IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP-T No.91 of 2009. Date of Decision: 16th August, 2010. Parkash Chand …Petitioner. Versus. State of H.P. and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Petitioner(s): Mr.Ranjan Sharma, Advocate. For the Respondent(s): Mr.Vivek Singh Thakur, Addl.A.G. for respondents. Deepak Gupta, J.(oral) The short question which arises for decision in this case is whether the provisions of FR 22 (I) (a) (1) and (2) are applicable to the facts and circumstances of the case or not. The undisputed facts are that the petitioner was employed as peon on 7th January, 1980 in the office of the Director of Consolidation and Holdings in the unrevised pay scale of Rs.770-1410. On 26.2.1994, the petitioner was appointed as Patwari on regular basis in the pay scale of Rs.950-35-1160-40- 1320-45-1500-50-1800 + Rs.50/- as special pay. The petitioner joined as Patwari on 7.3.1994. Since the petitioner had already reached the basic pay of Rs.1020/- in the pay scale of peon, in accordance with the provisions of FR 22(I) (a) (1) the pay of the petitioner was fixed at Rs.1090/- by giving him the benefit of the aforesaid F.R. He continued to draw the pay accordingly but on 2 11.1.2001 on the basis of order dated 9.10.2000 the pay of the petitioner was re-fixed and reduced from Rs.1090/- to Rs.1055/-. Recovery of the amount allegedly over-paid to the petitioner was also directed. The petitioner, aggrieved by the said order, filed an O.A. before the learned Tribunal. The stand of the respondents is that since the petitioner was appointed and not promoted as Patwari from the post of Peon he is not entitled to the benefit of FR 22(I)(a)(1) and that his case is covered under FR 22(I)(b). FR 22(I)(a)(1) & (2) read as follows: "FR.22(I).- The initial pay of a government servant who is appointed to a post on a time-scale of pay is regulated as follows:- (a)(1).- Where a government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, 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 notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees one hundred only whichever is more. FR.22(I)(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, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis." The Apex Court considered the aforesaid provision in Syed Abdul Qadir and others vs. State of Bihar and others, (2009) 3 SCC 475, and held as follows: “39. Rule 22(I)(a)(1) provides that when a government servant is promoted or appointed to a higher post and the higher post he is promoted carries 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 3 above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees one hundred only whichever is more. 40. According to FR.22(I)(a(2), the benefit of an additional increment, which is available to a government servant under FR.22 (I)(a)(1), would not be available to the government servant if the higher post he is promoted or appointed to does not carry duties and responsibilities of greater importance than those attaching to the post held by him.” A bare reading of the fundamental rule quoted hereinabove and the decision of the apex Court makes it abundantly clear that when a government servant is promoted or appointed to a higher post and the higher post carries duties and responsibilities of greater importance then his initial pay in the pay scale of the higher scale shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of lower post by an increment at the stage when it accrued or Rs.100/- whichever is more. A bare perusal of this Rule shows that it is applicable in the case of appointment also and the State incorrectly held that this Rule was not applicable in the case of appointment and was only applicable in the case of promotion. The stand of the State that the case of the petitioner is covered under FR 22(I)(b) is not correct. FR 22(I)(b) shall only apply if the conditions prescribed in clause (a) are not fulfilled. In the present case the conditions in clause (a) are fulfilled since there can be no manner of doubt that the petitioner was appointed to a post having higher pay scale and also having higher responsibility. Therefore, the orders Annexures A-5 and A-6 dated 9th October, 2000 and 21st April, 2001 are quashed and set-aside 4 with all consequential benefits. The petition is allowed in the aforesaid terms. There will be no order as to costs. August 16, 2010 ( Deepak Gupta ) PV Judge.