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Cites 4 docs
Kali Pada Chowdhury vs Union Of India on 3 May, 1962
R.R. Verma And Ors vs Union Of India And Ors on 11 April, 1980
A.K. Jain & Ors vs Union Of India & Ors on 25 July, 1969
S.S. Ahluwalia vs Union Of India & Ors on 16 March, 2001

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Central Administrative Tribunal - Delhi
Ishwar Singh vs Union Of India (Uoi) And Anr. on 22 February, 2007
Equivalent citations: 2007 (3) SLJ 299 CAT
Bench: M R Vice, A A V.K.

ORDER

V.K. Agnihotri, Member (A)

1. In this O.A. the applicant has sought quashing and setting aside of the respondents' order dated 15.2.2005 (Annexure A-l) insofar as it rejects his claim for protection of pay consequent upon his appointment as Assistant Teacher in the Railway Department. He has also sought a direction to the respondents to re-fix his pay w.e.f. 22.01.1993, Le. from the date of his appointment as Assistant Teacher, after protecting his pay of previous service rendered by him on the post of Permanent Way Mistry (PWM, for short), with all consequential benefits including the arrears of pay.

2. The brief facts of the case are that the applicant was initially appointed in the year 1988 as PWM in the pay scale of Rs. 1400-2300 in the Northern Railway, Moradabad Division. In the year 1991 the Railway Recruitment Board, Allahabad, invited applications for the post of Assistant Teacher in Railway Schools in the pay scale of Rs. 1200-2040. The applicant applied for the post through proper channel after obtaining No Objection Certificate from the Competent Authority. He was selected for the said post and was appointed as such on 23.1.1993 in ATP Railway School. The applicant was getting a pay of Rs. 1560/-(basic) on the previous post of PWM in the pay scale of Rs. 1400-2300 at the time of his appointment as Assistant Teacher. The applicant made a number of representations to the authorities for protection of pay he was drawing on his previous post, but to no avail. He then filed O.A, No. 2498/2004 before this Tribunal, which was disposed of, vide order dated 12,10.2004, with a direction to the respondents to consider the representation of the applicant and pass an appropriate and speaking order within four months from the date of receipt of a certified copy of that order and communicate it to the applicant Thereafter, the respondents filed M.A. No. 438/2005 seeking extension of time by two months to implement the order. The said M. A. was allowed, vide order dated 1.3.2005. The respondents passed the impugned order dated 15.2.2005. Hence the O.A.

3. The applicant was subsequently declared surplus from the post of Assistant Teacher and has been absorbed in the post of Guard Goods in Northern Railway, Moradabad Division.

4. The applicant has stated that his claim for protection of his pay is fully covered by the ratio of the order of this Tribunal passed in the case of S.K. Jain and Ors. v. Union of India and Anr. C.A. No. 814/2002, decided on 25.10.2002 wherein the Tribunal was pleased to hold that a Railway employee on appointment to a new post through direct recruitment, is entitled for protection of pay in respect of his previous service. The case of the applicant is also covered by FR 22 (I).

5. The applicant has also averred that since, before passing the impugned order, the respondents have neither considered the Railway Board's instructions on the subject nor Para 1313 of the Indian Railway Establishment Manual (IREM, for short), the action of the respondents is illegal, arbitrary, unjust, ultra vires, untenable in the eyes of law, violative of relevant rules and instructions and, therefore, deserves to be set aside.

6. The respondents have stated that the applicant was appointed as PWM in the pay scale of Rs. 1400-2300 (RPS) on 14.11.1988. He subsequently, on his own volition, applied for recruitment to the post of Assistant Teacher through Railway Recruitment Board, Allahabad and was empanelled for recruitment to the said post in the scale of Rs. 1200-2040 (RPS) in January, 1993, He accordingly joined his duties as Assistant Teacher w.e.f. 23,1.1993 in ATP School, Lakshar. The applicant had consciously decided to join the post of Assistant Teacher, which was in a lower grade than that of PWM in which he was working before his selection as Assistant Teacher.

