GOVERNMENT
OF ANDHRA PRADESH
Cir.Memo.No.32818/A/521/FR-1/2008
Dated:5-12-2008
Sub: Fundamental Rules - Common Doubts on which files are received in finance - Certain instructions - Reg.
2. Cir. Memo No.43877 /682/ A2/FR.I/96,Fin. Dept., dt. 01-01-97
3. Cir. Memo No. 11854-A/133/A2/FR.l/98,
Fin. dt. 28.03.98
4. Cir.Memo No.2/111/ A2/FR.I/2000,Fin. dt. 28-10-02
5. Cir.Memo No.2/111/ A2/FR.I/2000/l,
Fin. dt. 15-11-02
6. G.O.Ms. No.2/FR-11/2006, Fin. dt.04-01-2006
7. G.O.Ms.No.30/FR-11/2007, Fin. dt.15-02-2007
8. G.O.Ms.No.224/FR-1/1996, Fin. dt.
03-11-1996
Despite explicit rules and guidelines departments are repeatedly referring the cases to the Finance Department. An analysis done by the Finance Department shows that files seeking clarifications were received from several departments. Therefore, the Finance Department has decided to issue General Clarification for use by all departments. The Objective is to reduce references to the Finance Department on common issues. Below is the response of the Finance Department to Frequently Asked Clarifications (FACs)
I. Frequently Asked Clarification: How to examine the proposals for Regularization of the Period during which the employees are waiting for posting as Compulsory Wait?
Method of Analysis: The Ruling Number 13 under FR 9 (6) (b) reads that,
"Compulsory wait for orders of posting - when a Government servant on return from leave has compulsorily to wait for orders of posting, such period of waiting should be treated as duty. During such periods he will be entitled to pay according to Rule 20". Executive Instructions No. (1) & (2) under FR 108-A delegates powers to departments of Secretariat to decide and issue orders relating to Compulsory wait up to a maximum period of 30 days by the departments of Secretariat both in respect of Gazetted and Non-Gazetted employees without reference to Finance Department. Executive Instructions No. (1) to (5) under FR 9 (6) (b) clearly instruct that the proposals for Compulsory wait have to be referred to the Finance Department in the prescribed proforma signed by Secretary / Principle Secretary to Govt. duly indicating the delay at each stage with justification and after issue of orders of recovery of the cost involved in the Compulsory wait -from all the persons responsible excluding the members of the council of Ministers and the proposals should then only be referred to Finance department to consider for regularization of period of Compulsory wait. But this procedure is not being followed in practice. Hence while reiterating the above rule position, in all cases where the delay exceeds 30 days, the departments of secretariat are requested to examine the proposals of Compulsory wait as per ruling 13 under F.R.9 (6) (b) and the executive Instructions No. (1) to (5) thereunder and the Executive Instructions No. (1) & (2) under FR 108- A and take a view and then refer to Finance Department with particulars in the prescribed proforma signed by Secretary/Principal Secretary to Govt. duly indicating the delay at each stage with justification and after issue of orders of recovery of the cost involved in the Compulsory Wait from all the persons responsible excluding the Members of the Council of Ministers to consider for regularization of period of Compulsory Wait without fail.
II. Frequently Asked Clarifications: How to examine the proposals for Regularization of Period of Suspension / Out of Office?
Method of Analysis: Rule FR 54-B (2) states that, Notwithstanding anything contained in rule 53, where a Government servant under suspension dies before the disciplinary of court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
Rule FR 54-B (3) "Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended."
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the government servant had been delayed due to the reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
Note: For the purpose of sub rules (2) and (3) above, full pay includes special pay attached to the post which the Government servant was holding immediately before the suspension.
Rule FR 54-B (4) states that, "In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes"
Rule FR 54-B (5) as amended in G.O.Ms.No.30 Finance (FR-II Department dated 15-2-2007 reads that, "In cases other than those falling under sub-rules (2) and (3) the pay and allowances payable to the Government servant for the period of suspension shall be limited to the subsistence allowance already paid under FR 53".
It is clear from the above that FR 54-B (2) is applicable only when the Govt. Employee dies while under suspension before conclusion of the Disciplinary / Criminal case, but not to the employees pass away after revocation of suspension and retirement of the employee. Similarly, the intention of FR 54-B (3) is that the regularization of the period of suspension either duty or not duty depends upon decision of the competent authority as to whether the suspension is wholly unjustified or justified respectively irrespective of the final conclusion of the disciplinary / Criminal case. Rule FR 54-B (5) as amended in G.O.MsNo.30 Finance (FR-II) Department dated 15-2-2007 specifically states that, "In cases other than those falling under sub-rules (2) and (3) the pay and allowances payable to the Government servant for the period of suspension shall be limited to the subsistence allowance already paid under FR 53".
In
view of the above the following clarifications are issued regarding regularization
of period of suspension.
a) Regularization of suspension when an
employee dies before the conclusion of Departmental/Judiciary proceedings and
Case abates:
i) Where the Govt. employee under
suspension dies before disciplinary or Court proceedings instituted against him
are concluded, the period between the date of suspension and the date of death
shall be treated as duty for all purposes and his family shall be paid full pay
and allowances for that period to which he would have been entitled had he not
been suspended, subject to adjustment in respect of subsistence allowance
already paid.
ii) Where the Govt. employee dies after
revocation of suspension and joining duty, before disciplinary or Court
proceedings instituted against him are concluded, the disciplinary or Court
proceedings abates, but the competent authority has to decide whether the
period of suspension is wholly justified or unjustified. If the competent
authority decide that the period of suspension is wholly justified the period
of suspension shall be regularized as not duty for all purposes and the pay and
allowances for that period should be limited to subsistence allowance already
paid. If the competent authority decide that the period of suspension is wholly
unjustified the period of suspension shall be regularized as on duty for all
purposes and his family shall be paid the full pay and allowances for that
period to which he would have been entitled had he not been suspended, subject
to adjustment in respect of subsistence allowance already paid and the recovery
if any decided in terms of sub - Rule 7 of Rule 9 of Revised Pension Rules 1980.
