Dr. Mahabir Prasad Yadav vs Lakshmibai College

Jyoti Singh, J

The instant Writ Petition is filed by the Petitioner assailing Minutes of the Review Committee meeting dated 30.04.2019 recommending status quo

with respect to Subsistence Allowance payable to the Petitioner as well as the Approval dated 24.05.2019 given by the Governing Body of the College

to the recommendations of the Review Committee.

The neat legal nodus in the present Petition is Entitlement to Subsistence Allowance during Suspension and its consequential nuances. The threefold

issues raised by the Petitioner can be encapsulated as follows:-

(a) Enhancement of Subsistence Allowance from 50% to 75% for the suspension period post the initial three months period under FR 53.

(b) Benefit of Pay Revision under 7th Pay Commission and consequential re-fixation of Subsistence Allowance and enhanced Subsistence Allowance.

(c) Grant of Annual Increments under the CCS (Revised Pay) Rules, 2016 during the suspension period.

Brief narrative required for deciding the issues crystallized above is that the Petitioner was working as an Assistant Professor in the English

Department of Respondent/College (hereinafter referred to as “Collegeâ€) at the relevant time and was arrested in connection with FIR No.

229/2017 on 11.12.2017 for allegedly forging documents including an order representing it to be judgement of a Court. On account of the arrest,

Petitioner was placed under deemed suspension by invoking Rule 10(2)(a) of the CCS (CCA) Rules, 1965 on 01.03.2018 w.e.f. 12.12.2017. On being

granted Bail on 01.08.2018, Petitioner wrote to the College on 02.08.2018/03.08.2018, seeking reinstatement and increase in Subsistence Allowance.

On 21.12.2018, Petitioner approached this Court by filing a Petition, being W.P.(C) 13989/2018, challenging his continued suspension. On

13.04.2019, the College constituted a Two-Member Review Committee which recommended status quo on the Subsistence Allowance of the

Petitioner. Based on this, the Application filed by the Petitioner for interim relief was dismissed. This Order was challenged in an Appeal before the

Division Bench and during the hearing on admission, the College provided the Minutes of the Review Committee Meeting to the Petitioner, upon which

the Appeal was withdrawn, with liberty to challenge the recommendations in appropriate proceedings. Pursuant to the liberty granted, the present Writ

Petition came to be filed.

With regard to the increase in the Subsistence Allowance, Learned Counsel for Petitioner contends that the Review Committee has directed status

quo on the enhancement of the allowance, based on Rule 2(c) of Suspension under Payment of Subsistence Allowance, CCS Rules or Rule 2(c) of

the Instructions under FR 53 whereas, no such Rule 2(c) exists under the CCS Rules and therefore, there is no application of mind. In so far as

reliance on Rule 2(c) in the Instructions under FR 53 is concerned, it is argued that the Instructions cannot be invoked to deny benefit available under

the substantive provisions of FR 53. It is argued that under FR 53, Subsistence Allowance of the Petitioner should have been increased to 75% after

three months of suspension, since the period of suspension was prolonged due to reasons attributable wholly to the Respondent. Reliance is placed on

judgement of Rajasthan High Court in the matter of Mohd. Laeeq Khan vs. State of Rajasthan and Ors., [2014 SCC online Raj 6760], wherein it has

been held that the employer can deny Subsistence Allowance to an employee, only when reasons for prolonged suspension are attributable to the

employee. Attention of the Court is drawn to provision FR 53(1)(ii)(a)(i), to argue that it is clearly stipulated in the Rule itself that the rate of

Subsistence Allowance may be increased by a suitable amount, not exceeding 50% of the allowance admissible during the first three months, if, in the

opinion of the Authority, the period of suspension has been prolonged for reasons not directly attributable to the Government Servant.

On the second issue, it is contended that Government of India had announced acceptance of the Report of the 7th Central Pay Commission,

rendered on 19.11.2015. Pursuant thereto, CCS (Revised Pay) Rules, 2016 were notified and benefits of 7th Pay Commission were made applicable

from 01.01.2016. The recommendations have been implemented in the Colleges and Departments of Central Universities w.e.f. 01.01.2016.

