'^s ^^ @ Petitioner Respondents HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition No. 6027 of 2005 Nanki Ram Sidar, S/o. Bedram Sidar, aged about 65 years, R/o Village Sapiya, Tahsil - Malkharauda, Dist. - Champa Janjgeer, (CG). Versus 1) State of Chhattisgarh, through the Secretary, Tribal Welfare Department, D.K.S. Bhawan, Raipur (CG). 2) The Director, Treasury, Accounts and Pension Department Raipur (CG). 3) The Joint Director, Treasury, Accounts and Pension Department, Bilaspur (CG). (Writ Petition underArticle 226/227 ofthe Constitution of India) (SB: Hon'ble Mr. Satish K. Agnihotri, J.) Present: Shri Rajesh Pandey, counsel for the petitioner. Shri A.S. Kachhawaha, Dy. Advocate General for the State. ORDER (Passed on 27th March 2008) In this petition, a question of law involved is whether the employee of the State Government is entitled to benefits of initial pay in the time scale of higher post on being appointed to another post carrying duties and responsibilities of greater importance in accordance with Fundamental Rules (forshort, "FR") 22-D ofthe M.P. Fundamental Rules. 2) Learned counsel appearing for the petitioner submits that the petitioner, while working as Head Master was promoted to the post of Lecturer carrying higher responsibility. He was initially granted benefits w /;. under FR 22-D. He retired from service on 31-12-2001 after attaining the age of superannuation. Subsequently, by order dated 20-10-2004 (Annexure P/3) payment of higher post carrying higher responsibility was withdrawn in order to recover the excess payment made to the petitioner. Learned counsel submits that the FR are made by the Secretary of State in Council under Section 96-B of the Government of India Act, including the orders issued by the Secretary of State, Government of India and Auditor- General and the Supplementary Rules framed by the local Government which are applicable to the service conditions of government employees and have attained the status of rules framed under Article 309 of the Constitution of India. Thus, FR cannot be superceded by any executive instructions. 3) Per contra, Shri A.S. Kachhawaha, Deputy Advocate General appearing for the State submits that the post of Head Master as well as Lecturer carry the same pay scale, though Head Masters are Class III employees and the Lecturers are Class II gazetted officers/employees. On query, whether Head Master can be posted as Lecturer if belonging to the same cadre, there is no response and no document in support of the contention has been filed. Learned counsel further submits that the post of Lecturer has not been notified as a post carrying higher responsibility. Again on query, as to whetherthere is some system to notify a particular post that carries higher responsibility, Shri Kachhawaha offers ho response. No document in support thereof has been filed. 4) I have heard learned counsel appearing for the parties, perused pleadings and documents appended thereto. 5) Fundamental Rule 22-D reads as under: "F.R. 22-D )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 in a 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 to the higher post, shall be fixed at the stage of 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: Provided that the provisions of this rule, shall not apply where Government servant holding a Class- 1 post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to a higher post which is a Class-1 post. Provided further that the provisions of sub-rule (2) of 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 scales (one or more stages above the maximum of the time scale in the form of stagnation allowance) 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 further that the provisions of this rule shall not apply where a Government servant is promoted or appointed to a higher post in the scale of pay which is identical with the scale of pay of the lower post but is distinguished by an addition of a special pay only. In such cases the incumbents will get only the special pay in addition to their pay in the lower post. Explanation - 'lncrement' for the purposes of fixation of pay under this rule, should be taken to mean actual increase in pay and not passage from one stage to another. The term 'stage next above' occurring in this rule, means the stage in the time- scale which is next in amount above the pay notionally arrived at in respect of the lower post by ($-' one increment at the stage at which such pay has accured. (2) If, however, the Government servant has already officiated inn this higher post previously, his pay shalle fixed under the provisions of rule 22-'A (b) if, it is more advantageous." 6) Thus, non-a&stente clause which begins with the word "Notwithstanding anything contained in these rules will have precedence over other rules of FR. FR 22-D is of the same nature. Subsequent circulars/executive instructions, it is well settled, cannot over-ride the rules. Bare perusal of the FR 22-D makes it clear that a Government servant holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a 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 to the higher post, shall be fixed at the stage of next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at that stage. The day an employee is promoted to the higher post carrying higher responsibility, he becomes entitled to the benefits under FR 22-D from that day. 7) Learned counsel for the State further relied on Part V of Rule 66 of the Financial Code which provides that the day order is passed it becomes effective with effeet from the same date. Rule 66 of the Financial Code reads as under: "66. ura cra; Ri-^T aii^iT grsiqr pi^iT ^" 3F?Ta[T ^31T^fSR^ ^ ^. ?1TCT-T ^ ysill'HPl* 3SV^f. q^f. sTPT gsraT (TR f^re^ 5T?r ^^Rr •H'^Ritt ^ 7r^ t. ^s^s ir;re sira grarar (TR ^ y'Hi'i"! ^ f^ir^ '•^ g»ira?ftcr ?Mt wff srfSiPi^P'ici Pripr tnftcT ?t^ ^ f^m? ^ ir'4ld!?f1<?l ?TTt 1 ^tft ^T^R 3[Ef|^R8.T 3[f6|<frlR<4T EfRT uoiRd <<fl<^Rl'yf ^-r siT^^ff ^ f^-lf^ ^ g'qT?5ftcT ?f7ft f^f'r 3iT^?rf ^ sm ^•rat •(•I'tlRtd feqT 7raT tl" €? 