IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.960/02 Kalyan Sahai Premi vs. State & Ors. Date of order : 4/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms. Nirmala Paliwal for the petitioner. Shri S.K. Gupta, AAG for the respondents. ****** Heard learned counsel for the parties. This writ petition seeks to challenge the order dated 7.1.2002 whereby the pay of the petitioner fixed as far as back on 1.10.1980 was refixed by reduction of the scale of Rs.550 to that of Rs.490. Ms. Nirmala Paliwal, learned counsel for the petitioner argued that ever since he was fixed in the pay scale of Rs.550 as on 1.10.1980, he was receiving his salary in that scale and the subsequent pay revisions were also based on that scale. He continued to get the benefits of revised pay scale from time to time. He was promoted from the post of Junior Accountant to that of Accountant on 3.4.1993 and then was promoted as Assistant Accounts Officer on 1.4.1997 and eventually the petitioner retired from service on 31.10.2001. At the time of preparation of his pension papers, the Directorate of Pension pointed out that the pay of the petitioner was wrongly fixed at Rs.550 as on 1.10.1980 which ought to have been fixed at Rs.490. It was thereafter that the respondents by issue of order dated 7.1.2002 sought to respectively reduce his pay and make consequential recoveries running into the amount of Rs.42,070/-. Learned counsel argued that this order was passed without any opportunity of hearing to the petitioner inasmuch as even if the respondents were to hold that the petitioner was not entitled to benefit of double jump as per Rule 26(1), he was definitely entitled to benefit of Rule 35A (3) of RSR. Learned counsel therefore submitted that the impugned order be quashed and set aside. Shri S.K. Gupta, learned Additional Advocate General opposed the writ petition and submitted that benefit of double jump i.e. two advanced increments, were wrongly extended to the petitioner. His case was not of promotion. Originally, the petitioner was serving on the post of LDC and he applied for appointment on the post of Junior Accountant by way of direct recruitment and upon his selection by RPSC, he was eventually appointed on the post of Junior Accountant. In such a case Rule 26A of the RSR would not be applicable. Learned counsel also argued that Rule 35A(3) also would not be applicable because that Rule envisages application of next below Rule which involve comparison of pay of a senior with that of his junior. Learned counsel submitted that petitioner himself was Junior Accountant and wrong pay fixation may have been due to this reason. In fact, the pay of the petitioner was required to be fixed at Rs.510/- but it was wrongly fixed at Rs.550/-. The respondents have merely sought to correct the mistake. The matter does not call for interference. The writ petition be therefore dismissed. Having heard the learned counsel for the parties, I have examined the relevant rules as also the documents forming part of the record. I find that the respondents are justified in holding that benefit of two advanced increments by recourse of Rule 26(1) of RSR could not have been granted to the petitioner because when he was selected afresh on the post of Junior Accountant, it could not be said to be a case of promotion and therefore the benefit of double jump would not be available. The respondents are justified in submitting that Rule 29(1) which was the correct Rule would be applicable to his case and accordingly his pay fixed at Rs.550/- was not justified. The respondents by application of Rule 29(1) would therefore be justified in fixing such pay of Rs.510/- by pay protection of the time. It was wrongly fixed at Rs.550/-. Contention of the respondents however that since the petitioner was directly recruited on the post of Junior Accountant and because of his appointment as Junior Accountant, wrong pay fixation could be possible and therefore it should be assumed that it was he who manipulated his pay fixation, cannot be accepted in the absence of any evidence on this aspect. It cannot be ignored that petitioner prior to his appointment as Junior Accountant was merely serving as LDC and it was a fresh recruitment on the post of Junior Accountant and therefore on the date of entry itself he could not be in a position to influence the decisions of his higher authority and get the pay fixation wrongly done. Even otherwise, the subject pay fixation was made much long ago on 1.10.1980 and is sought to be corrected by order dated 7.1.2002 i.e. 22 years thereafter. There was no material or any other evidence on record to link the wrong pay fixation to any action of the petitioner. Nothing has been brought on record to show that such wrong pay fixation was attributable to any fraud or misrepresentation on the part of the petitioner. Such an aspect cannot be a matter of inference or presumption just because the petitioner happens to have been appointed as Junior Accountant by way of direct recruitment. But at the same time, the respondents would be justified in correcting the mistake though for the limited purpose of determination of pension and other retiral dues of the petitioner. They however certainly cannot make recovery of whatever amount was paid to the petitioner on account of such wrong pay fixation. In the result, this writ petition is allowed in part. While action of the respondents in seeking to correct the wrong pay fixation is upheld. The order directing recovery from the petitioner is quashed. Compliance of the judgement be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/