News Update

Art of digging wealth out of chaos! Dubai eyeing El Dorado status?Seizure of 'Cash' and 'other Valuable Assets'I-T - ITO shall provide provide CPCITR link to assessee to raise his/her grievances: HCGovt issues advisory against purchase of acid on e-commerce platformsI-T - Since CBDT is not empowered to fix time limit for filing application for compounding of offences, time of 12 months fixed by it is contrary to the provisions of Section 279(2): HC400 delegates from 35 countries likely for International Cotton Advisory Committee meetingI-T - Since communication of notice is complete when it is received by person to whom it is addressed to, merely posting of date of hearing of Miscellaneous Petition in Cause List is not sufficient: HCIndia's Bioeconomy recorded 12 times increase in last 10 years: MoSGovt prepares 18 bills for Winter SessionI-T - If after issuing notice u/s 148, AO accept contention of assessee that income which initially formed reason to believe of escaped assessment, did not actually escaped, it is not open to him independently assess other income: HCGovt tells SC - States extended tenure of Chief Secretaries 57 times in last 10 yrsLabour Force Participation Rate rises to 49.3%: SurveySeasoned diplomat Henry Kissinger passes away at 100I-T - Since absence of notice u/s 143(2) impregnates proceedings with jurisdictional defect, hence it renders notice by Revenue Dept. at assessee's wrong address as improperly served, invalid: HCUS economy rises by 5.2% in Q3I-T - Income computed in accordance with notified accounting standards should not be rejected: HCUS military aircraft dives into sea off Japan; one deadCus - Allegations of contravention of Customs Broker Licensing Regulations 2018 - Proceedings against Broker delayed by over 22 Months - Settled precedent mandates adherence to timelimes prescribed in the Regulations - Proceedings against Broker dropped, since not completed within specified timeline: CESTATTrudeau asks India to take Canadian allegations seriouslyST - As per settled precedent, no Service Tax is to be levied on reimbursement of electricity & water charges: CESTAT13 killed in bus-train collision in TanzaniaCX - Cenvat Credit cannot be denied merely on ground that supplier was not required to pay Excise duty: CESTAT
Next Below Rule

OCTOBER 12, 2022

Vijay Kumar

By OFFICE ORDER No.110/2022, dated, 6th October, 2022, the CBIC promoted some GST officers as Commissioners. The order looked like this:

What do you understand from the above order? Obviously, some officers have been promoted, but what is this Next Below Rule? Several anxious citizens called me up to find out about this mysterious rule? Is this some rule smuggled in to make GST more simple or are these officers going to be vested with some special powers?

This is a long and old story, which started even before independence.

A Letter No. F. 2(55)-Est. III/46, dated the 2nd April, 1947 was issued from the Ministry of Finance, Government of India, to all Provincial Governments with the subject: Clarification of the Secretary of State's rulings to the "next below rule.

It is for the antique look that I present here an extract from the letter, which also stated:

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 provisions, 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 judgement 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 (I).The condition 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 benefits of officiating promotion is to be given only in respect of the period or periods during which the conditions of the "next below rule" are satisfied.Next below Rule -

When an Officer in a post (whether within the 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 on the cadre of the Service to which he belongs he may be authorised by special order of the appropriate authority for 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 then the officer next junior to him not so passed over) draws officiating pay in that scale or grades:

The letter specifically clarified:

This letter issues with approval of the Secretary of the State.

Obviously, government communication was difficult to decipher, even in the pre-independence era.

In 1960, by Office Order No. F.2(45)3.111/60, dated the 5th August, 1960, Government of India, Ministry of Finance (Department of Expenditure) clarified that:

With a view to facilitate the expeditious disposal of cases referred by the administrative Ministries to the Ministry of Finance (Department of Expenditure), it has been decided that the various Expenditure Divisions may dispose of, finally, cases relating to the grant of benefit under the 'next below rule' for a period not exceeding six months from the date of proforma promotion.

The present policy in regard to the general applicability of the rule is briefly indicated below for convenience. The grant of benefit under the 'next below rule' is subject to the fulfilment of certain conditions which have been enumerated in the late Finance Department letter No.F. 2( 25)-Est.III/46, dated the 2nd April, 1947(copy enclosed). Particular attention is invited to the three conditions mentioned in paragraph 2 of this letter which are as follows: -


The period of six months upto which the Expenditure Divisions are now being authorised to grant the benefit under the 'next below rule' should be considered as the upper limit and in all cases, it should be ensured that the officer to whom this benefit is given is reverted to his parent cadre as early as possible but not later than six months from the date from which the 'next below rule' begins to operate.

Gazette Notification :

The Government had in O.M.No. 12/41/53-Ests. dated the 4th August, 1954 and No.30/6/56-Ests(A) dated the 9th Apri1, 1957 laid down that all important events in the official career of a gazetted government servant affecting his pay and other conditions of service including retirement from Government service, should be notified in the Gazette.

Then a doubt arose whether a Gazetted notification is necessary in cases where proforma promotion in the parent department of a gazetted officer under the "next below rule" is made.

A serious doubt indeed and a clarification was very much needed.

Ministry of Home Affairs O.M. No. 13/2/57-Ests(A) dated the 24th October, 1957, clarified:

It has been decided, in consultation with the Ministry of Finance and the Comptroller and Auditor General, that as such a promotion is an important event in the official. career of a gazetted Government servant, it should also be notified in the Gazette.

All fine, but what is this "next below rule" under which some officers were promoted?

Suppose an Additional Commissioner is working as Private Secretary to a Minister on deputation basis in the same rank of Additional Commissioner. Now, his immediate junior who was working in the Central Tax Department (CBIC) gets a promotion and is posted as a GST Commissioner somewhere. Our PS to Minister is also promoted but continues as PS for some more time in the rank of Additional Commissioner. Maybe to make him happy or to console him that he is also a Commissioner, he is promoted as Commissioner and given the salary of a Commissioner with effect from the date his immediate junior starts collecting salary in the rank of Commissioner. Thus, though he is not really a Commissioner, he will get the Commissioner's salary, but he is expected to return to the CBIC and become a Commissioner within six months.

That is the "next below rule", which they clarified in 1947 as the so-called "rule" is not a rule of any independent application.

Until Next week

Sub: Love for obscurity

Bureaucracy loves obscure terms, which befuddles the common people. They beam a victorious smile when an ordinary person is confounded.

Posted by Gururaj B N
Sub: Next Below Rule

Is there any rule that proforma promotion can not be granted if there is only single post which has been filled for promotion, while DPC has already approved panel of two candidates.

Posted by SAM R

TIOL Tube Latest

TIOL Tax Congress 2023 - Technical Session on 'Taxation of New Age Digital Industry'

Technical Session 5 of TIOL Tax Congress 2023: GST – Second-Generation Reforms, including Technology.

TIOL Tube brings you an interview with former US Secretary of Treasury, Mr. Larry Summers who was recently in Delhi.