7. The respondents have further stated that the duty of PWM is of a drastically arduous nature which, inter alia, involves outdoor working, difficult working situation and carries much higher degree of responsibility, as this job is directly concerned with maintenance of Railway track, safety of which is of highest importance. The requirement of the duties of Assistant Teacher, in comparison, is much less demanding. In recognition of greater difficulty of the job, the grade of PWM has been made higher than that of Assistant Teacher. In this case, the applicant having known the toughness of the duties as assigned to PWM, apparently chose a much lower job, which requires indoor working, This was his personal decision and may be for this reason he chose to sacrifice the higher emoluments in order to enjoy the benefit of comfortable working conditions of an Assistant Teacher. It is inconceivable that being a fairly well educated and informed person, the applicant could not understand or appreciate the implication of his decision which, amongst other aspect, would mean lower emoluments and other allied prospects of job.

8. The respondents have further stated that in pursuance of the Tribunal's order dated 12.10.2004 in O.A. No. 2498/2004 filed by the applicant, respondent No. 1 considered the request of the applicant for re-fixation of his pay by taking into account his previous service as PWM before his appointment as Assistant Teacher and counting of his previous service for other pensionary benefits, passed a detailed and reasoned order dated 15.2.2005 holding that the request of the applicant for protection of his pay while working as PWM is not tenable. The action of the respondents is, therefore, just, bona fide and in accordance with rules, instructions and law on the subject.

9. The applicant, in the rejoinder, apart from reiterating the averments made in the O.A., has stated that comparison of duties of the two posts is not the criteria or condition for protection of pay.

10. In the course of oral arguments, Mr. Yogesh Sharma, the learned Counsel for the applicant, invited our attention to the following guidelines/instructions of the Railway Board, in support of the claim of the applicant for re-fixation of pay:

(36) Fixation of pay in respect of permanent staff appointed to another category through Railway Service Commission:(a) Whenever a Railway employee whether permanent or temporary is allowed to apply to the Railway Service Commission for appointment to a new post either on the same Railway or any other Railway and he is selected, his pay will be fixed under normal rules. He will have a continuity of service for all purposes except seniority. (R.B's. No. E-54 RP/1/43 of 8.10.64 and E (NG) 60 RR/1/5 of 7.2.1962)

(b) If the appointment to the new post is on probation the Railway servant shall draw pay at the minimum of time scale or at the probationary stages of the time-scale of the new post, provided it will not be lower than the presumptive pay of the permanent post other than a tenure post. On expiry of the probation and on regular appointment to the post, the pay will be fixed under normal rules. xxx xxx xxx

[86]

Subject: Pay protection to the staff who joined a lower post at his own request.

[No. P(L)11/91/Nusc,/2(Pt.), dated 2.12.1996]

One of the Federations have represented to the Board that on Zonal Railways protection of pay is not granted and provisions under 2nd sub-para of Para 604 (a) (iii) of IREM have erroneously been applied and pay of such staff has been depressed. The Federation have cited an example that 'A' was in grade of Rs, 1200-1800 as a result of his promotion against one of the upgraded posts under Cadre Restructuring and his substantive pay in the said scale is Rs, 1,290/-. He was transferred to another seniority unit on his request in the scale of Rs. 9S0-1S00. After his transfer to lower post, his basic pay of Rs. 1,290/- is not being protected.

Board have considered the matter and it is clarified that in all such cases, pay drawn by a substantive holder of higher post on voluntary transfer to a lower post when the pay drawn in the higher post is less than or equal to maximum of the scale of the pay of the lower post, his substantive pay is to be protected.

Sub-para (2) of Para (a) (iii) of the Correction Slip No. 19 is to be invoked only when he seeks transfer back to the lower post from which he had been promoted. xxx xxx xxx

14. Fixation of pay on appointment from one post to another not involving assumption of higher responsibilities including appointment to nonfunctional selection grade posts.

When a Railway employee is appointed from one post to another, where the appointment to the new post does not involve assumption of duties and responsibilities of greater importance, than those attached to the old post, including appointment to non-functional selection grade, he will draw as initial pay the stage of the time scale of the new post which is equal to his pay in respect of the old post, or if there is no such stage, the stage next above his pay in respect of the old post.

While in the former cases his next increment will become due on the date he would have received an increment in the old post, in the later case, his next increment in the new post, would become due on completion of the required period, after which an increment is earned, in the time scale of the new post.

If the minimum pay of the time scale of the new post is higher than his pay in respect of the old post, he would draw that minimum as his initial pay. Option shall also be available for fixation of pay straightway or with effect from the date of next increment in the old post under these orders. [No. PC-IV/89/FOP/8 (Bahri's RBO 1989-1, 161; RBE 149/89)] xxx xxx xxx

R.B.E. No. 149/89

Subject: Fixation of pay on appointment from one post to another not involving assumption of higher duties and responsibilities including appointment to non-functional selection grade posts.