8) Thus, the order passed by the respondents-authorities withdrawing the benefits of FR 22-D granted earlier is bad and consequently no recovery can be made. 9) Mr. Rajesh Pandey, learned counsel appearing for the petitioner has cited decision ofthe M.P. Administrative Tribunal in O.A.No. 224 of92 ( Smt. Kunti Saxena Vs. State of M.P. and others) wherein the Tribunalobserved as under: 'We therefore, committing our decision only on the basis of the plain language provided in proviso No.1 to the Fundamental Rules 22-D this proviso only realize that the benefits of this rule shall not be given government servant where the higher post of the scale identified which the scale of pay of the lower post but is distinguished by a special pay only, the state has post to brought to our notice that any special pay was attached in the higher post. We, therefore held that this proviso which in rolled upon by the state does not debar the applicant from getting the pay fixed as per rules FR 22 (D)(i). Accordingly, we direct that the applicant is entitled to the benefits of FR 22-D and is entitled to get here pay fix in accordance with F.R.22-D (1) the applicant will be entitled to all benefits of fixation of pay receiving the arrears and of getting pension gratuity and other benefits fixed accordingly, benefit should be given within a period of six months from today." 10) The above stated order of the Tribunalpassed in Smt. Kunti Saxena (supra) was taken to the Supreme Court, which was dismissed by the Supreme Court in April, 1994. On the basis of decision in Kunti Saxena (supra), the M.P. State Administrative Tribunal in the case of Mansharam Yadav Vs. Govt. of M.P. and others1 passed the following order. "As regards the analysis of duties and responsibilities ofthe post of Head Master and Lecturer, there could be no golden scale to weigh the responsibilities assigned to an office. The post of promotion ordinarily be taken to be a post of higher responsibilities unless it is covered under any of the ' 1999 (II) MPLSR 145 provisions of F.R. 22-D. The respondents failed to show that at the time of promotion, the applicants were getting maximum or they were given additional pay for the post of promotion nor they could show that the promotions were made of any of the applicants from Class-1 post in substantive, temporary or officiating capacity to a higher post which is also a Class-1 " 11) A division bench of High Court of Madhya Pradesh at Jabalpur in Ramesh Kumar Mishra Vs. State of M.P. and others observed as under: "6 Fundamental Rule 22 deals with the initial pay on appointment to post on time scale pay. It indicated as to how the initial substantive pay of a Government servant who is appointedsubstantively to a post on a time scale of pay, is to be regulated. The relevant part of Fundamental Rule 22(a)(i) reads as under" "F.R. 22. Initial pay on appointment to post on time-scale pay.- 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 a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended.- (b) When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for 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 ofthe old post.: We have only to consider the case where the appointment to the new post involves assumption of the duties or respbnsibilities of greater importance than those attaching to the earlier post. According to this rule, if the Government servant had a lien on a permanent post his . initial pay was to be fixed in accordance with this rule. This Fundamental Rues undoubtedly seeks to fix initially pay of a Government servant holding a lien on one post and, who was appointed as another substantive post under the Government." 1979(3)MPSLR232 ^. .€„ •^ / 'Raju 12) On the question whether the post of Lecturer carries higher responsibility or is a promotional post, the documeht dated 28-6-2000 (Annexure -5) clearly indicates that the post of Lecturer is a promotional post, as is mentioned in the subject that" ITETT.T qreqi -w. f^. ^ cyi<syidl TR TT? 4<;1"lRl ^N TR J^S°l^l f5RPT—22^t ^T ctTT f^ vfT^ ^racT | " Itis subsequently confirmed by order dated4-7-2000 (Annexure P/6). Admiftedly, the post of Head Masters/ADIS are Class III posts and the post of Lecturers are Class II posts. . 13) It is clear from above that the post of lecturer is a promotional post. Contention of learned counsel for the State that the payscale of Head Masters and LeGturers is similar, is not supported by any document. Since the recovery order was passed without affording proper opportunity of hearing to the petitioner, the order of recovery is bad in law in the light of decisions of hlon'ble Supreme Court inthe matters of Shyam Babu Verma and othersVs. Union of India and others3, Sahib Ram Vs. State ofHaryana and others'^ and decision of this Court in Vidyadhar Tiwari Vs. State of Chhattisgarh and others . 14) In view of the foregoing, the petition is allowed and the order dated 20-10-2004 directing recovery of theexcess payment is quashed. In oase the amount has been recovered, the same shall be refunded back to the petitioner with simple interest. Accordingly, the petitioner is entitled to benefitsof FR 22-D. No order astOGOSts. | . ^., ~7:—~ Satish K. Agnihotri (1994) 2 SCC 521 (1995)Supp(l)SCC18 2006(1)MPHT(CG)-105.