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PETITIONER: COMPTROLLER & AUDITOR GENERAL OF INDIA & ORS.

       Vs.

RESPONDENT: FARID SATTAR

DATE OF JUDGMENT:       07/04/2000

BENCH: V.N.Khare, Doraiswamy Raju

JUDGMENT:

V.N.KHAREJ.

     Farid  Sattar, respondent herein, joined as an Auditor in the Office of the Accountant General (A & E), West Bengal on  16.2.1982.   Consequent on the bifurcation of Audit  and Accounts,  the  respondent was transferred to the Office  of the  Accountant  General (A & E), West Bengal on  1.11.1985. The  respondent  opted for the accounts wing and as such  he was  retained there and subsequently promoted to the post of Senior Accountant on

     4.12.1987.   In  December, 1990 the  respondent  while officiating  on  the post of Senior Accountant  applied  for mutual   transfer  with  one   Shri  Paresh  Ghosh,   Senior Accountmit,  working  in  the Office of  the  Senior  Deputy Accountant General (A & E).  Sikkim.  As mutual transfer was not  permissible  in  the cadre of  Senior  Accountant,  the respondent  was  advised  to apply for  unilateral  transfer after seeking reversion to the lower post of Accountant as a direct  recruit.   In pursuance of the advice tendered,  the respondent  applied for unilateral transfer in the cadre  of Accountant  foregoing the status of a Senior Accountant,  in the  Office of the Senior Deputy Accountant General (A & E), Sikkim  in  July,  1992 and he was permitted  to  take  such transfer  on certain terms and conditions.  The pay scale of Senior  Accountant at the relevant time was Rs.   1400-2600. whereas,  the  pay scale of Accountant was  Rs.   1200-2040. The  respondent having accepted the terms and conditions  of unilateral  transfer was posted as an Accountant in the  pay scale  of Rs.  1200-2040.  However, his pay was  erroneously fixed  at Rs.  1560/-, which he was drawing in the pay scale of  Rs.  1400-2600 prior to his reversion to the lower post. Subsequently,  it was found that the fixation of pay of  the respondent  at  the  stage of Rs.  1560/- was  due  to  some mistake and, therefore, by a Memorandum dated

     8.11.1994 the pay of the respondent was directed to be re-fixed  and  a further direction for recovery’  of  excess payment  made  to the respondent was also issued.  It is  at this  stage the respondent filed Original Application before tlie Central Administrative Triblinal, Calcutta, challenging the Memorandum dated 8.11.1994 contending that the pay which he  was  drawing as Senior Accountant viz..  Rs.  1560/-  in the  pay scale of Rs.  1400-2600 has to be protected even if he was reverted to tlie lower post of Accountant on transfer and re-fixation of his pay at a lower stage, and recovery of

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the  alleged  excess payment of salary is unwarranted.   The appellants   herein   disputed  the   contentions   of   the respondent,  inter  alia, on the ground that the  respondent was  bound  by the terms and conditions of  tlie  unilateral transfer  and as on acceptance of such terms and conditions, tlie respondent was required to tender technical resignation from  tlie  post of Senior Accountant and had to join  as  a direct  recruit  on  the lower post  of  Accountant  ranking junior  most  in  the  cadre of  Accountant.   It  was  also contended  that on such a transfer the pay of the transferee is  not required to be protected and his pay was to be fixed as  a direct recruit on the lower post in which post he  was reverted.   The tribunal took the view that since unilateral transfer   is   not  contemplated   by   Fundamental   Rules (hereinafter referred to as ’F.R") and as such, in a case

     like  the present one the respondent has to be treated as  having gone on transfer on request and.  therefore,  his case  was to be governed by F.R.22 (1) (a) (3).  In view  of the  provisions  of above Rules, tile tribunal  quashed  the impugned   order   and  allowed   the  application  of   the respondent.   It  is against the said judgment and order  of the tribunal the appellants are in appeal before us.

     Learned  counsel  for  the appellants urged  that  the tribunal fell in error in applying F.R.22 (1) (a) (3) in the present  case.   The  argument  is   that  the  pay  of  the respondent  was required to be fixed in accordance with  the terms  and conditions which were accepted by the respondent. Learned  counsel tlien referred to the terms and  conditions of  the  unilateral  transfer of  the  respondent.   Learned counsel  for  the respondent urged that unilateral  transfer not  being  contemplated  in  F.R.,   the  transfer  of  the respondent  necessarily  has to be governed by F.R.  and  in the  present  case  it  is  F.R.  22  (l)(a)  (3)  which  is applicable,  and  on  an application of the said  rule,  the judgment and order of the tribunal has to be affirmed.

