Supreme Court held that a suspended government servant is not entitled to subsistence allowance based on a pay revision effective during suspension. Benefits accrue only upon reinstatement depending on whether suspension is treated as duty.
Appeal allowed; appeal orders of Tribunal and High Court setting aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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[2010] 2 S.C.R. 220
UNION OF INDIA
v.
R.K. CHOPRA
(CIVIL APPEAL NO. 1096 OF 2010)
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FEBRUARY 01, 2010
[R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.]
Service law: Central Civil Services (Revision pay) Rules, 1997 - Rule 7, Note 3 - Subsistence allowance, revision of C - Entitlement of suspended government servant
When revision of pay scale taking effect from a date prior to suspension - Held: Govt. servant is permitted to exercise option under FR23 even if the period during which he is to exercise the option falls within the period of suspension and 0 then he would be entitled to the benefit of increase in pay and also in subsistence allowance for the period of suspension.
When revision of pay scale taking effect from a date falling within the period of suspension - Held: Not entitled - E Benefit of option for revised pay scale would accrue to him in respect of period of suspension only after his reinstatement depending on the fact whether the period of suspension was treated as on duty or not - Fundamental Rules - Rules 23, 53 - Memorandum no.F.2(36)-Ests.1111158 dated 27.8.1958 - F Constitution of India, 1950 - Article 309, proviso.
The question which arose for consideration in the present appeal is whether a government servant is entitled to revision of subsistence allowance based on the G pay revision effected by the Central Civil Services (Revision pay) Rules, 1997 which came into force on 1st January, 1996 while he was under suspension from service.
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UNION OF INDIA v. R.K. CHOPRA
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Allowing the appeal, the Court
HELD: 1.1. The claim for payment of subsistence allowance of a Government servant is dealt within Chapter VIII of Fundamental Rules. Rule 53 provides that the Government servant under suspension shall be entitled to subsistence allowance at an amount equal to the leave salary which he would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance if admissible on the basis of such leave salary. The proviso to Rule 53 (1 )(ii)(a) says that where the period of suspension exceeds three months, the authority is competent to vary the amount subject to some restrictions. [Paras 14 and 15]_ (230-A; 231-E-F]
1.2. Government of India order G.M.O.M. No. F-2(36)Ests/-111/58 dated 27th August, 1958 given in the Swamy's compilation of Fundamental and supplementary Rules, deals with the rnvision of scale of pay while a Government Servant is under suspension. The two categories of cases are dealt with in that Office Memorandum. One refers to cases in which the revised scale of pay takes e:ffect from a_ date prior to ·the date of suspension and othE~r cases in which the revised scales of pay takes effect fmm a date falling within the period of suspension. The Fundamental Rules as well as the Memorandum dated 27th August, 1958 makes it clear that if there is a revision of pay scale in respect of a post held by a Government Servant, prior to the suspension period, he is permitted to exercise option under FR 23, even if the period during which he is to exercise the option falls within the period of suspension and then, he will be entitled to the benefit of increase in pay and also in subsistence allowance for the period of suspension, as a result of such option. But if the revised pay scale takes effect from a date falling within the period of suspension
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[2010] 2 S.C.R.
