view of the above, the applicant once again approached the authorities for reconsideration of his case for accepting the option exercised but the respondents, vide order dated 28-11-2003 (Annexure 14 ) rejected the request. This decision of the respondents was again confirmed vide Annexure A-15 of the O.A. Applicant’s further representation to the Grievance Cell also did not yield any fruitful result, vide Annexure A-16 order. Undaunted by the successive failure in establishing his claim, the applicant had represented again to the Principal CDA(P), who also, vide Annexure A-4 order dated 16-01-2006 rejected the applicant’s claim as under:
…The matter regarding fixation of pay in respect of Shri Sahib Singh, AO, R No. 111 has been examined and found that the pay of Shri Sahib Singh, AO has been fixed first in SO(A) grade on 01.01.1996 in the revised scale.
Subsequently, the officer was promoted as AAO w.e.f. 11.03.1996 and his pay has been fixed in the revised pay scale of AAO grade w.e.f. 11.03.1996 and again refixed and accrual of next increment in lower grade w.e.f. 07/1996 as per his option exercised under FR 22 (I) (a) (i). Thus the pay has been correctly fixed by CDA (PD), Meerut.
As per explanation 2 below Rule 5 RPR 1997 there is no scope for further refixation of pay in respect of the officer by this office as the officer has got promotion to AAO’s grade w.e.f. 11.03.1996 debarring him to retain the old pay scale upto 01.07.1996.
The officer may be informed accordingly.
7. It is thereafter that the applicant has moved this OA claiming the following reliefs:
i. To issue a suitable order or direction in the nature of certiorari quashing the impugned order No. 940 dated 02.12.1997 and order No. 229 dated 30.04.2003 passed by the respondent No. 3.
ii. To issue a suitable order or direction in the nature of certiorari quashing the impugned order dated 11.01.2005, 16.01.2006, 29.05.1998, 19.08.1998, 25.11.1998 03.03.2000, 17.05.2000, 28.11.2003, 25.05.2004 and 27.05.2004 passed by respondents No. 2, 3 and 4.
iii. To issue a suitable order or direction in the nature of mandamus directing the respondent to restore the basic pay Rs. 7900.00 w.e.f. 01.07.1996 in the revised pay scale of AAO as Rs. 7450-11500.
iv. To issue a suitable order or direction in the nature of mandamus directing the respondents to give all consequential benefits or arrears of service increment for which the applicant was deprived of w.e.f. 01.07.1996.
v. To issue any other such order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.
vi. To allow the applicant with cost.
8. Respondents have contested the OA. Limitation was the preliminary objection and on merit, while accepting the fact of having fixed the pay of the applicant at Rs 7,300/- in the scale of Rs 6,500- 10500 w.e.f. 01-07-1996, it has been stated by the respondents in para 3E and F of their counter as under:
E. That during the process of verification of the pay fixation proforma and option form of the applicant by the CDA (PD), Meerut, it was observed that the zonal officer (PD), (Respondent No. 5) had wrongly calculated the pay of the applicant as Rs. 7300/- in the grade of Assistant Accounts Officer by not following the First Provision of Rule 5 and Explanation No. 2 under Rule 5 and Explanation No. 2 under Rule 5 of CCS (Revised Pay) Rules, 1997 under which it is clearly stipulated that the Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next oar subsequent increment in the existing scale or until he vacates his post or ceases to draw in that scale and further option shall not be admissible to any person appointed to a post on or after 01.01.1996, whether for the first time in Govt. service or by transfer or promotion from another post and he shall be allowed pay in the revised scale. Accordingly the bonafide mistake so carried out by the respondent No. 5 was rectified and the pay of the applicant was correctly fixed at Rs. 6900/- w.e.f. 11.03.1996 in the AAOs Grade under FR 22 (1) (a) and re-fixed under DR 22 (1) (a) (1) Rs. 7100/- w.e.f. 01.07.1997 as per option exercised by the applicant and notified under Part II O.O. No. 940 dated 02.12.1997. In view of the aforesaid facts, the action taken by the respondents in passing the order dated 02.12.1997 is in conformity with the rules on the subject.
F. That subsequently the pay scales of Section Officer (Accounts)/Assistant Accounts Officer were upgraded to the pay scale of Rs. 6500-200-10500 and 7450-225-11500 respectively in terms of DOPT O.M. No. 6/82/E-III (B)/91 dated 28.02.2003 notionally w.e.f. 01.01.1996 and actual benefits w.e.f. 19.02.2003. The pay of the applicant, therefore, was fixed at the stage of Rs. 7100/- as on 01.01.1996 with DNI 01.07.1996 in pay scale of Rs. 6500-200-10500 of SO(A) grade. Thereafter on promotion to AAOs grade w.e.f. 11.03.1996 in the pay scale Rs. 7450-225-11500, the pay of the applicant was fixed at the stage of Rs. 7675/- as on 01.07.1996 with DNI 01.07.1997….
