--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 3654 / 2006 SATYANARAYAN SHRIVASTAVA Vs. STATE OF MP & OTHERS * * * * * O R D E R ( 5/5/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the action of the respondents in directing recovery of Rs. 43213/- from the petitioner after his retirement. The contention of the petitioner is that he was appointed in the year 1961 as LDC and was later on promoted to the post of Accountant. He was serving the Department as Accountant at the time of retirement on 21/12/03. The petitioner has further stated that after clearing the accounts examination he was promoted to the post of accountant and was given the benefit of pay fixation under FR 22 D. He has further stated that he was conferred with --- 2 --- the benefit of special pay of Rs.250/- from 1/1/96 vide order dt. 29/8/98 and later on this benefit has continued till his retirement. The petitioner's grievance is that the respondents have after his retirement directed recovery of Rs.43213/- from the gratuity of the petitioner on the ground that he was not entitled for special pay as benefit of FR 22 D was extended to him. This Court has carefully gone through the impugned order (Annexure P/10) which makes it very clear that the respondents have recovered the amount on account of alleged erroneous pay fixation and on account of alleged erroneous conferral of special pay to the petitioner. However, the fact remains that the petitioner was not at all responsible in the matter of pay fixation nor there was any misrepresentation on the part of the petitioner at any point of time. Resultantly keeping in view the judgment delivered by the apex court in the case of Shyambabu Verma Vs. Union of India & Ors., reported in 1994 (1) SCC 683 and Sahibram Vs. State of Haryana reported in 1995 (1) SCC 18, this Court is of the considered opinion that the recovery --- 3 --- ordered against the petitioner is bad in law as the petitioner was not at fault in the matter of pay fixation at any point of time. Resultantly, the recovery directed by the respondents against the petitioner is hereby quashed. Respondents are directed to refund the amount deducted from the gratuity of the petitioner ie., Rs.43213/- with interest @ 8.5% within 90 days from the date of receipt of the certified copy of this order. This Court has carefully gone through the the judgment delivered in the case of Suresh Chand Pandey Vs. State of MP & ors., 2004 (3) MPLJ 316 wherein the learned Single Judge has held that employees promoted prior to 1/1/96 are also entitled for special pay of Rs.250/- even after the enforcement of MP Revision of Pay Rules, 1998. This Court in para 10 and 11 in the aforesaid case has held as under : 10. To appreciate the crucial aspect the rules arc to be read, in my opinion, in a purposeful and acceptable manner. The sub- rule (1) of Rule 10 lays down that the Government servants who are in receipt of special pay in addition to pay in the existing --- 4 --- scale of pay and where the existing scale of pay with special pay has been replaced by a scale of pay without any special pay, the special pay as attached to any other post will continue to be so attached with the revised scale of pay till the Slate Government otherwise directs. To appreciate this rule the background is necessary to be noted. Prior to the revision of pay scale there are certain categories of employees who were availing the benefit of special pay. On such revision their special pay is protected subject to the orders to be passed by the State Government. Thus, the protection is temporary in nature. The sub- rule (2) projects and encapsules, in my humble view, a different type of scenario. It covers such cases where the scale of pay before and after promotion were different and there has been merger of pay scale into one pay scale under the rules and such employees who arc holding the existing post after promotion would be entitled to Rs. 250/- per month in the scale of pay revised under these rules. It is not disputed at the Bar that the pay scale of UDC and the Accountants merged into one pay scale. Under these Rules the pay scale is Rs.4000-6000/', as has been prescribed in Item No. 7 under Schedule I to Rules 2 and 4. In this context one is concerned with sub-rule (2). Mr. Yadav has laid emphasis on the language of sub-rule (2) to show that the person who is promoted after present set of Rule came into play would get Rs. 250/- per month as special pay. In fact, that is the clarificatory note contained in Annexure A-l. Mr. Tiwari, per contra, submitted that such an interpretation of the Rules would not only lead to absurdity but would also frustrate the purpose of the Rule. It is contended by him that the clarificatory letter- circular contained in --- 5 --- Annexure A-l is not really clarificatory but creates more ambiguity and confusion. The real key words in sub-rule (2) are "the Government servants who arc holding the existing posts after promotion". There is no cavil over the factum that from the posts of UDC the persons have been promoted as Accountants. This arrangement has been continuing from inception of Promotion Rules, 1978. Thus, there can be no trace of doubt that the petitioner or the likes of the petitioner were promoted from the post of UDC to the post of Accountant. The hub of the matter is that the persons holding the existing post after promotion would only exclusively mean that the promotion that has taken place after 1-1-96. The letter circular contained in Annexure A-1 stipulates that the promotees who were promoted prior to 1-1-96 would not be entitled to get the special pay of Rs. 250/- as they availed the benefit of Rule 22 (D). The circular, if I am allowed to say so, has travelled beyond the rules. By no stretch of imagination, it can be said to be in consonance with the Rules. There is no earthly reason to interpret the sub-rule (2) to be in prospective manner. It does not say so. What it states is that the State Government servants who arc holding the existing post after promotion. The natural meaning to the words "are holding" and "existing" is to be given. There is no justification to give narrow meaning to the said terms to convey the meaning that the Government servants who are promoted only after 1-1-96 are covered. Such construction endowed on the Rules would only tantamount to artificial conferral of meaning inasmuch as words used are "arc holding the existing post after promotion" are plain and clear. There is no ambiguity in the language used. May be there has been some doubt by --- 6 --- someone at some stage and a clarificatory letter has been issued but when a set of rules has been framed under Article 309 of the Constitution and it is quite clear, unambiguous and conveys appropriate meaning and there is no need to search for any other meaning as that would usher in a sense of artificiality and confusion. To elaborate : the language used in praesenti is manifest from "Government servants who arc holding the existing posts after promotion". It would singularly mean that the Government servants must be in the cadre of Accountant by the time the Rules came into force. If the Rule Making Authority desired to say that the entrants into the promotional sphere after 1-1-96 would only get the benefit, then there was no reason not to say so. In addition, there was no justification to say that 'are holding'. If the entire part of the rule is read in proper perspective it really does not convey what Mr. Yadav would like this Court to understand. 11. In view of the aforesaid analysis, I am of the considered view that the letter circular contained in Annexure A-1 can not be attracted and that does not really spell out the purpose of the rule clearly. The Accountants who are holding the existing post after the rules came into force on 1-1 -96 would mean if they are holding the promotional post in the cadre and all of them would draw the special pay of Rs. 250/- as per the provision envisaged under Rule 11 which deals with payment of arrears of pay. To restrict it to the promotees after 1-1-96 would cause violation of the Rules. I may hasten to add, though the learned Counsel for the State has endeavoured hard to submit before this Court that 'such a case' should --- 7 --- have nexus with the categories of cases covered under sub-rule (1) to my mind same docs not appear to be correct as such case would only mean the cases as have been described or dealt with in sub-rule (2). Both the rules deal with different categories of cases and there is no reason to club them together as by such clubbing no clear cut meaning results but a sense of confusion is created. When the Rule Making Authority has already couched the words in a language which is unambiguous and clear nothing should be read or added to it as such addition would only land up one in a state of confusion. And that is not the purpose of interpretation. Resultantly as the controversy involved in the present case stands concluded, the petitioner shall be entitled for consequential pay fixation by taking into account the special pay of Rs.250/-. The writ petition stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR