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Judgment
Manish Garg, Member (J)
In the present OA, the case of the applicants is that applicant No.1 was working on the post of Zonal Director in Nehru Yuva Kendra Sangathan (NYKS) and has retired on attaining the age of superannuation on 31.08.2011 from the same post of Zonal Director.
Applicant No.2 was working to the post of District Youth Coordinator (DYC) in NYKS and has retired on attaining the age of superannuation on 31.10.2015 from the same post of DYC.
It is submitted that during service both the applicants were given additional charge of other posts at different stations in addition to their normal duties. It is pertinent to mention here that it is undisputed fact that the Fundamental Rules are applicable to the applicants and in FR 49 (iii), there is a provision of granting 10% of the presumptive pay of the additional posts to a Govt. servant/employee who has been asked to perform the duties on additional posts. F.R.49 has been clarified by the Govt. of India in respect of issue of dual charge vide OM dated 11.08.1989 which reads as under:
"(I) When an officer is required to discharge all the duties of the other post including the statutory functions, e.g. exercise of power derived from Acts of Parliament such as Income Tax Act or the Rules, Regulations, By Laws made under various Articles of Constitution such as FRs, CCS(CCA) Rules, CSRs, DFPRs, etc then steps should be taken to process the case for getting the approval of the Competent Authority and formal orders appointing the officers to the additional post should be issued. On appointment, the officer should be allowed the additional remuneration as indicated in FR 49."
It is also submitted that while performing duties on additional/other posts the applicants discharged all the duties of the additional/other posts, including the statutory functions, e.g. exercise of power derived from Acts of Parliament such as Income Tax Act or the Rules, Regulations, Bye Laws made under various Articles of Constitution such as FRs, CCS(CCA) Rules, CSRs, DFPRs, and therefore, the applicants are entitled for the benefit of FR-49. In this regard, applicants submitted their representation for grant of payment of additional remunerations while performing the duties on additional posts in different offices.
In the above background of the facts, the applicants seeks following reliefs:
“(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 20.04.2017 (Annex.A/1), declaring to the effect that the whole action of the respondents not granting the additional remuneration to the applicant while performing the duties on higher posts and not granting the Additional remunerations/allowances while performing duties on two or more than two posts in separate offices as per FR-49, is illegal, arbitrary, against the principle of natural justice and against the rules.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to grant the Additional remunerations/allowances to the applicants as per FR 49 while performing duties on additional posts for the period stated in para 4.5 of the OA with all the consequential benefits including the difference of pay and allowances with interest.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants with the costs of litigation.”
The impugned order dated 20.04.2017 (Annexure A-1) under challenge reads as under:-
“OFFICE ORDER
WHEREAS, Sh. R.P. Bhardwaj (Retired State Director) and Sh. S.P. Kaushik (Retired District Youth Coordinator) filed OA-2702/2016 before the Hon'ble CAT, Principal Bench, New Delhi praying for seeking the relief of additional remuneration as per FR 49, while holding the additional/dual charges along with their own charge at the relevant time.
AND WHEREAS, the Hon'ble CAT passed order on 10.08.2016 in OA-2702/2016 with following directions:-
"3. In view of this, we dispose of this OA without going into the merits of the matter with a direction to the respondents to treat this OA as a supplementary representation and to take a final decision in the matter within a period of 60 days from the date of receipt of a copy of this order and communicate it to the applicants. In case, applicants are aggrieved by the said order they are at liberty to file a fresh OA. No costs."
AND WHEREAS, the matter was examined under the relevant Rules. The relevant points of clarification regarding application of FR 49 vide Office Memorandum No.4/2/2014-Estt.(Pay-1l), dated 16.04.2015 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of India are reproduced below:
"This Department undertook a review of FR 49 with a view to ensure that the provisions of the FR are applied in public interest and the spirit of the FR is maintained. It has been decided that the following points may be kept in view by Ministries/Departments while processing cases for giving additional charge-
(i) The provisions of FR-49 apply only to Government servants. Appointments of an employee of an autonomous body/PSU etc to another such body would be governed by the Rules of the individual's employer,
(ii) The provisions of FR 49 are applicable to cases where the post held by the Government servant and the post to which he is appointed are under the Government.
(iii) Additional pay for holding additional charge of the posts in PSUs, autonomous bodies etc., is not permissible under FR 49.