No. PC-IV/89/FOP/8, dated 7.6.1989

xxx xxx xxx

3. With a view to avoiding pay anomalies between seniors and juniors appointed before and after accrual of increment in the old post, the President is also pleased to decide that a Railway employee on his appointment to such a hew post may be given an option for fixation of his pay in the new post either straight away with effect from the date of his appointment to the new post or with effect from the date of his next increment in the old post. In either case the date of next increment will fall due only on completion of the required period of qualifying service, from the date the pay is fixed in the new post. The method of pay fixation will be as given in the examples annexed. (Annexure-A) xxx xxx xxx

R.B.E. No. 5/92

Subject: Guidelines for fixing pay of candidates working in Public Sector Undertakings etc. recommended for appointment by the Commission by the method of recruitment by selection Regarding.

No. F(E)II/91/PA1/1, dated 8.1.1992

A copy of the Department of Personnel and Training's O.M. No. 12/1/88-Estt (Pay-I) dated 7.8.1989 on the above subject is forwarded herewith for information and guidance. The instructions contained therein will apply mutatis mutandis to Railway employees also. xxx xxx xxx

Copy of DOP&T's O.M. No. 12/1/88-Estt (Pay-I) dated 7.8.99

Subject : Guidelines for fixing pay of candidates working in Public Sector Undertakings etc. recommended for appointment by the Commission by the method of recruitment by selection-Regarding.

The undersigned is directed to say that as per extant rules/orders on the subject, pay protection is granted to candidates who are appointed by the method of recruitment by selection through the U.P.S.C. if such candidates are in Government service. As such pay protection is granted to candidates working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous Bodies, when they are so appointed in Government. As a result of this, it has not been possible for Government to draw upon the talent that is available in non-Government organisations.

2. The question as to how pay protection can be given in the case of candidates recruited from Public Sector Undertakings etc., has been engaging the attention of the Government for sometime. The matter has been carefully considered and the President is pleased to decide that in respect of candidates working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous Bodies, who are appointed as direct recruits on selection through a properly constituted agency including departmental authorities making recruitment directly, their initial pay may be fixed at a stage in the scale of pay attached to the post so that the pay and D.A., as admissible in the Government will protect the pay plus D.A. already being drawn by them in their parent organisations. In the event of such a stage not being available in the post to which they have been recruited, their pay may be fixed at a stage just below in the scale of the post to which they have been recruited, so as to ensure a minimum loss to the candidates. The pay fixed under this formulation will not exceed the maximum of the scale of the post to which they have recruited. The pay fixation is to be made by the employing Ministries/Departments after verification of all the relevant documents to be produced by the candidates who were employed in such Organisations. xxx xxx xxx

R.B.E. No. 112/92

Subject: Guidelines for fixing pay of candidates working in Public Sector Undertakings etc., recommended for appointment by the Commission by the method of recruitment by selection-Regarding.

No. F(E) II/91/PA1/1, dated 16.7.1992

Reference this Ministry's letter of even No. dated 8.1.1992 [Bahri's RBO 92 (RBE 5/92)] on the above subject. Doubts have been raised by some Railways on certain points in the implementation of these instructions. It is accordingly clarified that since these orders seek to amplify the scope of the existing orders governing benefit of pay fixation to candidates who are appointed by the method of selection through UPSC after rendering some spell of service under the Central Government, the instructions contained in Board' s letter dated 8.1.1992 are to be read in conjunction with the rules and orders already existing on the subject in the case of transfer from one Central Government post to another Central Government Post. All conditions prescribed for cases involving Central Government to Central Government transfer have therefore to be followed.

11. The learned Counsel for the applicant also cited the judgment of the Hon'ble Supreme Court in the case of Jayant Kr. Chowdhury v. Union of India and Ors. 1993(1)ATJ 648; R. Sunil Kumar v. Union of India and Ors. 2006(1) ATJ 395 and order of this Tribunal in Hari Singh Ahluwalia v. Union of India and Ors. O.A. No. 1673/2005 decided on 12.4.2006 to further buttress the claim of the applicant.

