Bombay High Court
Kamlesh Kumar Sahu ... vs Union Of India & 3 Others on 4 March, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3314 OF 2004
Kamlesh Kumar Sahu,
Sr. Administrative Officer,
4th floor, Indira Bhavan,
Indian Bureau of Mines,
Civil Lines, Nagpur-1. :: PETITIONER
.. Versus
..
1. Union of India,
through the Secretary,
Ministry of Steel & Mines,
Shastri Bhavan, New Delhi.
2. The Controller General,
Indian Bureau of Mines,
Indira Bhavan, Civil Lines,
Nagpur.
3. Pay & Accounts Officer,
Indian Bureau of Mines,
Indira Bhavan, Civil Lines,
Nagpur.
4. Central Administrative Tribunal,
Mumbai,
Camp Nagpur. :: RESPONDENTS
...................................................................................................................................
Shri A. M. Sudame, Advocate for the petitioner.
Smt. Anjali Joshi, Advocate for respondent Nos. 1 to 3.
Shri Rohit Deo, ASGI for respondent No.4.
...................................................................................................................................
CORAM : B. R. GAVAI & P. N. DESHMUKH, JJ.
DATE : 4th MARCH, 2016.
ORAL JUDGMENT (Per B. R. Gavai, J.)
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The petitioner challenges the judgment and order dated
23/7/2004 passed by the learned Central Administrative Tribunal vide
which the learned Tribunal, though has partly allowed the original
application filed by the present petitioner, rejected the original
application insofar as the prayer for quashing the order dated
01/02/1999 thereby reducing the pay of the petitioner is concerned.
2. The facts in brief giving rise to the present petition are as
under.:
I. The petitioner was working as Block
Development Officer at Jhansi in the State of Uttar Pradesh
from 10/4/1978. In the year 1983 the Union Public
Service Commission (UPSC) had issued an advertisement
for the post of Assistant Administrative Officer on the
establishment of respondent No.2. The petitioner had
applied in response to the said advertisement. After
following due selection process, the petitioner was found to
be suitable for the said post and as such was recommended
by the UPSC for appointment to the post of Assistant
Administrative Officer.
II. The respondents vide order dated 16/01/1984
issued memorandum appointing the petitioner. Vide office
order dated 10/4/1984 it was observed that the UPSC has
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recommended the pay to be fixed according to the Rules. It
was, however, stated that due to non availability of service
documents, the pay was fixed @ Rs.650/- per month
provisionally w.e.f. 02/3/1984. Vide subsequent order
dated 13/8/1984 it was ordered that the salary of the
petitioner in the pay scale of Rs.650-30-740-810-EB-35-
880-40-1000-EB-40-1200/- was fixed at Rs.1,000/- p.m.
under the Fundamental Rule 22(C). However, it appears
that after the period of almost 14 years, the issue regarding
fixation of petitioner's salary was reopened and vide
memorandum dated 23/12/1998 it was proposed to fix the
pay of the petitioner @ Rs.650/- p.m. w.e.f. 03/3/1984. It
was observed in the said memorandum that initially the pay
of the petitioner was erroneously fixed at Rs.1,000/- p.m.
III. The petitioner replied to the said memorandum
vide communication dated 24/12/1990 stating therein that
no reasons were given for fixing his salary at Rs.650/- p.m.
w.e.f. 03/3/1984 in stead of Rs.1,000/- p.m. Vide
communication dated 18/12/1998 addressed by the Senior
Accounts Officer, IBM, Nagpur, it was informed to the Head
Office, Nagpur that initially the pay fixation of the
petitioner was done erroneously. The petitioner, thereafter
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addressed a communication dated 31/12/1998 stating
therein that the matter with regard to his pay fixation was
reopened on account of some complaints from the outsiders
in collusion with the employees of the IBM. Vide
communication dated 07/01/1999, the Controller of Mines
(Co-ord), Indian Bureau of Mines informed the petitioner
that his salary should have been fixed at Rs.650/- p.m. in
stead of Rs.1,000/- p.m. in the pay scale of Rs.650-1200/-
w.e.f. 03/3/1984. To this also the petitioner made
representation. However, ignoring his representation, vide
order dated 01/02/1999, the pay scale of the petitioner
w.e.f. 03/3/1984 was fixed at Rs.650-30-740-810-EB-35-
880-40-1000-EB-40-1200/-. As a consequence thereof,
recovery of excess payment on account of re-fixation of pay
was also directed against him.