Consequently, salaries of Teaching Faculties as well as of Non-Teaching employees of the College have been fixed as per the 7th Pay Commission

w.e.f 01.01.2016 and arrears have been paid. Since benefits of the 7th Pay Commission have been made applicable from a date prior to the date of

suspension of the Petitioner, Petitioner is entitled to the benefit of Revision of Pay and consequential re-fixation of the subsistence allowance. Reliance

is placed on the judgement of the Supreme Court in Union of India vs. R.K Chopra, [(2010) 2 SCC 763], wherein it was held that if revision of pay

takes place from a date prior to suspension, benefit would have to be given to the suspended employee, in fixation of Subsistence Allowance. Reliance

is also placed for the same proposition on a judgement of a Division Bench of this Court in Union of India vs. P.C. Misra & Ors., [2010 SCC OnLine

Del 628].

Third contention of the Petitioner is with respect to grant of two annual increments, allegedly withheld by the College for the last two years. It is

argued that withholding annual increments of an employee is a minor punishment under Service Rules which can only be imposed pursuant to a

Disciplinary Inquiry and for no other reason. Learned Counsel for Petitioner relies on the judgement of the Allahabad High Court in the case of

Mritunjai Singh vs. State of UP & Ors., [1970 SCC OnLine All 134], as well as of the Central Administrative Tribunal in Ravinder Kumar Mirg vs.

Union of India & Ors. in OA No. 513/2014, to support his arguments. Reliance is also placed on the judgment of PC Mishra (supra), wherein, Division

Bench upheld the Order of Central Administrative Tribunal directing Union of India to release increments to the Respondent therein, for the

suspension period.

Additionally, Petitioner also claims arrears on enhanced Subsistence Allowance, along with interest. Relying on judgement of the Bombay High

Court in Yuvraj Nathuji Rodye vs. Chairman, Maharashtra State Electricity Board, Bombay and Ors., [2008 (6) Mh.L.J. 384], it is argued that

employer cannot curtail the salary/allowance of an employee and if it does, it becomes liable to pay interest on the arrears to compensate for the

wrong done to the employee.

Learned Counsel for Respondent per contra submits that Petitioner was placed under deemed suspension on account of his arrest as he had

allegedly forged documents purported to be Orders passed by the Supreme Court of India. Petitioner, who is a visually challenged individual, has been

given sympathetic consideration despite the seriousness of allegation against him.

Suspension of the Petitioner has been reviewed periodically by the Governing Body of the College under Ordinance XII of the Delhi University

Act, 1922. Unlike the provisions governing the employees of Government of India, Ordinance XII does not lay down any timeline for review of

suspension and, therefore, the strict period of three months for conducting review will not apply in the case of the Petitioner. Nevertheless, case of the

Petitioner was placed before the Governing Body on 07.12.2018 and Report of the Fact-Finding Committee, constituted in the meeting dated

05.04.2017, was discussed. It was decided that an independent inquiry be set up in the matter and not to allow the Petitioner to join duties, till the

process was complete. On 26.03.2019, the matter was placed before the Governing Body, as Petitioner had requested for enhancement of

Subsistence Allowance. The Governing Body resolved to appoint a Review Committee. The Two-Member Committee so constituted met on

30.04.2019 and keeping in view the pending case status and other relevant facts, the Committee decided not to increase the Subsistence Allowance.

The recommendations were approved by the Governing Body in its meeting held on 24.05.2019 and in the same meeting, a Disciplinary Inquiry

Committee was also constituted. On 13.12.2019, the matter was placed before the Governing Body and it was decided that suspension of the

Petitioner be extended till inquiry is concluded. The Inquiry Committee has conducted its first sitting on 28.02.2020. Charge-Sheet had been served on

the Petitioner on 07.12.2019 and the next date of proceedings was 27.03.2020, but on account of the COVID-19 lockdown, the inquiry was deferred.

With respect to the enhancement of Subsistence Allowance, Learned Counsel for Respondent contends that Petitioner is governed by Ordinance

XII. Clause 7 of the said Ordinance stipulates that during the period of suspension, an employee would be entitled to Subsistence Allowance in

accordance with the Rules applicable to Government employees. Learned Counsel for Respondent further states that Delhi University has its own Act

and follows Government Rules only where its own provisions on the issue are silent. For the purpose of Subsistence Allowance, College follows the

CCS (CCA) Rules, 1965 and FR 53. It is contended that Office Memorandum dated 16.02.1959, mentioned in the Order and Instruction 2(c) under