     In  order  to appreciate the arguments of the  learned counsel  for the parties, it is necessary to refer F.R.   22 (1)  (a)  (2)  (3) and the relevant portions  are  extracted below:

     "FR  22 (1) (a) (2):  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’, tile stage of the time-scale which is equal to ins  pay in responst of the old post held by him on  regular basis,  or, (ft here is no such stage, the stage next ahcn’e his  pa}’ in respect of the old post lield by him on regular basis:

     FR  22 (1) (a) (3):  When appointment to the new  post is  made on his own request under sub-rule (a} of Rule 15 of the  said rules, and tile maximum pa)’ in the time-scale  of that  post is lower than his pay’ in respect of the old post held  regularly,  he shall draw that maximum as his  initial Pay’- "

     The  relevant  terms  and   conditions  of  unilateral transfer,  as  accepted  by the  respondent,  are  extracted below:

     "The  transfer  mil be not in public interest  and  as such  he  will not be entitled to any joining time,  joining

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time pay or T.A.

     He  will  be  assigned  junior   to  the  junior  most Accountant  on  the date he reports for duty in this  office for all intents and purposes.

     He shall have to submit his technical resignation from the  post of Senior Accountant in the Office of the A.G.(A & E),  West  Bengal, Calcutta, in order to  join  Accountant’s post in the Office of the Senior Dy.  Accountant General ( A & E), Sikkim, Gangtok.

     He  shall  have  no right to seek re-transfer  to  his parent office or to any other office.

     On unilateral transfer he is required to pass whatever departmental  examination  as  prescribed  by  the  relevant recruitment rules.

     This  pay  shall be regulated in accordance  with  the relevant rules in force in his U.T.  as Accountant"

     It  is no doubt true that unilateral transfer which is said  to  be  coined by the appellants is  not  contemplated under  the  Fundamental  Rules What is contemplated  is  the transfer  on written request under Fundamental Rule 15.  But if such a transfer is not contemplated under the Fundamental Rule.,  it  is  not  necessarily  to  be  governed  by   the Fundamental  Rule,  but by the terms and conditions of  such unilateral  transfer.   Fundamental  Rule  22  (1)  (a)  (2) provides  that,  when  an employee is transferred to  a  new post,  which  does  not  involve 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.  Thus F.R.22(l)(a)(2) would be applicable where there is  an ordinary transfer which is not by way of reversion to the lower post and in such a case, the pay of an employee on transfer  to  a new post has to be  protected.   Fundamental Riile22(l)(a)(3)   is  applicable  where   an  employee   is transferred  to a new post on his own request under sub-rule (a)  of Rule 15, and further in such a transfer no reversion is  involved.   In  such  a transfer to a new  post  if  the maximum  pay  in the time-scale of the transferred  post  is lower than Ins

     pay  in respect of the old post held regularly, he  is required  to  draw  that maximum as his  initial  pay.   For illustration  -  an  employee working in a pay  scale  ofRs. 1400-2600  was drawing pay at the stage ofRs, 2040 and he is transferred  on his own request not involving reversion to a post  which  carries pay scale ofRs.  1200-2040.  in such  a case.   the  maximum  pay which lie was drawing  viz..   Rs. 2040  has  to  be protected on the  transferred  post  which carries a pay scale ofRs.  1200-2040.’-.  It is not the case here.  Here.  what we find is that the respondent on his own volition  sought  transfer on certain terms  and  conditions accepted  by  him.  The terms and conditions  of  unilateral transfer  are  very clear and there is no ambiguity  in  it. The  terms  and conditions provided that the  respondent  on transfer  would be appointed to a post which is lower to the post which he was occupying prior to his transfer and he was also  required to tender technical resignation from the post which he was holding with a view to join the lower post as a direct  recruit  and  was  to rank  junior  to  junior  most

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employee  in  the  cadre  of  Accountant.   He  was  further required  to forego any benefit of passing any  departmental examination  while  working in the higher post.  In  such  a situation,  the  pay of the respondent had to be fixed  with reference to the

     lower  pay  scale  and not with reference to  the  pay drawn  by  him  in  the  higher post  since  he  was  to  be considered as a direct recruit in the lower post.

     Under  the terms and conditions of tlic transfer,  the pay  which the respondent was drawing on higher post was not required  to  be protected when he joined the lower post  of Accountant.

     For the foregoing reasons, we are of the view that the pay  of  the  respondent, as fixed  earlier,  was  correctly re-fixed  by Memorandum dated 8.11.  1994.  We,  therefore, find  that  the  judgment and order of the tribunal  is  not sustainable  in  law and the same deserves to be set  aside. We  order accordingly.  The appeal is allowed.  There  shall be no order as to costs.