IV. Being aggrieved thereby, original application
was filed by the petitioner before the Central
Administrative Tribunal. The Tribunal has partly allowed
the application and set aside the order insofar as it directed
recovery from the petitioner in view of the law laid down in
the case of Shyam Babu Verma Vs. Union of India & others -
1994 (2) SCC 521. However, insofar as the order of
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re-fixation of the petitioner's salary reducing into Rs.650/-
p.m. w.e.f. 03/3/1984 was upheld and the original
application was dismissed in that regard. Being aggrieved
thereby, the present petition.
3. Shri Sudame, learned Counsel appearing on behalf of the
petitioner submitted that the salary, which was fixed in the year 1984,
was fixed in accordance with the Rule 22-C read with Paragraph 6 of
the Fundamental Rules, which was applicable at the relevant time. The
learned Counsel has also placed on record the office noting which the
petitioner has received under the Right to Information Act while fixing
salary of the petitioner in the year 1984. The learned Counsel
submitted that when the salary was fixed in accordance with the
Fundamental Rules in the year 1984 taking into consideration the fact
that the petitioner was serving as Block Development Officer in the
State Government and since his salary was fixed taking into
consideration his last pay drawn, there was no occasion to reopen the
issue in the year 1998. The learned Counsel submitted that the
learned Tribunal has grossly erred in dismissing the original
application insofar as the prayer in that regard is concerned.
4. Smt. Joshi, learned Counsel for the respondents, on the
contrary, submitted that since the salary of the petitioner was
erroneously fixed in the year 1984, the same has rightly been reduced
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by the order impugned before the learned Tribunal. She further
submitted that even, as a matter of fact, the duties, which were
performed by the petitioner in the establishment of the respondents,
were less onerous than the one which was discharged by him as Block
Development Officer and, therefore, he was not entitled to the benefit
of Note-2 of Paragraph-(6) of the Fundamental Rules. She further
submitted that if the comparison was made of the allowances, which
the petitioner would have got as an employee of the State Government
with the allowances that the petitioner would have got as an employee
of the Central Government, than the position would have been that
the petitioner's salary was more and, therefore, even on that count
fixation of the salary of the petitioner made in the year 1984 was
erroneous.
5. The facts in the present case are undisputed. It has not
been disputed that the petitioner, at the relevant time, prior to his
selection on the establishment of the respondents, was working as
Block Development Officer in the establishment of the State
Government of Uttar Pradesh. It is also not in dispute that the last
drawn salary of the petitioner was Rs.930/-. In these factual premises,
it will be relevant to refer to Rule 22-C of the Fundamental Rules.
"F.R. 22-C. Notwithstanding anything contained in these
Rules, where a Government servant holding a post in a
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substantive, temporary or officiating capacity is promoted
or appointed in a substantive, temporary or officiating
capacity to another post carrying duties and
responsibilities of greater importance than those attaching
to the post held by him, his initial pay in the tine-scale of
the higher post shall be fixed at the stage next above the
pay notionally arrived at by increasing his pay in respect
of the lower post by one increment at the stage at which
such pay has accrued."
It will also be relevant to refer to Paragraph-(6), which
deals with the applicability to State Government servants. :
"(6) Applicability to State Government servants.- It
has been decided that :-
(i) When a State Government servant is appointed
to a post under the Central Government and the
post carries duties or responsibilities of greater
importance than those attaching to the post
held by him under the State Government, the
initial pay of the official in the post may be
fixed under F.R. 22-C.
(ii) Dearness allowance, if any, admissible under
the State Government may be treated as basic
pay for the purpose of fixation of pay in the
post under the Government of India subject to
the following conditions :
(a) The maximum amount of dearness allowance
to be taken into account will be Rs.100 or the
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actual amount of dearness allowance that will
be taken into account by the State Government
concerned for fixation of pay in their revised
scales, if revision has taken place, whichever is
less.
