Analysis of Fundamental Rule 9(21)(a)(i)

The Definition of 'Pay' under Fundamental Rule 9(21)(a)(i):
Judicial Scrutiny and Implications in Indian Service Jurisprudence

Introduction

The Fundamental Rules (F.R.), applicable to Central Government servants in India, form a cornerstone of service jurisprudence, delineating critical aspects of employment conditions. Among these, Fundamental Rule 9(21)(a) provides the definition of 'pay', a term of profound significance as it forms the bedrock for calculating various entitlements, most notably pension and other terminal benefits. Specifically, sub-clause (i) of F.R. 9(21)(a) has been the subject of extensive judicial interpretation. This article undertakes a scholarly analysis of F.R. 9(21)(a)(i), examining its textual components and the manner in which Indian courts have interpreted its scope, particularly concerning the inclusion and exclusion of various emoluments. The analysis will draw heavily upon landmark judgments and statutory provisions to elucidate the impact of this definition on the financial entitlements of government servants.

The Text and Context of Fundamental Rule 9(21)(a)(i)

Fundamental Rule 9(21)(a) defines 'pay' as the amount drawn monthly by a Government servant. The rule is structured into sub-clauses, with F.R. 9(21)(a)(i) being pivotal for determining 'basic pay' for several purposes, including pension. The typical formulation of F.R. 9(21)(a)(i), as cited in various judicial pronouncements, is as follows:

"Pay means the amount drawn monthly by a 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..."[1]

It is pertinent to note that F.R. 9(21)(a) also includes other sub-clauses: "(ii) overseas pay, special pay and personal pay, and
(iii) any other emoluments which may be specially classed as pay by the President."[2]

The apparent inclusion of "special pay" and "personal pay" in sub-clause (ii) contrasts with their explicit exclusion in sub-clause (i). This distinction becomes crucial when other rules, particularly pension rules, refer specifically to "pay" as defined under F.R. 9(21)(a)(i). For instance, Rule 33 of the Central Civil Services (Pension) Rules, 1972 (CCS (Pension) Rules) defines "emoluments" for the purpose of calculating pension as "basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a government servant was receiving immediately before his retirement..."[3] This specific reference makes the exclusionary clause within F.R. 9(21)(a)(i) directly relevant to pensionary benefits.

The Fundamental Rules themselves were framed under the powers derived historically from provisions like Section 96B of the Government of India Act, 1919,[4] and subsequently derive their authority under the proviso to Article 309 of the Constitution of India, which empowers the President or the Governor to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts.[5]

Judicial Interpretation of "Pay" under F.R. 9(21)(a)(i)

The judiciary has played a significant role in interpreting F.R. 9(21)(a)(i), particularly in disputes concerning the computation of pension and other service benefits. The interpretations have largely focused on what constitutes "pay" attached to a post versus emoluments granted for other reasons.

Core Meaning: Pay Sanctioned for a Post

The primary element of F.R. 9(21)(a)(i) is that 'pay' is what "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." This implies that the emolument must be an inherent attribute of the post itself, rather than an adjunct payment. The concept of a "post" and its relationship with the State (master-servant relationship) was explored in State Of Assam And Others v. Shri Kanak Chandra Dutta, which, while dealing with Article 311, touched upon the nature of holding a post under the State.[6] While not directly on F.R. 9(21)(a)(i), it underscores the importance of the 'post' in service law.

The Exclusion of "Special Pay" and "Pay Granted for Personal Qualifications"

A significant line of cases addresses the exclusionary part of F.R. 9(21)(a)(i): "other than special pay or pay granted in view of his personal qualifications."

In Govt. Of A.P And Others v. Syed Yousuddin Ahmed, the Supreme Court dealt with "incentive increments" granted for meritorious work. The Court held that for the purpose of Rule 31 of the Andhra Pradesh Revised Pension Rules, 1980 (which defined "emoluments" by reference to "pay" under F.R. 9(21)(a)(i)), such incentive awards, whether considered "special pay" or "personal pay," would not form part of "pay" under F.R. 9(21)(a)(i) because this rule clearly excludes them.[7] The Court reiterated: "The said Rule 9(21)(a)(i) clearly excludes the ‘special pay’ or ‘personal pay’ granted to a government servant in view of his personal qualifications or otherwise from the purview of the expression ‘pay’..."[8]

This principle was robustly applied in Union Of India (S) v. Dr. O.P. Nijhawan (S), where the issue was the inclusion of "special pay" granted to scientists for pension computation. The Supreme Court, affirming the clear language of F.R. 9(21)(a)(i) and its linkage to Rule 33 of the CCS (Pension) Rules, 1972, held that such special pay is to be excluded from the definition of 'pay' for pensionary benefits.[9] The Court emphasized that the unambiguous language of a statute must be given effect, even if previous administrative decisions or lower court rulings might have suggested otherwise, unless the question of law was definitively settled by the Apex Court.[10]

