FR 35 officiating pay limit

FR 35 is the Fundamental Rule under which the Central Government may fix the pay of a government servant officiating in a higher post at less than the amount otherwise admissible. The ceiling now in force restricts the increase in basic pay over the post held before the officiating appointment to 12.5%, subject to a maximum of Rs. 6,700 a month, under Department of Personnel and Training Office Memorandum No. 1/4/2017-Estt.(Pay-I) dated 28 February 2019.

The restriction is conditional, not automatic. Pay on an officiating appointment is first fixed under the ordinary rule, FR 22(I)(a)(1), which grants one increment in the level of the lower post and then places the employee at the equal or next higher cell in the level of the officiating post. Only if that fixation produces an increase above 12.5% of the pre-officiating basic pay, or above Rs. 6,700 a month, is the increase a substantial increase and the pay cut back.

One large category is outside the rule altogether. Paragraph 5 of the 2019 order keeps FR 35 away from a regular cadre promotion where the employee falls within the zone of consideration and meets every eligibility condition in the recruitment rules. What the rule is aimed at is appointment on promotion in the normal line within the cadre that is not on a regular basis, which is the officiating and ad-hoc arrangement that ends when the exigency ends.

This article sets out the rule text and the authority that exercises it, the two limits and the pay at which each of them binds, the fixation that precedes the test, the three illustrations annexed to the 2019 order worked through against the published pay matrix, the placement rules where no cell matches the restricted figure, the increment position, the earlier ceilings of 1987, 1998 and 2010, the interaction with Fundamental Rule 49, and the replacement of the abolished Railways charge allowance from 1 July 2017.

The rule text and the authority that sets the ceiling

Fundamental Rule 35 is one sentence: the Central Government may fix the pay of an officiating government servant at an amount less than that admissible under the Fundamental Rules. It carries no percentage, no money limit and no procedure. Everything operative sits in the executive orders issued under it, which is why the figure has changed after every pay commission while the rule has not.

The current order is Department of Personnel and Training Office Memorandum No. 1/4/2017-Estt.(Pay-I) dated 28 February 2019, issued on the decision of the President and addressed to all ministries and departments of the Government of India. Paragraph 7 of that order records that for persons serving in the Indian Audit and Accounts Department it issues in consultation with the office of the Comptroller and Auditor General of India. In a charge case the authority that applies the restriction is the competent authority named in Fundamental Rule 49.

The rule exists because officiating service is reversible. A government servant holding a higher post for an administrative spell has not passed through the regular selection process, and FR 35 lets the government hold the pay for that spell below the pay of the post.

The two limits, and the pay at which each binds

The pay under FR 35 is restricted so that the increase in the basic pay of the post held before the officiating appointment does not exceed 12.5%, subject to a maximum of Rs. 6,700 a month. That is paragraph 2 of the Office Memorandum of 28 February 2019, and both halves of it are live: the percentage and the money figure operate together, and the tighter of the two decides the case.

The crossover is a single figure. 12.5% of Rs. 53,600 is exactly Rs. 6,700, so below a pre-officiating basic pay of Rs. 53,600 the percentage limit produces the smaller permitted increase, and at or above it the money limit of Rs. 6,700 binds first. An officer drawing Rs. 36,500 may rise by Rs. 4,562.50; an officer drawing Rs. 1,75,500 may rise by Rs. 6,700 and not by the Rs. 21,937.50 that 12.5% would allow.

The practical effect is that for most officers above Level 8 the rule is a flat cap of Rs. 6,700 a month rather than a percentage at all.

The substantial-increase test

Any increase in excess of 12.5% of the basic pay, with the further ceiling of Rs. 6,700 a month, is treated as a substantial increase for the purposes of FR 35. The definition is in paragraph 2 of the Office Memorandum of 28 February 2019, and it is the switch that decides whether the rule operates at all.

Paragraph 3 sets the order of operations. On an appointment on promotion in the normal line within the cadre that is not on a regular basis, the pay is first fixed under the relevant rules. If that fixation produces no substantial increase, the restriction under FR 35 is not applied and the pay stands as fixed. If it does, the restriction bites and the pay is cut back to the pre-officiating basic pay plus the permitted increase.

So FR 35 is not a standing deduction on officiating pay. Where the officiating level begins close to the pay already drawn, which is common between adjacent levels of the pay matrix, the jump falls inside both limits and nothing is restricted.

Fixation under FR 22(I)(a)(1) comes first

The pay that the FR 35 ceiling is measured against is the pay fixed under FR 22(I)(a)(1). That rule gives one increment in the level from which the government servant is promoted or appointed, places the employee at the cell equal to the figure so arrived at in the level of the post to which appointed, and where no such cell is available in that level, at the next higher cell. Rule 13(i) of the CCS (Revised Pay) Rules, 2016 states the same method for the pay matrix.