(b) From the basic pay so arrived at, the dearness
allowance at the revised rates admissible
according to the Central Government rules on
the pay due in the State should be deducted.
NOTE 1.- For assessing the relative degree of
responsibility of the posts under the State Government and
the Central Government all relevant factors including the
duties attached to the posts, etc., besides the scales of pay
attached to the posts, will be taken into consideration. In a
large majority of cases, such assessment should be easy to
make. Doubtful cases may be referred to- the Ministry of
Finance as heretofore under Government of India's Order
No.(2) and Auditor General's Decision No.(2) below
F.R.22.
NOTE 2.- When a State Government servant drawing
pay in the revised scale (after merging of dearness
allowance) under the State Government is appointed to a
post under the Central Government, and the post carries
duties of responsibilities of greater importance than those
attaching to the post held by him under the State
Government, the initial pay of the official in the Central
Government post should be fixed under F.R. 22-C with
reference to his basic pay only, and the provisions
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contained in Para (ii)(a) and (b) of decision above will not
apply in such cases. It has been further clarified that the
term 'basic pay only' would mean only the basic pay in the
State scales after first revision on the pattern of the
recommendations of the Second Pay Commission for
Central Government employees and not the basic pay after
the second or subsequent revisions of the State scales, if
any."
6. Perusal of Fundamental Rule 22-C would reveal that it
provids that notwithstanding anything contained in the said Rules
where a Government servant, holding a post in a substantive,
temporary or officiating capacity, is promoted or appointed in a
substantive, temporary or officiating capacity to another post carrying
duties and responsibilities of greater importance than those attaching
to the post held by him, his initial pay in the time-scale of the higher
post shall be fixed at the stage next above the pay notionally arrived at
by increasing his pay in respect of the lower post by one increment at
the stage at which such pay has accrued.
7. The provisions of Paragraph-(6) and specifically Note-(i)
thereof would reveal that when the State Government servant is
appointed to a post under the Central Government and the post
carries duties or responsibilities of greater importance than those
attaching to the post held by him under the State Government, the
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initial pay of the official in the post may be fixed under the
Fundamental Rule 22-C. Note 1 provides that for assessing the
relative degrees of responsibility of the posts under the State
Government and the Central Government all relevant factors including
the duties attached to the posts, etc., besides the scales of pay attached
to the posts, will be taken into consideration. It further provides that
in a large majority of cases, such assessment should be easy to make.
However, it provides further that doubtful cases may be referred to the
Ministry of Finance and Auditor General's decision. Note 2 provides
that when the State Government servant drawing pay in the revised
scale (after merging of dearness allowance) under the State
Government is appointed to a post under the Central Government, and
the post carries duties of responsibilities of greater importance than
those attaching to the post held by him under the State Government,
the initial pay of the official in the Central Government should be fixed
under Fundamental Rule 22-C with reference to his basic pay only.
8. A combined reading of Rule 22-C and Paragraph-(6) would
thus reveal that whenever the State Government servant is appointed
to a post under the Central Government and where the said post
carries duties or responsibilities, which are of higher nature than the
post earlier held by him, the salary of such State Government
employee appointed in the Central Government would be fixed as per
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the provision of Fundamental Rule 22-C. Fundamental Rule 22-C
provides that the Central Government employee appointed to a post
which carries greater duties and responsibilities, then initial pay in the
time-scale of the higher post shall be fixed at the stage next above the
pay notionally arrived at by increasing his pay in respect of the lower
post by one increment at the stage at which such pay has accrued.
9. It could thus be seen that when an employee in the lower
post is appointed to a higher post, then his initial pay has to be
determined by adding one increment to the last pay drawn by him in
the lower post.
10. On the last date when the matter was heard by us, the
learned Counsel for the Union of India sought time to take instructions
as to whether the office notings placed on record by the petitioner are
genuine or not. The learned Counsel fairly conceded that the said
documents are genuine and are borne from the record of the
respondents.