FR 53, clearly states that Subsistence Allowance rate may not be altered having regard to the circumstances of the case, and specific orders are to be

passed, recording the circumstances under which the said decision is taken. The College is thus entitled to refuse enhancement in the rate of

Subsistence Allowance and looking at the pending case and seriousness of allegations, the Review Committee, in its wisdom, declined to enhance the

Allowance. Learned Counsel places reliance on a judgement of a Co-ordinate Bench of this Court in Dr. Bhim Sen Singh vs. The University of Delhi

& Ors., WP(C) 4639/2015, decided on 07.01.2016, to contend that it has been held by the Court that Ordinance XII which contains a provision for

suspension does not contemplate any timelines for review of suspension and that CCS (CCA) Rules, 1965 will not be applicable to the University, save

and to the extent they are adopted.

On the issue of revision of pay under the 7th Pay Commission, Learned Counsel submits that, Petitioner was suspended w.e.f. 12.12.2017 and by

that time, benefits of the 7th Pay Commission had not been implemented by Delhi University. The implementation was from March, 2018, which is

after the suspension of the Petitioner and thus Subsistence Allowance of Petitioner cannot be re-fixed and increased granting the benefit of Revised

Pay under 7th CPC. It is also submitted that College has sent the case of the Teachers for approval to the University, but the approval is awaited.

On the entitlement of Petitioner to annual increments, Learned Counsel argues that Petitioner was suspended w.e.f. 12.12.2017 and has not been

working since then. An increment is an incidence of employment and can only be granted when an employee has worked for the minimum period

required for grant of increment. Reliance is placed on judgements of the Division Bench of this Court in Chandra Shekhar vs. Union of India and Ors.,

WP(C) 10065/2016, decided on 08.02.2017 and Union of India & Ors. vs. Devi Krishan Sharma, WP (C) 2449/2014, decided on 16.11.2015.

On the claim for interest by the Petitioner, it is submitted that there is no delay on the part of the College in initiating or concluding the Disciplinary

Proceedings. In so far as the criminal case is concerned, the same is beyond the control of the College and there is no reason why the College should

be saddled with the liability of interest. Moreover, as the Petitioner is not entitled to enhanced rate and higher subsistence allowance, no arrears are

payable and issue of payment of interest does not arise.

Enhancement in the rate of Subsistence Allowance is the first issue that arises for consideration before this Court. While the College disputes

applicability of the CCS (CCA) Rules, 1965 to regulate suspension and its review to the employees of Delhi University, the admitted stand of the

College is that grant of Subsistence Allowance is regulated by FR 53, relevant part of which reads as under:-

“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:-

(i) In the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil employ who is liable to revert to

Military duty…………….

(ii) In the case of any other Government Servant-

(a) a subsistence allowance at an amount equal to the leave salary which the Government Servant 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:

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:-

(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 percent of the subsistence allowance

admissible during the period of the first three months, if in the opinion of the said authority, the period of suspension has been prolonged

for reasons to be recorded in writing, not directly attributable to the Government servant;

(ii) the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 percent of the subsistence allowance

admissible 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;

(iii) the rate of dearness allowance will be based on the increased or, as the case may be the decreased amount of subsistence allowance

admissible under sub-clauses (i) and (ii) above.

xxxx xxxx xxxx

(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other

employment, business, profession or vocation.â€​

A plain reading of the Rule warrants a conclusion that when an employee is placed under suspension or deemed suspension, he 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. Proviso further provides that where the period of suspension exceeds three months, Suspension

Allowance can be varied by the Competent Authority. The Allowance can be increased to a suitable amount, not exceeding 50% of the Subsistence

Allowance admissible during the first three months, if, in the opinion of the Authority, the period of suspension has been prolonged for reasons, to be

recorded in writing, not directly attributable to the employee. The Rule, therefore, envisages enhancement of the Subsistence Allowance after a period

of three months with a cautious caveat that where the employee is responsible for causing any delay in conclusion of the Departmental proceedings or

the criminal case pending against him, the employer would be entitled to deviate and refuse enhancement. The Rule also mandates that the Competent

