Surplus employees redeployed to lower posts are entitled to pay protection despite signing certificates of willingness.

The five applicants were employees at the Station Workshop EME, Lucknow. Upon the disbandment of the workshop, they were declared surplus and subsequently adjusted/redeployed to the posts of Mate (SSK) under Respondent No. 4 via an order dated 27.10.2021.

Following their joining, the respondents issued a Part Technical Order (PTO) No. 27/2022 dated 04.07.2022, which reduced the applicants' pay scale.

The respondents justified this reduction by citing a "certificate of willingness" obtained from the applicants and relying on a Department of Personnel & Training (DoPT) Office Memorandum (OM) dated 31.03.2017 regarding pay fixation upon transfer to a lower post.

The applicants challenged the reduction, asserting their right to pay protection under the specific orders governing surplus staff.

1. Whether the reduction of the applicants' pay scale upon redeployment as surplus staff was legally sustainable under the prevailing service rules.

2. Whether the "certificate of willingness" provided by the applicants constitutes a "written request" for transfer to a lower post, thereby invoking the restrictive pay fixation provisions of FR 15(a) and DoPT OM dated 31.03.2017.

Rule 5 of the Central Civil Services (Redeployment of Surplus Staff) Rules, 1990, which mandates that a surplus employee redeployed to a lower scale shall be permitted to carry their current pay scale unless the redeployment is at their own request.

Paragraph 19 of Army Order (AO) 12/2020 MP-4, which stipulates that individuals posted in a lower scale due to non-availability of a matching scale must be allowed to carry their previous scale of pay.

Fundamental Rule (FR) 15(a) and DoPT OM dated 31.03.2017, which limit pay protection only to cases of involuntary transfer or specific administrative exigencies, excluding voluntary transfers to lower posts.

The court also invoked the legal maxim sublato fundamento cadit opus (when the foundation is removed, the superstructure falls).

The Tribunal observed that the applicants did not initiate the transfer but were declared surplus due to the administrative decision to disband their workshop.

Consequently, their redeployment was an act of the administration governed by AO 12/2020 and the 1990 Rules, both of which explicitly provide for pay protection when a matching scale is unavailable.

The Tribunal rejected the respondents' argument that the "certificate of willingness" amounted to a "voluntary request" for a lower post. It reasoned that such a certificate was a procedural requirement for redeployment to avoid discharge, not a proactive request for transfer under FR 15(a).

Therefore, the DoPT OM dated 31.03.2017, which applies to employees seeking transfer to lower posts at their own request, was held inapplicable to surplus staff.

Referencing the Principal Bench decision in Dhirendra Tilak v. Union of India, the Tribunal affirmed that the right to carry the previous pay scale is a protected statutory right for surplus employees.

It held that surplus employees adjusted to lower posts due to administrative reasons are entitled to pay protection under Rule 5 of the 1990 Rules and AO 12/2020.

The respondents were directed to restore the applicants' previous pay scale from the due date, grant annual increments on that scale, and pay all resulting arrears within three months of receiving the order.