D. D. SURI v. UNION OF INDIA AND ANR (2)

Citation: [1980] 1 S.C.R. 24

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, A.P. SEN

Case summary

It lastly held that it was not disputed before it with regard to the applicability of the 'Next Below Ruic', that promotion to a post in super-time scale involves an element of selection and not mere seniority, and that there was nothing to show that the Government of India...

Judgment text

D. D. SURI v. UNION OF INDIA AND ANR. July 17, 1979 [V. R. KRISHNA IYER AND A. P. SEN, JJ. ] • Assignment of year of allotment-Indian Administrative Service (Regulation ~ of Seniority) Rules, 1954, Rule 3 read with "Open Market Emergency Recruit~ ment Scheme 'N' formula"-lnterjerence by Courts under Article 226 of the Constitution of lndia. Fundamental Rules, F. R. 9(21)(b)-Concept of 'pay'-'"Pay" for purposes of determining the "co1npleted years of actual experience" under 'N' fotfnula does not include lodging allowauces and Calcutta compensatory allowance- Whetlier excluding these allowances offend Articles ·14 & 16 of the Constitution. .. Funda1nental Rule 49-Combination of posts and right to additional pay, applicahility of, to officers, governed by Indian Administratil~e Service (Pay) Rules 1954, Rule 13, "Next Below Rule'', principle of-Applicability of b~nefit under F. R. 30(1) -Super-time scale of Indian Administrative Sen•ice. The appellant was boro on January 7, 1915.

He joined the Editorial Staff of the Civil and Military Gazette, Lahore, towards the end of 1938 and continued to serve the Civil and Military Gazette upto January 7, 1943, when he joined the Army. During th'e Second World War be was granted an Emergency Commission in the Army w. e. f. March 7, 1943 with the rank of Lieutenant w. e. f. June 3, 1948 but with seniority in that rank w. e. f. September 1944. Later, Ire, having been selected by the Special Recruitment Board as an Emergency Recruit from the "open market" was appointed to the Indian Administrative Service on August 7, 1950 and allocated to the Orissa Cadre. As regards Emergency Recruits from the open market the year of allotment was to be determined according to the "open Market Emergency Recruitment Scheme" called also 'N' formula. The year of allotment in each cas'e would be 1949-Y, where Y = Ni + t of N2. N11 means the period of previous experience.

The previous experience is the number of completed years of actual experience of th'e officers after attaining the age of 25 and upto 31st 1 December, 1948 as certified by the Special Recruitment Board. N means. the period of continuous. employment on a pay or income of not less than of Rs. 800/- per month before 31ot December, 1944 and the 31st Dec'ember 1948, inclusive. The larger the figufe of "Y", the earlier the date of allotment and seniority. Th'e period of previous experience (N2) in the case of the appellant worked out to 8 years 11 months 25 days rounded off to 8 years (i. e. 7-1-40 to 31-12-48). The figure of N• was worked out taking the ''protection pay" admissible to Army Officers as per F. R. 9(21 )(b) i. e. excluding the Calcutta D. D. SURI V. UNION 25 comp'ensator)' allowance and lodging allo\vance. Therefore, by its letter dated June 11, 1952, the Ministry of Home Affairs fixed the year of allotment of the petitioner to the Indian Administrative Service as 1944.

(1949 minus 5). The appellant held various posts in the Indian Civil Administrative Servic'e cadre of Orissa and was also on deputation to the Government of India from 1952 to April 7, 1964. During this period, he was appointed as the > Salt Commissioner and 1-lanagi1. 1g Director, Hindllstan Salt Ltd, with Headquarter at Jaipur. He h'eld both these posts from September 11, 1953 to . , December 23, 1963, a. nd only as Salt Commissioner till April 7, 1964, whereafter he was reverted to the State of Orissa. I-le was compulsorily retired by the Governm·ent on June 9, 1971. By its order dated September 1, 1977. the State Government gave him pay and allowances in the super-time scale from November 29, 1967 to April 24, 1968 and thereafter selection grade from April 15, 1968 to June 9, 1971. Respondent 1 rejected his representa.

tion (a) for refixing his year of allotment by condoning the shortage of 6 days in determining Nz and by taking into consideration allowances for purposes of Ni (b) for granting the bcllefit of F. R. 49 and (c) for granting the benefit under F. R, 30, The appellant, therefore, filed a ·writ petition to the High Court cla. iming three reliefs, namely, (a) Refixation of the year of allotment as 1942 instead of 1944 in the Indian Administrative Service, alleging that by refusing to treat th'e Calcutta compensatory allowance and lodging allowance as pay under FR 9(21 )(b) and to condone the six days' shortage in determining the number of completed years of editorial experience under 'N' formula, Respondent 1, by its order dated June 11, 1952, denied him seniority, (b) Pay as admissible under FR 49 i. e. full salary of one post and additiona.

