JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Raj Nath Ram, seeks the following reliefs:
1. a writ, order or direction in the nature of certiorari quashing the order dated 1.5.2002 passed by the Inspector General of Registration, U.P., Allahabad (Annexure No. 12 to this writ petition).
2. a writ, order or direction of suitable nature restraining the respondents from taking any action on the basis of the order impugned.
3. a writ, order or direction of suitable nature commanding the respondents to continue to pay the petitioner his regular monthly salary as Sub Registrar as has been paid till prior to passing of the order dated 1.5.2002 regularly every month.
4. A writ/writs, and/or to pass such other and further order as this Hon'ble Court may deem fit and proper.
5. Award costs of the petition to the petitioner.
2. Briefly stated, the facts giving rise to the present petition are as follows:
According to the petitioner, he was appointed on 21.11.1983 as Assistant Employment Officer. He had faced selection through the U.P. Public Service Commission, Allahabad (hereinafter referred to as "the Commission"). Vide order dated 26.11.1983 passed by the Director, Training and Employment, he was posted at Bahraich. However, vide order dated 28.11.1983, the Director, Training and Employment modified his earlier order dated 26.11.1983 and posted the petitioner at Varanasi where he joined on 5.1.1984, While working as Assistant Employment Officer, he applied before the Director, Training and Employment, U.P., Lucknow, for permission to appear in the Combined Upper Subordinate Services Examination, 1988, which permission was granted vide order dated 6.4.1989. The petitioner appeared in the Combined Upper Subordinate Services Examination, 1988 conducted by the Commission. He was selected by the Commission and on its recommendation he was granted appointment on the post of the Sub Registrar vide order dated 1.10.1993. The petitioner was relieved by the Director, Training and Employment, vide office order dated 27.10.1993 and the consequential relieving order dated 29.10.1993 issued by the Regional Employment Officer, Varanasi. Thereafter, the petitioner joined his duties in the office of the Inspector General of Registration, U.P., Allahabad and underwent the requisite training at the office of the Sub Registrar, Etah Sadar. After completion of successful training, the petitioner got regular posting as Sub Registrar. The Finance and Accounts Officer in the office of the Inspector General of Registration, U.P., Allahabad, vide order dated 15/17.2.1997 fixed the basic pay at Rs. 2,420/- as on 30.10.1993 with a personal pay of Rs. 30/- on the ground that the petitioner prior to his joining on the post of the Sub Registrar was working as Assistant Employment Officer in the pay scale of Rs. 2000-3200 whereas the pay scale of the Sub Registrar was Rs. 1600-2660. While doing so he has taken recourse to Rule 22-A of the Fundamental Rules, F.H.B., Vol. II, Part II-IV (hereinafter referred to as "the Fundamental Rules"). The basic pay beginning 1.1.1994 was fixed at Rs. 2,480/-; Rs. ,2540/- from 1.1.1995 and Rs. 2,660/- from 1.1.1996. It was fixed in the revised pay scale at Rs. 2,675/- with effect from 1.1.1997. The petitioner was paid regular salary on the basis of the pay fixed by the Finance and Accounts Officers on 15/17.2.1997 till the month of April 2002. However, the Inspector General of Registration, U.P., Allahabad, vide order dated 1.5.2002, upon review of the earlier fixation of the basic pay of the petitioner, had refixed at a lower level with a further stipulation of payment made in excess be recovered from the petitioner. The order dated 1.5.2002 is under challenge in the present petition on the ground that the said order has been passed in a wholly arbitrary and discriminatory exercise of power which is violative of Article 14 of the Constitution of India and there does not exist any power of reviewing the fixation of salary which has been made several years back. It entails civil consequences and, therefore, it should have been passed in conformity with the principle of natural justice after giving a notice to show cause and opportunity of hearing. Further, the said order is based upon an erroneous interpretation of Rules 22 and 22-C of the Fundamental Rules. In any event, recovery of payment already made to the petitioner, which payment have been made voluntarily without there being any misrepresentation or fraud at the level of the petitioner, cannot be made.