Authority is required to give specific reasons that demonstrate that the delinquent was responsible for causing delay in the proceedings, in case it

seeks to deny enhancement of Subsistence Allowance to 75%. Division Benches of the Punjab & Haryana High Court in the case of Rohtas Singh

vs. State of Haryana & Ors., [2004 SCC OnLine P&H 67] and Gujrat Singh, B.D. & P.O. vs. State of Haryana, [1986 (3) S.L.R. 35], respectively,

held that enhancement of Subsistence Allowance after the initial period, as envisaged in the Rule, shall be paid till such time as the suspension

continues, in absence of any allegation attributable to the Petitioner resulting in prolonged suspension and that specific reasons need to be annotated to

deny enhancement. To the same effect are the observations of the Rajasthan High Court in the case of Mohd. Laeeq Khan (supra), Paras 7 & 9 of

which read as under:-

“7. Rule 53 of the RSR provides that a Government servant under suspension is entitled to subsistence allowance at an amount equal to

the leave salary which the Government servant would have drawn, if he had been leave on half pay and in addition dearness allowance

based on such leave salary. Proviso thereto stipulates that where the suspension period exceeds six 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 six months in the manner indicated in three clauses thereunder. First clause of this proviso stipulates that the amount

of subsistence allowance may be increased by a suitable amount, not exceeding to 50% of the subsistence allowance admissible during the

period of the first six months if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be

recorded, in writing not directly, attributable to the Government servant. Conversely, the second clause provides that the amount of

subsistence allowance may be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period

of first six 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.

xxx xxx xxx

In the present case, the petitioner has been placed under suspension on account of pending criminal trial against him and the

respondents have neither asserted nor placed any material to show that the trial is getting delayed on account of lapse on the part of the

petitioner. Although it may be true that suspension of the petitioner has been brought about nine years ago on the ground of alleged

misconduct attributed to him but that cannot be taken as a reason owing to which suspension is required to be prolonged. Case of the

Petitioner would thus fall in clause (1) of proviso to clause (a) of Rule 53 of the Rules.â€​

Examining the minutes of the Review Committee impugned herein on the anvil of these judgments and the provisions of FR 53, the Court is

compelled to note that in the impugned Minutes, leave aside a categorical finding, there is not even a subtle observation from which it can even be

implied that the Petitioner is responsible for the delay in conclusion of either the criminal trial or the Disciplinary Proceedings. Relevant part of the

Minutes dated 13.04.2019 is as follows:-

“Keeping in mind the pending case status and other relevant facts, the committee recommended that the status quo may be maintained

with respect to subsistence allowance as per rule 2 (c) of Suspension under Payment of Subsistence Allowance (CCS Rules).â€​

From a reading of the Minutes what is apparent is that the “pending case status†and “other relevant facts†led to the Committee

recommending status quo on enhancement of the allowance. What are the “relevant factsâ€, is only left to anybodyâ€s guess. In so far as the

pending case status is concerned, suffice would it be to state that this cannot be a reason to deny enhancement of Suspension Allowance in view of

the clear provisions of FR 53. It needs no gain-saying that an employee will be placed under suspension only during the pendency of the

Disciplinary/Criminal Proceedings or in contemplation thereof. Therefore, whenever the question of enhancement of Suspension Allowance would

arise, there would be some delinquency attached to the conduct of the employee and invariably, a case would be pending or contemplated.

Learned Counsel for Respondent has sought to urge that the allegations are serious, but in my view, this ground is not open to be argued by the

Respondent for the simple reason that seriousness of allegations is not the reason that can be deciphered from the impugned Minutes. Secondly,

seriousness of allegations, by itself, may not always and necessarily be a factor prohibiting enhancement of allowance, per se. There cannot be a

debate on the argument canvassed by counsel for Respondent that Government of India Instruction under FR 53 emanating out of O.M. dated

16.02.1959 entitles the Competent Authority to refuse alteration in Subsistence Allowance, if the circumstances so warrant. However, the Instruction

only supplants the substantive provisions under FR 53 and no decision can be taken ignoring them. It cannot be construed to vest an absolute arbitrary

discretion in the Authority concerned. As held by several Courts Note/Instruction to a Rule must be read in harmony with the substantive Rule so as

to further the object of the Rule and not frustrate it.

Moreover, even the said Executive Instructions require the College to give reasons for its decision, deviating from the path laid down in the Rule.

As noted above, no reasons are forthcoming, which persuaded the Committee to maintain status quo in respect of the Subsistence Allowance. It is

obvious that there has been no application of mind to the provisions of FR 53 while arriving at the decision. Competent Authority can take into

consideration all facts and circumstances, but not to the exclusion of the provisions of FR 53. On all these counts, the impugned Review Committee

Minutes cannot be sustained in law and deserve to be quashed.

