1. Heard Sri B.K.Yadav, learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.
2. Petitioner has sought a direction to opposite parties to release all post-retiral benefits on the basic pay of Rs.8700 in place of Rs.8500. Learned counsel for petitioner submits that owing to petitioner's promotion in the year 1997, pay-scale with pay of Rs.6500/- with effect from 01.02.1997 was fixed. Subsequently, petitioner superannuated from service on 31.12.2004 whereafter his basic pay was reduced to Rs.6650/- with effect from 01.02.1997 ostensibly on the ground that earlier wrong pay-scale had been fixed.
3. Learned counsel for petitioner has relied upon judgment rendered by Hon'ble the Supreme Court in Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others reported in 2014(2) ESC 271 (SC) in which Hon'ble the Supreme Court was seized of a similar dispute and placing reliance on Government Order dated 16.01.2007 has held that if any mistake had been committed in pay fixation prior to retirement then by virtue of Government Order dated 16.01.2007 neither any salary paid by mistake could have been recovered nor pension could have been reduced since records of 34 months prior to superannuation only could be examined for the purpose of grant of pension.
4. Learned counsel for petitioner has also relied upon judgment rendered by Hon'ble the Supreme Court in Ajaya Kumar Das v. State of Orissa and others reported in (2011) 11 Supreme Court Cases 136 in which Rule 74(b) of Orissa Service Code was in issue. Hon'ble the Supreme Court on the basis of aforesaid Rule 74(b) held that the said provision is aimed at protecting the scale of pay of a government employee in his promotional cadre and seeks to ensure that in no case an incumbent is directed to receive less emoluments, less pay than what he was drawing prior to his promotion.
5. Provisions of Rule 74(b) of Orissa Service Code are pari materia with Rule 22-B of U.P. Fundamental Rules which are as follows :
"22-B(1) Notwithstanding anything contained in these rules, where a Government servant holding a post in a 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 at by 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 a pay scale the maximum of which exceeds Rs. 900 p.m., Rs. 1200 p.m., Rs. 1720 p.m., Rs. 2050 p.m.or Rs.4500 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, 1998.
Provided further that the provision 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 a 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 next 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 substantively 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 seniorGovernment 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 provisions 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 posts 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 his service rendered in the higher post according to Fundamental Rule 26 (c);
(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."
6. Learned counsel for petitioner has also placed reliance on letter dated 05.10.2005 written by Joint Director indicating the anomaly that petitioner would be receiving lesser pay upon his promotion in case the pay-scale already provided to him is revised.
7. In view of aforesaid, learned counsel for petitioner has submitted that petitioner would be entitled to higher pay-scale.
8. Learned State Counsel on the other hand placing reliance on counter affidavit has submitted that matter pertaining to petitioner was placed before a Committee which as per its report dated 07.01.2009 has clearly found that the higher pay-scale was incorrectly accorded to petitioner and, therefore, has recommended for recovery of the same. It has been submitted that in pursuance thereof, order dated 07.07.2010 has been passed amending the earlier fixation of pay-scale of petitioner. It has been submitted that neither recommendations dated 07.01.2009 nor order dated 07.07.2010 have been challenged in the present petition.
9. Upon consideration of submissions advanced by learned counsel for parties and perusal of record, it is quite apparent that the entire dispute revolves around fixation of pay-scale to petitioner of Rs.6800/- with effect from 01.02.1997 upon promotion on the post of Administrative Officer. It is undisputed that petitioner subsequently superannuated from service on 31.12.2004 and matter pertaining to correction of pay scale has taken place thereafter.