3. In the counter affidavit filed by Faujdar Singh, Deputy Inspector General of Registration, on behalf of the respondents, it has been stated that as the petitioner was not permanent in his earlier post, the pay fixation has to be made under Rule 22-C of the Fundamental Rules and, therefore, the basic pay has been refixed vide order dated 1.5.2002, which is in accordance with law. It has further been stated that the Head of Department had full power and authority to pass amended and rectified order in order to check financial irregularity due to wrong and incorrect fixation of pay in the petitioner's matter and there was no necessity of giving any opportunity of hearing to the petitioner as the amended order has been passed strictly in accordance with the provisions contained in the Fundamental Rules. The petitioner who has drawn excess salary than what he was entitled, is bound to return the same to the Government,
4. In the rejoinder affidavit filed by the petitioner the averments made in the counter affidavit have been denied and the plea taken in the writ petition have been reiterated. It has been stated that the appointment of the petitioner as Assistant Employment Officer was a regular and substantive appointment made upon the recommendations of the Commission and pursuant thereto he had continuously functioned from 5.1.1984 to 29.10.1993 and even though no specific order of confirmation exists but such length of service cannot be treated to be temporary in nature and the petitioner would be deemed to have been confirmed on the said post.
5. We have heard Sri Ashok Khare, learned senior counsel, assisted by Sri A.K.Singh, on behalf of the petitioner, and the learned Standing Counsel appearing for the respondents.
6. As the counter affidavit and rejoinder affidavit have been exchanged between the parties, with the consent of the learned Counsel for the parties, the writ petition is being disposed of finally at the admission stage itself in accordance with the Rules of Court.
7. Sri Khare, learned senior counsel, has submitted that the petitioner was appointed on the post of the Assistant Employment Officer after he faced the selection held by the Commission. He joined on 5.1.1984 and continued on the said post till 29.10.1993, i.e., for a period of almost 10 years. According to him, even though the appointment order dated 21.11.1983 mentions the appointment as temporary, yet as the petitioner had worked for almost 10 years, he would be deemed to have been confirmed having been appointed on a substantive post. Thus, the fixation of his basic pay vide order dated 15/17/2/1997 by applying the provisions of Rule 22-A of the Fundamental Rules was wholly justified. He further submitted that the order dated 1.5.2002 passed by the Inspector General of Registration, U.P., Allahabad refixing the pay at a lower stage and directing for recovery of excess amount, entails civil consequences which-could have been done only after issuing a show cause notice and giving an opportunity of hearing to the petitioner which, in the present case, having not been done, the said order is otherwise also liable to be set aside on this ground alone. Without prejudice to the above, he submitted that the Finance and Accounts Officer in the office of the Inspector General of Registration, U.P., Allahabad had fixed the basic pay of the petitioner on his own without there being any misrepresentation or fraud having been practiced by the petitioner which, therefore, does not warrant recovery of the excess payment, if any, made in the past. In support of his aforesaid submissions, he has relied upon the following decisions:
(i) Baleshwar Dass and Ors. v. State of U.P. and Ors. ;
(ii) G.C. Gupta and Ors. v. N.K. Pandey and Ors. ;
(iii) Sahib Ram v. State of Haryana and Ors. 1995 Supp (1) SCC 18;
(iv) Harish Chandra Srivastava v. State of U.P. and Ors. 1996 (2) LBESR 248 (Allahabad); and
(v) Ramesh K. Sharma and Anr. v. Rajasthan Civil Services and Ors. (2001) 1 SCC 637.
8. The learned Standing Counsel, on the other hand, has submitted that as the petitioner was appointed on temporary basis on the post of the Assistant Employment Officer and he had not been confirmed. In other words, as he was not a permanent employee, the provisions of Rule 22-A of the Fundamental Rules was not at all applicable and the basic pay of the petitioner fixed by the Finance and Accounts Officer, vide order dated 15/17.2.1997, was contrary to law which resulted in excess payment necessitating it to be reviewed/revised. The Inspector General of Registration, U.P., Allahabad, vide order dated 1.5.2002, had rightly refixed the basic pay in accordance with the provisions of Rule 22-C of the Fundamental Rules, which does not call for any interference. According to him, the recovery has rightly been ordered. He further submitted that as the error had only been rectified, there was no necessity of giving any show cause notice or any opportunity of hearing to the petitioner and the order dated 1.5.2002 does not call for any interference.
9. Having given our anxious consideration to the various plea raised by the learned Counsel for the parties, we find that it is not in dispute that the petitioner was appointed on the post of the Assistant Employment Officer vide order dated 21.11.1983 on temporary basis. Before joining on the post of the Sub Registrar on 30.10.1993, the petitioner had not been confirmed on the said post. The pay scale of the Assistant Employment Officer was Rs. 625-1240 at the time of his appointment, subsequently revised to Rs. 2000-3200. The pay scale of the Sub Registrar at the time of his appointment was Rs. 1600-2660.