The next issue is with regard to the entitlement of the Petitioner to the benefits of 7th Pay Commission under the CCS (Revised Pay) Rules, 2016.

Before examining the said issue, it is relevant to take note of FR 23, FR 53 and the O.M. dated 27.08.1958. FR 53 has been extracted in the earlier

part of the judgment. FR 23 and the O.M. read as under:-

“F.R.23. The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay:

Provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old

scale, or until he vacates his post or ceases to draw pay on that time-scale. The option once exercised is final.â€​

Office Memorandum

“(2) Revision of scale of pay while under suspension.- A 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 the post held by him immediately prior to

suspension is revised, the Government of India has decided as follows:

(1) Cases in which the revised scale of pay takes effect from a date prior to the date of suspension.

In such cases the government servant should be allowed to exercise the option under FR 23 even if the period during which he exercises 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 such option.

(2) Cases in which the revised scale of pay takes effect from a date falling within the period of suspension.

(a) Under suspension a government servant retains a lien on his substantive post. As the expression “holder of a post†occurring in FR

23 includes also a person who holds a lien or a suspended lien on the post even though he may not be actually holding the post, such a

government servant should be allowed the option under FR 23 even while under suspension. The benefit of option will, however, practically

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.

(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

If, however, he is reinstated in the 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 period of suspension, a relaxation may be made in each individual case for extending the period during which the option may be

exercised.â€​

It is also useful to extract FR 9(12) which defines “Payâ€​ and FR 9(21) as under:-

“9(12) ""Leave-salary"" means the monthly amount paid by Government to a Government servant on leave.â€​

xxxx xxxx xxxx

“9(21) (a) ""Pay"" means the amount drawn monthly by Government servant as-

(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him

substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre, and

(ii) overseas pay, technical pay, special pay and personal pay, and

(iii) any other emoluments which may be specially classed as pay by the Governor-General in Council.â€​

FR 9 (12) defines Leave-Salary to mean the monthly amount paid by the Government to a Government servant on leave. Conjoint reading of FR

9(12) with FR 53 indicates that 50% of the pay, with Dearness Allowance, if admissible, will be the Subsistence Allowance during suspension.

Monthly amount drawn by a Government Servant, sanctioned for the post held by him substantively, is “Payâ€. Thus, a person holding a post

substantively is entitled to Pay Revision from time to time, under the successive Pay Commissions in his tenure. There is no provision under the Rules

which disentitles a person on leave from being paid Leave-Salary on the revised pay benefits under the Revised Pay Rules. As a corollary, half pay

envisaged as Subsistence Allowance under FR 53 (1)(ii)(a) would contemplate periodic revisions based on Pay Revisions under the various Central

Pay Commissions.

A question had arisen as to whether a Government Servant under suspension could be given an option to elect the revised scales of pay which

might be introduced in respect of the post held by him, both, when revision takes place prior to suspension and when it takes place during the period of

suspension. This conundrum was resolved by the Government by issuing the O.M. dated 27.08.1958 extracted above. A reading of the said O.M.

makes it clear that if the revision in Pay Scale takes place prior to the suspension period, the employee can exercise the option under FR 23, even if

the period during which he exercises the option, falls within the period of suspension. He would thus be entitled to the benefit of pay revision and the

consequential fixation of his Subsistence Allowance. However, if revision takes effect from a date falling within the period of suspension, then the

benefit of option for revised Pay Scale will accrue to him in respect of the suspension period only after he is re-instated, depending on whether the

suspension period is treated as duty or dies non under FR 54 (B). The entitlement of an employee to revision of his pay, during suspension, is fortified

by the Proviso to Rule FR 53 (1)(ii)(a) whereby the Competent Authority can vary the Subsistence Allowance.

Therefore, what needs to be examined is the date from which the 7th CPC Recommendations have taken effect viz-a-viz the date of the

Petitionerâ€s Suspension. The uncontroverted fact is that the benefit of the 7th CPC has been made applicable from 01.01.2016. The opening

paragraph of the CCS (Revised Pay) Rules, 2016 reflecting the said position is as under:-

“1. Short title and Commencement.

(1) These rules may be called the Central Civil Services (Revised Pay) Rules, 2016.