One feature of FR 22 matters on an officiating appointment. The option to defer fixation to the date of the next increment, which the rule gives on a promotion, is expressly excluded in cases of appointment on deputation to an ex-cadre post, to a post on ad-hoc basis, or on direct recruitment. An ad-hoc appointment to a higher post therefore carries neither the option nor, where the jump is large, the full increase.

Illustration 1: the restriction does not apply

An officer drawing Rs. 78,500 in Cell 6 of Level 11 is appointed to officiate in Level 12. One increment in Level 11 gives Rs. 80,900, Cell 7 of that level. Level 12 has no cell of Rs. 80,900, its neighbouring cells being Rs. 78,800 and Rs. 81,200, so the officer goes to the next higher cell, Cell 2 of Level 12, at Rs. 81,200.

The increase is Rs. 2,700. That is less than 12.5% of Rs. 78,500, which is Rs. 9,812.50, and less than Rs. 6,700, so there is no substantial increase and FR 35 is not applied. The pay stands at Rs. 81,200. This is Illustration 1 annexed to the Office Memorandum of 28 February 2019, and it is the ordinary case between adjacent levels in the middle of the matrix.

Illustration 2: the Rs. 6,700 cap binds, and is then breached

An officer drawing Rs. 1,75,500 in Cell 13 of Level 13 is appointed to officiate in Level 14. One increment in Level 13 gives Rs. 1,80,800, and since Level 14 carries no such cell the officer would be placed at Rs. 1,82,700, Cell 9 of Level 14. That is an increase of Rs. 7,200 over Rs. 1,75,500, which exceeds Rs. 6,700, so the increase is substantial and the restriction applies.

The restricted figure is Rs. 1,75,500 plus Rs. 6,700, or Rs. 1,82,200. Level 14 has no cell of that value, so paragraph 3 sends the officer to the next higher cell, which is Rs. 1,82,700, Cell 9 of Level 14, breaching the Rs. 6,700 limit by Rs. 500. The arithmetic returns the officer to the same cell the unrestricted fixation reached, because the matrix has no stage between them.

That outcome is not an anomaly in the drafting. Paragraph 3 permits the breach in terms, and it has to: a cash ceiling applied to a grid of fixed cells will rarely fall on a cell, and the alternative would be to pay a figure that exists nowhere in the matrix.

Illustration 3: pay stays in the lower level

An officer drawing Rs. 36,500 in Cell 2 of Level 6 is appointed to officiate in Level 7. One increment in Level 6 gives Rs. 37,600. Level 7 begins at Rs. 44,900, so no cell matches and the officer would enter at that first cell, an increase of Rs. 8,400 against a permitted 12.5% of Rs. 4,562.50. The increase is substantial.

The restricted figure is Rs. 41,062.50, and it is below the first cell of Level 7. Paragraph 4 of the Office Memorandum of 28 February 2019 then keeps the pay in the level of the post held before the officiating appointment. No cell of Level 6 equals Rs. 41,062.50, so the officer is placed at the next higher cell of Level 6, Rs. 41,100, which is Cell 6, breaching the 12.5% limit by Rs. 37.50.

What follows is the part that decides the money over a long officiating spell. The officer draws annual increments in Level 6 at Rs. 42,300, Rs. 43,600 and then Rs. 44,900, the last of which equals the minimum of Level 7. After one year of reaching or surpassing that minimum, the officer becomes entitled to an increment in the officiating level and the pay is fixed at Cell 2 of Level 7, Rs. 46,200. An officer officiating in a Level 7 post can therefore spend four years drawing pay in Level 6.

Placement where no cell matches the restricted figure

Where the figure arrived at after restriction has no equal cell in the relevant level, the officer is placed at the next higher cell in that level even if the limit for restriction is breached. The rule is the same whether the placement falls in the officiating level under paragraph 3 or in the lower level under paragraph 4 of the Office Memorandum of 28 February 2019.

The direction is always upward, which is why the breaches in Illustration 2 and Illustration 3 both favour the officer, by Rs. 500 a month in the first case and Rs. 37.50 in the second. Pay in the revised structure is defined by Rule 3(x) of the CCS (Revised Pay) Rules, 2016 as the pay drawn in the prescribed level in the pay matrix, and a figure that is not a cell is not pay in the level.

Increments on restricted pay

The government servant earns the annual increment on the basic pay fixed after imposition of the restriction under FR 35. Paragraph 3 of the Office Memorandum of 28 February 2019 says so directly, and the increment is granted under Rule 9 of the CCS (Revised Pay) Rules, 2016 by moving one cell down the same level of the pay matrix, a rise of 3%.

The restriction therefore fixes the point of entry and does not freeze progression. An officer restricted to Cell 6 of Level 6 at Rs. 41,100 moves to Rs. 42,300 on the next annual increment date, on 1 January or 1 July under Rule 10 of the same rules, in the same way as any other employee in that level.