10. The question is which of the two provisions of the Fundamental Rules, whether Rule 22-A or Rule 22-C, would be applicable in the present case. For ready reference, Rules 22, 22-A, 22-B, 22-C and 26(c) of the Fundamental Rules are reproduced hereunder:
22. The initial substantive pay of a Government servant who is appointed substantively to a post on a time scale of pay is regulated as follows:
(a) If he holds on a lien a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended--
(i) When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 30) than those attaching to such permanent post, he will draw as initial pay the stage of the time-scale next above his substantive pay in respect of the hold post;
(ii) (a) when the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance he shall draw as initial pay, the stage of the time scale which is equal to his pay in respect of the old post held by him on regular basis or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis:
Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly he shall draw that minimum as the initial pay:
Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time-scale of the new post.
(b) On appointment on regular basis to such a new post, other than to an ex cadre post on deputation, the Government Servant shall have the option to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.
(iii) when appointment to the new post is made on his own request under Rule 15(a) and the maximum pay in the time-scale of that post is less than his substantive pay in respect of the old post he will draw that maximum as initial pay.
(b) If the conditions prescribed in Clause (a) are not fulfilled, he will draw as initial pay the minimum of the time scale:
Provided that where a Government servant holding a post in a temporary or officiating capacity and drawing pay in a pay-scale, the maximum of which exceeds Rs. 1,200 or Rs. 1,720 in the scales of pay introduced with effect from August 1,1972 or July 1,1979 respectively, or Rs. 2,050 with effect from January 1, 1984 (in respect of scales of pay introduced with effect from July 1,1979) is appointed or promoted to another post carrying duties or responsibilities of greater importance, his initial pay in the time-scale of the higher post will be fixed at the stage next above the pay drawn in the pay scale of the lower post. The benefit of pay so fixed is, however, restricted to the period during which the Government servant would have continued to work on the lower post but for his appointment/promotion to the higher post.
Provided further that, both in cases covered by Clause (a) and in cases, other than cases of re-employment after resignation or removal or dismissal from the public service, covered by Clause (b), if he either-
(1) has previously held substantively or officiated in-
(i) has same post; or
(ii) a permanent post or temporary post on the same time scale; or
(iii) a permanent post, other than a tenure post, on an identical time-scale, or a temporary post on an identical time-scale, such post being on the same time-scale as a permanent post; or (2) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated, then the initial pay shall not be less than the pay, other than special pay personal pay or emoluments classed as pay by the Governor under Rule 9(21)(iii), which he draw on the last such occasion, and he shall count the period during which he drew that pay on such last and any previous occasions for increments in the stage of the time-scale equivalent to that pay. If, however, the pay last drawn by the Government in a temporary post has been inflated by the grant of premature increments, the pay which he would have drawn but for the grant of those increments shall be taken for the purposes of this proviso to be the pay which he last drew in the temporary post.
Exception.- The condition in paragraph (iii) of the first proviso that the temporary post should be on the same time-scale as a permanent post shall not be enforced when a temporary post is (i) created by one Government or Department for the purpose of work of the same nature as the ordinary work for which permanent posts exist in the cadre under a different Government or Department and (ii) sanctioned on a time-scale identical with the time-scale applicable to the permanent posts in the cadre under the different Government or Department.
(c) When, after initial fixation of pay in the pay scale introduced with effect from July 1,1979, appointment is made to a selection grade post in a substantive or officiating capacity, the pay will be fixed at the stage next above the pay in respect of the ordinary grade and the benefit of the second proviso of F.R. 30 may be extended in such cases subject to all the conditions of that rule being satisfied.
Note.--(1) If the Government servant is entitled to overseas pay in the new post but was not drawing overseas pay in the old post, the overseas pay in the new post shall not be taken into account in determining the stage in the time scale of the new post to which he is entitled under Clause (a). (2) For the purposes of this rule sterling overseas pay shall be converted into rupees at such rate of exchange as the Government may by order prescribe.