A then, the benefit of option, for revised pay scale will accrue to him in respect of the period of suspension only after his reinstatement depending on the fact whether the period of suspension is treated as duty or not. In the present case, the Revised Pay Rules, came into force. on s 1st day of January, 1996 when the respondent was under suspension. Therefore, even if he had exercised his option under FR 23 for the benefit of the pay revision, the same would have accrued to him only after his reinstatement depending on the fact whether the period c of suspension is treated as 'on duty' or not. Respondent was dismissed from service on 4.8.2005, therefore the question of the benefit of the revised pay and the subsistence allowance thereon on the basis of Revised Pay Rules did not accrue to him. [Paras 16 and 17] [231D G-H; 232-A; 233-D-H; 234-A]
1.3. The Revised pay Rules, which came into force on 01.01.1996 are in conformity with the FR 53 and the Office Memorandum issued by the Government of lnd!a. On a combined reading of Rules 5 and 6, it is clear that a E Government servant under suspension on the 1st day of January, 1996 is entitled to exercise his option within three months of the date of his return to duty if that date is later than the date prescribed in the sub rule and if the intimation is not received he is deemed to have elected F to be governed by the revised scale of pay with effect on and from the 1st day of January, 1996 on his return to duty. Respondent did not return to duty since he was dismissed from service and hence there was no question either exercising the option or the application of the G deeming provision. [Paras 18 and 20] [234-8; 235-C-E]
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1.4. Note 3 under Rule 7 of the Central Civil Services (Revision Pay) Rules, 1997 states that when a Government servant was on leave on 1.1.1996, he would become entitled to pay in the revised pay scale from the
UNION OF INDIA v. R.K. CHOPRA
223
date he joined duty. However, in the case of a Government servant under suspension, he would continue to draw subsistence allowance based on the then existing scale of pay and his pay in the revised pay scale would be subject to final order on the pending disciplinary proceedings. The Revised Pay Rules were framed by the President of India in exercise of the powers conferred by the proviso to Article 309 and clause 5 of Article 148 of the Constitution. The proviso to Article 309 enables the President to make Rules to regulate the recruitment and conditions of service of the persons mentioned therein. The Rules framed by the President of India in exercise of the powers conferred by the proviso to Article 309 have the force of law. Further, Note 3 to Rule 7 of Revised Pay Rules, 1997 were not challenged. On a combined reading of Note 3 to Rule 7 of the Revised Pay Rules and FR 53(1 )(ii)( a) with the clarification with Office Memorandum dated 27th August, 1958, it is clear that if the revision of pay takes effect from a date prior to the date of suspension of a Government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision pay scale takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinst~tement depending on the fact whether the period of suspension is treated as duty or not. In view of the clear distinction drawn by the Rule making authority between the cases in which the revised pay scale takes effect from a date prior to the date of suspension and a date falling within the period of suspension, the plea of discrimination raised cannot be sustained especially when there is no challenge to the Rules. The benefit of pay revision and the consequent revision of subsistence allowance stand postponed till the conclusion of the departmental proceedings, if the pay revision has come into effect while the Government
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[2010] 2 S.C.R.
A servant is under suspension. The Tribunal as well as the High Court committed an error in holding that the respondent is entitled to the benefit of Revised Pay Rules. [Paras 24 to 26] [236-G-H; 237-A; 237-D-H; 238-AB]
B J.S. Kharat v. Union of India 2002-2003 (CAT) Fu// Bench Judgments 169; State of Maharashtra v. Chandrabhan Tale (1983) 3 SCC 387; Khem Chand v. Union of India 1963 Supp. 1 SCR 229; Jagdamba Prasad Shukla v. State of U.P C and others (2000) 7 SCC 90; P.L. Shah v. Union of India and Anr. (1989) 1 SCC 546; R.P. Kapur v. Union of India & Ors. (1999) 8 SCC 110; Umesh Chandra Misra v. Union oflndia 1993 Supp. (2) SCC 210, referred to.
Case Law Reference:
| D | 2002-2003 (CAT) Full BenchJudgments169 |
referredto | Paras4,5,6 |
|---|---|---|---|
| (1983) 3sec387 | referredto | Paras7,8 |
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| E | 1963 Supp. 1 SCR229 | referredto | Paras7,9 |
| (2000) 7sec90 | referredto | Paras7,10 |
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| (1989) 1sec546 | referredto | Paras7,11 |
|
| (1999) 8sec110 | referredto | Paras7,12 |
|
| F | 1993 Supp. (2)SCC210 | referredto | Paras7,13 |
| CIVIL APPELLATE JUR 1096of2010. |
ISDICTION | : Civil Appeal No. · |
G From the Judgment & Order dated 4.8.2008 of the High Court of Delhi at New Delhi in Writ Petition (C) No. 1899 of 2007.
