GC] v. RESPQNDeNTS

Slngle Bench,: Hon'bie Shri Satlsh K. Agnihotri, J, Present:- Shri RX. Kesharwani, counsei for the petltioner. Shri A.V. Sridhsr, Panel Lawysr for the State. (Passed on this 7 day of Novsmbsr, 2009)

1. In thls' petition, a questlon of iaw Involved Is whether the employees of the State Government are to beneflts of Inltlai pay in the tlme scaie of highsr post on being appolnted to • and responslbjSltles of greater another post carrying Importance In accordance wlth Fundarnental Rules (for short, ?iFR?r) 22-D of the MP. Fundamsntal Ruies. '^. Learned counse! appearing for the submlis that petitioher, whlie worklng as teacher was promoted to the post of carrying hlgher responsibiilties. He was inltiaily beneflts under FR 22-D. Subseqyentiy, payment of hlgher post carrylng hlgher responslbiiity was wlthdrawn In order recover the excess payment made to the peiltloner« The petitloner made representatlon to the respondents-authorities, but no action has besn taksn so far. Lsamed'counsel submits that the FR are made by fhe Secretary of State In CounciJ under Section 96-B of the Government of indla Act< Incjuding the orders issued by the Secretar^ of State, Govemment of indla and Audltor-Gsneral and the Supplemsntar^ RuSes framed bv the Socal Governmsnt ¥/hlch Q l^ are appllcabie to the ser^ce condltJons 'of government empioyees and have attalned the status of rules framed under ArticSe 309 of the COiistitutlon of india. Thus, FR cannot be syperceded by any executive instructions.

3. ! have heard iearned counsei appearing for the parties, perused pleadings and •documents appended thereto.

4. Fundamental Ruie.22-D reads as under: tempor.ary or ofjciating capacity, T.R. 22-D )1- No^lthstandlng anything coratained in these rules, where a Govemment sewant hoidlng a post In . a. sybs.tantive, promoted or appolnted In a substantive, temporary, or offjciating capacity to anoiher posi carrylng responsibilltles importance than those' of greater attaching to the post held by him, his injtiaj pay in the time-scaJe to ttie hlgher post, shall be fixed at the stage of next above the pay notlonaSly arrived at by Increaslng his pay In respect of the iower post by one increnient at the stage atwhich such pay has accrued: Provlded thatthe provlslons ofthls rule, shail not appiy where GGyernmentsen./ant holdlng a Class-1 post temporary or offidating capadty is in a substantive, promoted or appointsd In a substantive, temporary or officiatjng capacity to a. higher post which is a Ciassa>1 post. Provlded fyrther. that the provisions of syb-rule (2) of rui©31, shail'-nQt be appjicabie In any case where ; the Jnltial pay is ^xed ynder this rule: Provided also-that..wh@re a Government servarst js Immedjately befgre his: promotion or appointment to a hlgher post, drawing pay at the maxlmum of ths time scaies (one or rnore stages above the maxjmum ofthe tlnie scale In the .fornn of stagnatlon allowance) of the jower post, his inltia! pay in the time scale ofthe higher shall be flxed at the stage next above the pay notlonaiiy arrlved at by increasing his pay jn respect of the Jower post by an airsount eqtaai to the last increment In the.time scale oftne lower post. Provided further that the provislons of this ru!e shal! not appjy where.'a Government. ser^ant promoted or appointed to a hjgher .post in the pay which Is identical witn the scale of pay of the iower post bvt is djstjngujshed by an addluon of a specia! pay in such cases.the .incurnbents wlii get oniy the only. special pay in addition to their pay in the lower post. w 1 .^^ '%,,; ExplanatEon - Increment3 for the purposes of fixatlon of pay under this ruie, should be actuaJ increase in pay and not passage from one to anotner. The term 'stage ne)d above5 occurrJng in this ryle, means the in the tjme"-scaie which is next in amount above the pay notionaSSy arrived at Jn respect of the lower post by one jncrement at the stage at whlch sucn pay has accured. (2) If, however, the G-overnment servant has ajready offlclated inn thss higher post previously, his pay shaii e fixed under the provlsions of ruje 220A (b) if, it is more advantageous." Thus, non'abstante dause which begins with the word no'cwithstanding anything contained in these ruies wiil have precedence over other rules of FR. FR 22-D is of the same nature. Subsequent clrcuiars/executive instructions, Is weil' settled, cannot over-ride the rules. Bare perusal of the FR 22-D makes 11 ciear that a Government servant holdlng a post Jn a substantlve, tempos'ar^ or officiating capaclty, is promoted or appointed in a substantive, temporary, or officiating capacrfy to another post carr^ing duties and responslblljtles of greater importance than those atlacning to the post held by hlm, his Initial pay in the time" scale to the hlgher post, shall be fixed at the stage of next above the pay notionajly arrived at by increasing hls pay in respect of the iower post by one increment at that stage. The day an employee is promoted to the hlgher post can'ying higher responslbJiity, he becomes entltled to the benefits under FR 22-D from that dav.