22.-A. The initial substantive pay a Government servant who is appointed substantively to a post on a time-scale of pay which has been reduced for reasons other than a diminution in the duties or responsibilities attached to posts thereon and who is not entitled to draw pay on the time-scale as it stood prior to reduction, is regulated by Rule 22:
Provided that-
(b) if he is appointed to a post in another service which is reserved for the service to which he belongs, his initial pay shall be fixed at a stage which approximates as closely as possible to the initial pay which he would have drawn in the unreduced scale, and (b) both in cases covered by Clause (a) of the rule and in cases, other than those of the respondent assessee-employment after resignation or removal or dismissal from the public service, covered by Clause (b), if he either-
(1) has previously held substantively or officiated in,--
(i) the same post prior to reduction of its time-scale; or
(ii) A permanent post or temporary post on the same time-scale as the unreduced time-scale of the post; or
(iii) a permanent post other than a tenure post, or a temporary post, on a time-scale of pay identical with the unreduced time-scale of the post, such temporary post being on the same time-scale as a permanent post; or (2) is appointed substantively to a tenure post the time-scale of which has been reduced without a diminution in the duties or responsibilities attached to it, and has previously held substantively or officiated in another tenure post on a time-scale identical with the unreduced time-scale of the tenure post, then the initial pay shall not be less than the pay, other than special pay personal pay or emoluments classed as pay by the Governor under Rule 9(21)(iii) which he would have drawn under Rule 22 on the last such occasion if the reduced time-scale of pay had been in force from the beginning and he shall count for increments the period during which he would have drawn that pay on such last and pay previous occasions:
Provided further that the initial pay of a Government servant who was in service on January 1,1922 shall not be less than the initial pay admissible to him under Rule 22.
22-B. (1) Notwithstanding anything contained in these rules, where a Government servant holding a post in substantive, temporary or officiating capacity is promoted or appointed either in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached 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 arrived by the notionally increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued:
Provided that-
(i) the provisions of this rule shall not apply where a Government servant holding a post in a substantive, temporary or officiating capacity and drawing pay in the pay scale the maximum of which exceed Rs. 900 p.m. Rs. 1200 p.m. Rs. 1720 p.m. (2050 p.m. with effect from January 1, 1984) or Rs. 4500 p.m. Respectively in the scales introduced with effect from April 1, 1965, August 1, 1972, July 1, 1979 or January 1, 1986, is appointed in a substantive, temporary or officiating capacity to a post carrying higher duties or responsibilities; and (ii) the provisions of Fundamental Rule 22-B (1) shall be deemed to have been made applicable without any pay limit with effect from January 1, 1988.
Provided further that the provisions of Sub-rule (2) of Fundamental Rule 31 shall not be applicable in any case where the initial pay is fixed under this rule;
Provided also that where a Government servant is immediately before his promotion or appointment to higher post, drawing pay, at the maximum of the time-scale of the lower post, his initial pay in the time- scale of the higher post shall be fixed at the stage nest above the pay notionally arrived at by increasing his pay in respect of the lower post by an amount equal to the last increment in the time-scale of the lower post;
Provided that if a Government servant either:
(1) has previously held substantive or officiated in-
(i) the same post; or
(ii) a permanent or temporary post on the same time-scale; or
(iii) a permanent post other than a tenure post or a temporary post on an identical time-scale; or (2) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously held substantively, or in which he has previously officiated;
The proviso to Fundamental Rule 22 shall apply in the matter of the initial fixation of pay and counting of previous service for increment.
(3) (i) If as a result of fixation of initial pay under Sub-rule (1) there arises an anomaly, namely, that the rate of pay admissible to a Government servant on the higher post would exceed that of another Government servant senior to him in the lower grade or scale and promoted earlier to another identical post the pay of the latter shall with effect from the date of promotion or appointment of the former be stepped up by the government to an amount admissible to the former as pay fixed under Sub-rule (1) subject, however, to the following conditions:
(a) the junior and the senior Government servants belong to the same cadre and the posts to which they have been promoted or appointed are identical and in the same cadre;
(b) the time-scale of pay for the lower and higher posts in which the junior and the senior Government servants are entitled to draw their pay is identical;
(c) the anomaly referred to above must have arisen as a direct result of the application of Sub-rule (1) and not for any other reason;
Explanation 1.-- If the Government servant is allowed a higher pay to start within a time-scale regard being had to his having been previously in any other employment under Government and subsequently upon his promotion or appointment to the higher post, there is fixation made of initial pay under Sub-rule (1), the anomaly resulting vis-a-vis the rate of pay admissible to the senior Government servant on the higher post shall not be deemed for purposes of this sub-rule to arise as a direct result of the application of this rule.
Explanation 2.-- If a Government servant has, on account of getting advance increment in his lower post, received more pay from time to time, than the senior Government servant appointed or promoted earlier to the higher post and subsequently there is fixation of pay under Sub-rule (1) in the case of the former, then also the initial fixation of pay under Sub-rule (1) shall not be deemed, for purposes of this sub-rule to arise as a direct result of the application of Sub-rule (1).
(d) the senior Government servant shall draw his next increment on completion of the requisite qualifying service with effect from the date of such stepping up of his pay.