Similarly, the Central Administrative Tribunal in K GOPALAKRISHNAN NAIR v. THE SECRETARY MINISTRY OF DEFENCE NEW DELHI, considered whether special pay (cashier allowance) should be part of average emoluments. Relying on Rule 33 of CCS (Pension) Rules and F.R. 9(21)(a)(i), it was noted that special pay would not form part of pay for pension fixation.[11] The case of RAJESH GOYAL v. M/O DEFENCE also referred to the Syed Yousuddin Ahmed judgment to underscore the exclusion of special pay or personal pay from the definition of 'pay' under F.R. 9(21)(a)(i) for pensionary purposes.[12]

The rationale for excluding special pay or pay for personal qualifications from the 'pay' defined in F.R. 9(21)(a)(i) often relates to these payments being specific to certain duties, locations, or individual achievements, rather than being integral to the scale of pay attached to the post itself.

Distinguishing Includible Emoluments: The Case of Non-Practising Allowance (NPA)

While F.R. 9(21)(a)(i) excludes special pay, certain allowances have been judicially and administratively recognized as part of 'pay' or 'emoluments' for pension. A notable example is Non-Practising Allowance (NPA) granted to medical officers.

In Col. B.J Akkara (Retd.) v. Government Of India And Others, the Supreme Court dealt with the inclusion of NPA in pension calculations. The Court clarified that NPA is part of "pay" for pension calculation purposes.[13] The basis for including NPA often comes from specific provisions in pension rules themselves. For instance, Rule 33 of the CCS (Pension) Rules, 1972, after defining emoluments as basic pay under F.R. 9(21)(a)(i), explicitly adds: "and also includes non-practising allowance granted to medical officers in lieu of private practice."[14] This specific inclusion by the rule-making authority carves out an exception or an addition to the general definition derived from F.R. 9(21)(a)(i) alone. Thus, NPA becomes reckonable for pension not by virtue of F.R. 9(21)(a)(i) itself, but due to its explicit inclusion by the pension rules that first refer to F.R. 9(21)(a)(i) and then add NPA.

This highlights that while F.R. 9(21)(a)(i) provides a foundational definition, specific service or pension rules can modify or expand upon what constitutes reckonable emoluments for particular benefits.

Implications for Pensionary Benefits

The interpretation of F.R. 9(21)(a)(i) has profound implications for pensionary benefits. As established, pension rules like Rule 33 of the CCS (Pension) Rules, 1972, and analogous state rules (e.g., Rule 31 of the A.P. Revised Pension Rules, 1980, as discussed in State Of A.P And Another v. A.P Pensioners' Association And Others[15]) directly link the calculation of "emoluments" for pension to "pay" as defined in F.R. 9(21)(a)(i).

Consequently, any amount classified as "special pay" or "pay granted in view of personal qualifications" under F.R. 9(21)(a)(i) is generally excluded from pension calculations, unless specifically included by an overriding provision in the pension rules themselves (as seen with NPA). This directly affects the quantum of pension received by a retiree. The case of Videsh Sanchar Nigam Ltd. And Another v. Ajit Kumar Kar And Others further illustrates this linkage, where the Supreme Court examined Rule 33 of the CCS (Pension) Rules and its reference to F.R. 9(21)(a)(i) in determining pensionary benefits for employees transferred to an autonomous body.[16]

The determination of pay scales and allowances is primarily an executive function, often guided by Pay Commissions, as noted in State Of Haryana And Another v. Haryana Civil Secretariat Personal Staff Association.[17] However, the interpretation of rules governing these, such as F.R. 9(21)(a)(i), falls within the judicial domain when disputes arise.

The Principle of Consistency and Judicial Scrutiny

The judiciary strives for consistency in interpreting statutory rules. As seen in Union Of India (S) v. Dr. O.P. Nijhawan (S), the Supreme Court emphasized adherence to the clear statutory language of F.R. 9(21)(a)(i), even if it meant overturning a series of lower court decisions or correcting past administrative practices that were not in conformity with the rule.[18] This underscores the principle that rules, once framed, must be applied as per their plain meaning, and the executive is bound by them. As observed in Dr. Om Prakash Sharma v. Union Of India, drawing from U.S. administrative law, an executive agency must be rigorously held to the standards by which it professes its actions to be judged.[19]

Furthermore, the right to be in service and receive due benefits, including pension, is a significant aspect of a government servant's rights, often linked to the broader right to livelihood under Article 21 of the Constitution.[20] Therefore, clarity in rules defining 'pay' and their consistent application are essential for fairness and predictability in service conditions.[21]

Conclusion

Fundamental Rule 9(21)(a)(i) plays a crucial role in Indian service jurisprudence by defining the core component of a government servant's 'pay'. Judicial interpretation has consistently focused on the phrase "pay...sanctioned for a post," while upholding the explicit exclusion of "special pay" and "pay granted in view of personal qualifications" from this specific sub-clause, particularly when it is referenced for calculating pensionary emoluments. While other parts of F.R. 9(21)(a) or specific pension rules (like the inclusion of NPA) can modify the list of reckonable emoluments, the definition in F.R. 9(21)(a)(i) remains the foundational element.