(2) They shall be deemed to have come into force on the 1st day of January, 2016.â€​

It is also the admitted case of the College that Executive Council of the University approved the scheme of Revision of Pay Scales of Teaching

and Non-Teaching employees of the University and its Colleges vide Resolution dated 12.03.2018 to implement the recommendations of 7th CPC as

per Annexure-A to the Notification of the University dated 26.03.2018. Annexure-A clearly provides as under:-

“(i) The revised pay scales based on the instructions contained in the O.M. No.1/1/2016-E/III(A) dated 13.01.2017 (copy enclosed)

regarding pay revision of employees of the University have been allowed in the case of officers and non-teaching staff of the University.

The revised normal replacement pay scales as per Part “A†of the Schedule of the CCS (Revised Pay) Rules, 2016 would be considered

as mentioned in the O.M. dated 13.01.2017.

xxx xxx xxx

(viii) In terms of Rule 6 of CCS (Revised Pay) Rules, 2016, each employee shall exercise an option in the prescribed from so as to reach the

concerned Establishment Branch within 10 working days from the date of issue of this letter.

xxx xxx xxx

(ix). All the employees shall have three option to get his / her pay fixed in the revised pay scales of the pay with effect from either 1st

January, 2016 itself or from the date of next increment in the pre-revised scale of the pay or from the date of promotion / upgradation of the

pay scale effected after 1st January, 2016. If the intimation regarding option is not received within the specified time, the employee shall be

deemed to have elected to be governed by the revised pay with effect from 1st January, 2016.â€​

Reading of the Notification together with Annexure-A thereto reveals that benefit of the 7th CPC has been granted w.e.f 01.01.2016 to the

Teaching Staff of the University. Petitioner was suspended on 01.03.2018 w.e.f. 12.12.2017. Clearly, the revision in “Pay†has taken effect from

a date prior to the date of suspension and therefore, Petitioner would be entitled to the benefit of the revised pay under the Notification of the

University dated 26.03.2018. Consequently, Subsistence Allowance would be required to be fixed in accordance with the revised pay, calculated in

accordance with the CCS (Revised Pay) Rules, 2016, upon the Petitioner exercising his option thereunder.

A Division Bench of Supreme Court in R.K. Chopra (supra) while dealing with the same controversy held as under:-

“The abovementioned Rules as well as the memorandum makes it clear that if there is a revision of scale of pay 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 scale of pay takes effect from a date falling

within the period of suspension then, the benefit of option, for revised scale of pay 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.â€​

I am also strengthened in my view by a judgement of the Bombay High Court (Nagpur Bench) in Madhukar vs. The Chariman & Managing

Director, Bank of Baroda & Ors. in W.P. (C) 4462/2013 decided on 03.05.2017, the relevant para of which reads as under:-

“5. On hearing the learned counsel for the parties, it appears that the respondent bank was not justified in not paying the subsistence

allowance to the petitioner as per the pay scale revised on 01/11/2007, though the petitioner was suspended with effect from 28/05/2008.

Rule 5 pertaining to “subsistence allowanceâ€​ in the Bank of Baroda Provident Fund Rules reads thus-

In case pay scales are revised during the period of suspension, officer employee will not get benefit of the revised pay since the

subsistence allowance is based on the basic pay which, the officer was receiving prior to suspension.

It is apparent from the rule that in case pay scales are revised during the period of suspension, the suspended officer or employee would

not get the benefit of the revised pay, but if the pay scales are revised with effect from the date prior to the suspension of the employee or

the officer, the employee or the officer would be entitled to the subsistence allowance as per the revised pay. In the instant case, though the

bank took a decision on 27/04/2010, i.e. during the pendency of the petitioner's suspension to revise the pay scale, the pay revision was

brought into effect from 01/11/2007. Admittedly, the petitioner was suspended on 28/05/2008 and the pay revision was brought into effect

on 01/11/2007. Rule 5 of the Rules pertaining to subsistence allowance on which great reliance is placed by the counsel for the respondent

bank for not paying the subsistence allowance to the petitioner as per the pay revision with effect from 01/11/2007, would not entitle the

officer or employee to the revised pay if the pay scales are revised during the period of suspension. The rule pertains to the revision of pay

scales and not to the decision pertaining to the revision of pay scales. What is liable to be considered is as to whether the pay scales were

revised from a date prior to the order of suspension or during the period of suspension. Sometimes, a decision to revise the pay scale may

be taken before an employee is suspended but the pay revision could be brought into effect after the employee is suspended. In that case,

may be, it could be said that the pay scales are revised during the suspension period. What is necessary to be looked into while considering

rule 5 is not whether the decision to revise the pay scale is taken during the period of suspension and it would be necessary to consider

whether the pay scales are brought into effect during the period of suspension. It would be necessary to refer to the judgment of the