(ii) The provision of this rule shall apply also in case of promotion to an ex cadre post if the Government servant has been appointed in the time-scale of pay pertaining to the higher ex cadre post without any condition being attached to the effect that while working on the higher ex cadre post he shall draw any deputation allowance or special pay in addition to the pay in the time-scale for the lower post.
Note 1. -The provisions of this rule shall not apply to cases of appointment from an ex cadre post to a cadre post.
Note 2. -In cases of appointment/promotion from one ex cadre post to another ex cadre post where the official opts to draw pay in the scale of the ex cadre post, the pay in the second or subsequent ex cadre post should be fixed under F.R.22-B(1) with reference to pay in the cadre post only, (iii) The pay of a Government servant on reversion to his old lower post or to some other post in the same time-scale of pay shall be such as he will have actually drawn if he had not been promoted to the higher post. If the pay of a Government servant has already been fixed under Fundamental Rule 27, then, on reversion, his pay will be re-fixed under Fundamental Rule 27 giving to him also the benefit of this service rendered in the higher post according to Fundamental Rule 26(g); (iv) If a Government servant is reverted from a higher post to such lower post, the time-scale of pay of which is higher than that of the post in which he drew his pay before being appointed to the higher post, then, in that case, the pay admissible to him on such intermediary post shall be fixed according to this rule.
22-C. Notwithstanding anything contained in these rules, where a Government servant who does not hold a lien on any permanent post appointed either in substantive, temporary or officiating capacity to another post carrying duties and responsibilities of lesser or same importance than those attached to the post held by him, and, in cases not covered by Fundamental Rules 22, 22-B or 26(c) his initial pay in the time-scale of the lower or the equivalent post shall be fixed at the stage arrived at by allowing over the minimum of the time-scale of such post one increment for each completed year of service rendered in the previous post provided that the pay so fixed shall not exceed--
(a) the pay last drawn in the previous post; and
(b) the maximum of the scale of the new post;
Provided further that where the new post is in an identical time-scale of pay, the pay of such Government servant shall be fixed at the stage last drawn in the previous post and service rendered in it at that stage shall count for increments in the scale of pay of the new post;
Provided further that where the new post is in an equivalent scale of pay, pay of such Government servant shall be fixed at the stage next below the pay last drawn and the difference will be made good by the grant of personal pay under Fundamental Rule 9(23)(b) which will be absorbed in future increments.
Note. - The provisions of this rule shall not apply to cases of appointment from ex cadre post to a cadre post.
26. The following provisions prescribe the conditions on which service counts for increments in a time-scale:
(c) If a Government servant, while officiate in a post or holding a temporary post in a time-scale of pay is appointed to officiate in or temporary post in a time-scale of pay is appointed to officiate in a higher post or to hold a higher temporary post, his officiating or temporary service in the higher post shall, if he is re-appointed to the lower post or is appointed or re-appointed to a post on the same time scale of pay, count for increments in the time-scale applicable to such lower post. The period of officiating service in the higher post which counts for increment in the lower is, however, restricted to the period during which the Government servant would have officiated in the lower post but for his appointment to the higher. This clause applies also to a Government servant who is not actually officiating in the lower post at the time of his appointment to the higher post, but who would have so officiated in such lower post or in a post on the same time-scale of pay had he not been appointed to the higher post.
11. From a reading of Rule 22 of the Fundamental Rules, we find that the initial substantive pay of a Government servant is regulated by this Rule where the Government servant is appointed substantively to a post on a time scale of pay and holds on a lien a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended upon fulfillment of certain conditions. If he holds a lien, he will draw initial pay at the stage of the time scale next above his substantive pay. However, Rule 22-A is applicable in a case where the initial substantive pay a Government servant who is appointed substantively to a post on a time-scale of pay which has been reduced for reasons other than a diminution in the duties or responsibilities attached to post, upon certain specified conditions being fulfilled. Rule 22-B is applicable to a case where a Government servant holding a post in substantive, temporary or officiating capacity is promoted or appointed either in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him upon fulfillment of certain conditions. However, Rule 22-C is applicable in a case where a Government servant who does not hold a lien on any permanent post appointed either in substantive, temporary or officiating capacity to another post carrying duties and responsibilities of lesser or same importance than those attached to the post held by him. It will not apply to a case covered by Rules 22, 22-B or 26(c) of the Fundamental Rules. Under this Rule, the initial pay in the time scale of the lower or the equivalent post shall be fixed at the stage arrived at by allowing over the minimum of the time scale of such post one increment for each completed year of service rendered in the previous post subject to the conditions that it shall not exceed the pay last drawn in the previous post or the maximum of the scale of the new post.
