Clarification of the Secretary of State’s ruling to the “next below rule”.
Copy of letter No.F.2(25)-Est .III/46 dated the 2nd April, 1947 from Government of India Finance Department addressed to All Provincial Governments.
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Subject:-Clarification of the Secretary of State’s ruling to the “next below rule”.
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I am directed to state that doubts have been expressed by Provincial Governments and Audit Officers regarding the exact scope of the various rulings issued by the Secretary of State in connection with the operation of the “next below rule”. For avoidance of doubt, the extant decisions on this subject have been summarised below.
2. The working rule subjoined to this paragraph may be taken to express the convention which is commonly known as the “next below rule” as originally approved, and its provisos, the modifications made from time to time by the Secretary of State. The intention underlying the “rule” is that an officer out of his regular line should not suffer
by forfeiting the officiating promotion which he would otherwise have received had he remained in his original line. The so-called “rule” is not a rule of any independent application. It sets out only the guiding principles for application in any case in which the Governor-General in Council, or the Governor exercising his individual judgment in virtue of the powers conferred on him by the Secretary of State’s rule of the 14th April 1942 (published with Home Department Notification No.195/40-Ests . , dated the 9th June 1942) proposes to regulate officiating pay by special orders under the second proviso to Fundamental Rule 30 (1) . The conditions precedent to the application of the “next below rule” must therefore be fulfilled in each individual case before action may be taken under this proviso. It also follows that the benefit of officiating promotionis to be given only in respect of the period or periods during which the conditions of the “next below rule” are satisfied. Rule – When an officer in a post (whether withinthe cadre of his service or not ) is for any reason prevented from officiating in his turn in a post on a higher scale or grade borne on the cadre of the Service to which he belongs , he may be authorised by special order of the appropriate authority proforma officiating promotion into such scale or grade and thereupon be granted the pay of that scale or grade, if that be more advantageous to him, on each occasion on which the officer immediately junior to him in the cadre of his Service (or if that officer has been passed over by reason of inefficiency) or unsuitability or because he is on leave or serving outside the ordinary line or foregoes officiating promotion of his own volition to that scale or grade the officer next junior to him not so passed over) draws officiating pay in that scale or grade.
Provided that all officers senior to the officer to whom the benefit under the substantive part of this rule is to be allowed are also drawing, unless they have been passed over for one or other of the reasons aforesaid, officiating pay in the said or some higher scale or grade within the cadre :
Proviced further that , except in cases covered by any special orders of the Secretary of State, not more than one officer (either the seniomost fit officer in a series of adjacent officers outside the ordinary line, or , if such an officer either foregoes the benefit of his own volition or does not require the benefit in virtue of his holding a post outside the ordinary line which secures him at least equivalent benefits in respect of pay and pension then the next below in series ) may be authorised to draw the pay of the higher scale or grade in respect of any one officiating vacancy within the cadre filled by his junior under the rule”.
3.The “next below rule” set out in the preceding paragraphs should be applied with due regard to the rulings or decisions mentioned hereunder:-
(i) A purely fortuitous officiating promotion given to an officer who is junior to an officer outside the regular line does not in itself give rise to a claim under the
“next below rule”.
(ii) The expression “outside the ordinary line” occurring in Fundamental Rule 30(1) is not intended to be rigidly interpreted as necessarily involving a post either “outside the cadre of a Service” or “outside the ordinary time-scale”.
(iii) Although certain special posts in a cadre may be considered to be posts outside the ordinary line of service for the purpose of applying the “next below rule” (vide the Secretary of State’s orders in India Office letter No.S & G. 5079/44, dated the 2nd January 1945, copy of forwarded with Home Department letter No. 143/44-Ests., dated the 26th April 1945), there are no orders to cover the converse type, viz., the treating as cadre posts of those posts created by Governments in India which are declared to be equivalent in status and responsibility to permanent posts included in Secretary of State’s Service have been withdrawn under the Constitution Act of 1935, the benefit under the next below rule may not be allowed, without the sanction of the Secretary of State, to an officer outside the ordinary line if an officer junior to him is appointed to a post created and declared by a Government in India to be so equivalent.
(iv) If Government have approved in any department a list of officers in order of merit for promotion to administrative rank or a selection grade, then that order will prevail as the order of seniority for the purpose of the “next below rule” over the order of seniority of the officers in the ordinary gradation list of their cadre.
4. The Secretary of State has held that holders of special (e.g., tenure) posts such as Secretaryships to a Governor or a Provincial Government should be ready to accept loss of officiating promotion for short periods to posts on a higher scale or grade
in the ordinary line in consequence of their incumbency and that, when the stage is reached at which their retention involves loss of substantive or lengthy officiating promotion, the proper course is to make arrangements to release them from the special posts rather than to compensate them for the loss of officiating promotion under the “next below rule”. “Short periods” should be interpreted as meaning periods not exceeding three months.
If in such a case he conditions of the “next below rule” are not satisfied and an officer is deprived of officiating promotion owing to it is being impracticable for the time being to release him from the special post, he many be granted with the approval of the Governor-General in Council or of the Governor acting in his individual judgment, according as the officer concerned is serving at the Centre or in the Province, such compensation for loss of officiating promotion as would have been admissible under the next below rule for the period in excess of th3e first three months of his retention in the special post in the public interest. No specification or declaration in terms of the second proviso to Fundamental Rule 30(1) by the Governor-General in Council of the Governor will be necessary in these cases and it will suffice if those authorities issue the requisite orders granting the officers concerned the compensation on that basis. As in the case of the “next below rule”, the periods for which compensation equivalent to the “next below rule” benefit is allowed will count for increment in the higher scale or grade in which the officer would have officiated, had he not been holding the special posts in the public interest.
If, however, in such a case the conditions of the “next below rule” are satisfied, the officer concerned may be granted under the second proviso to Fundamental Rule 30(1) the concession admissible under the “next below rule”, but, save in exceptional circumstances, such an officer should not be retained in the special post if the pay attached thereto is lower than that admissible to him under the “next below rule” for more than 6 months beyond the date from which the “next below rule” begins to operate. The sanction of the Secretary of State is however unnecessary for exceeding this time limit in individual cases in exceptional circumstances.
5.This letter issues with the approval of the Secretary of State.
Sd/- XXX
Deputy Secretary to the Govt. of India.
http://finmin.nic.in/the_ministry/dept_expenditure/notification/payfixation/02-04-1947.pdf