Hon'ble Supreme Court, reported in (2010) 2 SCC 763 (Union of India v. R.K.Chopra) in this regard. It is held by the Hon'ble Supreme

Court 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 the benefit of the revised pay but if the revision of the pay scale takes effect from a date falling within the period of suspension then the

benefit of revision of pay and the subsistence allowance would accrue to him only if he is reinstated, depending on the fact whether the

period of suspension is treated as duty period or not. In the instant case, the first part of the observations made by the Hon'ble Supreme

Court would come into play. In the instant case, the revision of pay scale has taken effect from a date prior to the date of suspension. The

date of suspension is 28/05/2008 whereas the date of pay revision is 01/11/2007. The pay revision is brought into effect from 01/11/2007,

whereas the petitioner was suspended much later i.e. on 28/05/2008. Merely, because the decision to revise the pay scales was taken on

27/04/2010, the respondent bank cannot be heard to say that the benefit of the pay revision cannot be granted in favour of the petitioner,

though the pay revision has actually taken effect from a date which is prior to the date of the suspension of the petitioner. The reliance

placed by the learned counsel for the bank on rule 5 of the Rules pertaining to the 'subsistence allowance' is not well founded and the bank

cannot defend the claim of the petitioner on the basis of the said Rules. In our view, it was necessary for the bank, in the circumstances of

the case to pay the subsistence allowance to the petitioner as per the pay scale, as revised on 01/11/2007. The bank had initially credited

the amount of Rs.85,399/in the bank account of the petitioner and rightly so, but for the reasons best known to the bank, the said amount

was subsequently withdrawn by taking an incorrect view.â€​

Tested thus on the anvil of the Rule position and the judgements, College, in my view, is not justified in denying the benefit of pay revision to the

Petitioner in fixation of Subsistence Allowance.

The third and last issue which the Court is called upon to consider is the grant of two annual increments to the Petitioner during the period of

suspension. “Suspension†means an employee is debarred from performing his duties as also from the privileges of employment, as observed by

the Supreme Court in State of Punjab vs. Jaswant Singh Kanwar, [(2014) 13 SCC 622]. Suspension is a temporary deprivation of office by reason of

which an employeeâ€s powers, functions and privileges remain in abeyance. However, the suspended employee continues to be subjected to the same

Disciplinary Rules & Penalties and to the same Authorities. Supreme Court in the said judgement also paraphrased the concept of “increment†in

service jurisprudence as under:-

“13. “Increment†has a definite concept in service law jurisprudence. It is an increase or addition on a fixed scale; it is a regular

increase in salary on such a scale. As noted by this Court in SBI v. Central Govt. Labour Court, under the labour and industrial laws, an

increment is when in a timescale of pay an employee advances from the lower point of scale to the higher by periodic additions. In other

words, it is addition in the same scale and not to a higher scale. An increment is an incidence of employment and an employee gets an

increment by working the full year and drawing full salary. During the period of suspension, the contract of service remains suspended.

The order of suspension by the departmental enquiry has the effect of temporarily suspending the relations between the master and servant

with the consequence that the servant is not bound to render service and, therefore, the petitioner is an employee is not entitled to

increments during this period which is taken as period not spent on duty.â€​

In the said case the only question that had arisen for consideration was whether an official placed under suspension by the Disciplinary Authority

is entitled for grant of increments during suspension. The Supreme Court, after analyzing the Rule position, concluded that only the period spent on

duty in a post could be counted for the purpose of increments.

