: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8061 OF 2005 WRIT PETITION NO.8061 OF 2005 WRIT PETITION NO.8061 OF 2005 Alka M. Joshi .. Petitioner. Versus Union of India & Ors. .. Respondents. Ms.D.Fernandes for the petitioner. Mr.P.R.Shetty with Mr.N.R.Prajapati for respondents. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & R.Y. GANOO, JJ. R.Y. GANOO, JJ. R.Y. GANOO, JJ. DATE : 26th June, 2008. DATE : 26th June, 2008. DATE : 26th June, 2008. P.C.: P.C.: P.C.: 1. By this petition, the petitioner takes exception to only that part of the order dated 12.1.2005 passed by the Central Administrative Tribunal in O.A.No.816 of 2003 by which the Tribunal has held that the fixation of the pay done by order dated 9.12.2002 is proper. 2. The necessary facts are that the petitioner was working in the post of Tax Assistant. The pay scale of : 2 : that post was Rs.1350/- to Rs.2200/-. On her own request, she was appointed to a lower post i.e. U.D.C. The scale of that post was Rs.1200/-to Rs.2040/-. At the time of appointment of the petitioner as U.D.C. at her own request, she was drawing Rs.1800/- per month as the pay. 3. According to the petitioner, in view of the provisions of Fundamental Rule 22 while fixing her pay in the post of U.D.C., she would be entitled to the protection of her pay. That application has been rejected by the Tribunal by relying on the provisions of Fundamental Rule 22(I)(a)(3). That Rule has been quoted by the Tribunal in its order. That Rule says that if a person who has been appointed at his own request to a lower post, then, he is entitled on the date of his appointment to the maximum pay of the post to which he is appointed. 4. In case of the petitioner, on the date of her appointment, she was not drawing the maximum pay applicable to the post of U.D.C. and, therefore, according to the Tribunal she was not entitled to the protection of her pay. 5. Learned Counsel for the petitioner, however, : 3 : invited our attention to proviso to Fundamental Rule 22(I)(a)(3). Perusal of that proviso shows that when a person, who is on his own request appointed to a lower post and is not drawing highest pay applicable to the post to which he is appointed, then, also he is entitled to the protection of his pay, provided he fulfils certain conditions. The condition which is relevant in the case of the present petitioner is that the person should have held the same post previously. In the case of the petitioner, she was holding the post of U.D.C. previously before she was appointed as a Tax Assistant. Therefore, according to the petitioner, that proviso would apply in the case of the petitioner. 6. We have heard learned Counsel appearing for the respondent. He is not in a position to dispute that the proviso was relevant for deciding the case of the petitioner and that the Tribunal has not considered the proviso. 7. After having heard learned Counsel appearing for both the sides, in our opinion, in view of the proviso to the Rule referred to above and the fact that the petitioner fulfils the condition which is laid down in the proviso, petitioner would be entitled to the protection of : 4 : her pay on the date of her appointment as U.D.C. and, therefore, the respondent was not justified in re-fixing the pay of the petitioner by order dated 9.12.2002. 8. In the result, therefore, the petition succeeds. The order of the C.A.T. Insofar as that part of the order dated 9.12.2002 which re-fixes the pay of the petitioner is set aside. The respondents are directed to fix the pay of the petitioner in accordance with the above referred provisions of the Fundamental Rule and in accordance with this order. 9. Rule is made absolute accordingly with no order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)