1 salary upto "a maximum of 50% of the second post, for the period from September 11, 1961 to December 23, 1963 during which he held both the posts of Salt Commissioner and Managing Director, Hindustan Salt Ltd. and (c) Plac'ement in the super-time sea. le w. c. f. July 24, 1962, i. e. the date when his junior Sri V. V. Ananta Krishnan was appointed to the· super-time scale, under the "Next Below Rule" implied in F. R. 30. The High Court refused to grant the reliefs, prayed for, and dismissed the Writ Petition. Dismi be given for the period of continuous employment on pay o. r income not less than Rs. 800/- p. m. would, therefore, apply uniformly to persons who • were previously lawyers or employed in business houses or in Government services. Uniformity in such a case can only be attained by excluding allowances in every case, because the allowances which persons drawn from these different sources would be getting, would be varied in character.

The Government of India, therefore, acted fully in consonance with Articles 14 and 16 of the Constitution in excluding allowances in computing the pay. The amount of Rs 800/p. m. was taken as a basis as it was the first stage in the senior time scale of pay of officers in the Indian Administrative Service. In this scale, the amount of Rs 800/- is the 'basic pay' without including allowances. Under these circumstances, tlJe decision taken from the beginnin.! l wa. s that allowances would not be included in computing the pay and as long as this decision is applied uniformly, without exception, the appellant can have no grievance in tlJis regard. to seniority specifically as allowances would have to be added uniformly to all other persons in the seniority list. Thus, the definition of 'pay' in F. R. 9(21) (b) is applicable only for tlJe fixation of 'pay' of a Government servant who had been recruited from the armed Forces.

In such a case, the total S'a]ary including such allowances as falling within the definition, is taken note of. The petitioner admittedly was given an initial pay of Rs 1,000/- i. e. much higher than officers appointed to the Indian Administrative Service on the result of the competitive examinations. Here we are not concerned with the fixation of pay of the petitioner but with regard to the Rules r~<>ting to the fixation of his seniority which would take note of the period prior to his recruitment to the Indian Administrative Service and for that purpose the 'basic pay' alone was relevant. The concept of pay under F. R. 9(21) (b) cannot, therefore, be introduced for purposes of regulating the year of allotment under 'N' formula/, as it relates to fixation of seniority and not of pay. The matter falls to be regulated by the interpretation placed by the Government of India, Ministry of Home Affairs in their letter dated July 18, 1949. If the definition of 'pay' in F. R.

9(21) (b) was to be taken note of, then Calcutta compensatory allowance and marriage allowance would also be included. Obviously, a rule which makes seniority dependent upon marriage allowance and, therefore, on whether the officer was married or not will be violative of Article 14 of the Consti- tution. The appellant gave up before the High Court his claim to , the inclusion of marriage allowance though cove. red by the defmition of pay, and in this Court his claim for the inclusion of Calcutta Compensatory Allowance. In dealing with the question, the High Court has observed that the word 'pay' in the context of the relevant Rules and Instructions included only such allowances as were intended to form an >addition to pay and not compensatory allowance like Calcutta City Allowance and Lodging Allowance etc. , i. e.

, allowances which were essentially compensatory in character and were intended to be reimbursed to the Government servant for the expenditure incurred by him in the course of his duty and, therefore, they could not be taken to form part of 'pay' as referred to in the 'N' formula. We Cllnnot see that the appellant is on a better footing as regards lodging allowance, which is usually given to Ai;my Officers in lieu of rent-free quarters. They become at once disentitled to such allowance the moment they are allotted quarters. Lodging allowance is, therefore, essentially compensatory in nature. The inclusion of pay as defined in F. R. 9(21) (b) in the 'N' formula to include the Lodging allowance, is not permissible as the appellant would have to claim the a,pplication of the definition of 'pay' in its full rigour or not at all. Any other construction will lead to manifest injustice as it would result in discrimination between persons similarly situated, i. e.