10. A perusal of judgment rendered by Hon'ble the Supreme Court in Sushil Kumar Singhal(supra) clearly establishes the fact that Government Order dated 16.01.2007 is required to be followed in such cases of dispute. The relevant portion of Government Order dated 16.01.2007 as indicated in the aforesaid judgment reads as follows:-
"5. It had been submitted by the learned Counsel appearing for the Appellant employee that the impugned judgment delivered by the High Court is incorrect for the reason that the High Court did not consider the G.O. dated 16.1.2007 bearing No. S-3-35/10-07-101(6)/2005 which reads as under:
[1]. Pension Fixation Authority shall inquire into emoluments of only last 10 months prior to retirement and for that examine the records of only two years prior thereto i.e. only the records of 34 months would be examined for the purpose of grant of pension, as has been provided in the aforesaid Government Order dated 13.12.1977.
[2]. Pension Allowing Authority shall not be entitled to correct the mistake in determining the pay during service tenure beyond the period prescribed in para (1) above. Mistakes in pay determination of an employee can be effectively removed through the process of general inquiry/audit only when the employee is still in service. "
11. Hon'ble the Supreme Court in the aforesaid judgment placing reliance on Government Order dated 16.01.2007 has clearly held that in case of mistake committed in pay-fixation during a period of 34 months prior to superannuation is not to be interfered with. Even the submission that interfering in the revision of pay-scale would amount to an employee getting more amount than what he was entitled to was also not accepted by Hon'ble the Supreme Court. Relevant portions of judgment are as follows :
"7. Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the Appellant, it is not in dispute that the Appellant had retired on 31st December, 2003 and at the time of his retirement his salary was Rs. 11,625/- and on the basis of the said salary his pension had been fixed as Rs. 9000/-. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986, i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16th January, 2007, neither any salary paid by mistake to the Appellant could have been recovered nor pension of the Appellant could have been reduced. "
"11. The submission made on behalf of the learned Counsel appearing for the Respondent that the Appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the Respondent-employer could not have passed any order for recovery of the excess salary paid to the Appellant or for reducing pension of the Appellant. "
12. The other submission raised by learned counsel for petitioner by placing reliance upon judgment rendered by Hon'ble the Supreme Court in Ajaya Kumar Das(supra) is also required to be taken into consideration particularly in view of the fact that provisions of Rule 22-B of U.P.Fundamental Rules are pari materia with Rule 74(b) of Orissa Service Code with regard to which Hon'ble the Supreme Court has held as follows:-
?11. Rule 74(b) of the Code is aimed at protecting the scale of pay of a government employee in his promotional cadre and seeks to ensure that in no case an incumbent is directed to receive less emoluments, less pay than what he was drawing prior to his promotion. This provision statutorily ensures that the State Government employee gets the benefits of receiving higher scale of pay than that of the post held by him prior to such promotion. Surely, in the light of Rule 74(b), initial pay in the timescale of higher post of a government servant cannot be fixed which is less than the pay he was getting immediately before promotion.?
13. In view of the aforesaid facts, it is amply clear that pay-fixation of an employee such as petitioner prior to 34 months from the date of superannuation is not to be interfered with even if incorrectly fixed as laid down by Hon'ble the Supreme Court in Sushil Kumar Singhal(supra) in view of Government Order dated 16.01.2007. The purpose of such a Government Order as the one dated 16.01.2007 is clearly beneficial in nature as would be evident from judgment of Hon'ble the Supreme Court in Ajaya Kumar Das(supra).
14. Upon consideration of facts of the case, it is clear that both the aforesaid judgments of Hon'ble the Supreme Court would be applicable in the present case. Mere non-challenge either to recommendations, which even otherwise are not final in nature, or to order dated 07.07.2010 would not be of any consequence since the same even otherwise are clearly against judgments of Hon'ble the Supreme Court.
15. No other point was pressed by learned counsel for parties.
16. In view of the aforesaid, opposite parties are directed to pay the post-retiral benefits due to petitioner on the basic pay of Rs.8700/- (as revised from time to time) in place of Rs.8500/-. Other post-retiral benefits shall also be accordingly calculated and actual benefit of same shall be paid within a period of six months from the date a copy of this order is produced before the concerned authority.
17. In the result, the writ petition stands allowed.
Order Date :- 26.11.2019 kvg/-