AND WHEREAS, the applicants filed contempt petition No.626/2016 alleging that no communication has been received by them in compliance.
AND WHEREAS, Nehru Yuva Kendra Sangathan (NYKS) was formed in 1987 as an autonomous body under the Ministry of Youth Affairs and Sports, Government of India.
AND WHEREAS, the applicants were recruited after formation of Nehru Yuva Kendra Sangathan (NYKS) as an autonomous body and retired from service from NYKS on attaining the age of superannuation.
AND WHEREAS, the provision of FR 49 are applicable only to the Government Servants appointed under the Government.
AND WHEREAS, a three Judge Bench of the Hon'ble Supreme Court has held in its judgment dated 20.01.2015 in M Sampath and Ors Vis Secretary, Ministry of Water Resource (2005) 5 SCC 333, that employees of Autonomous Bodies are not employees of Central Government.
AND WHEREAS, in compliance of the Hon'ble CAT Principal Bench, New Delhi order dated 10.08.2016 passed in OA-2702/2016 the issue of Presumptive Pay' has been considered by the competent authority and after examining the same in the light of the O.M. dated 16.04.2015 and the Apex Court judgment dated 20.01.2015, it is found that, no payment on account of Presumptive Pay' for holding additional posts is payable to the applicants (Sh. R P Bhardwaj and Sh. S. P.Kaushik) under FR 49 as claimed by them.
This is with the approval of the competent authority.”
In support of his arguments the learned counsel for the applicant relies upon the decision rendered by the Hon’ble Apex Court in the case of Civil Appeal no.1549/2021 titled as State of Punjab and anr Vs Dharam Pal decided on 05.09.2017. Reliance is placed on para 22 of the said judgment wherein the Hon’ble Apex Court held as under :-
“22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in Smt. P. Grover (supra) and Hari Om Sharma (supra). As far as the authority in A. Francis (supra) is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma (supra) and resultantly we hold that the view expressed by the High Court is absolute impeccable.”
On bare perusal of the above, decision of the Hon’ble Apex Court is not applicable to the facts of the present case inasmuch as the Hon’ble Apex Court dealt with the issue of grant of pay scale wherein the employee was seeking the benefit of the post he was holding on (current duty charge( CDC)/ officiating basis. It was not a case of dual charge or post or additional charge. The interpretation of FR -49 was not an issue.
Per contra, the learned counsel for the respondents, on the other hand, states that the applicants prayer for grant of additional remuneration/allowances to the applicants as per FR 49 for having performed duties on additional posts is legally untenable as the provisions of FR 49 is not at all attracted in the fact situation. Consequently, the question of grant of any additional remuneration/allowances to the Applicants under the said FR 49 simply does not arise.
FR 49(i) provides as under:
"(i) Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post;”
As the Applicants were not appointed to hold full charge of the duties of a higher post, the provisions of FR-49(i) is not applicable in the fact situation.
FR 49(ii) provides as under:
"(ii) Where a Government servant is formally appointment to hold dual charge of two post in the same cadre in the same office carrying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charge:
Provided that if the Government servant is appointed to an additional post which carries a special pay, he shall be allowed such special pay;”
As the applicants were appointed to hold dual charge of two posts in the same cadre viz., Zonal Director carrying identical scales of pay viz., no additional pay shall be admissible irrespective of the period of dual charge. Further, since the additional post to which the applicants were appointed did not carry any special pay, they are also not entitled for grant of any special pay for holding such additional post.
In view of the above, the provisions of FR 49(ii) is not applicable in the fact situation.
FR 49 (iii) provides as under:
"(iii) Where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post or of the highest post if he holds charge of more than two posts in addition to ten percent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 39 days but not exceeding 3 months:
Provided that if in any particular case it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the Finance Department shall be obtained for the payment of the additional pay beyond the period of 3 months;
As can be seen from the above, FR 49(iii) gets attracted only where a Government servant is formally appointed to hold charge of another post or posts is or are not in the same cadre/line of promotion. But in the present case, the posts to which the Applicants were appointed are in the same cadre.
On carefully going through the record of the case and examining the same, I am of the view that the impugned order dated 20.04.2017 (Annexure–1) is liable to be set aside on short point wherein reasoning given in said impugned order is to the effect that:
“AND WHEREAS, Nehru Yuva Kendra Sangathan (NYKS) was formed in 1987 as an autonomous body under the Ministry of Youth Affairs and Sports, Government of India.
