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Kassey Suhita Anupam Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Patna
Decided On
Judge
Reported in(2008)(2)SLJ299CAT
AppellantKassey Suhita Anupam
RespondentUnion of India (Uoi) and ors.
Excerpt:
.....aforesaid who belong to the ips cadre in the state of bihar have come up for grant of senior time scale of pay with effect from the date they completed four years of service from the year of allotment or with effect from the date they have been posted as superintendent of police which admittedly, is a post specified in schedule iii to the indian police service (pay) rules, 1954 (hereinafter referred to as "the pay rules"). the grievance is that they have been promoted to the senior time scale not from either of those dates but from the dates they had cleared their departmental examinations.2. since the question to be answered involved in all the three original applications is the same, these have been heard together and would be disposed of by this order.3. in this order the.....
Judgment:
1. The three applicants aforesaid who belong to the IPS Cadre in the State of Bihar have come up for grant of Senior Time Scale of Pay with effect from the date they completed four years of service from the year of allotment or with effect from the date they have been posted as Superintendent of Police which admittedly, is a post specified in Schedule III to the Indian Police Service (Pay) Rules, 1954 (hereinafter referred to as "the Pay Rules"). The grievance is that they have been promoted to the Senior Time Scale not from either of those dates but from the dates they had cleared their departmental examinations.

2. Since the question to be answered involved in all the three original applications is the same, these have been heard together and would be disposed of by this order.

3. In this order the applicants aforesaid, in chronological order, will be referred to as App-I, App-2 and App-3 for sake (sic) of convenience.

The arguments of either side are based on certain provision of law which are Rules 3 and 8 of the Pay Rules and Rule 6-A Sub-rule 3 of the Indian Police Service (Recruitment) Rules, 1954 (hereinafter referred to as "the Recruitment Rules").

4. For better appreciation, these rules may be reproduced, firstly the rules under the Pay Rules: 3. Time Scale of Pay--(1) The scales of pay admissible to a member of the Service and the dates of effect from which the said time scales shall be deemed to have come into force shall be as follows: Rs. 2200-75-2800-EB-100-4000 with effect from the 1st day of January, 1986.

(a) Time Scale - Rs. 3000-100-3500-125-4500 with effect from the 1st day of January, 1986.

(b) Junior Administrative Grade Rs. 3700-125-4700-150-5000 with effect from the 1st day of January, 1986.

Provided that a member of the Service shall be appointed to the senior scale on his completing 4 years of service, subject to the provisions of Sub-rule (2) of Rule 6-A of the Indian Police Service (Recruitment) Rules, 1954 and to the Junior Administrative Grade on completing 9 years of service.

Note:- The four years and nine years of service in this rule shall be calculated from the year of allotment assigned to him under Regulation 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954.

8. Pay of officers holding posts enumerated in Schedule III.--Any member of the Service appointed to hold a post specified in Schedule III shall, for so long as he holds that post, be entitled to draw the pay indicated for that post in the said Schedule: Provided that no member of the Service shall at any time draw pay less than that which he is entitled to draw under Rules 4 and 5: 5. Now coming to Rule 6-A of the Recruitment Rules, the same is reproduced below: 6-A. Appointments of direct recruits and offers recruited by selection from among released Emergency Commissioned Officers and Short Service Commissioned Officers to posts in the senior time-scale of pay: (1) Appointments of officers recruited to the Service under Clause (a) or Clause (aa) of Sub-rule (1) of Rule 4 to posts in the senior time-scale of pay shall be made by the State Government concerned.

(2) An officer, referred to in Sub-rule (1), shall be appointed to a post in the Senior time-scale of pay if, having regard to his length of Service and experience, the State Government is a satisfied that he is suitable for appointment to a post in the senior time-scale of pay; Provided that, if he is under suspension of disciplinary proceedings are instituted against him, he shall not be appointed to a post in the senior time-scale of pay, until he is reinstated the Service, or the disciplinary proceedings are concluded and final orders are passed thereon, as the case may be; Provided further that on the conclusions of the disciplinary proceedings: (a) if he is exonerated fully and the period of suspension, if any, if treated as duty for all purposes, he shall be appointed to the senior time-scale of pay from the date on which he would have been so appointed and the disciplinary proceedings not been instituted against him, and paid accordingly; and (b) if he is not exonerated fully, and if the State Government, after considering the case on merits, proposes not to appoint him to the senior time-scale of pay from the date on which he would have been so appointed and the disciplinary proceedings not been instituted against him, he shall be given an opportunity to show cause against such action.