The Supreme Court's pronouncements have reinforced the necessity of adhering to the clear language of the rule, ensuring a degree of certainty in an area vital to the financial security of government employees post-retirement. The careful delineation by the judiciary between pay intrinsically linked to a post and other forms of remuneration ensures that the calculation of benefits like pension adheres strictly to the legislative intent embodied in the Fundamental Rules and associated pension regulations.

References

  1. See Govt. Of A.P And Others v. Syed Yousuddin Ahmed (1997) 7 SCC 24, para 2, citing F.R. 9(21)(a)(i); Videsh Sanchar Nigam Ltd. And Another v. Ajit Kumar Kar And Others (2008) L&S 2 1047, para 33, quoting F.R. 9(21)(a)(i).
  2. Videsh Sanchar Nigam Ltd. And Another v. Ajit Kumar Kar And Others (2008) L&S 2 1047, para 33, quoting F.R. 9(21)(a)(ii) and (iii). See also K GOPALAKRISHNAN NAIR v. THE SECRETARY MINISTRY OF DEFENCE NEW DELHI (Central Administrative Tribunal, 2021), para 3.
  3. Videsh Sanchar Nigam Ltd. And Another v. Ajit Kumar Kar And Others (2008) L&S 2 1047, para 31, quoting Rule 33 of CCS (Pension) Rules, 1972. See also Union Of India (S) v. Dr. O.P. Nijhawan (S) (2019) SCC ONLINE SC 4, para 11.
  4. Hirendra Nath Roy v. State Of West Bengal, And Ors. (Calcutta High Court, 1954), paras 8-10.
  5. State Of U.P And Others v. Babu Ram Upadhya (1961 AIR SC 751, Supreme Court Of India, 1960), discussing Article 309.
  6. State Of Assam And Others v. Shri Kanak Chandra Dutta (1967 SCC 0 884, Supreme Court Of India, 1966), Analysis section.
  7. Govt. Of A.P And Others v. Syed Yousuddin Ahmed (1997) 7 SCC 24, paras 2, 8.
  8. RAJESH GOYAL v. M/O DEFENCE (Central Administrative Tribunal, 2017), para 14, quoting Syed Yousuddin Ahmed.
  9. Union Of India (S) v. Dr. O.P. Nijhawan (S) (2019) SCC ONLINE SC 4, paras 11, 20-22.
  10. Ibid, para 11, referencing Col. B.J. Akkara (Retd.) v. Government of India, (2006) 11 SCC 709 on the effect of dismissal of SLPs in limine.
  11. K GOPALAKRISHNAN NAIR v. THE SECRETARY MINISTRY OF DEFENCE NEW DELHI (Central Administrative Tribunal, 2021), para 3.
  12. RAJESH GOYAL v. M/O DEFENCE (Central Administrative Tribunal, 2017), para 14.
  13. Col. B.J Akkara (Retd.) v. Government Of India And Others (2007 SCC L&S 1 529, Supreme Court Of India, 2006), Legal Reasoning section, point 3.
  14. Videsh Sanchar Nigam Ltd. And Another v. Ajit Kumar Kar And Others (2008) L&S 2 1047, para 31.
  15. State Of A.P And Another v. A.P Pensioners' Association And Others (2005 SCC 13 161, Supreme Court Of India, 2005), para 27.
  16. Videsh Sanchar Nigam Ltd. And Another v. Ajit Kumar Kar And Others (2008) L&S 2 1047, paras 31-34.
  17. State Of Haryana And Another v. Haryana Civil Secretariat Personal Staff Association (2002 SCC 6 72, Supreme Court Of India, 2002), Legal Reasoning section.
  18. Union Of India (S) v. Dr. O.P. Nijhawan (S) (2019) SCC ONLINE SC 4, para 11.
  19. Dr. Om Prakash Sharma v. Union Of India (Delhi High Court, 1981), para 25.
  20. Dy. Commissioner Of Police, Special Branch And Ors. v. Bhupesh Chandra Karanjai & Moti Ranjan Bhattacharya (Calcutta High Court, 1993), para 24A.
  21. P. Khaja Khan () v. The Postmaster-General, Andhra Circle, Hyderabad, And Others (S). (Andhra Pradesh High Court, 1974), para 9, on conditions of service.