12. Mr. R.L. Dhawan, the learned Counsel for the respondents, argued that the case of the applicant was one of fresh appointment. It was not a case of transfer, ordered by the authorities, from higher to lower post. In this context, he cited the following provisions:

1313. (F.R. 22)-Fixation of initial substantive pay.-The initial substantive pay of a Railway servant who is appointed substantively to a post on time scale pay is regulated as follows:

(a) if he holds lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended:

(i) When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purpose of Rule 1325 i.e. F.R. 30) than those attaching to such permanent post, he will draw as initial pay, a stage of the time scale next above the substantive pay in respect of the old post. xxx xxx xxx

(ii) When appointment to the new post does not involve such assumption, he will draw as initial pay, the stage of the time scale which is equal to his substantive pay in respect of the old post, or if there is no such stage, the stage next below that pay plus personal pay equal to the difference and in either case will continue to draw that pay until such time as he would have received an increment in the time scale of the old post or for the period after which an increment is earned in the time scale of the new post, whichever is less. But if the minimum pay of the time scale of the new post is higher than his substantive post in respect of the old post, he will draw that minimum as initial pay;

(iii) When appointment to the new post is made on transfer at his written request under Rule 227 (2) (F.R. 15 A) and maximum pay in the time scale of the post is less than the substantive pay in respect of the old post, he will draw that maximum as initial pay.

(b) if the conditions prescribed in Clause (a) are not fulfilled he will draw as initial pay the minimum of the time scale:

xxx xxx xxx

1306. (F.R. 9 (24)-Presumptive pay of a post.-When used with reference to any particular Railway servant, means the pay to which he would be entitled if he held the post substantively and were performing its duties; but it does not include special pay unless the Railway servant performs or discharges the work or responsibility, in consideration of which the special pay was sanctioned. xxx xxx xxx

1314. (F.R. 22 A)-Fixation of pay on re-appointment.-The initial substantive pay of a Railway servant who is appointed substantively to a post on a time scale of pay which has been reduced for reasons other than diminution in the duties or responsibilities attached to posts thereon, and who is not entitled to draw pay on the time scale as it stood prior to reduction is regulated by Rule 1313 (F.R. 22) provided that in the case of re-appointment on or after 1.6.1950 both in cases covered by Clause 'a' of that Rule and in cases other than those of re-employment after resignation from the public service covered by Clause 'b', that if he either-

(1) has previously held substantively or officiated in-

(i) the same post prior to reduction of its time scale, or

(ii) a permanent or temporary post on the time scale as the unreduced time scale of the post; or

(iii) a permanent post other than a tenure post or a temporary post, on time scale of pay identical with the unreduced time scale of the post, such temporary posts being on the same time scale as a permanent post other than a tenure post;

OR

(2) is appointed substantively to a tenure post, the time scale of which has been reduced without a diminution in the duties or responsibilities attached to it and has previously held substantively or officiated in another tenure post on a time scale identical with the unreduced time scale of the tenure post;

then the initial pay shall not be less than the pay, other than special pay, personal pay or emoluments classed as pay by the President, under Rule 103(35) (FR 9) (21 )(a)(3) which he would have drawn under Rule 1313 (F.R. 22) on the last such occasion, if the reduced time scale of pay had been in force from the beginning and he shall count for increments the period during which he would have drawn that pay on such last and any previous occasion".

1315 (F.R. 22B) (1).-Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Railway servant who is appointed as probationer in another service or cadre and subsequently confirmed in that service or cadre:

(a) during the period of probation he shall draw pay at the minimum of the time scale or at the probationary stages or the time scale of the service or the post, as the case may be: Provided that if the presumptive pay of the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien been suspended; should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post;

(b) On confirmation in the service or post after the expiry of the period of probation, the pay of the Railway servant shall be fixed in the time scale of the service or post in accordance with the provisions of the Rule 1313 (FR 22) or Rule 1316 (F.R. 22 C) as the case may be: Provided that the pay shall not be so fixed under Rule 1313 (FR.22) or Rule 1316 (FR.22C) with reference to the pay that the Railway servant would have drawn in the previous post held by him in temporary capacity and he shall continue to draw pay in the time scale of service or post as admissible under the normal rules.

(Rly. Board's letter No. F(E)II/97/FR-1/3 dated 12-3-1980.)

13. The learned Counsel for the respondents also stated that the fixation of pay under the 'normal rule' was fixation of pay at the minimum of the pay scale. He further argued that as regards continuity of service for all purposes, the past service of the applicant will be counted for purposes of retiral benefits. According to him, various circulars cited by the learned Counsel for the applicant were not related to material circumstances of the case. Similarly, the facts of the case law cited by the learned Counsel for the applicant were not relevant to the present case.