9. The applicant has filed his rejoinder and in regard to limitation he has taken shelter under the decision of the Apex Court in the case of M.R. Gupta v. Union of India . As regards merits, especially, the contention of the respondents as contained in para 3 E extracted above, the applicant has stated as under:
6. That the contents of para-3-E of counter affidavit are not admitted as stated. It is submitted that respondent No. 3 and respondent No. 5 have contradictory views on pay revision of the applicant. The respondent No. 5 has correctly revised the pay as Rs. 2375/- on 01.07.1996 in the existing Pay Scale of Rs. 2000-60-2300-75-3200 in the grade of Assistant Accounts Officer to Rs. 7300/- in the revised scale of Rs. 6500-200-10500 as indicated in pay fixation table No. S-12 on page 148 of Swamy’s Compilation of Central Civil Services Revised Pay Rules 1997. Copy of this table is enclosed as annexure No. 20 to this Rejoinder Affidavit. This revision has been made according to the provisions of Rule-5 of CCS (RP) Rules 1997 and the option exercised by the Applicant on 08.10.1997 which are already on record with the original application as annexure 5 and 6 respectively. This revision has been made on pay fixation Proforma introduced for pay fixation in cases of promotions, which have taken place on or after 01.01.l996 to 30.09.1996, which is approved by the Dy. CDA in Zonal Office (PD), Delhi Cantt. And is placed on page No. 43 of Counter Affidavit. The respondent No. 3 has done contrary to it and has concealed the facts of the option exercised by the applicant on 08.10.1997 for retaining the existing scale of S.O. (A) until 01.07.1996. The respondent No. 3 has given a false statement on oath in the instant para that he has revised the pay as per option of applicant.
10. In their supplementary counter, the respondents have reiterated their stand as given in the counter.
11. Applicant in person argued the case and asserted that the original fixation was in order and the subsequent fixation was erroneous.
12. Counsel for the respondents however, argued that explanation No. 2 is specific that option shall not be admissible to any person appointed to a post on or after the 1st day of January, 1996, whether for the first time in Government service or by transfer or promotion from another post and he shall be allowed pay only in the revised pay scale.
13. Arguments were heard and documents perused. The entire matter revolves around the provisions of the above Explanation No. 2 of the Revised Pay Rules, 1997.
14. The revised pay scale came into existence as on 01-01-1996. The scale hitherto got replaced by the new scale. The definition of ‘existing scale’ in relation to a government servant means the present scale applicable to the post held by the Government servant (or as the case may be, personal scale applicable to him) as on the 1st day of January 1996, whether in a substantive or officiating capacity. For any appointment, fresh or by promotion to a particular post on or after 01-01-1996, there was only one scale i.e. the new scale of pay and not the pre-revised. This is the contention of the respondents. Option is an exception and while exercising the option, what was provided for is an option to retain the existing scale and vide explanation 1, and such an option shall be admissible only in respect of one existing scale. The applicant as on 01-01-1996 was in the scale of Rs 1,640/- – 2,900/- and later on by 11-03-1996 he was placed in the scale of pay of Rs 2,000 – 3,200/-. With the coming into force w.e.f. 01-01-1996, of the revised pay scale of Rs 6,500 – 10,500 to replace the erstwhile scale of pay of Rs 2,000 – 3,200/- after the notification of the revised rules 1997 w.e.f. 01-01-1996, there is no scale of Rs 2,000 – 3,200 for the post of Asst. Accounts Officer. It had already become Rs 6,500 – 10,500/- (and later on Rs 7450 – 11500 vide Annexure A-13 order). Since as on 01-01-1996 the applicant was in the scale of Rs 1,640 – 2,900 in the pre revised scale he has the option to retain that scale till the next date of increment or any subsequent increment in the existing scale as per the proviso to Rule 5. And the applicant had exercised the same whereby his pay in the revised scale would be effective from 01-07-1996. Had the applicant not been promoted as A.A.O. as on 11-03-1996, it would not have posed any problem to the department or the applicant. But his promotion to the grade of A.A.O. w.e.f.11-03-1996 and further revision of pay scale of various cadres vide Annexure A-13, had further ravelled the thread ball. It is this situation that has created the present dispute, but the respondents have successfully unravelled the situation, as discussed below.
15. The respondents have vide para 3 F of their counter stated that the applicant’s pay as of 01-01-1996 was fixed in the revised scale of Rs 6,500 – 10,500/- replacing the erstwhile pay scale of Rs 1,640 – 2,900/- and the date of next increment remained at 01-07-1996. As by March, 1996 the applicant was promoted to the post of AAO, on the basis of his option earlier exercised prior to the introduction of the Revised pay Rules, the pay of the applicant was revised in the scale of Rs 7,450 – 11,500 in the grade of A.A.O. with effect from 01-07-1996. This fixation is correct.
16. Now the error in the earlier fixation could be easily pointed out. Vide Annexure A-20, the pay scale in the promoted post was stated as Rs 6,500 – 10500 and the next stage in the Higher scale of pay in which promoted as Rs 2,375/-. whereas there is no scope of clinging into the pre revised scale when there has been no reference at all of the pre-revised scale in the proforma. Thus, the error was detected at the earliest opportunity and accordingly rectified.
17. In view of the discussion above, the OA fails and is dismissed. There shall be nor order as to cost.