iii) Where the Govt. employee dies
after retiring while under suspension without revocation of suspension and
joining duty, before disciplinary or Court proceedings instituted against him
are concluded, the disciplinary or court proceedings abates, but the competent
authority has to decide whether the period of suspension is wholly justified or
unjustified. If the competent authority decide that the period of suspension is
wholly justified the period of suspension shall be regularized as not duty for
all purposes and the pay and allowances for that period should be limited to
subsistence allowances already paid. If the competent authority decide that the
employee would have continued under suspension till his death but for his
retirement or the period of suspension is wholly unjustified the period of
suspension shall be regularized as on duty for all purposes and his family
shall be have been entitled had he not been suspended, subject to adjustment in
respect of subsistence allowance already paid and the recovery if any decided
in terms of sub-rule 7 of Rule 9 of Revised Pension Rules 1980.
b) Regularization of suspension when an employee was under Suspension / out of office for his involvement in a private Criminal / Civil case:
In all cases where the Govt. employee was under suspension / out of office for his involvement in a private criminal / civil case, consequent in his reinstatement and joining into service, the intervening period between the date of suspension and the date of his joining must be treated as not duty, as a matter of fact, since the Govt. is not responsible for his being out of office and he himself is solely responsible for this and he is not entitled for any monitory benefit for this period, and the principle of "No work no pay" is applicable to such cases, irrespective whether they are acquitted in the private Criminal / Civil case.
However, an amount of subsistence allowance if any already paid to him need not be recovered. Furthermore, in such cases, while regularizing the period of suspension, the competent authority may has to decide whether the period of suspension is wholly justified or unjustified. If the competent authority decide that the period of suspension is wholly justified the period of suspension shall be regularized as not duty for all purposes and pay and allowances for that period should be limited to subsistence allowances already paid.
However, if the employee so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Govt. servant as per proviso under FR 54-B (7).
Further if the competent authority decide that the period of suspension is wholly unjustified, the period of suspension may be regularized as on duty in terms of FR 54-B (3) but in any case, the pay and allowances payable to the Government servant for the period of suspension must be limited to the subsistence allowance already paid under FR-53 in terms of FR 54-B (5) as amended in G.O.Ms.No.30 Finance (FR-II) Dept., dt.15-2-2007.
III) Frequently Asked Clarification: How to examine the cases relating to condonation of Break / Interruption in Service of an employee?
Method of Analysis: The Break / Interruption in Service of an employee may occur due to reasons such as discharge of a probationer of approved probationer due to non-availability of vacancy etc. In such cases the Govt. employee entails forfeiture of his past service unless the Break / Interruption in service is condoned to link the post service to present service. The condonation of the break in service may be done for purpose of a) Increment and b). Pension.
Note (2) under FR 26 (a) reads that, "The break in service of an officiating Government Servant caused by his discharge under Rule 19 (b) (i) of the State & Subordinate Service Rules, 1996 shall be condoned so as to enable him to count for increments the service prior to the break". Rule 19(b) (i) of the State & Subordinate Service Rules, 1996 states that, "a probationer or an approved probationer shall be discharged from service in the event of non-availability of a vacancy". Further Rule 27 of RPRs 1980 indicates various situations under which the interruption in service can be condoned to link the past service to the present service for purpose of pension. Rule 28 of RPRs 1980 states that, "the interruption between two or more spells of Government service or between non-Government service (as service under Municipalities, District Boards etc.) and Government service or between two spells of non-Government service shall be treated as automatically condoned without any formal orders of the sanctioning authority without restrictions as regards periods of interruption as well as the length of period preceding interruption excluding, however, the periods of interruption themselves:.
Note (3) under FR 18 also states that. "Interruptions between two or more spells of service shall be treated as automatically condoned without any formal orders of the sanctioning authority, excluding however, the periods of interruptions themselves”.
In all cases of condonation of Break / Interruption in Service, all the Departments of Secretariat are requested to examine such cases as per Note (2) UNDER FR 26 (a) and Note (3) under FR 18 and Rule 27 and Rule 28 of RPRs 1980 and take a decision accordingly. If at all they want to refer to Finance Department, they are requested to examine such cases as per the rules mentioned above and take a view and then refer to Finance Department duly mentioning the point/points on which the advice / Clarification of Finance Department is required.
IV. Frequently Asked Clarification: How to examine the cases relating to sanction of Study Leave?
Reply: FR 84 & 85 gives a detailed procedure and conditions for sanction of Study Leave and sanction of EOL for study purposes and other special circumstances. In the annexure to FR 84 I-A it is stated that, "Study Leave should not ordinarily be granted to Government servants of less than five years’ service or to Government servant within three years of the date at which they have the option of retiring or if they have option of retiring 20 years’ service, within three years of the date at which they will complete 25 years’ service". Instructions were also issued in G.O.Ms.No.224 Finance (FR-I) Department dt.3-11-1996 for permitting the Government servants to study Post Graduate courses at their own cost subject to execution of the bond and sureties and following other conditions mentioned therein. All such cases have to examined as per FR 84 & 85 and G.O.Ms.No.224 Finance (FR-I) Department dt.3-11-1996 and refer to Finance Dept., after taking a view for advice / remarks of Finance Department.
All the Departments of Secretariat are requested to follow the above guidance and process the files to take a decision and minimize the correspondence with Finance Department.
These
instructions are available in the internet and can be accessed at the address http://aponline.gov.in.
