IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9427 of 2003 RAMADHIN THAKUR Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Nand Kumar Singh, Advocate For the State : Mr. Pritish Kumar Lal, J.C. to S.C.XI For the Accountant General : Mr. Chakradhari Singh, Advocate. ----------- 06/ 23-09-2008 Heard learned counsel for the parties. With effect from 01.1.1996 petitioner was getting his pay in the revised scale of Rs.4000-6000. However, by dint of seniority he was put at the highest point of scale i.e.6,000/-and 656 was granted to him as personal pay. On the date of retirement i.e. 31.12.2001 he was drawing the same. However, subsequently petitioner’s case was considered for promotion to the post of Head Clerk along with others and by order dated 14.2.2003 (Annexure-3) petitioner was promoted to the post of Head Clerk and was placed in the scale of Rs.4500-7000. Petitioner’s case is that as he was getting Rs.6,656/-in the grade of Clerk, his pay scale in the grade of Head Clerk should 2 have been fixed at the next higher point in the scale of Rs.4500-7000 taking into account his last pay drawn, which was Rs.6,656/-. When the matter of revision of pension of the petitioner was placed before the Accountant General, the Accountant General found that out of Rs.6,656/-, 656/- was his personal pay and, therefore, in terms of the Finance Department letter no.22/2000/1336 dated 03.3.2001 (Annexure-C to the counter affidavit), petitioner was not entitled to get the benefit of his personal pay in fixation of his pay in the higher grade. Accordingly by Annexure-1 the scale of the petitioner was revised and fixed in the higher grade of Head Clerk and was communicated to his Controlling Officer with stipulation that in case on account of difference of pay fixation, the petitioner has received some monetary benefits, the same should be adjusted. Petitioner has challenged this order of the Accountant General in this application. The contention of the petitioner is that in view of the Fundamental Rule 22(i) as 3 quoted in paragraph-15 of the writ application, petitioner was entitled for fixation of his pay in the higher grade taking into account his last pay drawn in the lower grade. Learned counsel for the Accountant General submits that since the instruction of the Finance Department in this context is very explicit, the Fundamental Rule shall not apply in the case of the petitioner and the petitioner is not entitled for consideration of personal pay for the purposes of fixation of pay in the higher grade. From bare reading of the relevant portion of the Fundamental Rule as quoted in paragraph-15 of the writ application it is not clear that the personal pay granted to an incumbent in the lower grade has also to be taken into account for fixation of pay in the higher grade on promotion. The Fundamental Rule talks about fixation of pay “at the stage next above the notional pay arrived at by increasing his pay in respect of lower post holding him”. Learned counsel for the Accountant General has rightly contended that 4 in view of specific instruction of the Finance Department in this regard the same has to be governed in the case of the petitioner. Moreover, he has explained that pay scale in the higher grade has to be fixed on the basis of maximum of the scale he was getting in the lower grade but in the higher grade also he has to be given personal pay to match the amount, which he was getting in the lower grade on reducing basis as and when the petitioner gets increments in the higher scale. From Annexure-1, he has satisfactorily demonstrated that as and when the petitioner has been given increment in the higher scale, his personal pay has gone on reducing but without any financial loss to the petitioner. Thus, it is apparent that the pay of the petitioner revised and fixed by Annexure-1 by the Accountant General was in accordance with law and as per instruction of the Finance Department as contained in the said letter dated 03.03.2001. Thus, it is apparent that due to misunderstanding in the interpretation of the circulars and orders of the Government, 5 petitioner’s pay was fixed at Rs.6,656/-. In the circumstances, since it was on account of interpretation of the provisions of law, namely circulars of the Government that the petitioner’s pay was temporarily fixed at the highest rate, this Court is of the view that the respondents are not entitled to recover any arrears of pay, if paid to the petitioner on account of said wrong fixation, and, therefore, part of Annexure-1, by which authorities of the Government have been directed to adjust the difference of pay of the petitioner on account of wrong fixation of pay, is quashed. Learned counsel for the petitioner submits that GPF amount of the petitioner was sanctioned on 30.9.2002 but the said amount was paid to the petitioner on 17.10.2002, whereas interest of the amount was calculated till August, 2002 only. Therefore, he submits that petitioner’s one month’s interest on GPF amount has not been paid, which has been acknowledged by respondent no.2 vide Annexure-A/1 to the counter affidavit. This matter can be well looked into by the 6 District Provident Fund Officer, Patna. If he finds that petitioner is entitled to one month’s interest in accordance with law, then he shall be well advised to sanction the amount in favour of the petitioner. In the result, this application is partly allowed with the above observations and directions. A.H./ ( J. N. Singh , J. )