11. It is not in dispute that there was some confusion amongst
the respondents themselves as to what should be the initial pay of the
petitioner in as much as prior to his appointment on the
recommendation of the Union Public Service Commission, the
petitioner was working as Block Development Officer on the
establishment of the State Government of Uttar Pradesh and,
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therefore, initially his salary was provisionally fixed at Rs.650/- p.m.
w.e.f. 03/3/1984 vide order dated 10/4/1984. It is to be noted that
though the petitioner was posted at Ajmer, fixation of his pay was
done at Nagpur. The office notings placed by the petitioner on record
would show that the file regarding fixation of his salary has moved at
various stages. It will be relevant to reproduce the relevant noting, as
under.
".....We are not considering the case of pay fixation of Shri K.
K. Sahu in the post of Assistant Administrative Officer in IBM.
Shri K.K.Sahu has been recommended by UPSC (p:13) for
appointment of AAO in IBM. As per the recommendations of
UPSC, his pay is to be fixed according to rules. Shri Sahu,
prior to joining IBM as AAO on 3.3.84, was working as Block
Development Officer, Planning Department, Govt. of UP,
Baragaon, Distt. Jhansi, UP. He resigned this post wef 2.3.84
AN, as he was holding the post of BDO on temporary basis.
This resignation is to be treated as a 'technical formality' and
the benefit of past service is to be given for purpose of fixation
of pay as per GOI Decision (6) under FR 22 (p:57 of FRSR
Part I). The pay in such cases may be fixed under FR 27
which deals with grant of premature increment to a Govt.
servant on a time scale of pay etc. As per GOI Decision (6)
under FR 27 (p:104 FRSR Pt.I), the exercise of powers shall
not be used in disregard of the normal rules governing
fixation of pay except in cases of hardship or where the
circumstances are unusual. As the UPSC have recommended
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his pay to be fixed according to rules, the pay can be fixed
under FR 22C as per GOI Order No.5 under FR 22C (p:67 &
68). In the present case, the pay of Shri Sahu will be fixed as
per Note 2 below GOI Order (6) under FR 22C which states
that "when a State Govt. servant drawing pay in the revised
scale under the State Govt. is appointed to a post under the
Central Govt., and the post carries duties of responsibilities of
greater importance than those attaching to the post held by
him under the State Govt., the initial pay of the official in the
Central Govt. post should be fixed under FR 22C w.r.t. his
basis pay only. As per note 1 ibid, for assessing the relative
degrees of responsibility of the posts under the State Govt.
and the Central Govt. all relevant factors including the duties
attached to the posts, etc., besides the scales of pay attached
to the posts, will be taken into consideration. The duties
performed by Shri Sahu as BDO in State Govt. were of the
nature of administrative & extension work. He was also
dealing with the matters relating to the establishment,
budgetary work & DDO etc., as mentioned by him in the
application for UPSC (Pages 5 & 6). The duties of the post of
AAO are as follows :
"To carry out such administrative, accounts, budget
and financial work of the Bureau as are placed
under his charge, to work as DDO & assist the
Controller General, AO, IBM, in matters of
administration and accounts and budget and to
carry out such other duties as may be assigned to
him by the CG IBM or any other officer authorised
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by him."
From the above, it will kindly be seen that the
degree of responsibility of the post of AAO in IBM is greater
than the post of BDO held by Shri Sahu under State Govt. If
this view is kindly approved, the pay fixation order of Shri
Sahu will be submitted pl.
Shri Sahu was drawing a B.P. of Rs.930/- wef
1.7.83 as BDO in the pay scale of Rs.690-40-970-EB-40-
1050-50-1200-EB-50-1300-60-1420/-. His pay will be fixed
as under :
ig B.P. Rs. 930=00 wef 1.7.83.
+
" 40=00 one increment
= " 970=00
To be fixed at Rs.1000=00 in the post of AAO wef 3.3.84.
Sd/illegible
AO
11.7.84
From prepage
H.O.O. may kindly peruse note from 17N/ante. Shri K. K.