12. Rule 26(c) applies where a Government servant, while officiating in a post or holding a temporary post in a time-scale of pay is appointed to officiate in or temporary post in a time-scale of pay, in a higher post or to hold a higher temporary post, his officiating or temporary service in the higher post shall, if he is re-appointed to the lower post or is appointed or re-appointed to a post on the same time scale of pay, count for increments in the time-scale applicable to such lower post.
13. We find that the provisions of Rule 22 would not be attracted as the petitioner did not. hold a lien on a permanent post while working as the Assistant Employment Officer during the period 5.1.1984 to 29.10.1993.
14. It may be mentioned here that under Rule 7 of the U.P. Government Servants (Confirmation) Rules, 1991 (hereinafter referred to as "the Confirmation Rules") framed under Article 309 of the Constitution of India, right to hold lien has been provided under which a Government servant who is confirmed on a post under Sub-rule (1) of Rule 4 or who has been promoted to a higher post and declared under Sub-rule (3) of Rule 5 of the Confirmation Rules, as having completed the probation prescribed shall be deemed to hold a lien on that post.
15. Admittedly, in the present case, confirmation of the petitioner on the post of the Assistant Employment Officer has not been made till the time he joined the post of the Sub Registrar. Thus, he cannot be said to be holding the lien on the post of the Assistant Employment Officer.
16. Rule 22-A is also not attracted in the present case as the time scale of pay of the Sub Registrar which the petitioner joined on 30.10.1993, has not been reduced for the reason of diminution in the duties or responsibilities attached to post.
17. Rule 22-B would also not be applicable as it applies to appointment/promotion made on the post carrying duties and responsibilities of greater importance than those attached to the post held by him. In the present case, there is no material to show that the post of the Sub Registrar carries duties and responsibilities of greater importance than those attached to the post of the Assistant Employment Officer.
18. Rule 26(c) would also not be applicable as it applies only in a case of an officiating appointment in a higher post.
19. Thus, the only Rule which is left is Rule 22-C which is applicable in the present case. We find that the Inspector General of Registration, U.P., Allahabad, vide order dated 1.5.2002 had taken the minimum of the time scale in which the petitioner was appointed as the Sub Registrar, i.e., Rs. 1600/- and had added the increment of Rs. 50/- per year for nine completed years of service on the post of the Assistant Employment Officer and had fixed the pay at Rs. 2050/- and accordingly granted further increments. The order dated 1.5.2002 is, therefore, in conformity with Rule 22-C of the Fundamental Rules and the fixation of pay of the petitioner is strictly in accordance with law.
20. Now coming to the cases relied upon by the learned Counsel for the petitioner, we find that in the case of Baleshwar Dass (supra) which related to determination of seniority and promotion of Assistant Engineers belonging to the U.P. Service of Engineers Class II Irrigation Branch, the Apex Court has considered the question of appointment in substantive capacity. In paragraphs 29, 31 and 32 of the reports, the Apex Court has held as follows:
29. Substantive capacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed. On the contrary, its meaning must be consistent with Article 16 and must avoid the pitfalls of arbitrariness and irrational injustice. So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of a quasi-permanent nature, there is not much to distinguish the quality of service as between the two. Patwardhan's case (1977) 3 SCR 775 at pp. 793, 794, 795, 796: (AIR 1977 SC 2051) and Chauhan's case (1977) 1 SCR 1037 at p. 1057: (AIR 1977 SC 251) have primarily or in passing clarified the equal value of officiating service.
... ...
31. What, in the context, is a substantive capacity vis-a-vis an appointment to a post? In our view, the emphasis imported by the adjective "substantive" is that a thing is substantive if it is "an essential part or constituent or relating to what is essential". (Black's Legal Dictionary, 4th Edn. p. 1597.) We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period holds it on probation subject to confirmation.
32. Once we understand 'substantive capacity' in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantial capacity.
21. In the case of G.C. Gupta (supra), the Apex Court has followed its earlier decision in the case of Baleshwar Dass (supra).
22. In the case of Ramesh K. Sharma (supra), the Apex Court has held as follows:
In the Service Jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop-gap basis then such an appointment cannot be held to be on substantive basis. The expression "substantive basis" is used in the Service Jurisprudence in contradistinction with ad hoc or purely stop-gap or fortuitous. In Baleshwar Dass etc. v. State of U.P. this Court held that when a person holds a post for an indefinite period especially for long duration in contradistinction to a person who holds it for a definite or temporary period or holds that on probation then it must be held that he held a post in a substantive capacity. Further if an appointment to the post is made by the proper authority after the person concerned passes the prescribed test and if a probation period has been prescribed therein, on completion of the probation period his appointment is further approved then also it can be said that he held a post in substantive capacity. This decision in Baleshwar Dass case (supra) was followed by this Court in O.P. Singhla's case . It is also quite apparent in Service Jurisprudence that there exists difference between a substantive post as contra-distinguished from temporary post and appointment of an incumbent to these posts could be made either on substantive basis or on ad hoc or stop-gap basis.