14. Heard the learned Counsel for the parties and perused the material on record as well as various circulars and citations supplied by the two Counsels during oral arguments.

15. Fundamental Rules (PR, for short) 22 and 23 contain the seminal provisions relating to initial pay fixation of a Government servant. Various rules and circulars quoted by the two parties contain direct or indirect reference to it. The applicant himself has explicitly stated that his case is covered by FR 22(1). In this view of the situation, we would do well to take a deep and hard look at FR 22, 22-B and 23 which read as follows:

FR 22.(I) -The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:

(a)(1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to a fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only], whichever is more.

Save in case of appointment on deputation to an ex cadre post, or to a post on ad hoc basis orow direct recruitment basis, the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment;

Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or [rupees one hundred], whichever is more.

(2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis:

Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay.

Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time-scale of the new post.

On appointment on regular basis to such a new post, other than to an ex cadre post on deputation, the Government servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.

(3) When appointment to the new post is made on his own request under Sub-Rule (a) of Rule 15 of the said rules, and the maximum pay in the time-scale of that post is lower than his pay in respect of the old post held regularly, he shall draw that maximum as his initial pay.

(b) If the conditions prescribed in Clause (a) are not fulfilled, he shall draw as initial pay on the minimum of the time-scale:

Provided that, both in cases covered by Clause (a) and in cases, other than the cases of re-employment after resignation or removal or dismissal from the public service, covered by Clause (b), if he-

[1) has previously held substantively or officiated in

(i) the same post, or

(ii) a permanent or temporary post on the same time-scale, or

(iii) a permanent post or a temporary post (including a post in a body, incorporated or not, which is wholly or substantially owned, or controlled by the Government) on an identical time-scale; or

[2) is appointed subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules to a tenure post on a time-scale identical with that of another tenure post which he has previously held on regular basis;

then the initial pay shall not, except in cases of reversion to parent cadre Government by proviso (1) (iii), be less than the pay, other, than special pay, personal pay or any other emoluments which may be classed as pay by the President under Rule 9(21)(a)(iii) which he drew on the last occasion, and he shall count the period during which he drew that pay on a regular basis on such last and any previous occasions for increment in the stage of the time-scale equivalent to that pay. If, however, the pay last drawn by the Government servant in a temporary post had been inflated by the grant of premature increments, the pay which he would have drawn but for the grant of these increments shall unless otherwise ordered by the authority competent to create the new post, be taken for the purposes of this proviso to be the pay which he last drew in the temporary post which he had held on a regular basis. The service rendered in a post referred to in proviso (1) (iii) shall, on reversion to the parent cadre count towards initial fixation of pay, to the extent and subject to the conditions indicated below-

(a) the Government servant should have been approved for appointment to the particular grade or post in which the previous service is to be counted;

(b) all his seniors, except those regarded as unfit for such appointment, were serving in posts carrying the scale of pay in which benefits is to be allowed or in higher posts, whether in the Department itself or elsewhere and at least one junior was holding a post in that Department carrying the scale of pay in which the benefit is to be allowed; and

(c) the service will count from the date his junior is promoted on a regular basis and the benefit will be limited to the period the Government servant would have held the post in his parent cadre had he not been appointed to the ex cadre post.

(II) The President may specify posts outside the ordinary line of service the holder of which may, notwithstanding the provisions of this rule and subject to such conditions as the President may prescribe, be given officiating promotion in the cadre of the service which the authority competent to order promotion may decide, and may thereupon be granted the same pay whether with or without any special pay attached to such posts as they would have received if still in the ordinary line.

(III) For the purpose of this rule, the appointment shall not be deemed to involve the assumption of duties and responsibilities of greater importance, if the post to which it is made is on the same scale of pay as the post, other than a tenure post, which the Government servant holds on a regular basis at the time of his promotion or appointment or on a scale of pay identical therewith.

(IV) Notwithstanding anything contained in this rule, where a Government servant holding an ex cadre post is promoted or appointed regularly to a post in his cadre, his pay in the cadre post will be fixed only with reference to his presumptive pay in the cadre post which he would have held but for his holding any ex cadre post out side the ordinary line of service by virtue of which he becomes eligible for such promotion or appointment.

F.R. 22-B. (1) Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre-

(a) during the period of probation, he shall draw pay at the minimum of the time-scale or at the probationary stages of the time-scale of the service or post, as the case may be:

Provided that if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post;

(b) on confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant shall be fixed in the time-scale of the service or post in accordance with the provisions of Rule 22 or Rule 22-C, as the case may be:

Provided that the pay of Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time-scale of the service or post.

