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Himachal Pradesh High Court · body

2011 DIGILAW 1604 (HP)

R. D. Sharma v. State of Himachal Pradesh

2011-03-22

V.K.SHARMA

body2011
JUDGMENT V. K. Sharma, Judge The petition has been filed on the following prayers vide para (i) to (vi) : “ (i) That the respondents may be directed to give the benefit of F.R. 22 C to the applicant, on promotion as Principal w.e.f. 1.1.1986 or thereafter, forthwith. (ii) That the respondents may be directed to give the arrears of pay-fixation on notional basis up to 9.12.1993 as per Annexure A-2 dated 23.7.1997 and the actual arrears thereafter under relief (i) of the OA, along with interest @ 15 % per annum forthwith. (iii) That the respondents may be directed to give the benefit of F.R 22 C i.e. F.R 22 (1) to the applicant from the date of promotion/joining as DEO on 30.3.2001/1.6.2001 onwards forthwith. (iv) That the respondents may be directed to give the arrears on account of F.R 22 ( c ) w.e.f. 30.3.2001/1.6.2001 (A-6)along with interest @ 15 % per annum forthwith. (v) That the respondents may be directed to gave administrative allowance of Rs. 300/- to the applicant from the date of assuming charge as DEO in pursuance to (vi) That any other relief (s) and the cost of the application may also be granted. ” the orders dated 30.3.2001 (A-6) on 1.6.2001 including arrears thereof till today, forthwith. 2. In reply, the respondents has taken the following stand vide paras 3 and 6 (vii) & (viii) : “ That the applicant has no locus to prefer and maintain the present application as he is not entitled to the benefit of FR 22 C i.e. FR 22 (i) (a) (i) on promotion as District Primary Education Officer because with the revision of pay scales the pay scales of Principals School Cadre as well as District Education Officers/District Primary Education Officers are the same and identical, therefore, the question of granting the benefit to the applicant as claimed in this para does not arise at all. (vii) That in reply to this para it is submitted that the pay of the applicant has rightly been fixed vide Annexure A-A/1 by the replying respondent. Had the applicant been aggrieved by this order he should have made a representation regarding the same at the earliest but nothing in this regard has been done by the applicant, therefore, the applicant is estopped to claim the same at this belated stage by his own act and conduct. Had the applicant been aggrieved by this order he should have made a representation regarding the same at the earliest but nothing in this regard has been done by the applicant, therefore, the applicant is estopped to claim the same at this belated stage by his own act and conduct. (viii) That no cause of action has accrued in favour of the applicant to make the representation regarding the fixation of pay at the belated stage as Annexures A/3, A/4, A/5 have been made by the applicant after the expiry of four years from the date of fixation of pay, therefore, the question of considering the representation does not arise at all.” 3. Admittedly, the petitioner was firstly promoted from the post of Lecturer School Cadre to that of Principal School Cadre and thereafter from the post of Principal to that of District Education Officer. Thus, his pay was required to be fixed under F.R 22 (I) (a) (1) corresponding to F.R 22 ( C ) which is as under : “ (a) (1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the 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.” 4. The scope of F.R 22 ( C ), now F.R 22 (I) (a) (1) has been considered by the Hon’ ble Supreme Court in Syed Abdul Qadir and others Vs. State of Bihar and others, (2009) 3 Supreme Court Cases, 475, vide paras 37 to 40 of the judgment, which are extracted below : “ 37. The scope of F.R 22 ( C ), now F.R 22 (I) (a) (1) has been considered by the Hon’ ble Supreme Court in Syed Abdul Qadir and others Vs. State of Bihar and others, (2009) 3 Supreme Court Cases, 475, vide paras 37 to 40 of the judgment, which are extracted below : “ 37. FR 22 – C, which was substituted even prior to the issuance of the Resolution dated 18.12.1989, and was replaced by FR 22 (I) (a) (1) and FR 22 (I) (a) (2), read thus : “22-C. Notwithstanding anything contained in these Rules, where a government servant holding a post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued : Provided that the provisions of this Rule shall not apply where a government servant holding a Class I post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to a higher post which is also a Class I post.” A reading of FR 22 –C makes it clear that benefit of an additional increment would be extended to a government servant in the event of his being promoted or appointed to a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him. 38. As aforesaid, FR 22-C was substituted even prior to the issuance of the Resolution dated 18.12.1989 and was replaced by FR 22 (I) (a) (1) and FR 22 (I) (a) (2), relevant portions of which are quoted hereinbelow : “22. 38. As aforesaid, FR 22-C was substituted even prior to the issuance of the Resolution dated 18.12.1989 and was replaced by FR 22 (I) (a) (1) and FR 22 (I) (a) (2), relevant portions of which are quoted hereinbelow : “22. (I) The initial pay of a government servant who is appointed to a post on a timescale of pay is regulated as follows : (a) (1) Where a government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the 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 one hundred only, whichever is more. (2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the timescale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis.” 39. Rule 22 (I) (a) (1) provides that when a government servant is promoted or appointed to a higher post and the higher post he is promoted to carries duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the 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 one hundred only, whichever is more. 40. 40. According to FR 22 (I) (a) (2), the benefit of an additional increment, which is available to a government servant under FR 22 (I) (a) (1), would not be available to the government servant if the higher post he is promoted or appointed to does not carry duties and responsibilities of greater importance than those attaching to the post held by him.” 5. In view of the above, the petition is disposed of with the direction to the respondents/competent authority to consider the case of the petitioner for grant of benefit of F.R 22 (I) (a) (1) initially from the post of Lecturer to Principal w.e.f. 1.1.1986 and thereafter to the post of Principal toDistrict Education Officer w.e.f. 30th March, 2001 strictly in accordance with F.R. 22 (I) (a) (1) quoted herinabove, as interpreted in Syed Abdul Quadir and others (supra), along with consequential benefits, if any, within three months from the date of production of copy of this judgment by the petitioner. 6. The petition stands disposed of, so also pending CMP (s), if any.