23. The principle laid down in the aforesaid decisions relied upon by Sri Khare would not be applicable in the present case inasmuch as we are not determining the seniority of the petitioner where the question of substantive appointment may arise. In the present case, the crucial question is as to whether the petitioner can be said to be holding a lien on the post of the Assistant Employment Officer or not. When a person is to hold a lien on a post, is governed by the provisions of the Confirmation Rules and, in the absence of any confirmation on the post of the Assistant Employment Officer, the petitioner did not hold any lien on that post.
24. We find that in the order dated 6.4.1989 by which the Additional Director (Administration) on behalf of the Director, Training and Employment, U.P., Lucknow, had granted no objection to the petitioner for appearing in the Combined Upper Subordinate Services Examinations, 1988 to be conducted by the Commission, copy of which has been filed as Annexure 5 to the writ petition, it has been specifically mentioned that the petitioner is working as temporary on the post of the Assistant Employment Officer. However, in the order dated 27.10.1993 passed by the Director, Training and Employment, U.P., Lucknow, which is an order of relieving the petitioner, a mention has been made that the petitioner would not have any lien in the Department hereafter. As it is the case of the petitioner that even though he had been appointed on temporary basis on the post of the Assistant Employment Officer but on account of continuous working on the said post for almost 10 years, he would be deemed to have been confirmed on the said post whereas the respondents' case is that there is no order of confirmation in favour of the petitioner on the said post, we are of the considered opinion that there should be a specific order of confirmation in view of the provisions of the Confirmation Rules, which has the statutory force and overriding effect on other Rules framed under Article 309 insofar as it deals with confirmation and providing of lien.
25. The Apex Court in State of Punjab v. Baldev Singh Khosla , has held that so long as the order of confirmation is not made, even after expiry of probation, the probationer may continue and remain in service but by allowing him to remain in service, it cannot be concluded that he must be deemed to have been confirmed.
26. The Apex Court in the case of Triveni Shanker Saxena v. State of U.P. and Ors. 1992 Supp (1) SCC 524, has considered the provisions of the Fundamental Rules 9(13), 14A and 14B of the U.P. Fundamental Rules, contained in Part II of the F.H.B. Vol. II, which dealt with the lien and has held as follows:
24. A learned Single Judge of the Allahabad High Court in M.P. Tewari v. Union of India 1974 ALJ 427 following the dictum laid down in the above Paresh Chandra case distinguishing the decision of this Court in P.L. Dhingra v. Union of India has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement.
27. In the case of Ali M.K. and Ors. v. State of Kerala and Ors. , the Apex Court has held that it is a settled position in law that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier.
28. Thus, till such time the petitioner has not been specifically confirmed on the post of the Assistant Employment Officer, he did not held any lien on that post. There is no question of any automatic confirmation or deemed confirmation in view of the specific provisions of the Confirmation Rules.
29. Now coming to the question as to whether the respondents can recover the excess amount of salary paid to the petitioner by virtue of the order dated 1.5.2002, which had been paid as a result of the order dated 15/17.2.1997, we find that the petitioner had not made any misrepresentation or played any fraud at the time when the pay was fixed by the Finance and Accounts Officer in the office of the Inspector General of Registration, U.P., Allahabad by invoking the provisions of Rule 22-A of the Fundamental Rules.
30. In the case of Shyam Babu Verma and Ors. v. Union of India and Ors. , dealing with a situation where the petitioner received higher pay scale due to no fault of theirs, the Apex Court had held that it would not be just and proper to recover the salary already paid to them. In paragraph 11 of the report, the Apex Court has held as follows;-
11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same
31. In the case of Sahib Ram (supra), the Apex Court has held that if excess salary has not been paid on account of any misrepresentation but by wrong construction made by the authorities for which the payee cannot be held to be at fault, the amount already paid cannot be recovered.