, between an Army Officer in receipt of lodging allowance in lieu of rent-free quar(ers and one in occupation of such rent-free quartes, in the matter of seniority in the Indian Administrative Service. The inevitable conclusion, therefore, is that the definit'ion of 'pay' in F. R. 9 (21) (b) was not applicable for purposes of fixation o[ seniority of the appellant. Fundamental Rules and their applicability : F' It is not necessary for our purposes to deal with the larger question as to whether the Fundamental Rules regulate the conditions of service of members of the Indian Administrative Service.

As at present advised, we are inclined to think thut their conditions of service are regulated by the provisions of All India Services Act, 1951 and the various Rules and Regulations framed thereunder, such as Indian Administrative Service (Recruitment) Rules, 1954, Indian Administrative Service (Cadre) Rules, 1954, Indian Administrative Service (Pay) Rules, 1954, Indian Administrative Service (Regulation of Seniority) Rules, 1954, Indian Administrative Service (Appointment by Promotion) Regulation, 1955, A][ India, Services (Discipline & Appeal) Rules, 1955 and 1969, All India Services (Conditions of Service-Residuary Matters) Rules, 1960 etc. When there is speci- -~ fie provision made in regard to them on a particular subject regulating ' their conditions of service in the said Act and the Rules, the question of applicability of the Fundamental Rules does not arise. Even assuming that the Fundamental Rules were •applicable on August 7, 1950 i. e.

at the time when the appellant was appointed to the Indian Administrative Service, these FllJldamentaJ Rules ceased to be applicable on the coming into force of the aforesaid rules and regulations framed under the Act, unless the President by an order under F. R. 2 declared them to be so applicable. Combination of posts and right to Additional Pay under F. R. 49 : The short question . for consideration is whether the appellant was entitled under F. R. 49 ! or the period from September 11, 1961 to, December 23, 1963 during which he simultaneously held both the posts of the Salt Commissioner and the Managing Director, Hindnstan Salt Ltd. , wi1h headquarters at faipur, to the full salary of one post and additional salary of a maximum of 50% of the second post. The answer must clearly be in the negative. The provisions of P. R. 49 were not applicable to him after the Indian Administrative Service (Pay) Rules, 1954 were brough. t into force; and even if they were, P. R.

49, in terms, provides that when a civil servant holds two posts. be is disentitled to draw the salary of both the posts. All that such a civil servant becomes entitled to is the salary of the higher post, but no additioml salary can be allowed for performing the duties of the lower post. Thus, the pay of one of the posts can be allowed. Furthermore, the rules relating to pay applicable in 1962 were the Indian Administrative Service (Pay) Rules, 1954 which make no provision for additional pay. Rule 13 of the said Rules reads as follows "13. Repeal and saving. -Any rules corresponding to these rules and in force immediately before the commencement of these-rules are hereby repealed: Provided that any order made or action taken under the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these rules.

" It would thus follow that the provisions of Fundamental Rules in regard to pay, even if applicable, ceased to apply from the date on w\Jich the Indian Administrative Service (Pay) Rules, 1954 came into force. The appellant therefore, would normally not be entitled to invoke P. R. 49 in regard to the salary paid to him when be was simultaneously holding the fwo posts in question. Even assuming that the provisions in the Fundamental Rules would continue to apply to a member of the Indian Administrative Service in regard to which no specific provision is made by framin 119731 sec 836. ply to. his letter dated March 15, 1963 for the submissio11 that had he remained in his parent cadre, he would have been promoted and ' drawn pay in the super-time scale. It was urged that the petitioner should have been given pro forma promotion ii_nd the higher scale of • pay in the super-time grade under the 'Next Below Rule' because his junior in his.

parent cadre had been promoted to such scale of pay or granted 'higher pay', on personal basis to compensate for the financial loss suffered by him due to his retention in a lower post at the Centre. We are afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been 'considered' in the normaJ course for appointment to the selection grade as well as to a super-time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super-time scale on account of his seniority on the basis of the 'Next Below Rule'. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee. In the result, the appeal fails and is dismissed. There shall be no order as to costs. N. V. K. Appeal dismissed.