(2) The provisions in Sub-rule (1) shall apply mutatis mutandis to cases of Government servants appointed on probation with definite conditions against temporary posts in another service or cadre where, recruitment to permanent posts of such service or cadre is made as probationers, except that in such cases the fixation of pay in the manner indicated in Clause (b) of Sub-rule (1) shall be done under Rule 31 of these Rules immediately on the expiry of the period of probation and on regular officiating appointment to a post, either permanent or temporary, in the service or cadre.

(3) Notwithstanding anything contained in these Rules, a Government servant appointed as an apprentice in another service or cadre shall draw-

(a) during the period of apprenticeship, the stipend or pay prescribed for such period, provided that if the presumptive pay of the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the stipend or pay fixed under this clause, he shall draw the presumptive pay of permanent post.

(b) on satisfactory completion of the apprenticeship and regular appointment to a post in the service or cadre, the pay as fixed in the time-scale of the service or post under Rule 22 or 22-C or 31, as the case may be, of these Rules:

Provided that the pay of the Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time-scale of the service or post.

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.

(Emphasis supplied)

16. From a plain reading of FR 22/22-B/23, in conjunction with various provisions of IREM and Railway Board Circulars cited by the two parties, it is very clear that they contain provision relating initial appointment as well as new and other appointments following the initial appointment. They do not deal with the consigency of what could be described as 'appointment on direct recruitment barns', as in the case of the applicant. As a matter of fact the saving clause of F.R. 22(I)(a)( 1) specifically excludes appointment on direct recruitment basis.

17. We are also in agreement with the averment of the respondents that the stipulation relating to fixation of pay as per 'normal rules' has to be at the initial stage of the pay scale.

18. Further, as pointed out by the respondents, the applicant took a conscious decision to leave one service and join another altogether new service knowing full well the implications of taking up a job with a lower pay scale. He has not produced any evidence to show that he made protection of pay being drawing in the previous job a condition for his taking up the new assignment. Had he done so, the Railway Recruitment Board (RRB, for short) would have looked at it and made an appropriate recommendation in this regard, as is the import of some of the circulars relating to appointments through UPSC cited by the learned Counsel for the applicant. It is not unusual for the recruiting bodies to recommend certain advance increments in the given pay scale in respect of a particular appointee in the context of higher qualifications, pay already being drawn etc. In the present case, in the absence any such indication, it would not be appropriate to consider the claim of the applicant.

19. The case of the applicant is neither of a voluntary transfer to a lower post nor of appointment by the authorities from one post to another (involving assumption of higher or lower responsibilities) within the organization/unit (Circulars 36, 86,50/94 (14), and RBE 149/89 cited above). He is also not seeking fixation of pay after completion of Probation (FR 2-B) nor has the pay scale of his post has been changed (FR 23). It is not a case of presumptive pay either. He had also not held a tenure post. It is also not a case of recruitment by the method of selection (R.B.E. circular Nos. 5/92 and 112/92 cited above). It is definitely not an appointment through the UPSC.

20. The two citations given by the learned Counsel for the applicant [Jayant Kr. Chowdhury v. Union of India and Ors. (supra); and R. Sunil Kumar v. Union of India and Ors. (supra)] are distinguishable since they do not relate to fresh appointments through Railway Recruitment Board.

21. For the sake of argument we agree with the averment of the applicant that the long spiel contained in the impugned order on the arduous and hazdrdous nature of the job of PWM as compared to cushy and copy ambience of the Assistant Teacher, is not relevant in the context of the specific prayer of the applicant insofar as he is not seeking the pay scale of PWM for his job as an Assistant Teacher.

22. Taking the totality of facts and circumstances into consideration we come to conclusion that the applicant not having made protection of pay precondition to his joining the post of Assistant Teacher is estopped from agitating the matter now. Furthermore, such contingencies not being extremely rare, when the seminal (FR) as well as other relevant rules (IREM) do not specifically provide for the dispensation sought by the applicant, it is either a matter within the purview of the recommendation to be made by the recruiting body (RRB) or is part of the inherent discretionary powers of the executive. It is definitely not within the scope of judicial review by this Tribunal. We, therefore, do not consider it necessary to interfere with the decision of the respondents.

23. In the result, the O.A. is devoid of merit and is accordingly dismissed. There will be no order as to costs.