Regular cadre promotion is outside the rule

The restriction of officiating pay under FR 35 will not be invoked in respect of a regular cadre promotion where the employee who becomes due for promotion falls within the zone of consideration and fulfils all the conditions of eligibility prescribed in the recruitment rules. That is paragraph 5 of the Office Memorandum of 28 February 2019, and the identical carve-out appears in the 5th CPC order of 15 December 1998, so it has survived three pay structures unchanged.

The test has two limbs and both must be met: the employee must be inside the zone of consideration, and must satisfy every eligibility condition in the recruitment rules. An employee who clears both is on a regular promotion, and pay fixation on promotion proceeds under FR 22(I)(a)(1) with no ceiling on the increase.

What is left for FR 35 is the appointment on promotion in the normal line within the cadre which is not on a regular basis. That is the officiating arrangement made for an administrative exigency, and the ad-hoc appointment made pending regular selection.

Date from which the ceiling applies

The rates apply from the date an employee draws pay in the revised scale of pay under the Central Civil Services (Revised Pay) Rules, 2016, under paragraph 6 of the Office Memorandum of 28 February 2019. The trigger is the drawal of revised pay and not the date of the order, so the ceiling of 12.5% and Rs. 6,700 reaches back for each employee to the date of entry into the pay matrix, which for most is 1 January 2016.

The order issued three years after the pay matrix took effect, which left officiating cases in the interval to be settled on the 6th CPC ceilings and then revisited. In the Indian Railways the adoption runs from 1 July 2017, the date charge allowance ceased.

The ceilings before the pay matrix

Four orders form the chain, and each was issued to carry the restriction across a change in the pay structure rather than to change its policy.

The 1998 order is the origin of the 12.5% figure that survives today, and it also shows how much the money limit has moved: Rs. 1,000 a month then against Rs. 6,700 now. It carried one further direction with no counterpart in the matrix era, that where the pay so fixed came out at or above the minimum of the promotional scale, the employee was allowed pay at the minimum of that scale. A scale had a minimum to fall back on; a level of the pay matrix has a first cell, and paragraph 4 of the 2019 order deals with the same situation by keeping the officer in the lower level instead.

Restriction under Fundamental Rule 49

Fundamental Rule 49 governs the combination of appointments, and clause (i) allows a government servant formally appointed to hold full charge of the duties of a higher post in the same office and the same cadre or line of promotion the pay admissible on officiating in the higher post, in the words of the rule, unless the competent authority reduces his officiating pay under Rule 35. FR 35 is built into the charge rule rather than sitting beside it.

The ceiling has nothing to restrict where the additional post allowance of 10% of basic pay is drawn instead, under Office Memorandum No. 2/13/2017-Estt.(Pay-II) dated 8 August 2018, because no officiating pay arises on that route. Where the officiating pay of the higher post is the more beneficial of the two computations, the FR 35 ceiling applies to it in the ordinary way.

Charge allowance in the Railways and Rule 1329 IREC

Charge allowance was paid in the Indian Railways to officers officiating in a higher post in administrative exigencies, and it no longer exists. Paragraph 8.2.5 of the 7th CPC report caused every allowance not mentioned in the report to cease from 1 July 2017, the date the allowance recommendations were implemented by Ministry of Finance Resolution No. 11-1/2016-IC dated 6 July 2017, and charge allowance was not mentioned.

Railway Board letter RBE No. 127/2019, PC-VII No. 142, File No. PC-VII/2017/I/7/5/8 dated 8 August 2019 filled the gap by adopting the DoPT Office Memorandum of 28 February 2019 mutatis mutandis in the Indian Railways, in the context of the RS (Revised Pay) Rules, 2016, in place of charge allowance with effect from 1 July 2017. In the Indian Railway Establishment Code Volume II the rule carries the number 1329, and it is the same FR 35 power under a different numbering, so a railway employee officiating in a higher post is now restricted on exactly the terms set out above.

Effect on dearness allowance, house rent allowance and NPS

Every allowance computed as a percentage of basic pay falls with the restriction, because basic pay in the revised pay structure means the pay drawn in the prescribed level in the pay matrix, under Rule 3(x) of the CCS (Revised Pay) Rules, 2016. Dearness allowance is 60% of that figure, and house rent allowance is 30%, 20% or 10% of it by city class under Office Memorandum No. 2/5/2017-E.II(B) dated 7 July 2017.

Illustration 3 shows the size of it. Pay restricted to Rs. 41,100 in Level 6 rather than Rs. 44,900 in Level 7 is a difference of Rs. 3,800 in basic pay, which costs a further Rs. 1,140 a month in house rent allowance in an X class city at 30%, before dearness allowance is counted on the same gap. Contributions to the National Pension System, 10% from the employee and 14% from the government, are computed on basic pay plus dearness allowance and fall with it.

