WP(C) 4973/2003 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI Heard Mr J Ahmed, the learned counsel for the petitioner and Mr BJ Ghosh , the learned State counsel. Though the writ petition is directed against the denial of the pay scale of Rs. 1785-4200/- pm to the petitioner on his appointment as Sub Registrar in the Revenue (Registration) Department, Govt. of Assam, the learned counsel for t he petitioner, in the course of hearing, has confined himself to the non payment of the last pay drawn by him in the post of Assistant Research Officer in the e stablishment of Border Areas Department, Dispur, Guwahati. The facts are not in dispute. The petitioner was first appointed as Assistant Research Officer in t he office of the Director of Border Areas, Assam in the pay scale of Rs. 1785-42 00/- pm vide notification dated 19.02.1996. He joined the post immediately and had continued to hold the post till 9.6.97. In the year 1997, he was selected f or appointment to the post of Sub Registrar in the Department of Revenue (Regist ration) Govt. of Assam in the pay scale of Rs. 1475-3825/- pm vide notification dated 10.06.1997 (Annexure 2). Since then, he has been working as Sub Registrar in the Revenue Department (Registration) Department, Govt. of Assam. Admittedl y, the pay scale of Assistant Research Officer in the office of the Director of Border Areas, Govt. of Assam is higher than the pay scale of the Sub Registrar i n the Revenue (Registration) Department. It is also true that the petitioner on coming to a different department though under the same Government could not hav e carried over the pay scale of the post of Assistant Research Officer last held by him. However, he is entitled to the maximum pay drawn by him in the post le ft behind by him. The law is now firmly settled by this Court in Comptroller an d Auditor General of India vs. Farid Sattar, reported in AIR 2000 SC 1557, the r elevant portion whereof is at paragraph 5, which reads thus : 5. It is no doubt true that unilateral transfer which is said to be coined by t he appellants is not contemplated under the Fundamental Rules. What is contempl ated is the transfer on written request under Fundamental Rule 15. But if such a transfer is not contemplated under the Fundamental Rule, it is not necessarily to be governed by the Fundamental Rule, but by the terms and conditions of such unilateral transfer. Fundamental Rule 22(I) (a)(2) provides that, when an empl oyee is transferred to a new post, which does not involve assumption of duties a nd responsibilities of greater importance, he shall draw as initial pay, the sta ge of the time scale which is equal to his pay in respect of the old post held b y him on regular basis. Thus FR 22(I)(a)(2) would be applicable where there is an ordinary transfer which is not by way of reversion to the lower post and in s uch a case, the pay of an employee on transfer to a new post has to be protected . Fundamental Rule 22(I)(a)(3) is applicable where an employee is transferred t o a new post on his own request under sub-rule (a) of Rule 15 and further in suc h a transfer no reversion is involved. In such a transfer to a new post if the maximum pay in the time-scale of the transferred post is lower than his pay in r espect of the old post held regularly, he is required to draw that maximum as hi s initial pay. For illustration-an employee working in a pay scale of Rs. 1400- 2600 was drawing pay at the stage of Rs. 2040 and he is transferred on his own r equest not involving reversion to a post which carries pay scale of Rs. 1200-240 0, in such a case, the maximum pay which he was drawing vis., Rs. 2040/-. It is not the case here. Here, what we find is that the respondent on his own voliti on sought transfer on certain terms and conditions accepted by him. The terms a nd conditions of unilateral transfer are very clear and there is no ambiguity in it. The terms and conditions provided that the respondent on transfer would be appointed to a post which is lower to the post which he was occupying prior to his transfer and he was also required to tender technical resignation from the p ost which he was holding with a view to join the lower post as a direct recruit and was to rank junior to junior most employee in the cadre of Accountant. He w as further required to forego any benefit of passing any departmental examinatio n while working in the higher post. In such a situation, the pay of the respond ent had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher post since he was to be considered as a d irect recruit in the lower post. In the instant case, vide the Pay/Leave Salary Slip dated 8.8.97 issued by the office of the Accountant General (A&E), Assam, the last pay drawn by him on 1.8.97 when he joined the post of Sub-Registrar was Rs. 4597.20p while the pa y drawn by him as Sub-Registrar on 30.8.97 when he joined this post was Rs. 3669 .50p vide the Pay/Leave Salary Slip dated 30.09.97 issued by the office of the A ccountant General (A&E) Assam. Thus, there can be no dispute that the maximum p ay which the petitioner was drawing as Assistant Research Officer shall have to be protected. To this extent, the interference of this Court is called for. In the result, the writ petition succeeds partly. The State respondent No. 1 is accordingly directed to pay the maximum pay drawn by the petitioner in the post of Assistant Research Officer, Office of the Director of Border Areas, Assam, with effect from the date he joined the post of Sub-Registrar in Revenue (Registration) Department Govt. of Assam. The exercise shall be completed by the m within a period of three months from the date of receipt of this order. No cos ts.