Pre-2008 pay fixation option invalid under CCS (Revised Pay) Rules, 2008; fresh option required upon implementation.

ORDER

Hon’ble Mr. Manish Garg, Member (J):

1. By way of the present OA, the applicant seeks the following reliefs:-

“(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 28.12.2018 and fixation order dated 03.03 .2011 declaring to the effect that the same are illegal, arbitrary and against the rules and consequently, pass an order by directing the respondents to re-fix the pay of the applicant by granting due increment on 01.07.2007 after taking the revised option from the applicant with all consequential benefits including the arrears of pay and allowances.

(ii) That the Hon’ble Tribunal may graciously be pleased to pass an order directing the respondents to consider and to grant the benefit of stepping up of pay to the applicant at par with his juniors with all consequential benefits including the arrears of pay and allowances.

(iii) Any other relief which the Hon’ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.”

2. Narrating the facts of the case, learned counsel for the applicant contends that the respondent No.3 vide impugned order dated 28.12.2018 rejected the request of the applicant on the ground that the applicant submitted his option for fixation of his pay from the date of granting 1st financial up-gradation i.e. w.e.f. 10.01.2007 and that is why he was not granted his due increment on 01.07.2007 and the same was granted on 01.07.2008.

2.1 It is submitted by the learned counsel for the applicant that while passing the impugned order the respondent no. 3 failed to consider the fact that the 1st financial up-gradation was actually granted to the applicant by fixation of his pay only in the year 2011, i.e., almost after more than two years from implementation of 6th CPC.

2.2 While implementing the recommendation of 6th CPC the applicant was granted his due increment on 01.07.2007, therefore, at that time when the 1st financial up-gradation was not granted to the applicant, there was no question of submitting any option as per Rule 5 & 6 of the CCS (Revised Pay) Rules, 2008 and before implementing the 1st financial up-gradation vide order dated 01.03.2011 thus , there is change in the circumstances and no option has been taken from the applicant, whereas, in the changed circumstances a revised option should be taken from the applicant as per Para 5 & 6 of the CCS (Revised Pay) Rules, 2008 for fixing his pay. The impugned order is totally illegal and without considering the correct facts.

2.3 Learned counsel for the applicant relies upon Rule 6 of Central Civil Services (Revised Pay) Rules, 2008, which reads as under:-

“6. Exercise of Option –

(1) The option under the provisos to Rule 5 shall be exercised in writing in the form appended to the Second Schedule so as to reach the authority mentioned in sub rule’ (2) within three months of the date of publication of these rules or where an existing scale has been revised by any order made subsequent to that date, within three months of the date of such order.

Provided that -

(i) in the case of a Government servant who is, on the date of such publication or, as the case may be, date of such order, out of India on leave or deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the said authority within three months of the date of his taking charge of his post in India; and

(ii) where a Government servant is under suspension on the 1st day of January, 2006, the option may be- exercised within three months of the date of his return to his duty if that date is later than the date prescribed in this sub-rule.

(2) The option shall be intimated by the Gov