An employee under suspension is entitled to be paid subsistence allowance on the basis of the revised pay scales, even if the revised pay scales came into force after the suspension.

Ramesh Ranganathan, J.

Aggrieved by the order of the Central Administrative Tribunal, in O.A. No. 90 of 2006 dated 03.03.2006, the Union of India and the Salt Commissioner are before this Court.

O.A. No. 90 of 2006 was filed by the respondent-applicant. While he was working as the Personal Assistant to the Salt Commissioner he was placed under suspension on 26.06.1995. He was convicted in Criminal Case No. 5 of 1995 by the Special Judge CBI, Jaipur on 05.02.1997. He filed Criminal Appeal No. 63 of 1997 before the Rajasthan High Court, Jaipur Bench, and an interim order was passed on 17.02.1997, suspending both the sentence and the order of conviction. Thereafter, the petitioners herein revoked the order of suspension on 08.05.2001. When the respondent-applicant was under suspension, pay revision took place, in terms of the Vth Central Pay Commission, which came into effect from 01.01.1996. The respondent-applicant sought payment of subsistence allowance on the basis of the revised pay scales. Despite repeated reminders, no payment was made and eventually the 3rd petitioner, vide proceedings dated 04.02.2005, while drawing attention of the respondent-applicant to Order No. (2)(2)(a) under F.R.53 and note-3 under Rule 7 of CCS (R.P) Rules, 1997, informed him that the benefit of the new pay scales, would accrue to a Government Servant, in respect of the period of suspension, only after his reinstatement, depending on whether the period of suspension was treated as duty or not and that, in the present case, since he was placed under suspension prior to the revision of pay scales, he would continue to draw subsistence allowance based on the existing scales of pay and that his pay in the revised scales of pay would be subject to final orders in the pending disciplinary proceedings and the orders of the appellate Court which was awaited. Aggrieved by the said order dated 04.02.2005, the respondent-applicant approached the Central Administrative Tribunal, Hyderabad. The Tribunal, by order dated 03.03.2006, allowed O.A. No. 90 of 2006 following the order of the Full Bench of the Mumbai bench of the Central Administrative Tribunal in J.S. Kharat Vs. Union of India 2002 (3) ATJ 276. The Tribunal held that the respondent-applicant was entitled to get his subsistence allowance on the basis of the revised pay scales which came into effect during the suspension period and that the decision of the respondents, (petitioners herein), could not be acted upon. The Tribunal quashed the impugned order dated 04.02.2005 and directed the petitioners herein to pay the respondent-applicant arrears of subsistence allowance on the basis of the revised pay scales within a period of two months from the date of communication of the order.

Sri A. Rajasekar Reddy, learned Assistant Solicitor General, would submit that since the revised pay scales, in terms of the Vth Central Pay Commission, came into effect from 01.01.1996 after the petitioner was placed under suspension on 26.06.1995, he was not entitled for payment of subsistence allowance on the basis of the revised pay scales. Learned Assistant Solicitor General would place reliance on FR-53, FR-23 and the executive instructions issued in O.M. No. F.2 (36)-Establishment III 58, dated 27.08.1958, in support of his submission that it is only if the period of suspension of the respondent- applicant is treated as on duty would he be entitled for the benefit of payment of subsistence allowance on the basis of the revised pay scales. According to the Learned Assistant Solicitor General, this exercise could be carried out by the petitioners herein only after the Criminal Appeal, still pending before the Rajasthan High Court, was disposed of.

Sri K. Srinivasamurthy, learned Counsel for the respondent-applicant, on the other hand, would submit that FR-53 read with FR-23, and the executive instructions issued on 27.08.1958, have no application. Learned Counsel would submit that once his period of suspensi