32. In the case of Harish Chandra Srivastava (supra) a Division Bench of this Court has held as follows:
18. No doubt where any order is passed without affording reasonable opportunity of being heard which entails severe consequences including financial one, the said order suffers from the principle of natural justice rendering the same a nullity. The rule of audi alteram partem mandates that the decision makers should afford to the person concerned a reasonable opportunity of being heard (See Km. Neelima Misra v. Dr. Harinder Kaur Besides this, in the decision rendered in Shyam Babu v. Union of India , the Apex Court dealing with similar situation ruled that since the petitioner received the higher pay scale due to no fault of his own, it shall not be just and proper to recover the salary already paid to him.
33. In the case of Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. , the Apex Court has concurred with the observations made in Sahib Ram' case (supra) regarding payment which had been made without any misrepresentation, the excess amount cannot be deducted or recovered.
34. In the case of Seetaram Singh v. The State of Bihar and Ors. 2002 (3) ESC 102 (Patna), the Patna High Court has held that if the petitioner was allowed the pay scale not on his misrepresentation, the same cannot be recovered.
35. In the case of State of Karnataka and Anr. v. Mangalore University Non-Teaching Employees' Association and Ors. , the Apex Court has held that the employees concerned drew the allowance on the basis of a financial sanction accorded by the competent authority, i.e., the Government, the employees should not be penalised for no fault of theirs and it would be totally unjust to recover the amount of house rent allowance for the period 1.4.1994 when the order was passed for payment, till the payment were continued to be made.
36. In the case of Kerala State Road Transport Corporation v. K.O. Varghese and Ors. Apex Court has held that where the respondents were not responsible for the wrong fixation of the pay, the recovery of the amount is inequitable.
37. This Court in the case of Duryodhan Lal Jatav v. State of U.P. and Ors. (2005) 2 UPLBEC 1821, while following the decisions of the Apex Court, in paragraphs 4 and 5 of the report, held as follows:
4. It has been held by the Supreme Court of Orissa v. Adwait Charan Mohanty 1995 Supp (1) SCC 470 : 1995 SCC (L&S) 522; Union of India v. Sita Ram Dheer 1994 SCC (L&S) 1445; Nand Kishore Sharma v. State of Bihar 1995 Supp (3) SCC 722 : 1996 SCC (L&S) 124; State of Karnataka v. Mangalore University Non-Teaching Employees' Association , that if additional payment has been made to the employees for no fault of their, they should not be penalized for this.
5. In view of the settled legal position, as detailed above, the respondent are not entitled to recover the excess pay, which were paid to him on account of promotion from June, 1996 of June, 2002.
38. We are in respectful agreement with the view taken by this Court in the aforementioned case.
39. It is no doubt true that the order dated 1.5.2002 by which recovery of excess payment of salary made to the petitioner has been ordered, entails adverse monetary consequences and the principle of natural justice ought to have been followed but as, in the present case, we find that the said order has been passed in accordance with Rule 22-C of the Fundamental Rules, the matter need not be remanded to the authorities for providing an opportunity to the petitioner.
40. In the case of Mangalore University Non-Teaching Employees' Association (supra), the Apex Court has held that where the payment already made is sought to be recovered, thereby visiting the employees with adverse monetary consequences, the affected employees should have been put on notice and their objections called for. The Apex Court has held as follows:
11. The only other question to be considered is whether the Government Orders impugned in the Writ Petitions are liable to be quashed on account of infraction of principles of natural justice. It is true, in a case of this nature where the payment already made is sought to be recovered, thereby visiting the employees with adverse monetary consequences, the affected employees should have been put on notice and their objections called for. But, it is by now well settled that in all cases of violation of principles of natural justice, the Court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken. The genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the factors which weigh with the Court in considering the effect of violation of principles of natural justice. When undisputably the action taken is within the parameters of the Rules governing the payment of HRA and CCA and moreover the University authorities themselves espoused the cause of employees while corresponding with the Government, it is difficult to visualize any real prejudice to the respondents on account of not affording the opportunity to make representation. We cannot, therefore, uphold the view of the Appellate Bench of the High Court on this aspect of this case.
41. Thus, it is now well settled that if the recipient of a higher pay scale or other emoluments is not at fault and there is no allegation of misrepresentation or fraud having been practiced by the recipient in getting the higher pay, then, if the pay is refixed at a lower stage, then the excess amount which had already been paid, cannot be recovered.
42. In view of the foregoing discussions, we are of the considered opinion that the order dated 1.5.2002 passed by the Inspector General of Registration, U.P., Allahabad, filed as Annexure 12 to the writ petition, insofar as it directs recovery of the excess amount paid to the petitioner, cannot be sustained and is liable to be set aside. However, the order fixing the basic pay of the petitioner needs no interference and is hereby maintained.
43. In the result, the writ petition succeeds and is allowed in part. However, the parties shall bear their own costs.