AND WHEREAS, the applicants were recruited after formation of Nehru Yuva Kendra Sangathan (NYKS) as an autonomous body and retired from service from NYKS on attaining the age of superannuation.
ND WHEREAS, the provision of FR 49 are applicable only to the Government Servants appointed under the Government.”
It is submitted that the impugned order dated 20.04.2017 is contrary to their stand in OM dated 14.05.1998, the relevant part of which is reproduced as under :-
“The emoluments’ structure and conditions of service will be exactly similar to those of the corresponding categories of the Central Government employees. NYKS shall modify their Service Rules, if necessary to ensure that the conditions of service of their employees are exactly similar to those of Central Govt. Employees.”
Furthermore, vide Office Memorandum dated 20.05.1998 (Annexure A-11), the respondents themselves admit that as per Rule position “The emoluments’ structure and conditions of service will be exactly similar to those of the corresponding categories of the Central Government employees. Service Rules of NYKS, therefore, stand modified to ensure that the conditions of service are exactly similar to those of Central Govt. Employees.”
Hence, the impugned order dated 20.04.2017 (Annexure-1) is bad in law in so far as, reasoning given in said order that the FR-49 is not applicable.
In this regard, the DOP&T has issued an OM dated 28.01.2000, the relevant part of the order is reproduced as under:-
“(4) No additional pay under FR-49 for holding additional charge of PSUs/Autonomous Bodies, etc- FR-49 empowers the Central Government to appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time "under the Government." The Rule also stipulates the circumstances and the extent to which the Government servant shall be entitled to additional pay on formal appointment to hołd full additional charge of another post under Government.
Instances have come to notice of this department when the Government servants have been given full charge of the post outside the Government, viz., Public Sector Undertakings; Autonomous Bodies, Registered Societies, etc. The question of entitlement to additional pay under FR-49 to the Government servants to hold the full additional charge of the posts in the PSUs, Autonomous Bodies Registered Societies, etc. The question of entitlement to additional pay under FR-49 to the Government servants formałly appointed with the approvał of Competent Authority to hold the full additional charge of the posts in the PSUs, Autonomous Bodies, etc. has been considered in this Department in consultation with the Ministry of Finance and it is clarified that neither such appointments nor the additional pay for holding additional charge in such cases is permissible under FR-49.
It is, therefore, advised that the posts in PSUs, Autonomous Bodies be filled up only by regular incumbents and the occasions for appointing Government servants to hold additional charge of such posts should be resorted to in rare and exceptional circumstances as a stop gap arrangement for a short period onły.
The Ministry of Agriculture and Co-operation, etc., are requested to bring the above decision to the notice of all concerned for strict compliance.”
The plain reading of the above said OM dated 28.01.2000, particularly clause 2, would mean that any government servant who has been given full charge of the post outside the Government viz. Public Sector Undertakings, Autonomous Bodies etc., is not entitled to additional pay for holding additional charge.
In the present case, the applicants are not government servant within the meaning and scope of the Clause 2 stated herein above, who are given charge in any other organisation/autonomous body or otherwise. They are employees of the respondents (autonomous body) claiming their rights and eligibility for benefits under FR-49 within their organisational set up. The claims of the applicants have to be adjudicated on the touchstone of applicability of FR-49 in accordance with the rule position. There is no justification either which runs contrary to their own office memorandum i.e. 14.05.1998 (Annexure A-10) and 20.05.1998 (Annexure A-11).
In this view of the matter , the OA is allowed to the extent that the impugned order dated 20.04.2017 (Annexure A-1) is bad in law in so far as reasoning given in said order that the FR -49 is not applicable to the respondent – organisation in facts and circumstances of the case. Hence, it is directed that the claims of the applicants be decided on the principle that the FR-49 is applicable to them. The question whether the applicants are entitled to benefits of FR-49(iii) as applicable to the respondent/ organization be decided by the Competent Authority afresh having regard to the applicants respective periods of posting/charge, nature of charge, orders of charge /additional charge keeping in view the rule position under FR-49 by way of speaking and reasoned order within a period of two months from date of receipt of certified copy of order.
Needless to say, this Tribunal has only decided the issue of applicability of FR-49 to the respondent organisation and has not touched the merits of case which is left for wisdom of Competent Authority. OA is allowed to that extent. No orders as to costs.