(3) Notwithstanding anything contained in Sub-rule (2), the State Government may: (a) withhold the appointment of an officer, referred to Sub-rule (1), to a post in the senior time-scale of pay: (ii) till he passes the prescribed departmental examination or examinations, and appoint, to such a post an officer junior to him.

(b) appoint an officer, referred to in Sub-rule (1), at any time to a post in the senior time-scale of pay as a purely temporary or local arrangement.

6. Before deciding as to how these rules would be applicable to the cases of the applicants, a few facts may first be narrated which are the admitted ones.

7. App-1, in the IPS Cadre, was allotted the year 1998, hence claims that she became due for pay in the Senior Time Scale on completion of four years, with effect from 1.1.2002, or with effect from 5.1.2002 when she was posted as Superintendent of Police, Saharsa, by virtue of Rule 3/Rule 8 of the Pay Rules. The grievance is that she was granted Senior Time Scale of Pay with effect from 30.6.2003, instead.

8. App-2 was also allotted the year 1998 in the IPS Cadre, hence he claims same dates for his promotion to the Senior Time Scale on the same grounds (having been appointed Superintendent of Police, Madhepura on 5.1.02) whereas under the notification issued by the Government of Bihar he was so promoted with effect from 30.6.2003.

9. App-3 was allotted the year 1997 in the IPS Cadre hence he claims promotion to the Senior Time Scale of Pay with effect from 1.1.2001, or with effect from 20.11.2000 when he was for the first time appointed as Superintendent of Police (City), Patna but was so promoted with effect from 30.6.2003.

10. The respondents have contested the claim of the applicants on account of Rule 6-A(3)(a) of the Recruitment Rules which provides that the State Government may withhold the appointment of an officer referred to in Sub-rule (1), to a post in the Senior Time Scale of Pay till he is confirmed in Service, or till he passes the prescribed departmental examination or examinations, and may appoint, to such a post, an officer junior to him. Elaborating the provision Mr. Shekhar Singh, learned Counsel for the State of Bihar and its officers, submitted that it is well within the discretion of the State Government to withhold pay in the Senior Time Scale to an officer till he has passed the departmental examinations. It has been submitted that since the applicants had not passed their departmental examinations with effect from the dates they claim Senior Time Scale of Pay, the are not entitled to get that. It was submitted that no sooner they passed the departmental examination, they have been granted the Senior Time Scale of Pay.

11. Further elaborating, the learned Counsel for the respondents drew the attention of the Tribunal towards a communication lint by the Ministry of Home Affairs to the Government of India dated 20.2.2006 (Annexufe-J In O.A. No. 38/2007). This letter is in response to a query made by the State Government through their letter dated 27.12.2005 on the subject of fixation of pay of IPS Officers to the Senior Time Scale of Pay. In this letter, referring to Rule 3(1) of the Pay Rules and Sub-rule 2 of Rule 6-A and Rule 6-A (3)(a)(ii) of the Recruitment Rules, following direction was communicated in Para-2: The Senior Time Scale is functional, involving higher duties and responsibilities and the same cannot be granted notionally with retrospective effect. Confirmation in the IPS is also a pre-requisite for grant of Senior Time Scale to the IPS Officers, the length of 4 years of service as well as the passing of departmental examination and confirmation are necessary. It is also to be given only prospectively.

