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CASE NO.: Appeal (civil)  2125 of 2007

PETITIONER: Babulal Jain

RESPONDENT: State of M.P. & Ors

DATE OF JUDGMENT: 24/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (C) No. 26015 of 2005]

S.B. SINHA, J.

         Leave granted          

       The question which has been raised in this appeal arising out of a  judgment and Order dated 27.4.2005 passed by the Madhya Pradesh High  Court in Writ Petition (Civil) No. 2032/2003 centers around the  interpretation of FR 22(D) of the M.P. Civil Services (CCA) Rule.    Appellant was working as an Accountant.   He was purported to have been  recommended for his alleged promotion to the post of Election Supervisor  by the Collector, District Dewas (MP) in terms of a letter dated 25.7.1998  addressed to the Chief Electoral Officer, Bhopal in the following terms:                 "Election Supervisor posted in District Dewas  has since superannuated.  For filing of this vacant  post, name of Shri R.B. Puranik was recommended to  be promoted to the post election supervisor vide OM  Sr. No. 1374/estab/98 dated 12.6.98.   Thereafter Shri  Babulal Jain, accountant, vide his application dated  25.7.98 has consented to be appointed to the post of  election supervisor.

               Thereafter, at the concerned Seniority list,  being at serial No. 4 Mr. Babulal Jain is senior to      Mr. Puranik and experienced in election related work.

               Photo Copy of his ACRs are enclosed.

               Thereafter it is recommended that Shri Babulal  Jain, accountant, be promoted to the post of election  supervisor.

               Encl :-                                         Sd/-                 Photo Copy of ACRs                        Collector                 For the Years 93-97              District : Dewas (M.P.)"

       The said recommendation having been accepted, he was appointed to  the said post in the pay scale of Rs. 4000-100-6000 until further orders.

       He was later on put in the pay scale of Rs. 4500-125-7000 with one  increment as his personal pay.  The Government of Madhya Pradesh,  however, issued a circular letter on or about 9.2.1999 in regard to the  fixation of pay on appointment to the post involving higher duties and

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responsibilities, stating; "When any Government servant is appointed on  higher post from one Department of Government to  another department of the Government, the following  guidelines are being issued State Government  regarding pay fixation after careful consideration:

i.      Transfer from department of the Government to  another on higher post shall not be treated as  appointment rather posting.

ii.     On being appointed on higher post the pay  fixation of the concerned Government servant shall  not be fixed under FR 22(D) or 22(A) rather on pay  being drawn by him on lower post."

       On or about 13.12.2000, the Collector added the word "promotion" in  his offer of appointment by way of Corrigendum after the words "until  further orders"; "In the light of the objection dated 24.10.2000 raised  at the time of pay fixation of Sh. Babulal Jain, then  Asst. Grade-II/Accountant/now, Election Supervisor,  Election Branch, Collecotrate, Dewas (M.P.) partial  modification of OM Sr. No. 28.9.98/estab/98 Dewas  dated 28.9.98 vide which he was appointed as  Election Supervisor on the sanction of the Chief  Election Officer (M.P.) the word "promotion" is  added after until further order.   Rest part of the order  shall be effective as usual."

        On and from 1.1.2000 he started drawing a salary of Rs. 6625/- per  month.   He was relieved of his duties as Election Supervisor with effect  from 31.12.2001 by an Order dated 5.10.2001.   On or about 26.12.2001, his  pay was directed to be re-fixed in the light of the said Office Memorandum  dated 9.2.1999 as on 1.1.2000 at Rs. 6000 + Rs. 179  as personal pay.  It was  directed that excess amount paid to him be recovered.  He attained the age of  superannuation on 31.12.2001.   

       Questioning the said order, he filed an original application before the  Madhya Pradesh Administrative Tribunal.