Sahu B.D.O. in the State Govt. of U.P. has been selected to the
post of A.A.O. in IBM. Through UPSC and taken over the
charge w.e.f. 3.3.84. As per the service documents received in
this office Shri K.K. Sahu, was drawing Rs.930/= as basic
pay, in the scale of pay of Rs.690-40-970-EB-40-1050-50-
1200-EB-50-1300-60-1420/-.
According to Note 2, below para 6 of FR 22C
indicates the pay of the officer to be fixed under FR 22C with
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reference to his basic pay only. H.O.O. is requested to kindly
see for his kind approval for fixation of Shri Sahu's pay, as
fixed at P20N/ante please.
Submitted please.
Sd/Illegible
16/7/84
H.O.O.
I agree with the views of the Office Suptdt.
The pay may be fixed at Rs.1,000/-.
A.O. (Gaz)
Sd/Illegible
3/8/84
Pl. put up pay fixation order in English & Hindi
also.
Sd/-Illegible
4/8/84 Mrs. Chandnani.
12. It could thus be seen that the office of the respondents,
relying on Paragraph-(6) read with Fundamental Rule 22-C, were of
the opinion that when the State Government servant while drawing
pay in the revised scale under the State Government is appointed to a
post under the Central Government and the post carries duties of
responsibilities of greater importance than those attaching to the post
held by him under the State Government, the initial pay of the official
in the Central Government post should be fixed under Fundamental
Rule 22-C with regard to his basic pay only. The said noting
specifically refers to the duties discharged by the present petitioner as
Block Development Officer and the duties of the post of Assistant
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Administrative Officer. It is further to be noted that the duties of the
petitioner referred to in the said noting as B.D.O. are taken by the
office of the respondents from his application made to the UPSC at
pages 5 & 6 of the application. Upon comparison of the duties, the
office of the respondents came to a specific conclusion that the degree
of responsibility of the post of Assistant Administrative Officer in IBM
was greater than the post of Block Development Officer held by the
petitioner in the State Government. Taking into consideration that
the last drawn salary of the petitioner was Rs.930/- and after adding
one increment of Rs.40/- it would come to Rs.970/-, the petitioner's
pay scale was fixed at the immediately next stage of Rs.1,000/- of the
applicable pay scale.
13. It is to be noted that the notings of the office of the
respondents have travelled at various stages and which have finally
been approved by the Head of the Department, i.e. respondent No.2.
It could thus clearly be seen that the pay fixation of the petitioner in
the year 1984 was done as per the Fundamental Rules, which were
applicable at the relevant time. Though the communication dated
07/01/1999 states that the matter is serious in as much as the case
relates to the Administrative Officer himself, however, it is to be noted
that the present petitioner had no role of whatsoever nature in fixation
of his salary. While he was working at Ajmer, the pay fixation was
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done at the Head Office at Nagpur. Not only that, the comparison
with regard to the nature of duties was also done on the basis of
details given by the petitioner regarding his duties discharged by him
as Block Development Officer in his application made to U.P.S.C. It is
nobody's case that while undertaking the exercise of fixing the
petitioner's initial pay, he was asked to give details regarding duties
discharged by him as Block Development Officer and he had falsely
shown lessor duties in order to claim higher pay scale for his posting
in the Central Government. It could thus be seen that the pay fixation,
which was done by the respondents on the basis of Fundamental Rules
applicable, has been reopened for no reasons after a period of 14
years. We, therefore, find that the impugned pay fixation as is done
by order dated 01/02/1999 is not sustainable in law.
i. The petition is, therefore, allowed.
ii. The pay fixation as has been ordered by an order
dated 07/01/1999 and has been fixed by Office
Order No. 05 dated 01/02/1999 is quashed and set
aside.
iii. The order passed by the learned Central
Administrative Tribunal, insofar as it rejects the
prayer of the petitioner in that regard is also quashed
and set aside.
iv. The respondents are directed to pay the arrears to
the petitioner within a period of six months from
today along with interest @ 6% per annum.
Rule made absolute accordingly.
JUDGE JUDGE
wwl
