HIGH COURT OF CHHATTXSGARH AT BILASPUR @ WRIT PETITION (S) No. 1021 of2009 PETITIONER : Shyamji Sahu S/o Lat/c 3agatram: agéd about 69 years, R/o village Salta, Post Sargaon, via Bilha, District Bilaspur (C.G.) RESPONDENTS VERSUS . State of Chhamsaarh Throuah the Seuretarv Suhooi Edugatlon Depamnent DKS Bhawan, Raipur, Chhamsoaxh 2. Pension Nirakaran Samiti Through — The Secretmy, Government of Chhattisgarh, General Administration Depaimxent, D.K.S. Bhawan, Raipur Chhattisgai‘h Lu Y..:...4. T\: . Join; umacton Treasury, Accounts mid Pension, Bilaspur Division, Bilaspui (C.G.) 4. District Education Officer, Bilaspur, Dist: Biiaspur (C.G.) 5. The Principal, Government Higher Secondary School Patharia Dist Bilaspui WRIT PhTITIO‘x UNDER ARTICLE 246 OF THE COVSTITUTION OF INDIA SB Hon ble Slam Satlsh K Agmhotn, J ‘r‘reseiit: Shri Raxesri 1 1 ‘n raiidey, Advocate for the oetitioner. Shri Y S Thakui Deputy Advocate General with Ms. Sunita Jain, Panel Lawx er for the State respondents ORAL ORDER (Passed on 07a; day of May, 2009) In the instant petition, the question of law involved is asto Whether the petitioner is entitled to benefits of initial pay in the time seale of higher post and being appointed to another post carrying duties and responsibility of greater importance, in accordance with Fundamental Ruies 22-D. 2. The faets, in brief, are that the petitioner was promoted to the post of Lecturer vide order dated O8.G8.l99l (Annemre P/3) as recorded in the service book. Admittedly, the petitioner assumed the charge of Lecturer on 09.10.1991. On attaining the age of superamuation, the petitioner retired from service on 28.02.2003. The petitioner was given the benefit of 22-D of Fundamental Ruies with effect from the date ofjoining i.e. 09.10.i991. His pay was subsequently revised and it was directed to grant the benefit of 22-D with effect from the date of actual promotion to the post. 3. Being aggrieved, the petitioner'approached this Couit in WP. No. 322l/2004. This Court, vide order dated 12.03.2008, referred the matter @ i0 the High Power Pension Committee as constituted to resolve the disputes with regard to retirai benefits. The Pension Committee, by order dated 13.8.2008 (Annexure P/l) dismissed the grievance of the petitioner on the ground that the petitioner has Withdrawn the pay being the drawing and disbursing officer, he would not be entitled to benefit of 22-D as the petitioner was actually not promoted though he was working on the higher post. Thus, this petition, 4. Learned counsel appearing for the State/respondents submits that the effectiveness of FR 22-1) was subsequently modified vide circuiar dated 12.10.2004 with effect from 01.072000104072000 (Annexure R/2). Thus, the petitioner is not entitled to the benefit of FR 22-D with effect from the date he joined the promoted post and worked on the promoted post. The question of law involved in this case came into consideration in Chima M'ani Gupta v. State ofChhattisgarh & Others]. This Court, after having considered the case, observed as under; “6. Thus, non—abstame 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 peiusai of the FR 22—D niakesyit clear that a Government sen/ant holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary, or olticiating 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 tixed at the stage of next above the pay notionally arrived at by increasing his pay in respect ofthe lower post by one increment at that stage. The day an employee is promoted to the higher post canying higher responsibility, he becomes entitled to the be.efits under FR 22—D from that day.” 6. Shri Pandey, learned counsel appearing for the petitioner has cited decision of the M.P. Administrative, Tribunal in O.A.No. 224 of 92 (Smt. Kzmtz' Saxena Vs. Stare qfMP. and others) wherein the Tribunal observed 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 givenrgovernment servant < where the higher post of the scale identitied which the scale U1 ‘ lwy. No. 4797/2004 .’\ of pay of the lower post but is distinguished by a speciai 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 lixed accordingly, benefit should be given Within a period of six months from today.” The above stated order of the Tribunal passed 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 Kunzz' Saxena '(supra), the M.P. State Administrative Tribunal in the case of Mansharam Yadav‘ Vs. Govt. ofM.P. and others; passed the following order. “As regards the analysis of duties and responsibilities of the post of Head Master and Lecturer, there could be no golden scale to weigh the responsibilities assigied 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 provisions of FR. 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-I post in substantive, temporary or officiating capacity to a higher post which is also a Class —I " A division bench of High Court of Madhya Pradesh at Jabalpur in Ramesh Kumar Mishra Vs. State ofM.P. and other? observed as under: 8. “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 appointed substantively 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” “FR. 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; v 1999 (HyMPLSR 145 é 1979 (3) MPSLR 232 \ (b) When appointment to the new post involves the assumption of duties or respomibilities of greater importance (as interprated for purposes of rule 30) than those attaching to such permanent post, he will draw as initial pay ihe 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 responsibilities 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 Govemment servant holding a lien on one post and, who was appointed as another substantive post under the Government.” It is clear irom above that the post of lecturer is a promotional post. Contention of learned counsel for the State that the pay scale of Head Masters and Lecturer‘is similar, is not supported by any document. Since the recovery order was passed without att‘ording proper opportunity of hearing to the petitioner, the order of recovery is bad in law in the light of decisions of Hon’ble Supreme Court in the matters of Shyam Babu Verma and others Vs. Union offndz’a and atheist Sahib Ram Vs. state QfHaryana 9rd other? and decision of this Court in Vidyadhar Tiwari Vs. State 0fChhattz‘sgarh and other? 10. In View of the foregoing, the petition is allowed and the orders dated 13.08.2008 (Annexure P/l) and 13.08.2007 (Annexure Pl'2) directing recovery of the excess payment are quashed. In case the amount has been recovered, the same shall be refunded back to the petitioner with simple interest. Accordingly, the petitioner is entitled to benefits of FR 22-D. No order asto costs. Sd/— Satish K. Agnihotri " Judge Amit ’4 (1994) 2 scc 5-21 5 (1995) Supp (n soc 18 x6 2006 m MPHT (CG) 105‘ _.:.\_s