6. Learned counsel for the State relled on Part V of Rute 66 of the Financial Cods which provides that ths day order is passed' It becomes effective wlth effect from the same date. Rule SS of the Financisi Code reads as under: TJ?W ?T^ f^t •3rT^rr "SS. 3?^7€7T ^Fn^f ^f "^r STT^T, T^, f^7RT ^ TffFI ^ y^!j^Pi<^ 5TFT 3?ST3T 7TN 1^RT7^ iT?T 44'i^k:l, l-7t 9^TT3^Tra' 'd'yJ^d ^ ^ t. ^F^- q^Tc 5Hxr ^S^{T ^^ ^ 7T y^i'<"i ^ T^TT9? Pi&TT ^ ^ 1?lR?T ^ift/-iHa f^3PJ i^ ^ f^^icn ^ micj^!d ^ti I^ft ^^N 3??fr^»T •3[tonNr IKT ^Tlf^T ^j^^i ^T SfT^ft ^ f^'TN? ^ f^FT STT^fr ^ ^RT ^-jc,^ IP-iicl^Tld ^Nt ^i^a terr Tiirr ti ?PTT

7. Thus, the order passed by the respondents-autnorities wlthdrawing the benefits of FR 22-D granted earlier is bad and consequently no recovery can be made.

8. Learned counsei appearing for the petitioner has cited decision of the M.P. Administrative Tribunal in OA.No. 224 of 92 (Smk Kuns Saxena Vs. State of MR and others) wherein the Tribunai observed as under: (We therefore, oommitting our decision oniy on the basls the piain language provided in proviso No.1 to the Fundamental Ruies 22-0 this proviso on!y reallze that the beneflts of this ryie shail not be given governrnent servant the scale identified where the higher post of which the scaie of pay of' the lower post but is pay onjy, the state has djstinguished by a post to brought to our notlce that any special pay 'We, therefore was attachea8 in the higher post. heid that this proviso which in rolied upon by the state does not FR 22 (D)(i). the pay fixed as per Accordingly, we direct Is sntitled to the benefits of FR 22-D and is entitied to get here pay fix in accordance with F.R.22-D (1) the appjicant wiiJ be entitied to a!l benefits of fixation of pay receiving the arrears and of getting pension gratuity and other beneflts flxed accordjngiy, benefit shouias be glven within a period of six months from today/5 the appllcant from the appljcant

9. The above stated order of the Tribunai in Smt Kunti Saxena (supra) vyas taken to the Supreme Court, whlch was dismissed by the Supreme Court in Aprii, 1.994. On the basis of decssion in Smt Kunfs Ssxena (supra), the M.P. Stats ;^'^^ •-•^?^ ^ i ^:^^. '^; Admlnlstrative Tribu-na! In Mansharam YadavVB. Goyt-of M.P. others1 passed the follQwlng order. -l^ "As duties. regards . and- analysls responsibiljties of the post of Head Master and there couid be no goiden scale to Lectyrer,. weigh the responsJbiElties assigned to an offlce. The post of promotion ordinariiy be taken to be a post of higher responslbiiities unless It Is covered ' The under any of the provislons of F.R» 22-D. respondents faiied to show that at the tims of .promotlon/the appllcants were gettlng maximum or they v^ere given additionai pay for the post of promotion promotiQns were made of any of the appllcants temporar/ or from Class-i post officiating capacity to a hlgher post whlch is aiso aClass-i could. show that in substantive, " 10 A dlvisjon bench of High Court of Vadhya Pradesh at'Jabalpur In Ramesh Kumar Ms&nra Vs. State QJ M.P. and ather^ obser/ed as under: "S Fundamental Rule 22 deals vvlth the Initlal pay on sppolntment to post on time scale pay. It indlcated as to 'how the injtla! substantave pay of a Government sen/ant who is appointed substantively to a post on a time scale of pay, is part of Fundamentai Rule 22(a)(j) reads as under19 be ..reguiated. relevant The 'T.R.

22. time-scaie pay.- Initial pay on appointment to post on The Injtiai substantive pay of a Govemment sen^ant who Is appointed substantlveiy to a post on a tlme-scaie of pay is reguiated as foiiows:- !f he hoids a lien on a permanent post, (a) other than a tenure post, or would hold a ilen on such a post had his lien not bean suspended.-' (b) When appojntment to the new post Involves the assumptjon of duties or responsjbjiltles of greater importance (as interpreted for purposes than those attaching to such permanent post, he wili draw as initial pay the -stage the tlme scaie next above- his substantive pay Jn respect ofthe old post.: rule 30) We have only to consider the case where. the JRvotves appointment new post ! 1999 (II) MPLSR 145 21979 (3) MPSLR 232 .M "'^ '% ^ •f ^^^^ ¥ /s-/ '•^•- '^. \^ ass.umption of the or responsibijjtJes of importance than those attaching to the According to this rule, post» Government servant had a jien- on a permanent post hls InitiaS pay was to be flxed in accordance This Rues to 'flx Inltlally'pay of a undoubtedly Government serv'ant.hQlding a Jien on one post and, who was appointed as another substantlve thls . ruSe« under the Governnient." 11, Slncs the recovery order was passed wlthout affording. proper opportunity of hearing to the petltloner, the-order of recavery Is bad In law in the of declsions of the Supreme Court in Shyam Verma 'vs. Unlon of India and others3, Sahsb Ram Vs. Sfa?e of Harysna and others , Syed Abdul Qadir and Clhers vs. State of Blhar and OfheiB^ and decisioo of this Gourt m Vidyadhar Th/van V^ Chhattisgarh &nd others'...

12. In view of frie foregolng, the petltlon is aliowed and the order 20-4-1998 dlrecting recovery of the excass payment Is quashed. In case the amount has- been recovered, the same shali be refunded "back to the petltloner sirnple lnterest» Accordingly, the petltloner Is benefits of FR 22-D. No order asto costs, iumane Sd/- SatishK.Agnihotri Judge -' (1994^ 2 SCC 521 d(1995)Supp(l)SCC18 5 (2009) 3 SCC 475 6 2006 (1) MPHT (CG) 105.