Transport allowance behaves differently, because it is banded by pay level rather than computed on basic pay. Levels 3 to 8 draw the same base figure of Rs. 3,600 or Rs. 1,800 a month depending on the city, under Office Memorandum No. 21/5/2017-E.II(B) dated 7 July 2017, so a restriction that holds an officer in Level 6 instead of Level 7 changes nothing under that head.

What happens on reversion

Pay drawn while officiating is not protected when the arrangement ends. That holds whether or not FR 35 restricted it, because officiating service is reversible by its nature and the full benefit of fixation under FR 22(I)(a)(1) accrues on a regular promotion. On reversion the pay returns to what it would be in the lower post.

The consequence is that a restriction under FR 35 affects the pay drawn during the spell and the allowances computed on it, and leaves nothing behind in the substantive post. A senior who officiated on restricted pay and reverted cannot claim parity with a junior who was regularly promoted, for the same reason.

FR 35, regular promotion and additional charge compared

Related Articles

• Officiating pay
• Charge allowance and current duty
• Combination of appointments
• Fundamental Rule 22
• Pay fixation on promotion
• Option for pay fixation on promotion
• Pay fixation
• Pay fixation on reversion
• Ad-hoc appointment
• Deputation in central government
• Pay matrix
• Annual increment
• Date of next increment
• Pay protection
• Personal pay
• Railway employees
• Dearness allowance
• House rent allowance
• Transport allowance
• National Pension System
• Allowances for central government employees
• CCS (Revised Pay) Rules, 2016
• 7th Central Pay Commission
• Seniority
• Take-home salary of central government employees
• Central government employees in India

External references

• Department of Personnel and Training
• Restriction of officiating pay under FR 35 in the context of CCS (Revised Pay) Rules, 2016
• Fundamental Rules and Supplementary Rules, Part I
• DoPT establishment (Pay) officiating circulars
• Railway Board letter RBE No. 127/2019
• Department of Expenditure
• Ministry of Railways

References

1. Fundamental Rule 35, Fundamental Rules Part I, Chapter IV: the Central Government may fix the pay of an officiating government servant at an amount less than that admissible under these rules.
2. Department of Personnel and Training Office Memorandum No. 1/4/2017-Estt.(Pay-I) dated 28 February 2019, restriction of officiating pay under FR 35 in the context of the CCS (Revised Pay) Rules, 2016, with paragraph 2 on the 12.5% and Rs. 6,700 ceiling and the definition of a substantial increase, paragraph 3 on placement at the next higher cell, paragraph 4 on fixation in the lower level, paragraph 5 on regular cadre promotions, paragraph 6 on the effective date and paragraph 7 on consultation with the Comptroller and Auditor General of India.
3. Illustrations 1 to 3 annexed to Office Memorandum No. 1/4/2017-Estt.(Pay-I) dated 28 February 2019, on Level 11 to Level 12, Level 13 to Level 14 and Level 6 to Level 7 respectively.
4. Fundamental Rule 22(I)(a)(1) on fixation of initial pay on appointment to a post carrying duties and responsibilities of greater importance, and Rule 13(i) of the Central Civil Services (Revised Pay) Rules, 2016.
5. Rule 3(x) and Rule 9 of the Central Civil Services (Revised Pay) Rules, 2016 (gazette notification G.S.R. 721(E), 25 July 2016), defining basic pay as the pay drawn in the prescribed level in the pay matrix and granting the annual increment by cell movement.
6. Office Memorandum No. 18/7/98-Estt.(Pay.I) dated 15 December 1998, restriction of officiating pay under FR 35 on the 5th CPC scales, citing Office Memorandum No. 18/26/86-Estt.(Pay.I) dated 29 July 1987 for the 4th CPC ceilings.
7. Office Memorandum No. 1/4/2009-Estt.(Pay-I) dated 8 March 2010, ceilings for restriction of basic pay under FR 35 in the running pay band and grade pay system.
8. Fundamental Rule 49(i), combination of appointments, and Department of Personnel and Training Office Memorandum No. 2/13/2017-Estt.(Pay-II) dated 8 August 2018 on the additional post allowance.
9. Railway Board letter RBE No. 127/2019, PC-VII No. 142, File No. PC-VII/2017/I/7/5/8 dated 8 August 2019, adopting the DoPT order of 28 February 2019 in place of charge allowance from 1 July 2017 under Rule 1329 of the Indian Railway Establishment Code Volume II, read with Ministry of Finance Resolution No. 11-1/2016-IC dated 6 July 2017.
10. Department of Expenditure Office Memorandum No. 2/5/2017-E.II(B) dated 7 July 2017 on house rent allowance and Office Memorandum No. 21/5/2017-E.II(B) dated 7 July 2017 on transport allowance.