Mohan Parasaran, ASG, Rashmi Malhotra, D.S. Mahra for the Appellant. H
225
UNION OF INDIA v. R.K. CHOPRA
R.K. Chopra (Respondent-in-person)·
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The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Leave granted.
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[201 O] 2 S.C.R.
226 SUPREME COURT REPORTS
A 4. The Respondent after dismissal from service approached the Central Administrative Tribunal (Principal Bench), New Delhi and filed O.A. No.29/2006 challenging the above-mentioned orders dated 29.10.2002 and 18.08.2005 and sought a declaration that he was entitled to get subsistence B allowance on the revised pay-scale with effect from 1.1.1996. Reliance was placed on a Full Bench order of the Tribunal in J.S. Kharat vs. Union of India [2002-2003 (CAT) Full Bench Judgments 169]. The Department took up the stand that in view of Note 3 to Rule 7 of Central Civil Services (Revised Pay) c Rules, 1997, (for short 'Revised Pay Rules') the Respondent would not be entitled to get subsistence allowance on the revised pay-scale with effect from 1.1.1996. Further, it was also contended that the Full Bench of the Tribunal in the case of J.S. Kharat was not concerned with the applicability of the aboveD mentioned Rules. Rejecting the contention the Tribunal took the view that it would be unjust to deny the subsistence allowance on the basis of revised pay to the persons who stood suspended prior to 01.01.1996, especially when persons who were suspended after that date would be entitled to get E subsistence allowance on the revised pay scale. This, according to the Tribunal, would lead to an anomalous situation. The Tribunal, however, held that since the respondent did not challenge the earlier communication dated 29.10.2002, rejecting his claim, he would not be entitled to any arrears on account of revised subsistence allowance till the said date. F Further, it was ordered that he would be entitled to arrears of revision of subsistence allowance from 01.01.2002 till 04.08.2005 when he was dismissed from service.
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UNION OF INDIA v. R.K. CHOPRA [K.S. RADHAKRISHNAN, J.]
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any infirmity in the order of the Full Bench of the Tribunal in J.S. Kharat's case (supra). Aggrieved by the said order dated 04.08.2008, this appeal has been preferred by the Union of India.
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[201 O] 2 S.C.R.
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A delinquent officer would be entitled to enhanced subsistence allowance on the basis of the upward revision of pay based on the 5th Central Pay Commission Report, implemented by the Revised Pay Rules. Reference was also made to the decisions of this Court in State of Maharashtra vs. Chandrabhan Tale B [(1983) 3 SCC 387]; Khem Chand vs. Union of India [ 1963 Supp. 1 SCR 229]; Jagdamba_Prasad Shukla vs. State of U.P and others [(2000) 7 SCC 90]; P.L. Shah vs. Union of India and Anr. [(1989) 1 SCC 546]; R.P. Kapur vs. Union of India & Ors,, [(1999) 8 SCC 110]; and Umesh Chandra Misra vs. c Union of India [1993 Supp. (2) SCC 210]
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UNION OF INDIA v. R.K. CHOPRA [K.S. RADHAKRISHNAN, J.]
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employed elsewhere during the period of suspension. Non payment of subsistence allowance, this Court held, has vitiated the departmental enquiry and the consequent removal order.
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[201 O] 2 S.C.R.
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"F.R.53.(1) A Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely:-
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Provided that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:-
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UNION OF INDIA v. R.K. CHOPRA [K.S. RADHAKRISHNAN, J.]
during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant;
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232 SUPREME COURT REPORTS · [201 O] 2 S.C.R.
Office Memorandum reads as follows:-
. "(2) Revision of scale of pay while under suspension-A B question having arisen as to whether a Government servant under suspension might be given an option to elect any revised scales of pay which might be introduced in respect of t~e post held by him immediately prior to suspension is revised, the Government of India have decided as follows:-
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In such cases the Government servant should be allowed to exercise the option under FR 23 even if the D period during which he is exercise the option falls within the period of suspension. He will be entitled to the benefit of increase in pay, if any, in respect of the duty period before suspension, and also in the subsistence allowance, for the period of suspension, as a result of E such option.
