LexAJAYA KUMAR DAS versus STATE OF ORISSA & ORS.
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[2009] 12 S.C.R. 219 AJAYA KUMAR DAS A t v. STATE OF ORISSA & ORS. (Civil Appeal No. 4977 of 2009) JULY 31, 2009 B [TARUN CHATIERJEE AND R.M. LODHA, JJ.) Service Law: Pay scale - Employee drawing higher pay scale, on promotion cannot be dragged to lower pay scale resulting in reduction of his pay- Orissa Service Code - Rule c 74(b). "( Departmental instructions/Circulars cannot override the statutory provisions - Statutory Rules framed under Article 309 of the Constitution can be amended only by a Rule or Notification duly made under Article 309 and not otherwise - D + Constitution of India, 1950 - Article 309 - Administrative law . .. Appellant was appointed by the Government of Orissa as Overseers (Electrical). He was deputed to serve in the Orissa State Electricity Board (OSEB). Later on,. the E post of Overseer was re-designated as Sub-Assistant Engineer. The pay scale of SERs in OSEB was revised --'( from time to time. Since scale of pay of SERs appointed directly by the OSEB was higher in comparison to the Sub-Assistant Engineer on deputation with OSEB and F who were initially appointed by the Government of Orissa as Overseers, it was decided to provide such SERs (erstwhile Overseers) reducible personal pay. This was done so that the SERs (erstwhile Overseers) like the appellant and similarly situated persons do not get lesser G __. salary in comparison to the SERs appointed directly by the OSEB. The appellant was promoted to the rank of Assistant Engineer (Electrical) in 1981 and at the time of promotion he was in the pay scale of 480-970 and 219 H 220 SUPREME COUFff REPORTS [2009] 12 S.C.R. A drawing pay of Rs. 874. However, his pay in the promotional rank of Assistant Engineer was fixed at Rs. 850/- per month. The appellant was aggrieved thereby as, according to him, his pay should have been fixed on promotion at Rs. 950/- per month in view of Rule 74(b) of B the Orissa Service Code. The Tribunal directed that the appellant's pay on his promotion to the rank of Assistant Engineer (Electrical) be fixed taking his last pay drawn in the rank of SER into c account and following the provisions of Rule 74(b) of the Code. The State challenged the order of tribunal before the High Court. The grievance of the State Government was that the tribunal passed the order inconsistent with the Government Circulars, particularly the Circulars dated June 18, 1982 and March 17, 1983. The High Court, D although noticed that the pay of the Government Servant cannot be reduced on promotion yet by relying upon the ~ Government Circular dated April 16, 1971, directed that .. pay of the appellant in the next higher post, 1.e., Assistant Engineer was required to be fixed in accordance with the E said Circular. The effect of the High Court's order was that it reduced the scale cf pay of the appellant. Hence the present appeal. Allowing the appeal, the Court "· F HELD: 1. Rule 74(b) of the Orissa Service Code, provides that on promotion of a Government servant, his initial pay in the time scale of promotional post needs to be fixed at the stage next above the pay notionally arrived G at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued. In a case where the Government servant immediately before his promotion was drawing maximum of the time scale of 1the lower post, his pay on the promotional post needs to be fixed by notionally H AJAYA KUMAR DAS v. STATE OF ORISSA & ORS. 221 ~·· increasing his pay in respect of lower post by an amount A equal to his last increment. In other words, on promotion, a Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion. Rule 74(b) of the Code is aimed at protecting the scale of pay of a Government employee in his B promotional cadre and seeks to ensure that in no case an incumbent is directed to receive less emoluments, less pay than what he was drawing prior to his promotion. .,.. This provision statutorily ensures that the State Government employee gets the benefits of receiving c higher scale of pay than that of the post held by him prior to such promotion. In the light of Rule 74(b), ~nitial pay in the time scale of higher post of a Government servant cannot be fixed which is less than the pay he was getting immediately before promotion. [Para 8] [226-C-F] 0 + 2.1. The
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