       Having regard to the fact that the appellant had filed a representation  in respect of the said Order dated 13.12.2001 before the Chief Electoral  Officer, Bhopal on 22.12.2001, the Tribunal in view of Section 21(b) of the  Administrative Tribunals Act, 1985 dismissed the said application  summarily.   A Writ Petition filed thereagainst has been dismissed by the  High Court by reason of the impugned judgment stating; "It is clear from the reply that the original post of the  petitioner is Asstt. Grade-II, which is equivalent to  Supervisor/Asstt. Superintendent.  The petitioner had  been given the pay-scale of Accountant/Election  Supervisor, on which post he was not promoted as per  law.  In such circumstances, there is no illegality in  the order of refixation of pay.  The petitioner was  himself working as Accountant.  In such  circumstances, there is no question for quashing the  recovery."                  Mr. Manjit Singh, the learned counsel appearing on behalf of the  petitioner raised the following contentions in support of this appeal.    (i)     The purported office memorandum dated 9.2.1999 is ultra vires  Fundamental Rule 22(D) of the Rules, in terms whereof, promotion granted  to the petitioner and consequent fixation of his salary on a higher scale of  pay could not have been directed to be rescinded relying on or on the basis

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thereof and (ii) In any event no recovery could have been directed to be made from the  salary of the appellant.   

       Rule 22(D) of the M.P. Civil Services (CCA) Rule reads as under:- "(1) Notwithstanding anything contained in these  rules where a Govt. holding a post in a substantive  temporary or officiating capacity is promoted or  appointed in 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)."

       It is not the case of the appellant that the post of Assistant Grade-II  provides for a channel of promotion to the post of Election Supervisor.    Appellant, indisputably was an employee working in the Collectorate having  been appointed by the State of Madhya Pradesh.   A Collector of a District  has many functions; one of them being to oversee holding of elections in his  district as an Electoral Officer.  He, therefore, although could have  recommended for the posting of the appellant on the post of Election  Supervisor, the question of his appointment or for that matter promotion  thereto did not and could not arise.   Appellant did not show that there exists  any channel of promotion from the post of Assistant Grade-II to the post of  Election Supervisor.

       Thus, for all intent and purport, he was only deputed to that post.   Having been placed on deputation to a post which carries higher  responsibilities, some allowance could have been granted in his favour, but  he could not have been placed on a higher scale of pay.

       In absence of any channel of promotion, the Collector of the District  could not have, in law, appointed him on the post of Election Superintendent  and later issue a corrigendum that he had been promoted thereto.   Appellant  before us has also not brought to our notice the extant rules of promotion  operating in the field.   It does not appear to be a case where the question of  promotion to the said post was considered in terms of the rule by a  competent authority.  It furthermore does not appear that any Departmental  Promotion Committee considered the cases of all eligible candidates  therefor.  Whereas in terms of the extant rules, the controlling authority may  direct deputation of an employee from one post to the other, it is beyond any  doubt that for the purpose of grant of promotion, it was obligatory on the  part of the Collector to follow the statutory rules operating in the field.

       It is, therefore, not a case as was sought to be made out that the  Finance Department of the State of Madhya Pradesh could not have issued a  clarification in this behalf as ultimately the financial burden would be on the  State.  Fundamental Rules 22(D) of the Rules to which our attention has  been drawn by the learned counsel for the appellant refers to regular  promotion to a post.   It does not contemplate a situation of this nature.   FR  22(D) is not applicable to a case of deputation.  It certainly would not apply  where a purported order of promotion has been effected from one cadre to  the other and that too without following the statutory rules.  We, therefore,  do not find any error in the judgment of the High Court in this behalf.   

       We, however, are of the opinion that in a case of this nature, no  recovery should be directed to be made.  Appellant has discharged higher  responsibilities. It is not a case where he obtained higher salary on  committing any fraud or misrepresentation.  The mistake, if any,  took place  on a misconception of law.   He was at least entitled to some allowances.  In  re-fixing his pay, his claim to that effect has not been considered.  He has

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since retired.   A sum of Rs. 22,000/- has been recovered from him.  Such  recovery has been effected without issuing any show cause notice.  His case  on merit in this behalf had not been considered by the Government and even  by the Tribunal.

       The Tribunal did not assign any reason in support of its order.  The  correct legal position was not brought to the notice of the tribunal.    

       For the reasons aforementioned, this appeal is allowed in part and to  the extent mentioned hereinbefore.

       We, therefore, while directing the respondents to refund the said sum  of Rs. 22,000/- to the appellant herein, also direct that his retirement benefit  shall be calculated as if he had reached the age of superannuation only as an  Accountant on the re-fixed pay and not on the scale of pay of the Election  Supervisor.   We issue this direction in exercise of our jurisdiction under  Article 142 of the Constitution of India.   No costs.