The said controversy once again came up for consideration before a Division Bench of this Court in Devi Krishan (supra). The Court relied upon

the judgement of Supreme Court in Jaswant Singh Kanwar (supra) and held that an employee is not entitled to increments during the period of

suspension. Relying on the said judgment of Division Bench, another Division Bench of this Court in Government of NCT of Delhi vs. Ram Nath in

W.P. (C) 12109/2015 decided on 08.12.2016, set aside an Order of the Central Administrative Tribunal directing grant of increments to the

Respondent therein, for the period of suspension. This position of law has been enunciated in several judgements and without burdening the present

judgement, I may only refer to one by the Rajasthan High Court in Brij Lal Bundel vs. State of Rajasthan & Anr., [2006 SCC OnLine Raj 215] and

another by the Madras High Court in Union of India & Ors. vs. P. Narasimhan & Anr. [2014 SCC OnLine 11844].

The word “incrementâ€, to elucidate, is an increase on a fixed scale and when it is in time scale of pay, the employee moves from the lower

point of scale to a higher by periodic addition. It is thus obvious that only when an employee works, he can be entitled to an increment and as a

corollary, when the employee does not render any service during suspension, he cannot be granted an increment.

Learned Counsel for Petitioner has heavily relied on the judgment in the case of Mritunjai (supra) of the Allahabad High Court and P.C. Misra

(supra) of a Division Bench of this Court to substantiate his argument for grant of increments. Suffice would it be to mention that the judgement in

Mritunjai (supra), which is a judgement by a Single-Judge Bench of the Allahabad High Court, has been considered by the Division Bench of this

Court in Ramnath (supra) and the judgement in P.C. Misra (supra) has been distinguished in a recent judgement by the Division Bench of this Court in

Chandra Shekhar (supra). In the judgement of Chandra Shekhar (supra), the aforesaid position of law has been reiterated, declining the benefit of

increments to delinquent employee during suspension period.

Reading the judgements referred to above, the inexorable conclusion is that the Petitioner is not entitled to grant of increments during the

suspension period. Under Rule 10 of the CCS (Revised Pay) Rules, 2016, there are two dates for grant of increment, namely, 1st January and 1st July

of every year instead of the date of 1st July under the CCS (Revised Pay) Rules, 2008. However, an employee shall be entitled only to one annual

increment either on 1st January or 1st July depending on the date of his appointment, promotion or grant of financial upgradation. Had the Petitioner

not been suspended on 01.03.2018, he would have been entitled to two increments for the years 2018-2019 and 2019-2020. However, on account of

the intervening suspension, increments cannot be granted to him at this stage.

This, however, should not be interpreted to mean that the Petitioner would be necessarily disentitled to the increments for the period of suspension.

Once the disciplinary proceedings pending against the Petitioner, culminate into exoneration, partial or full/ penalty and/or acquittal/conviction in the

criminal proceedings, as the case may be, at that stage, depending on the final verdict, the College would decide whether or not the period of

suspension is to be counted as period spent on duty or dies non. This would set the stage for deciding the entitlement of the Petitioner to the

Increments during suspension period. Thus at this stage, this Court leaves this issue open with the observation that payment of Increments for the

suspension period is deferred until a final order is passed by the College under FR 54(B), depending on the outcome of the Disciplinary/Criminal

Proceedings.

Keeping in view the analysis and findings made above, the followings directions are issued by the Court:-

(1) Respondent No.1 shall re-convene the Review Committee. The Committee shall examine the issue of enhancement in the rate of Subsistence

Allowance in the light of FR 53 from 50% to 75% and other Executive Instructions applicable and take a considered decision in accordance with law.

Decision shall be taken within a maximum period of 2 weeks from today and will be communicated to the Petitioner.

(2) Revision in Pay under the CCS (Revised Pay) Rules, 2016 shall be granted to the Petitioner w.e.f 01.01.2016 and Subsistence Allowance shall be

paid henceforth on the Revised pay. Petitioner would be entitled to arrears of Subsistence Allowance, with effect from the date of suspension. Since

the College has deprived the Petitioner to the increased Allowance, Petitioner would be entitled to interest @ 9% from the date the University

approved the grant of benefits of 7th CPC to its Teaching Faculty. Needful shall be done within a period of 6 weeks from today.

(3) The prayer with respect to grant of Annual Increments during suspension period is rejected.

(4) Minutes of the Review Committee meeting dated 30.04.2019 recommending status quo with respect to Subsistence Allowance payable to the

Petitioner as well as the Approval dated 24.05.2019 given by the Governing Body of the College to the recommendations of the Review Committee

are hereby quashed and set aside.

Writ Petition is disposed of in the above terms with no orders as to costs.