Important Point
Impugned case amounts to giving the benefit of FR twice over and this is not permissible under service jurisprudence.

Headnote:Service Law - Fundamental Rule 22(1)(a)(i)-Benefit of increment under-Employee given benefit of promotional scale under FR 22(1)(a)(i) on completing 15 years of service though not functioning on promotional post - Employee subsequently promoted to promotional post-Employee again claiming benefit of FR 22(1)(a)(i)-Unsustainable since for applicability of FR 22(1)(a)(i) not only officer must have got promotion from one post to another involving higher duties and responsibilities but he must also be moving from a lower scale attached to lower post to a higher scale attached to a higher post.
       Held : In our view, the respondent having received the same benefit in advance, while working as Junior Engineer and while not actually functioning as an Assistant Engineer, is not entitled to the same benefit of fresh fitment in the scale of Rs. 2000-3500 when he is promoted on 1.8.1991 as Assistant Engineer. This is because as on 1.8.1991, he is not being fitted into the “time-scale of the higher post” as stated in the FR. That situation was already over when the OM was applied to him on his completion of 15 years. For the applicability of the FR 22(1)(a)(i) it is not merely sufficient that the officer gets a promotion from one post to another involving higher duties and responsibilities but another condition must also be satisfied, namely, that he must be moving from a lower scale attached to the lower post to a higher scale attached to a higher post. If, as in this case, the benefit of the higher scale has already been given to him by virtue of the OM there is no possibility of applying this part of the FR which says
       “his initial pay in the time scale of higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty-five only, whichever is more”.
       Further, the respondent is a junior officer in the category of Junior Engineers and he has already got the benefit of the FR on completion of 15 years. If he is to be given a second benefit on the basis of the same FR, then he would be getting more than his seniors, who might have got promoted earlier and might have got benefit of the FR 22(1)(a)(i) only once. Such an anomaly was not obviously intended by the FR.
       For the aforesaid reasons, the appeal is allowed and the order of the Tribunal is set aside and the OA is dismissed. (Paras 8 to 10)

Judgment

M. Jagannadha Rao, J.-This appeal is preferred by the Union of India and the C.P.W.D. against the order of the Central Administrative Tribunal, Calcutta dated 3.12.1993 passed in O.A. No. 241 of 1993. By that order, the Tribunal directed that the “pay of the petitioner in the promotional post should be fixed in terms of F.R. 22(1)(a)(i) with effect from 1.8.1991 and all consequential benefits including arrears should be paid to him within a period of 3 months from the date of communication of this order”.

2. The facts relevant to the case are as follows :

The respondent was working in the C.P.W.D. as Junior Engineer in the senior scale Rs. 1640-2900 and as he had put in 15 years service as Junior Engineer, he was granted the Assistant Engineer’s scale of Rs. 2000-3500 (in terms of Government of India, Ministry of Urban Development (I Division) No. 12014/2/87 IW II dated 22.3.1991). By giving him the necessary increment, his pay was fixed at Rs. 2600/- as on 1.2.1991 by applying FR 22(1)(a)(i) as permitted in the said order. This was after the respondent opted for this scale. The date of his next increment which fell on 1.2.1991 was taken into account while granting him the increment mentioned in the FR. Later he was promoted, pursuant to certain orders of the CAT in an earlier OA, as Assistant Engineer. He, then filed the present OA claiming that FR 22(1)(a)(i) is to be applied to his case once again and his pay should be refixed in the scale of 2000-3500 by giving him fresh benefit of the increment permitted by the said FR. The CAT opined that as this was his actual promotion from the post of Junior Engineer to Assistant Engineer, and as he was necessarily discharging higher duties and responsibilities, he was entitled to a fresh application of the said FR 22(1)(a)(i).

3. The appellants contend that this would amount to giving the benefit of FR twice over and this is not permissible. The respondent has been served and notices have been sent to him that his case will be heard on a specific date but he has not chosen to be present and we are, therefore, proceeding to decide the case on merits, setting him ex parte.

4. The point for consideration is whether the respondent who was drawing Rs. 1640-2900 as Junior Engineer and who on completion of 15 years service as Junior Engineer was given benefit of FR 22(1)(a)(i) in the Asstt. Engineers’ scale of Rs. 2000-3500 as per OM(A)-11014/91 dated 22.3.1991 with effect from 1.1.1991 is again entitled on regular promotion as Asstt. Engineer on 1.8.1991 to benefit of the same FR 22(1)(a)(i)?

5. Under the OM (A)-11014/91 dated 22.3.1991 it is stated that in the C.P.W.D, the Junior Engineers Association and Sectional Officers (Horticulture) Association made certain demands and an agreement was signed on 20.3.1991 between the Government and the Association. As per the first part of said agreement there would be 2 scales of JE/SO (Hort) in CPWD, one in the scale of Rs. 1400-2300 and another in the scale of Rs. 1640-2900. Those who completed 5 years service in the entry grade Rs. 1400-2300 will be placed in the grade of Rs. 1640-2900, subject to rejection of those found unfit. This higher grade will not be treated as a promotional one but will be non-functional and the benefit of FR 22(1)(a)(i) will not be admissible, while fixing the pay in the higher grade, as there will be no change in duties and responsibilities. We are not concerned here with the above portion of the agreement. We are, however, concerned with the second part which reads as follows:

“(ii) Junior Engineers/Sectional Officers (Horticulture), who could not be promoted to the post of Assistant Engineers/Assistant Directors (Horticulture) in the scale of Rs. 2000-3500, due to non availability of vacancies in the grade of Assistant Engineer/Assistant Directors (Horticulture) will be allowed the scale of Assistant Engineer/ Assistant Director (horticulture) i.e. Rs. 2000-3500, on a personal basis, after completion of 15

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1998 Supreme(SC) 626

Important PointImpugned case amounts to giving the benefit of FR twice over and this is not permissible under service jurisprudence.

Important Point
Impugned case amounts to giving the benefit of FR twice over and this is not permissible under service jurisprudence.