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UNION OF INDIA v. R.K. CHOPRA 233 [K.S. RADHAKRISHNAN, J.] ·
the fact whether the period of suspension is treated as duty or not.
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(b) A Government servant who does not retain a lien on a post the pay of which is changed, is not entitled to exercise the option under FR 23. If, however, he is reinstated in the 8 post and the period of suspension is treated as duty, he may be allowed to exercise the option after such reinstatement. In such cases, if there is a time-limit prescribed for exercising the option and such period had already expired during the p~riod of suspension, a relaxation may be made in each individual case for c extending the period duri.ng which the option may be exercised.
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c "5. Drawal of pay in the revised sca/es.-Save as otherwise provided in these rules, a Government servant shall draw pay in the revised scale applicable to the post to which he is appointed:
Provided that a Government servant may elect to continue D to draw pay in the existing scale until the date on which he earns his next or any
subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
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Rule 6 which deals exercise of option reads as follows:-
Provided that.-
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UNION OF INDIA v. R.K. CHOPRA 235 [K.S. RADHAKRISHNAN, J.]
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
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"7. Fixation of initial pay in the revised scale. - (1) The initial pay of a Government servant who elects, or is deemed to have elected under sub-rule (3) of the Rule 6 to be governed by the revised scale on and from the 1st day of January, 1996, shall, unless in any case the President by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following
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(2010] 2 S.C.R.
A manner, namely:-
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B Note 3. Where a Government servant is on leave on the 1st day of January, 1996, he shall become entitled to pay in the revised scale of pay from the date he joins duty. In case of Government servant under suspension, he shall continue to draw subsistence allowance based on existing c scale of pay and his pay in the revised scale of pay will . be subject to final order on the pending disciplinary proceedings."
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22: The word "Existing scale" has been defined under Rule 3 (2) which reads as under:
"existing scale" in relation to a Government servant means the present scale applicable to the post held by· the Government servant (or as the case may be, personal ·scale applicable to him) as on the 1st day of January, 1996 E whether in a substantive or officiating capacity."
"revised scale" in relation to any post specified in column F 2 of the First Schedule means the scale of pay specified against that post in column 4, thereof unless a different revised scale is notified separately for that post;".
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UNION OF INDIA v. R.K. CHOPRA 237 [K.S. RADHAKRISHNAN, J.]
pay and his pay in the revised scale of pay would be subject A to final order on the pending disciplinary proceedings.
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A hence the benefit of pay revision or the revision of subsistence allowance did not accrue to him. The Tribunal as well as the High Court have committed an error in holding that the respondent is entitled to the benefit of Revised Pay Rules. We, therefore, allow the appeal and set aside those orders.
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Appeal allowed.
2 issues framed by the court
Whether a government servant under suspension is entitled to revision of subsistence allowance based on pay revision when the revision takes effect from a date within the period of suspension.
Whether Note 3 to Rule 7 of the Revised Pay Rules 1997 is discriminatory against suspended servants compared to those on leave.
Colour shows how this judgement treated each authority
Union of India v. R.S. ChavanReferred
Union of India v. R.S. Chavan AIR 1983
SwamyReferred
Swamy v. Union of India
J.S. Kharat v. Union of IndiaDistinguished
J.S. Kharat v. Union of India
State of Maharashtra v. Chandrabhan TaleDistinguished
State of Maharashtra v. Chandrabhan Tale
Khem Chand v. Union of IndiaDistinguished
Khem Chand v. Union of India
Jagdamba Prasad Shukla v. State of U.PDistinguished
Jagdamba Prasad Shukla v. State of U.P
P.L. Shah v. Union of India and Anr.Distinguished
P.L. Shah v. Union of India and Anr.
R.P. Kapur v. Union of IndiaDistinguished
R.P. Kapur v. Union of India
Umesh Chandra Misra v. Union of IndiaDistinguished
Umesh Chandra Misra v. Union of India
4 provisions across 4 enactments
Union of India
R.K. Chopra
R.V. Raveendran
K.S. Radhakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