12. Mr. Singh also pointed out Sub-rule 3(b) of Rule 6-A of the Recruitment Rules. This empowers the State Government to appoint an officer referred to in Sub-rule (1) to a post in the Senior Time Scale of Pay as purely temporary or local arrangement. This refers to the power given to the State Government to make a temporary or local arrangement, but even such an officer so appointed has been made entitled to Senior Time Scale of Pay as we will find on full consideration of the Rules on the subject. Sub-rule 3(b) prescribed that in their discretion the State Government, though temporarily or as local arrangement, may appoint an officer to a post with senior scale of pay who otherwise may not have been so appointed under provisions of Rule 6-A(3)(a).

13. Coming to the rules, from a bare reading of Rule 6-A(3)(a) of the Recruitment Rules, it would be abundantly clear that a discretion has been given to the State Government to withhold the appointment of an officer, referred to in Sub-rule (1), to a post in the Senior Time Scale of Pay, till he is confirmed in the Service, or till he passes the departmental examination or examinations. This rule, and Rule 8 of the Pay Rules have to be read in their own context, for a harmonious reading. These rules do not lay down any provision for withholding the Senior Time Scale of Pay in case the State Government appoints an IPS Officer to a post specified in Schedule III of the Pay Rules, so long as he holds that post. Sub-rule 3(a) of Rule 6-A of the Recruitment Rules makes it clear that if an IPS Officer has not been confirmed or has not cleared his departmental examinations, then he may be bypassed by the appropriate Government and an officer junior to him may so be appointed to a post under Schedule III of the Pay Rules. If a senior IPS Officer is bypassed in his posting to a post specified in Schedule III and a junior is appointed instead in the circumstances as mentioned under Sub-rule 3(a) of the Recruitment Rules, that bypassed officer will have no claim to Senior Time Scale of pay. But in case an officer who has not been confirmed or has not passed the departmental examinations is appointed to a post under Schedule III, he has to be paid emoluments in the Senior Time Scale so long he holds that post, by virtue of Rule 8 of the Pay Rules. It may also be kept in mind that the authority provided to the State Government under Sub-rule 3(a) of the Recruitment Rules is discretionary as it states what the State Government "may" do, instead fusing the expression "shall" as has been used in Rule 8 of Pay Rules, making that mandatory. Therefore if in their discretion the State Government posts an IPS Officer to a post under Schedule III, it cannot deny him Senior Time Sella of Pay even if the appointment is temporary.

14. However an IPS Officer on completion of four years of service would not become automatically entitled to Senior Time Scale if he has not been confirmed or has not passed his departmental examinations, under Rule 3 of the Pay Rules, as under proviso to Rule 3 of the Pay Rules this has been made subject to Sub-rule 2 of Rule 6-A of the Recruitment Rules. Thus, under Sub-rule 2 to Rule 6-A the State Government has a discretion not to consider an officer who is not confirmed, or has not passed departmental examinations, to be suitable for appointment to a post with Senior Time Scale of Pay.

15. Therefore it has to be held that since the State Government had appointed the applicants to the post of Superintendent of Police, exercising its discretion, even though they had not cleared the department examinations, it cannot withhold the Senior Time Scale of Pay to them with effect from the date they had assumed charge of office as Superintendent of Police.

0.A. No. 58 of 2007 rather would reinforce this view. In the second paragraph of that letter, reproduced in Paragraph 11 of this order, a post in Senior Time Scale has been described to be a functional post, involving higher duties and responsibilities, which scale cannot be given notionally. Conversely, it would mean that when appointed to such a functional post carrying higher duties and responsibilities, an officer will be entitled to the Senior Time Scale.

17. In view of the findings aforesaid, the notification dated 6.10.05 at Annexure-1 so far it relates to App-1 in O.A. No. 58/07, the same notification at Annexure-1 in O.A. No. 59/07 so far it relates to App-2 and the notification at Annexure-1 dated 1.3.04 so far it relates to App-3 in O.A. No. 184/07 are hereby quashed in so far as the dates of their promotions to the Senior Time Scale of Pay are concerned. The respondents are hereby directed to grant them Senior Time Scale of Pay with effect from the date they had assumed charge of the post of Superintendent of Police, for the first time, respectively. This order be complied with within two months of receipt of a copy of this order.

The three original applications stand disposed of in terms of this composite order. No costs.


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