Jain Vs. State of M.P. & Ors  Insc 441 (24 April 2007)
S.B. Sinha & Markandey Katju
[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 :
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 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
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
"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
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
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 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
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 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.